2nd Parliament · 1st Session
The President took the chair at 2.30 p.m., and read prayers.
Senator MACFARLANE presented a petition from four electors in the State of Tasmania praying the Senate not to sanction the introduction, sale, and manufacture of intoxicating liquors in British New Guinea.
” GUNNERS WITHOUT GUNS,”
– I desire to ask the Minister of Defence, without notice, the following questions : -
Has his attention been drawn to an article appearing in ‘ the Melbourne Argus of recent date,headed “ Gunners without Guns,” and if so, is he prepared to make a statement on the subject?
– My attention was directed to the article by the honorable senator, and the following statement in reply has been . drawn up: -
For the use of the first five batteries mentioned, there are four 15-pounder guns on issue at present at the disposal of the Commanding Officer for drilling any of those batteries. Six. guns that were sent home for conversion are now arriving, and they will shortly be issued.
Twelve more guns are now at home undergoing conversion. With regard to No. 6 halfbattery, which is at Hastings, they have two 40-pou’nders, which will be replaced by 15- pounders, as soon as they are converted, which is expected to be done here. There was an accident at Queenscliff in firing the guns, owing to omission to lock the breech of the handle lever after closing.
Up to April last, four 40- pounders R.B.L. guns were on charge at Hastings. Two of these guns were then withdrawn, and replaced by two impounder B.L. There are two 40-pounder R.B.L. guns still at Hastings. Horses have never’ been provided for these guns.
In June last, the two 12½-pounder B.L. guns were withdrawn from Hastings, and sent to England for conversion. The total amount provided for on Estimates 1903-4 for ammunition was£3,200. This was allotted as fol-. lows : -
It was not intended that any ammunition should be expended at Langwarrin. Provision was made for the annual practice being carried out at Lancefield.
The policy of converting the guns was adopted on the recommendation of the Colonial Defence Committee at home, and also by a Committee of officers here, of which Colonel Byron was President. Careful inquiry was made as to the possibility of carrying out the conversion locally, and it was not found practicable.
The officer in charge at Fort Phillip Heads was Lieutenant-Colonel Wallace. I am quite satisfied that the arrangements made by him for picketing the . horses were properly carried out.
Senator DAWSON laid upon the table the following papers: -
Proceedings of Committee of Organization of Cadet Corps.’
Ordered to be printed.
Amendment of Regulations under the Defence Act.
asked the Minister of Defence, upon notice -
Officers will be required to undergo in each year a course of twenty-eight days’ drill on. board one of the drill ships, and during this period of drill they will receive the following allowances in lieu of lodgings and provisions, as they will not be accommodated on board?
– The answers to the honorable senator’s questions are as follow : -
Provision is also made, it is pointed out, in the regulations under the Naval Agreement for officers to be appointed for periods of training on board sea-going ships, of not less than three months or more than twelve months ; and,- of course, such officers will be continuously on board.
– I desire to ask the Minister of Defence, whether it is not a fact that the Naval Militia of the Commonwealth are required to serve three sets of six days’ continuous training on board ship ?
– That regulation has not been passed yet.
– I understood that it had appeared in the Gazette.
– The matter’ has not been definitely settled. There is a conflict of authority, and the regulation, although it has appeared in the Gazette, has not yet been put into force. Some information of a definite character will be received shortly. 6f
asked the VicePresident of the Executive Council, uponnotice -
Referring to the orders of His Majesty in: Council, dated 29th January, 1904, and published in the Commonwealth Gazette of 9t1, July, relating to the re-measurement of Spanish and French ships in British Ports ; what steps, if any, have the Government taken to enforce such orders, in the ports of the Commonwealth?
– The answer to the honorable senator’s question is as follows : -
The Commonwealth ls not at present concerned in this matter. The order mentioned refers to questions of tonnage in regard to the collection of light, pilotage, harbor, or tonnage dues, &c. These matters are still under the control of the States. Until a Navigation and Shipping Act be passed the Commonwealth has no control.
asked the Vice-President of the Executive Council, upon notice -
– The answers tothe honorable senator’s questions are asfollow : -
asked the Vice-President of the Executive Council, upon notice -
Will the Government lay upon the table of the House the’ report received from the late Chief Justice and Acting Administrator of British New Guinea regarding the attack recently made on the Papuans of Goaribari Island?
– The answer to the honorable senator’s question is as follows : -
All the papers connected with the incident are in Sydney, and are being laid before the Royal Commission, which is now inquiring into the matter. The reports referred to will probably be published as part of the proceedings of the Commission.
– It is public property ; it has been given to the press.
– Why .cannot it be laid on the table of the Senate?
– Because it is in Sydney. .,
– I do not see that there’ is any necessity to debate the measure at this stage, because it has been very exhaustively discussed. A suggestion was made that this Bill should not be read a third time until the Trades Marks Bill had been passed ; but really one Bill does not depend on the other. There is no necessity for delaying the passage of this Bill, and therefore I move -
That the Bill be now read a third time.
– I objected to the third reading of this Bill being taken as formal business simply to enable me. to move for its recommittal for the insertion of a clause which I think will commend itself to most honorable senators. Clause 13 explicitly prohibits the importation of goods fraudulently marked or fraudulently’ described, and I desire to secure the insertion of a clause which will prohibit the exportation of goods . which . may be fraudulently marked or fraudulently described. I think it is quite as important to purify th-s export trade as to purify the import trade. To take any steps which will give a higher character to the import trade than to the export trade is not advantageous to Australia. At any rate, it appears to me that it is simple justice, and in the direction of promoting Australian interests, that the care which the Commonwealth exercises in respect of goods which are imported should also be exhibited in regard to goods which are exported.
– Cannot they be got at under the Bill?
– I am not sure that they can.
– Imported goods can be got at under clauses 9 or 10.
– Even if such goods are found .in the possession of a person, he is liable to penalties under clause 10.
– If the honorable senator is in favour of the view which I take, I imagine that he cannot object to the insertion of a clause which will make the Bill apply to exports with the same clearness as it now applies to imports. Therefore, I move -
That the Bill be recommitted with a view to the insertion of a new clause.
The new clause I desire to have inserted reads as follows: -
The exportation is prohibited of all goods >o which any forgery of a registered 1 trade mark, or any false trade description is applied, or to which any trade mark is falsely applied. Such goods shall on attempted exportation be forfeited to the King.
I could give the Senate, if necessary, a great deal of information as to what is done in many countries to insure the exportation of thoroughly honest goods.
– Is the honorable senator on the track of the Butter Commission ?
– I am not on the track of any special trade, but I am on the track of dishonest trading. In America there is an institution, known as the New York Produce Exchange, which has been armed with very considerable powers by the Congress to promote the shipment of goods, the correct packing and description of which is guaranteed. I am certain that it would be to the benefit of Australian commerce if we were to exhibit equal care with regard to our exports. At any rate, it is not desirable that we should pose before the world as if we cared little as to what we send to other countries, whilst we intended to keep a very keen eye on what other countries .send to us.
Senator MILLEN (New South Wales).In seconding the motion for the recommittal of the Bill, I desire to say a word regarding it. The matter which the honorable senator has brought forward is one which can hardly fail to command the sympathy of members of the Senate. But whilst listening to the honorable senator’s remarks, my attention was directed by an interjection made by Senator Drake to the fact that it is possible that the Bill as it stands provides for what Senator Pulsford Has suggested. I am in entire sympathy with Senator Pulsford’s desire to stop fraud in connexion with our exports. Honorable senators must be aware that since Australia commenced to export there have been from time to time complaints reaching us from London as to the doubtful quality of some goods shipped from Australia. In the interests of our primary producers, it is extremely desirable that goods which are sent home should be what they are represented to be. It appears to me that clause 10 of the Bill deals with the matter. It provides that -
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, or any false trades description is applied, or to which any trade mark is falsely applied, shall be guilty of an offence against this Act.
I am now prepared to dogmatize as to how far that clause will go, but it appears to me to provide foi such cases as Senator Pulsford has in mind. If it is held that it will not cover exports, it might be thought preferable to amend it by making it read, “ or for any purpose of trade, export, or manufacture,” rather than to introduce a new clause.
– “ Trade “ covers export.
– I think it does, but thtre may be loop-holes in’ dealing with exports. I may pretend that I am sending home something for my own use, and I do not know that that could be said to be “trade.” Last week I happened by pure accident to be brought face to face with a number of gentlemen connected with the butter industry - the managers of factories in New South Wales, who had met in their annual conference. They discussed and laid bare the ramifications of a business going on in Sydney by which certain people buy up the butter-boxes of well-known factories after they have been emptied by local consumption, and refill them with inferior butter, which is exported.
– They are not socialists.
– I think they are.
– They are free-traders.
– It is cases of that kind which appeal to me, and while we should not at any time give undue favour to any section of the community, it is the duty of the Legislature to prevent fraud and secure to the maker of a superior article the benefits to which he is entitled by his enterprise and knowledge. I am entirely in sympathy; with Senator Pulsford, and will vote for the amendment he suggests unless it is made clear that the clause to which I have referred can be so amended as to accomplish what is desired.
– I point out as a matter of procedure that the Committee can only consider the matter delegated to it. If, therefore, the motion submitted by Senator Pulsford, is carried as proposed, the Committee will be unable to consider clause 10. Perhaps it would be better, if the Senate so desires, that the Bill should be recommitted for the purpose of considering the new clause to be proposed bv Senator Pulsford, and also for the reconsideration of clause 10.
– If no other honorable senator desires to speak, I wish to say that I prefer the “new clause suggested by Senator Pulsford, and I am very glad that the honorable senator has taken the trouble to think it out. My only regret is that he did not inform me of it a little earlier. I wish to point out to Senator Millen the difference between the proposed new clause and an amendment of clause 10. If we simply amend clause 10 in the manner suggested, we shall only bring the offender under the penalties provided by that clause, but if we deal withlhe matter in the form suggested by Senator Pulsford we shall not only bring the culprit under all those penalties, but the goods will be liable to forfeiture. It would be simpler, and, in my opinion, better for the reputation of Australia, that we should accept Senator Pulsford’s amendment. I therefore withdraw’ my objection to the recommittal of the Bill for the purpose of considering it.
– I apprehend that it is proposed to recommit the Bill for the re-consideration of clause 13.
– I can only put the motion as it is submitted to me.
– I point out that the headings of - divisions are read as a portion of the Act, and the heading of the division in which clause 13 appears is “ Importation of fraudulently marked goods.” That would require to be altered to read “ Importation and exportation of fraudulently marked goods.”
– That would not be necessary ; the headings of an Act are not law any more than are the sidenotes.
– Allow me, they are read as a portion of the Act, and that makes agreat difference.
– It does not with the Judges.
– With the Judges it distinctly does make a difference. Clause. 13 says, “ The following goods are prohibited to be imported.”
– That is different.
– It is not different, from the legal stand-point. If Senator Pulsford desires to insert a new sub-clause-
– No, a distinct clause.
– I understood the honorable senator to cite clause 13, and to discuss that clause ; but, if a new clause is proposed, what I have said will not apply, as it need not come, under this heading. I draw attention to the fact that the leader of the Senate said he had no objection to the amendment coming under clause 13, because it would enable forfeiture of the goods to take place.
– What is proposed is a new clause.
– Then it will not be under clause 13, and will be a separate clause altogether.
– And possibly under a separate heading.
– I make the suggestion that the whole Bill should be recommitted, of course, on a certain understanding. That should not necessarily mean that the whole discussion on points on which we have arrived at a decision shall be reopened ; but the new proposal opens up a new phase of the subject, and it may be found necessary, if we adopt it, to alter some other provisions of the Bill. If we have the whole Bill at our disposal we shall not be hampered in dealing with the new provision proposed.
– Before the honorable senator resumes his seat I remind him that he has not moved any amendment, and I must put the motion as it has been submitted to me.
– Senator Pulsford might, with the consent of the Senate, alter his motion, and I suggest to him that he should so alter it as to provide for the recommittal of the whole Bill.
– Could trie motion be submitted in the form “ That the Bill be recommitted with a view to adding another clause or other clauses “ ? If in Committee a new clause or more than one are added we might make them a separate part of the Bill under an appropriate heading. This is a new subject. We have dealt with the importation of fraudulently marked goods, and Senator Pulsford now proposes that we should deal with the exportation of fraudulently marked goods, and some special provisions might be found necessary in dealing with the subject. I suggest that the motion should be sub mitted in such a form as to enable the Senate in Committee to add a new clause or clauses under a separate heading.
– I submit that it would be well to recommit the Bill unreservedly, on the understanding that no advantage would be taken of that. We do not know where a consequential amendment may become necessary. If the Bill is recommitted without reserve, we shall be able to do all that is necessary to give effect to an idea which appears to have general approval.
– I wish to support trie proposal to recommit the Bill unreservedly. The subject has been sprung upon the House somewhat suddenly, though, of course, there may be reasons why Senator Pulsford could not bring the matter under the notice of the Senate before. In all probability, the Committee will find it necessary, if the new proposal is adopted, to amend other clauses of the Bill. If a qualification is put upon the motion to recommit for the considera-tion only of certain clauses, “the hands of the Committee will be tied in dealing with the subject, and that may lead to further delay.
Senator PULSFORD (New South Wales). - With the permission of the Senate, I desire to amend my motion, so that it shall read “That the Bill be recommitted. “
Motion amended accordingly.
– I feel that an apology is owing from me to the VicePresident of the Executive Council, for not having informed him of my proposal, in all courtesy, and in accordance with the usages of Parliament. As a matter of fact, the amendment I have suggested was drafted only as I came by the train this morning, though I have been giving the matter thought for some time. I trust that Senator McGregor will pardon me for the apparent lapse of courtesy.
Question - That the Bill be recommitted - resolved in the affirmative.
In Committee. (Recommittal).
Clauses 1 and 2 agreed to.
Clause 3 -
This Act is divided into parts as follows : -
Part III. - Importation of fraudulently marked goods…………
– I move -
That after the word “ Importation,” line 2, the words “ and exportation “ be inserted.
– However desirous I may be that all our exports shall be of a reliable character. I perceive that we may cause great trouble if we include exports in this Bill. In such a case as that mentioned by Senator Millen, it might be said that a large quantity of butter which it was sought to export was not properly branded, and, therefore, the shipment would be stopped, causing serious delay. I am not saying that the export of fraudulently marked butter should not be stopped, but we ought to be careful in our legislation not to discourage the export trade. %
– What we are trying to do is to stop fraudulent export.
– I am only anxious that the machinery we devise shall not be so troublesome as to delay export. If we draw a hard-and-fast line, questionable though not fraudulent exports may be stopped, and the result may be a fall in the market value of -the goods.
– That would be the fault of the exporter.
– A criminal law might be objected to on the ground that under it a;i innocent man could be arrested.
– I think there may be a difficulty in applying a provision such as is suggested, and my only desire is that caution may be used.
– I am in accord with the principle of the new clause suggested by Senator Pulsford, but take exception to the nature of the penalty. Under the clause, it would be open to any person to stop a valuable cargo of butter, although the charge made could not be substantiated. If a man, for the purpose of delaying the export of such a cargo, made a charge of fraudulent marking, that cargo would have to be detained, seeing that the penalty would be forfeiture. That would mean heavy expense to any exporting company, and might cause the ruin of the whole shipment. That is an argument powerful enough against the penalty, though not against the principle of the clause ; and I urge that the punishment ought to be fine or imprisonment.
– I re’ally cannot see any cause for the fear expressed by Senator Pearce. It is suggested that some other person than the exporter might make a charge of fraudulent marking; but where would be the danger, if, say, in the case of the Clyde
Factory, the company were to declare that it was really their butter marked with their brand.
– But the Clyde Butter Company might have parted with the butter to an agent.
– That may be done in certain cases, but most of the butter sold from factories is for home consumption, or shipped by the companies.
– Most of the factory butter is sold to agents. That has been disclosed in the evidence taken by the Butter Commission.
– It is quite possible that there may be isolated cases of the kind, but, on the other hand, we have to consider the whole of the trade. No law is free from occasional mistakes or abuse; but, on the whole, we have to ask ourselves whether it is better to leave the channel to fraud open, or., by closing it, do injustice to one or two individuals.
– It is the nature of the penalty “to which I refer.
Senator- MILLEN. - That is another matter, and no doubt something could be said in favour of an alteration of the penalty.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 4 to 16 agreed to.
Clause 17 - (Remission of forfeiture on removal of false trade description).
Senator PULSFORD (New South Wales). - It is at this point that I wish to introduce a new clause.
– Would it not be better to deal with the question of exportation in separate clauses, because, otherwise, I think we shall get into difficulties? Subsequent provisions speak of goods which have been imported, and those, provisions cannot be altered so as to apply to exports.
Senator PEARCE (Western Australia). - Clause 17 speaks throughout of a penalty involving the seizure and forfeiture of goods.
– That could be applied to goods for exportation.
– If Senator Pulsford proposes to substitute fine for forfeiture, the clause would manifestly not meet the cases which he contemplates.
– Why should not exports be forfeited as well as imports ?
– That, of course, is a debatable question; but if fine and not forfeiture is to be the punishment, clause 17 is unsuitable.
Senator DRAKE (Queensland). - It appears to me that we contemplate altering the existing clauses so as to be in accordance with a new clause which we have not as vet seen. I think there is a standing order that new clauses shall be moved after all the other clauses have been dealt with.
– That procedure has been altered.
– Can we not postpone all the clauses of the Bill until the new clause has been dealt with?
– It is very inconvenient to consider a proposed clause of which we know little or nothing. It is scarcely fair to spring such a proposal on the Committee; at any rate, it is most unfair to the honorable senator in charge of the Bill. So far as I can judge, the new clause will necessitate altering nearly all the other clauses. Seeing that the Bill will have to go to another place, a further opportunity will be given to effect the amendment desired.
Senator MACFARLANE (Tasmania).- I suggest that the proposed new clause should be put into print, because, under ihe present circumstances, it is difficult to give it the consideration which it may deserve. This Bill ostensibly deals with imports, and we are now suddenly asked to make if apply to exports.
Senator PULSFORD (New South Wales). - My proposed new clause is simplicity itself. We have already decided on a certain ‘ course with regard to imports, and the question is whether or not the Committee is in fa *our of the same course being applied in the case of exports. In my opinion, the Committee is in favour of a clause to that effect. I move-
That the following new. clause be inserted, to follow clause 17 : - “ 17A. The exportation is prohibited of all goods to which any forgery of a registered trade mark, or any false trade description, is applied, or to which any trade mark is falsely applied. Such goods shall, on attempted exportation, be forfeited to the King.”
Senator PEARCE (Western Australia). - I agree with the principle of the clause, and favour a heavy penalty, the object being to safeguard the good name of the pro ducers and manufacturers of the Commonwealth in the markets of the world. At the same time we ought to be careful not to injure the export trade of which I see great probabilities. There are rivals in the export trade, and what would be easier than to stop a big shipment on the ground that a fraudulent trade mark was being used. If the penalty be forfeiture, the goods must be held in charge at great loss to the exporter. The goods would have to be placed in a refrigerating chamber for weeks or months, pending the settlement of the case, and, in addition to the costs of defending the action, the Exporter might lose his market. There are certain kinds of fruit, in regard to which a name is registered as a trade mark, and it would be quite easy to make a charge of fraudulently using that trade mark, and unjustly having a cargo of fruit detained, with the loss I have indicated, the main mover, probably, being a man of straw.
– If that were done, the man of straw and those behind him might be indicted for conspiracy.
– Not necessarily, because it might be possible to show that the action had been taken in good faith.
– Does the same argument not apply with equal force to importations ?
– No ; because, in the case of importations the goods are in the country.
– Yes; but there may be an immediate demand for them in the market.
– The export trade is almost wholly in perishable products, while the import trade deals exclusively with products which are not perishable, and, in my opinion, we should be acting very foolishly if we made forfeiture a penalty. The punishment ought to be imprisonment as stiff as honorable members like, 01 fine as heavy as honorable members like. Great difficulty arises from our not having the new clause in print before us, but my desire is to submit an amendment, bringing the offence contemplated under the penalties provided in another part of the measure. There are penalties provided in other clauses for any offence committed against the measure.
– I do not see that there can be any very great objection to the amendment. I am sure that we all wish to make the Bill as effective as possible in the way of preventing any kind of fraud. I do not anticipate any difficulty in carrying out the amendment. I do not see that any difficulties will arise such as have been described by Senators Macfarlane and Pearce. Because, according to clause 29 nobody can take action except the person feeling aggrieved or his attorney or an officer who has been appointed by the Minister for that purpose; everybody is safeguarded. A firm which attempts to export fraudulently marked goods to the detriment of the industries of the Commonwealth, ought to be as guilty of a breach of the law as anybody else offending, and to deserve as drastic a punishment as can be inflicted upon them. It would injure the trade of the Commonwealth to a far greater extent to allow the practices to be continued which, as Has been demonstrated to the Senate, have been carried out in respect to the export of leather. The industry has been injured to the extent of about 50,000 cwt. a year.
– Not by a fraudulent mark.
– No, but by a fraudulent practice. If an article attempted to be exported is marked leather and it contains other than leather it is fraudulently marked, and its export should be stopped, and the owner subjected to most drastic punishment. It has been indicated from the Chair that an amendment may be required in clause 16. An amendment is not required in that clause, because it simply deals with importations, and its operation is governed by the Customs Act. If in clause 17 we insert the word “exporter” after the word “ importer “ in the two instances where it occurs, and allow the amendment of, Senator Pulsford to pass, the measure will be .made more. complete than it is. I hope that the amendment will have the effect of doing what Senator Pulsford intends with respect to fraudulent exportation.
– But it does not give power to seize the goods.
– The power to seize the goods is given in the next part of the Bill, which deals with legal proceedings.
– I mean the power to forfeit the goods.
– I am entirely in accord with the principle of this amendment. It is very desirable in the Bill to make it a penal offence for a person to export any products of the Commonwealth under fraudulent marks. Senator Macfarlane has referred to some difficulties which may arise in the working out of the amendment. During the last ten or twelve years in Tasmania, as lie knows, there has been gradually growing up a good deal of trade with Great Britain and European countries. During its development there have been several instances where persons had exported very inferior fruit, and under such circumstances as to lead buyers in the old country to believe that they were obtaining standard fruit. This practice brought much unmerited misfortune to those who were careful and honest in the trade. And the Tasmanian Parliament found it necessary to pass a measure called the Exported Products Act, which provides for the inspection of products going out of the State, in order that the honest exporter should riot ‘be penalized by the action of the dishonest exporter. How far that Act has been administered by different Governments I am not in a position to say, but I have reason to believe that it is a dead letter, and the honest traders still suffer through the actions of those who are not as scrupulous as they might be. If we can. supplement that legislation by a provision in this Bill, it should be done. If we can by legislative and administrative action give a guarantee to persons abroad that Australian goods marked in a certain way correspond with the standard indicated by such marks we shall be doing a good work for our producers. Senator Pearce has urged that if a charge were laid that an exporter of certain goods had committed an offence under the amendment, the market might be lost to him. If in an instance in which the charge was brought, and could not be sustained, the market were lost, it would be a misfortune to the person who had been wrongly proceeded against, but he might have a remedy in law against the man who had proceeded against him at the instigation of somebody else, provided that he could get the evidence. A charge of conspiracy or of malicious prosecution might be laid, and the class of prosecutors would not be limited as the class of prosecutors is in this case, as has been pointed out by Senator McGregor.
– Is it not possible that the man who deems himself to be aggrieved may be a man of straw ?
– What is the use of prosecuting a man of straw?
– We must legislate for the class of cases that will probably arise. We must legislate for the probable rather than the merely possible. If a market were lost, that would be an individual case. But if the exporter were prosecuted, and prosecuted successfully, according to what the honorable senator would have in the Bill, the consignment would still have gone off to the market. And it would have been proved here, while it was on the high seas or at the other end of the world, that it had been fraudulently marked. How could we prevent that consignment from passing into consumption? Is it not far better to see that, in addition to the punishment which is inflicted on the offender, the goods shall be stopped from getting into use? And if we legislate to effect that object, and the operation of the legislation is such that in some instances a proper consignment may be prevented from reaching the market at the most suitable time to its owner, is it not far better, for the security of all producers, that one or two cases of that kind should arise than that we should be expected not to hold back these consignments, when we are in a position to prove that they were fraudulently marked? I would suggest to Senators Pulsford and McGregor that it is desirable, when inserting this new clause, to follow as far as possible the wording of clause 13. When we are making a number of offences under an Act, there is a very obvious reason to have the wording as far as possible the saime in each instance. Clause 13 reads in this way -
The following goods are prohibited to be imported, and shall, if imported, be forfeited to the King.
The goods which are prohibited to be imported are then described in four paragraphs. With that provision in the Act, it is quite possible that in many instances the circumstances may be on the border line of what might or what might not be an offence under that section, and very important decisions given. Those decisions will have a value to a certain extent, as far as the wording is alike in connexion with the section relating to the exportation of fraudulently marked Roods as far as possible if it is worded in the same way as clause 13. I would, therefore, ask Senator Pulsford to frame his new clause on the lines of clause 13.
I If that course be taken the two provisions would be to a certain extent interpreted on similar principles.
Senator PULSFORD (New South Wales). - I am quite willing to accept the suggestion of Senator Keating, and to make my new clause read as follows: -
The following goods are prohibited to be exported, and shall, if attempted to be exported, be forfeited to the King : -
All goods to which any forgery of. a registered trade mark, or any false trade description is- applied, or to which any trade mark is falsely applied.
Senator DRAKE (Queensland).- Supposing that the new clause were altered in that way, it would provide then, as clause 19 does, that the goods might be forfeited, but there does not appear to be any power for seizure given. The only power of seizure is contained under the Customs Act as incorporated in clause 16, which provides that if goods under certain circumstances are imported it shall be deemed to be an offence against the Customs Act. Under the powers of that Act the goods could be seized. That refers to importations only. It is of no use to say that if any goods are attempted to be exported they shall be forfeited, if we do not make any provision for the seizure of them. We ought, I think, to go rather slowly in considering this matter, because there is a very great difference between the seizure of goods which are imported and the seizure of goods which are attempted to be exported. When a ship comes in with goods she has to be discharged. Supposing that in a ship there are any goods which are liable to seizure. The goods are not left in the ship, but are stored in a warehouse, and there taken possession of by the Customs officials. That constitutes a seizure. What would happen in the case of goods which were attempted to be exported ? The charge might refer to some goods which were in the bottom of the hold of a mail steamer, and the only way in which they could be seized would be by unloading her. Surely it is not intended that in a case of that kind the mail steamer should be stopped until she is unloaded. I do not see any other way by which a seizure could be effected.
– The seizure would have to be made before she was loaded.
– The commission of the offence might not be discovered, or the charge made until the steamer was loaded.
– Is there any likelihood of an offence being discovered after the goods have been put in the bottom of the hold?
– A person might complain that certain goods, bearing a fraudulent trade description, had been shipped ; but what are the authorities to do in that case? Clause 19 provides that where there is a conviction, the goods shall be liable to be forfeited, but, clearly, that would not be sufficient in a case of the kind I have mentioned, because it is of no use to say that the goods shall be forfeited when the ship is on the high seas.
Senator DE LARGIE (Western Australia). -I think that the interest of the honest exporter could be safeguarded by restricting, as far as possible, the persons who could lay a charge of this kind. Clause 29 provides that -
No proceedings except by indictment shall be taken for an offence against this Act unless they are taken -
By a person who is aggrieved by the commission of the offence or his Attorney.
If we were to confine the application of paragraph a to exportation, and alter paragraph b to make it apply only to importation, it would prevent any trumped-up charges from being brought forward at the time of the departure of a mail steamer with perishable goods on board. That, in my opinion, would get over the difficulty which has arisen. We know that all kinds of charges can be trumped up at a time when it is very hard to disprove them. No doubt it could be done in the case of perishable goods. I would suggest to Senator Pulsford that he should move in that direction when we come to clause 29.
– I would ask Senator Pulsford to seriously consider the suggestion of Senator de Largie. If it were given effect to in the Bill any fraudulentlymarked goods which were attempted to be exported could only be seized by a person who was acting under the authority of the Minister. That ought to remove the greater part of the objection of Senator Pearce.
– No, because the Minister could only act when his officers became aware of certain things taking place.
– A man of straw would not be able to inflict an injustice on a rival firm because he would not be able to act on his own initiative.
– The Minister might get his information from a man of straw.
– Surely my honorable friend does not think that the Minister would’ act unless he felt reasonably certain that there was some ground for the objection taken by the nian of straw. ‘
Proposed new clause, by leave, withdrawal.
Senator PULSFORD (New South Wales). - I now move -
That the following new clause be inserted, to follow clause 17 ; - “ 17A. The following goods are prohibited to be exported, and shall, if attempted to be exported, be forfeited to the King : -
All goods to which any forgery of a registered trade mark or any false trade description is applied, or to which any trade mark is falsely applied.”
I desire to have the matter discussed, and I think that the clause in its amended form will serve the purpose I have in view.
Senator PEARCE (Western Australia). - I move -
That the word “shall,” line 2, and the words “ be forfeited to the King,” line 3, be left out, with a view to insert after the word “ exported,” line 2, the words “ such attempt shall be deemed to be an offence against the Act.”
In order that honorable senators may have time to note the effect of the clause and the amendment, I suggest to the VicePresident of the Executive Council, that he should agree to report progress, that we may have the amendments before us in print.
– I have no objection to report progress. I was only waiting for some honorable senator to ask me to do so. I thought that every honorable senator present had made up his mind on tha question, and was satisfied that Senator Pulsford’s intention to deal with swindling exporters was a good one. If honorable senators wish, a little more time to consider the matter I have no objection to report progress.
– I move -
That this Bill be now read a second time.
After the exciting time we have had in connexion with the Fraudulent Trade Marks Bill, and the delay in its passage, I may say that I have been to some extent thrown off the track, and have become slightly confused with respect to the measure we are now about to discuss. The Trade Marks
Bill is to some extent essential for the .administration of the measure with which we have recently been dealing, although it is in no way dependent on it. ‘ We all know that trade marking or the marking of goods in some way that the public will be able to identify them as of a certain character or belonging to a certain firm or individual, is almost as old as the world itself. We know that Cain was “ marked “ on account of his deeds, so that people might know what sort of an individual he was. Whether we accept that as an instance of trade marking, or seek such an ‘instance 3,000 years later, when blood was sprinkled on the lintels and posts of doors as an indication. of the character of the goods inside, is probably to us a matter of very little consequence. But it is of very great consequence to an honest and persevering business man or trader that, when he has almost reached the point of perfection in respect of the goods in which he is dealing, he should have some security in regard to any mark indicating the quality or origin of those goods that he may have appropriated to himself. Legislation of this description does not only protect the trader in respect of the goods distributed, but it gives some kind of guarantee to the purchaser of the quality of the goods he receives. There is scarcely an honorable senator present who has rot assumed the quality of goods he has been about to purchase from the trade mark on them. Even if this legislation were nic passed, the marking of goods might still continue, but this legislation is for the purpose of enabling the manufacturer -of, or trader in, certain goods to put a mark on them by which his customers may identify them from all other similar goods on the market, and may rest assured that they are getting exactly what they desire. We recently passed a Patents Act, and if honorable senators will take the trouble to go through this Bill, they will notice a very great similarity in the form of the legislation embodied in both measures. We are now an aggregation or combination of several States, and, as in connexion with patent’s, so in connexion with trades marks, all our State laws have to be brought into uniformity. This Bill is to- some extent for that’ purpose, and also to enable manufacturers and merchants in Australia to register trade marks, which will be applied uniformly to certain classes .of goods, and be recognised all over the Commonwealth. There are provisions of the Patents Act dealing with registration and such matters, which are very similar in character to provisions contained in this Bill. No honorable senator present will imagine that there can be any element cif party politics involved in a measure of this kind. I am sure that, as in the case of the Bill dealing with fraudulently-marked goods, so in this case honorable senators will give every assistance in their power to make this measure as perfect as possible. For hundreds of years the marking of goods has been a matter of great concern in Great Britain. Even 400 or 500 years ago, in connexion with jewellery and articles of that description, different guilds had their different marks, the value of which was recognised wherever their goods went. Within the last forty years many committees have taken evidence, and much legislation has been passed dealing with trades marks. I need only refer honorable senators to one Committee, known as Lord Herschell’s Committee, on which Baron de Worms, and the late Mr. Mundella, gentlemen who had taken a very active interest in the commerce and industries of the British Empire, sat for a considerable time endeavouring to secure evidence and consider facts which would lead them to a recom?mendation for the passage of legislation dealing with trades marks and kindred subjects. In view of all this, I do not think there is any great necessity that I should occupy much of the time of the Senate in tracing the history of this movement in Great Britain and in other countries. I may, however, indicate that in some of the European countries and in America a great deal has been attempted on the lines we propose to follow in dealing with this Bill. Like the Fraudulent Trade Marks Bill, this measure is divided into a number of parts - Part I., Introductory ; Part II., Registration ; Part III.; Registrable Trade Marks, and so on to the miscellaneous provisions at the end. When we get into Committee honorable senators will expect that I shall give them all the assistance I possibly can; but I also shall expect from honorable senators connected with the legal profession and others who have large experience in connexion with trade and commerce all the assistance they can give theGovernment in placing on the statute-book of the Commonwealth a measure that will be a credit to Australia, a benefit to our manufacturers and merchants, and a guarantee to the public of the Commonwealth that the goods they’ are buying are worth the money they pay for them.
Senate* BEST (Victoria). - I have to congratulate the Government on bringing forward this measure, although to some extent we are putting the cart before the horse, because the Fraudulent Trade Marks Bill, which we have practically passed may be regarded, as I observed on a former occasion, as complementary to this measure. In speaking on that subject I had the assurance of the leader of the Government in the Senate that it was his intention to immediately introduce this Bill, and therefore I congratulate the Government on the fulfilment of this promise. So far as I have had an opportunity of looking through it, this is an excellent measure. With the objects of it we are all agreed. Some of those objects were indicated by the VicePresident of the Executive Council, when he said that the primary object of the measure was the protection of the public. That is so, because the public are accustomed largely to buy goods which are known by particular brands. In addition, the measure proposes to give the trading community the security of tenure, so far as their title to trade marks is concerned, that they have a reasonable right to expect. It also seeks to define their rights, and, further, it insures to unwary purchasers some degree of protection. It is largely founded, not only on British legislation, but on legislation within the States ; and having regard to the fact that it is a non-party measure, it is in a special sense the duty of honorable senators to make any suggestions which they can offer, by reason of their experience or otherwise, towards its perfection. It is not suggested, for a moment, that because the measure is founded on British legislation we are obliged to accept it. The Government have themselves recognised that, in having departed from British legislation, by accepting the provisions of a Bill formulated by a well-recognised authority on the subject, Mr. Moulton. Although his Bill, as introduced, has not become law, it has been circulated, and we thus have the advantage and benefit of his mature experience.
– How long is it since it was circulated?
– It appears that members of the Ministry have in their possession a Bill drawn by Mr. Moulton in 1904. I have not had the privilege of seeing a copy of that measure, but I did manage to secure a copy of a former Bill circulated by that gentleman in 1902, which I found to be admirable. With the data now before us we should be able to enact legislation of a valuable character, which, although perhaps not at the outset, will ultimately result in uniformity ‘of legislation in connexion with the subject of trade marks, a most desirable object to attain. There are, however, in my judgment, some defects, which I desire to bring under the notice of the leader of the Government. I do so before we reach the clauses in Committee, to enable the VicePresident of the Executive Council to confer with his officers, and perhaps make to us an explanation which, to some extent, will put matters in another light. In passing, I would draw, attention to clauses 6 and 13, which must be read together. Clause 6 provides -
The State Trade Marks Acts of each State shall, on the commencement of this Act, cease to apply to trade marks further than as follows : -
The State Trade Marks Act, under which a trade mark is registered, shall continue to apply to that trade mark so long as the registration under that Act remains in force.
Proceedings under a State Trade Marks Act, pending at the commencement of this Act may be continued and completed under the State Trade Marks Act.
And then comes a third paragraph, which I understand is never likely to be used, and. which reads as follows : -
The first remark I have to make is that this third paragraph brings about a condition of affairs which is very undesirable, and which we should seek to avoid if we can. I do not say that the undesirable state of affairs can be altogether avoided, but the > effect will be that for many years- possibly for the next twelve or fourteen years - the proprietors of trade marks will “be under, two separate sets of laws. First of. all they:. will be under the- law of ‘ the Common-wealth, and secondly they will ‘be1 under the law of the State. That may, perhaps, to some extent be inevitable, but it will result in a degree of confusion. Clause 13 provides -
On the commencement of this Act, the administration of the State Trade Marks Act of all the States shall be transferred to the Commonwealth, and thereupon -
I shall take paragraph b before dealing with paragraph a. It is as follows: -
It will be noted that first of all it is provided that local Acts shall cease to apply ; and t’hen it is provided in paragraph b that the local Acts shall not cease to apply. This paragraph seeks to introduce into the State Acts, without adopting those State Acts, certain powers to be vested in the Commonwealth. That is to say, where the Governor of a State has certain rowers, it is provided that the Governor-General is to have certain powers. A further anomaly exists, and will result in a want of uniformity in the matter of trade marks throughout the States for many years ‘.o come. The whole object of our legislation is to secure uniformity, as far as we :a;i, whereas, obviously, if the Commonwealth is to have the power of administering the Stare Act, say, of New South Wales, and certain powers which the Governor has there, and also to have the power of administering different Acts in Victoria and the other States, we shall have no uniformity, but different legislation.
– Does not the same position arise in regard to the Patents Acts?
– I have not had time to fully look into the matter, but I should like the constitutional aspect to be considered by the Vice-President of the Executive Council. Federation contemplates the complete taking over of any particular subject. Under this Bill, however, we do not adopt the legislation of the several States, but undertake the administration of States Acts. I am not aware that the Constitution gives us power to do anything of the kind. Of course, it may be said that the same proceeding has been taken On a former occasion.
– We have adopted the same proceeding in the case of every Department we have taken over.
– That is, as we have taken the Departments over; but that is not the point’. It may be suggested, for instance, that as soon as ‘Federation took place, we at once took over the administration of the Customs Departments in each State.
– The Constitution gave us the power, and the Commonwealth was then administering six different Customs Acts.
– Exactly, and that was because special power was given by the Constitution.
– The State laws prevail until superseded by Federal law.
– That is so, and the anomaly I am pointing out is that the State laws are kept in force by the terms of the Bill - that the Commonwealth does not attempt to repeal the State laws, but administers t’hem.
– But only so far as existing rights are concerned.
– We cannot revoke existing rights J it would be unjust to do so.
– As I pointed out, the Commonwealth administered the Customs Departments before any Commonwealth legislation had been passed on the subject. Section 86 of the Constitution provides -
On the establishment of the Commonwealth, the collection and control of duties of customs and of excise, and the control of the payment of bounties, shall pass to the Executive Government of the Commonwealth.
– That was before there was any Federal Parliament.
Senator - BEST. - That is so. Ministers were appointed before the actual Parliament was created ; and the control of the Customs was taken over by reason of this special provision in the Constitution. On the subject of uniformity, I should also like to quote section 99 of the Constitution, as follows: -
The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to any one State or any part thereof over another State or any part thereof.
The general tenor of the Federal idea is that, as far as possible, we should secure uniformity in this connexion. The next comment I have to make is in regard to Part III. of the Bill, which refers to Registrable Trade Marks. I have had the advantage of seeing Mr. Moulton’s Bill of 1902. Clause 5 of that Bill appears to me to far more comprehensively cover the object aimed at, than do clauses 14, 15, and 16 of the Bill before us. The aim is to cover the same ground, but Mr. Moulton’s Bill does it more completely. When we have the advantage of a more complete Bill in regard to the subjectmatters dealt with, we should endeavour to follow the provisions therein, and I should like to point out one or two particulars in which I think Part III. is defective. Clause 15 provides -
The essential particulars of a registrable trade mark shall be one or more of the following particulars : -
A~ name of an individual or firm printed, impressed, or woven in some particular and distinctive manner.
In Mr. Moulton’s Bill the provision is -
A name of an individual or firm or limited or other company or corporation or his or their trading name or style.
The latter appears to me to be more comprehensive than the provision in this Bill. It brings in not only an individual or firm, but also a limited or other company or corporation.
– Do companies and corporations not’ come under the heading of “firm”?
– No; a firm is not necessarily a corporation. A firm may be one, two, three, or more individuals.
– A ‘firm may be al:C a corporation.
– It is not a firm if it is a corporation. In order to constitute a corporation, there must be five or more persons, according to the law of Victoria, though I do not know what the law may be in other places. It is not intended by the Bill, I think, to exclude limited companies ,or other corporations “or his or their trading name or style.” Then I see that paragraph d of clause 15 is -
An invented word or invented words.
In this, a suggestion of Mr. Moulton’s is disregarded, and I rather accept the view of the Government, The words in Mr. Moulton’s Bill are -
Word or words not to be found in any standard dictionary of spoken languages.
I rather favour the view of the Government, because there have been various decisions as to invented word or invented words - that is, newly-coined words - and we ought to have the benefit of those decisions. Clause 16 deals with the additional matter which may be added to the essential particulars of a registrable trade mark. In Mr. Moulton’s clause 5, which, as I pointed out, covers the whole of the provisions in clauses 14, 15, and 16, there is ample and proper provision for disclaimers of additional words. On reading clauses 14, 15, and 16, one would conclude that it was quite competent for a trade mark to be registered, and to cover matter added to the essential particulars. But, subsequently, we find, in paragraph b of clause 31, a provision that any person claiming to be the proprietor of a trade mark may make application to the Registrar, and the application must be made in the form prescribed, and must - state what are the essential particulars of his trade mark and disclaim any right to the exclusive use of the matter added to the essential particulars of his trade mark.
Applicants have to state what are the essential particulars of a trade mark, and disclaim any right to the exclusive use oi added matter. But, perhaps, the most important difference is in the provisions which relate to old trade marks, for the registration of which the Bill does not provide. Trade marks may have been in force in Australia for the last thirty or forty years, and yet there is no provision for their registration unless they comply with the essential particulars provided for in the Bill, and with which, of course, new trade marks have to comply. In the clause in Mr. Moul-ton’s Bill to which I have referred, provision is made in this connexion, and I believe that section 64 of the Imperial statute makes similar provision. Mr. Moulton’s provision is in these words -
Any word or words, letters, figure, or combination of letters or figures, or letters and figures, used as trade marks before the 13th August, 1S75, may be registered as trade marks under the Act.
Of course, we should have to fix the dates according to our own legislation. In justice to the owners of old trade marks, we should follow the example of British legislation which preserves at least some of those marks, and also adopt the latter suggestion of -Mr. Moulton, by making ample provision in the Bill. In dealing with this matter, I refer the leader of the Government to pages 184 and 185 of a recognised authority, namely Kerly on Trade Marks, in which this interesting subject is treated. After stating the Imperial provision, and also the various cases which have taken place, Kerly goes on to say -
But it has been recently decided that the proviso does not extend to all old marks, and that an old mark, consisting of, or even containing, a device, does not come within the proviso, and is not entitled to registration unless it consists of or contains one of the essential particulars enumerated, and that it is, in that case, subject to the requirements of the previous sub-sect. (2), which have already been discussed.
First of all, my contention is that all trade marks should be provided for. As certain recent cases have shown that the Imperial Act is not sufficiently comprehensive, I contend that it is desirable to so frame our legislation that those who have been proprietors of old trade marks, and whose goods are known by those marks - that men who have for thirty or forty years spent large sums of money in building up industries and acquiring in the market a great reputation for their goods - shall suffer no injustice by our legislation. Consequently, I ask the Vice-President of the Executive Council to give this matter serious consideration; and, possibly, in consultation with his officers, he may. see his way to introduce some provision which will only do the barest justice to a certain, section of our enterprising traders.
– Are there many unregistered old trade marks?
– Yes, a large number.
– But they are still protected by common law.
– Of course those trade marks still have the protection of common law on the general broad principle, that whether a trade mark is registered or not, no man is at liberty to sell as his, goods which are really the goods of another. That is according to the broad principle that no man is to be at liberty to deliberately deceive the public.
– The Fraudulent Trade Marks Bill covers such cases.
– The very object of the Bill before us is to prevent the expensive process which is incidental to the enforcement of common-law rights. The object of the Bill is to define rights, and to protect traders who are honestly trading. Consequently, I say that if the Government desire to deal comprehensively with the subject of trade marks, they must deal not only with the marks which are registered, and which carry certain privileges, but also with marks which are not registered, and. which cannot be registered by reason of the new terms introduced by this Commonwealth. There is another feature to which I would draw the attention of honorable senators. There appears to be an inconsistency that should not appear in our legislation. It will be observed that, according to clause 15, paragraph c, one of the essential particulars of a registrable trade mark shall be- a distinctive device, mark, brand, heading, label, or ticket.
But then the Bill goes on to say, in clause 23, that- - -
If a trade mark…… contains matter common to the trade, or otherwise of a nondistinctive character, the Registrar or the Law Officer, or the Court in deciding whether the trade mark shall be entered or shall remain upon the register, may require as a condition of its being upon the register that the proprietor shall disclaim any right to the exclusive use of any of those parts or of that matter to the exclusive use of which they hold him not to be entitled, or that he shall make such other disclaimer as they think needful for the purpose of defining his rights under the registration.
My point is that, under clause 15, a man can secure registration for ‘a distinctive mark or label, and that it frequently happens that a distinctive label contains matter which is - common to the trade or otherwise of a nondistinctive character.
Therefore, according to the terms of this Bill, contrary to all experience and to British legislation, as well as to State legislation, if a label is presented which contains common matter, clause 23 ‘says that the Registrar is to have the power of excluding that common matter. The British Act is different in this connexion. In order to elucidate my point, let me give an instance. Say that a label contains the words “ Irish whiskey,,” with an elephant brand. The words “ Irish whiskey “ are words of a common character. The word “ brand “ is a common word. If’ the label goes on to say “pure malt,” those are common words. If the label also contains an analyst’s certificate, that also might be objected to. If a label of that kind were presented to the Registrar, the result might, and probably would, be that it could not be registered under the terms of the present Bill, although brands of a similar character, under British and State legislation, are registered. “
– Who is to claim any exclusive right ? “ ‘ ‘
-‘-If the label is a distinctive label, according to all the British cases notwithstanding that it contains a number of common words, it can be registered. I would, refer to one or two cases, and to the same authority as I have previously quoted. There has been so much litigation upon this subject, that I desire that we should have the benefit of the experience that has been gained. There is a provision similar to clause 15, paragraph e, in the English Act, and Kerly, on Trade Marks, says -
No disclaimer of any part of a distinctive label is required’ by the Acts, for the whole label is an essential particular.
Consequently there is power in Great Britain to accept a distinctive label, but there is no power either in British legislation or in State legislation to compel a man to disclaim portions of a distinctive label. Kerly, who is the leading authority . on this matter, goes on to say -
Under section 64 as amended by the Act of 1888 certain additions to the essential particulars in a mark may be registered subject to a disclaimer of the exclusive use of the added matter; but since a distinctive label is itself an essential particular, that sub-section does not apply to anything forming part of the label. Moreover, common words, that is words which any one is at liberty to use, which appear in a label need not be disclaimed under section 74, for that section applies only to additions to the trade mark, and the whole label is itself the trade mark.
He proceeds -
The presence of common words in a registered laBel does not prevent any trader registering a different label with the same or similar words. Thus Valvoleum printed across a label with a particular device was allowed, although Valvoline was already registered upon a label with a different device, Jessel, M.R., holding that each word was merely equivalent to valve oil.
Consequently I point out the inconsistency in the Bill ; or if it is done by design, then I question the wisdom of the importation cf clause 23 into this measure, because it is against all British precedent, and against the very valuable precedents that have been decided upon the very same point. I also observe that in clause 17 the use of certain words is forbidden. The clause says -
Except in the case of a trade mark properly registered in any Stale under a State Trade Marks Act, a registrable trade mark must not contain [a) the words “ trade mark,” “ registered,” “ registered design,” “ copyright,” and other terms. While I admit that this is in accordance with one of the trade mark regulations of Great Britain, yet T think it is desirable that there should be shown upon the face of a trade mark, if the proprietor thinks proper, words such as “ trade’ mark.” “ registered design,” or “copyright.” To my mind those words are themselves unobjec tionable, and the effect of forbidding their use will be to exclude many unregistered trade marks from the advantages oi registration altogether. I would also incidentally point out that sub-clause 2 of clause 23 provides that -
The fact that a mark is publicly used by more than three persons as a mark on or in connexion with similar goods shall be treated as conclusive evidence that it is common to the trade. ‘
It must be borne in mind that the previous part of the clause provides that if a trade mark contains “ matter common to the trade or otherwise of a non-distinctive character “ the Registrar need not register that trade mark, and that the Registrar, or the Court, if they think proper, shall be at liberty to have such a trade mark struck off the register. Comparing the beginning of the clause with the second sub-clause of it, I ask, “What is the actual state of affairs in regard to many trade marks which are now held and owned by different persons in different States?” Take a popular brand, such as “Lion Brand.” It is registered in Victoria by Harper and Co., I believe in South Australia by D. and J. Fowler, and in other States by other individuals. If those persons do not happen to be registered, this Bill says that because their “Lion Brand” mark is used concurrently by three different persons in the whole of Australia, it cannot be registered, or, if already on the register it cannot remain. I take it that that is modified somewhat by clause 27, but, in order to carry out the provision effectively, it will be necessary after the word “ may “ to insert the words “ if it think fit “ j because “ may “ is very frequently read as “shall.’’’ If then clause 27 is altered in a corresponding way, the Bill will be consistent.
– Would the Bill, as it stands, permit a special mark to be used exclusively in a special1 portion of the Commonwealth ?
– It seems as though it would.
– Is that not unconstitutional ?
– I think there is room for doubt on the subject, but I do not care to commit myself completely to that view. Clause 27 uses the words - subject to such conditions and limitations as to mode or place of user or otherwise as it thinks fit to impose.
So that, assuming this provision to be constitutional, the Court would have the right to limit the use of a trade mark to a particular place.
– To a single State, or part of a State?
– No doubt. Possibly, justice might be achieved in that direction. [ do not make any complaint about it on the score of merits. I would refer for a moment to clause 31. The first subclause reads as follows : -
Any person claimed to be the proprietor of. a trade mark may make application to the Registrar for the registration of his trade mark.
Under this sub-clause a firm would have no right to apply. A person, according to section 22 of our Acts Interpretation Act, would include a corporation, but would not include a firm. I prefer the words used in Mr. Moulton’s Bill. But I. wish especially to emphasize sub-clause 3, which reads -
Separate applications must be made for the registration of a trade mark in respect of each kind of goods in respect of which the applicant desires it to be registered.
I can hardly think that the draftsman exactly means what he says in that provision, especially in view of past legislation on the subject. The sub-clause requires that a separate application must be made for she registration of a trade mark in respect of “ each kind of goods.” According to the British Act and regulations, and also according to the Victorian Act, and the Acts of several States, a schedule of classified goods has been worked under for many years. It has proved to be very valuable. Surely it cannot be contemplated by the draftsman that applications must, apply, not to classes, but to goods. ‘ What I would suggest, if we wish to pass Complete legislation on this subject, is that the regulations which we have worked under for years, and which include a schedule of classes of goods, should be scheduled in our Bill. Turning to the Victorian classification, I find that it consists of about fifty classes. I will quote one which will give honorable senators an idea of what it contains -
Chemical substances used in manufactures, photography, or philosophical research, and anti-corrosives such as acids, including vegetable acids, alkalies, artists’ colors, white lead, pigments, mineral dyes.
Let me quote another class of goods which will be more familiar. I quote class 42, which has reference to substances used as food. It says -
Substances used as food, or as ingredients in food, such as cereals, pulses, oils (olive), hops, malt, dried fruits, tea, spices, sago, salt, starch, sugar.
– Would that mean that there would be the same brand on soap as on sugar ?
– If the brand belonged to the proprietor of the goods. Brands are registered in respect of classifications of goods. My suggestion is that the proper course to follow would be to insert the regulations and classification from which I am quoting as a schedule to this measure. Then there would be power to alter it if required by other regulations. I am aware that a number of traders feel very keenly about this matter, because they have the fear that a new classification may be created by a new officer, and may cause serious confusion and expense to themselves. Take a leading drapery firm like Buckley and Nunn, who may have the same trade mark in regard to all their goods. They pick out a particular class of goods, and register their trade mark in regard to those goods. They pick out another class of goods, and register their trade mark in regard to those goods. That practice has been adopted by many leading traders, and my suggestion to the Government is that’ if they would insert this classification in the schedule it would be a source of relief, and give firms more confidence in the matter of their trading. The only other provision to which I desire to refer is clause 85, which reads in this way -
Subject to the regulations the Registrar may permit any agent to do, on behalf of any other person, any act in connexion with the registration of trade marks or’ any procedure relating thereto.
In Part VIII. of the Patents Act we provided for the appointment of patent attorneys, and sections 101 to 107 deal with the registration of patent attorneys, certain privileges, and their removal from the register, and provide that officers are not to be registered as patent attorneys until twelve months after they have ceased to hold office, that patent agents or former officers of a State Patent Office may be registered as patent attorneys, and that solicitors and barristers may carry on, and a penalty for falsely describing oneself is provided. Recently in our law courts we have had very expensive litigation in consequence of a printer attempting to register a trade mark. This work cannot’ be done properly by persons of little experience. If it has been found necessary to enact that patent agents or attorneys shall to some extent be under the control of the Registrar or the Government, and that they are essential to the protection of the public, it should be provided that any .work to be transacted under the Trade Marks Bill should be done by experts, and men skilled in that class of duty. It is the protection of the public which must be first sought to be secured. While it may cost a small fee at the outset to have the work done, the probabilities are that it will be done effectually if it is intrusted to men who understand what they are doing. The reason why I make this suggestion is as I have already pointed out, because we have had some very expensive litigation in our law courts in consequence of a blunder made in that direction by a printer who regarded himself as qualified to do such work. There are several points in connexion with various clauses to which I may refer in Committee. I have mentioned some leading points, so that they may be considered by the representative of the Government; and when the clauses are reached, perhaps he will be prepared with a satisfactory explanation, or with certain provisions to meet the defects to which I have referred, or to improve the Bill in the direction which 1 have suggested.
– I am very glad that the Government have brought forward this .Bill. I have very little to say bv way of criticism. I think that it is a very good Bill, and that it ought to have a smooth passage through the Senate. It has evidently been most carefully prepared, and embodies the latest ideas on the subject of trade marks. I do not think that there is any doubt as to our competence to pass the Bill as drafted. The Government, probably experienced the difficulty which has been experienced in other cases of .introducing Federal legislation to at once take the place of the States legislation on the subject. But I think that this Parliament has full power to deal with the matter, as it has been dealt with in the Bill.
– Have we the intricate knowledge - that is the question?
– The question ‘ raised by Senator Best was whether we can provide that the powers and functions hitherto exercised under a State Act by the Governor in Council should be exercised hereafter by the Governor-General in Council? I think we can.
– Certainly we can.
– I am glad that my honorable friend is on our side. Under section 51 of the Constitution Act, we undoubtedly have the fullest power to deal with trade marks. And that being so, there is no doubt that we have the power to reenact every part of a State Act which we desire to re-enact. Can it be out of our competency, then, to pass a clause simply saying that the powers and functions now being exercised under a State Act by the Governor in Council shall in future be exercised by the Governor-General in Council ? That is what is meant by the Commonwealth Government taking over the administration of States Acts.
– Although that necessarily involves want of uniformity?
– It necessarily involves want of uniformity, and that can hardly be prevented where we are taking over a mass of legislation on trade marks or patents.
– It will all come right in time.
– Yes. I do not think we can obtain uniformity all at once. All that can be done is to provide for uniformity to take place at some future period, and in Hie meantime to keep in existence the States legislation for the purpose of tiding over the period of transition.
– Clause 7 provides for ultimate uniformity.
– Yes, it does ; anr] another clause provides for keeping the States Acts in existence until that uniformity can be’ obtained, and for their administration in the meant me. Senator Best referred to another matter. which I dc lr.-r think will present any difficulty, and which may be considered in Committee, and that is the registration of old trade marks. In 1883, after the Imperial Act was passed, the registration of trade marks was a comparatively, if not an entirely, new thing. Provision had to be made then for a number of trade marks which were in actual use, in order to provide for their registration. But we are dealing now with an absolutely different state of things. We have six States, each of which has had its own trade marks law for some time, and probably all trade marks which it was desired to register have been registered thereunder. This Bill provides that the registration of those trade marks shall continue. So that there does not seem to me to be the same necessity for making any provision with regard to old trade marks which never have been registered. As the Bill stands, a trade mark which never has been registered, will have to conform with the new law. An application will have to be made under its provisions, and that seems only fair and reasonable. Though the provision with regard to disclaiming common matter is new, it seems to me to be a very useful one, as being calculated to prevent disputes from arising. Supposing that a man comes along with a label or device which contains some common word or words. He may have that registered, and all he is required to do is to disclaim any exclusive right to a common word. Surely it is better that he should do so. It is admitted that the word may be used in any other trade mark. For instance, the words “Irish whiskey” maybe used in any trade mark. Why should not the man who wishes to register a device that includes the words “Irish whiskey” be required at the same time to say, “I am not claiming any right to the words ‘Irish whiskey’ or to the word ‘whiskey’ “? Practically it means that when a man goes to register a trade mark he has to state what is the peculiar novelty that he claims exclusively for himself. It may be a scroll, or device, or an invented word, but it must not be a word which is open to use by anybody.
– Does not the honorable and learned senator, see that paragraph c of .clause 15 says that the label may be registered ?
– Quite so. A label containing certain words and a certain device may be registered. The applicant will have to expressly state that he is not claiming any exclusive right to certain words which appear on the label. Why should he not do it?
– Not according to British legislation.
– I think it is an improvement. Under British legislation the whole of the label may be registered as a trade mark, but it is not an infringement of that trade mark to use the words whichappear thereon. The only difference that’ has been made in the framing of this mea sure is that the applicant shall state in advance that he is not claiming any exclusive right to these words, which may be regarded as common, and may be used by anybody else.
– That is the unfairness of the provision.
– I do not think it is unfair; it is most desirable, in order to prevent, as far as possible, disputes from arising as to the extent of the exclusive right which is obtained by the person who registers the trade mark.
– Perhaps he would not be able to register at all.
– I do not know whether any other matters were referred to by Senator Best; but, if so, they are matters which can be better dealt with in Committee. I think it is a good Bill. I am not able to find any fault with its provisions, and the criticisms which may be directed against the measure by other honorable senators will no doubt be worthy of consideration in Committee. I had not intended to speak at this stage’; but I congratulate the Government on having brought forward the Bill, which I hope will be carried through the Senate without difficulty.
– Paragraph c of clause 6 may practically keep the State law alive for ever.
– Only in respect of a trade mark which is already registered.
– No; paragraph c of clause 6, read in conjunction with paragraph a of clause 13, may practically keep the State law alive for ever.
– If the right’ has already been acquired, then the person will not be deprived of it. There is very little more in any of the paragraphs of that clause than the usual provisions found in nearly all measures for the preservation of existing rights.
– It always has to be administered under the State law.
– Under a subsequent provision the State law will be administered by the Commonwealth. There will be a registrar who will administer the law, and in regard to any claim which may arise under paragraph c of clause 6 he will administer the law as it was in the State Act. I do not think that any difficulty will arise in working the provision.
– There are two points which I wish to bring under the notice of Senator McGregor. Paragraph a of clause 15 says -
A name of an individual or firm printed, impressed, or woven in some particular and distinctive manner; or
In Western Australia there are what are known as trade union labels. These labels are registered under the Trade Marks Act. Of course they are not the property of an individual or a firm, but the property of an organization. In order to meet that class of trade mark, I should like the Government to consider whether it is necessary to insert the word “ organization “ in the definition clause of the Bill. If the VicePresident of the Executive Council is of opinion that this class of trade mark should be dealt with in the Bill, we could adopt the term by which these organizations are designated in the Conciliation and Arbitration Bill now before another place.
– We might be able to do something in the definition clause.
– I know that in the United States of America this legislation has been largely used by trades organizations.
– And in Canada.
– And also in Canada. I hope that the Vice-President of the Executive Council will consider the possibility of defining the- persons who may make an application for a trade mark in such a way as to include trades unions and- similar organizations. A .difficulty cropped up under a State law which may not be met by this Bill. In applying for the registration, of a union trade mark, the application was made by an individual on behalf of such an organization as I have indicated. It was found that the trade mark had to be registered in his name, and practically became his property. I remember that considerable difficulty was experienced, where the secretary of an organization quarrelled with its members, in getting the registration transferred to the officer selected in his stead. It is possible that a like difficulty might arise under this Bill.
– That should have been dealt with in the association rules.
– I hope Senator McGregor will consider the possibility of such a difficulty arising under this measure, and will make provision in it to insure, that the. trade mark of such an organization as I have referred to shall be the property of the organization, and not of the officer in whose name it may happen to be registered. It occurs to me that the same difficulty might arise in connexion with the registration of a trade mark by a firm if it were registered in the name of the manager of the firm.
– Will these trade marks or labels apply to the goods made by the members of an organization?
– A label is taken out by an organization, and it is then given to an employer, who is willing to manufacture his goods under certain fair conditions, and the employer stamps the goods with the trades union label.
– And all unionists are exhorted to buy only those goods.
– That may not be stated on the face of the label, but the object of the label is to enable people to know whether they are buying goods that have been made under fair* conditions. If they find the trades union label’s upon goods, they will understand that they have been made under fair conditions. I hope that the Government will make sure that this Bill gives scope for the registration of such labels by organizations.
Question resolved in the affirmative.
Bill read a second time.
In Committee :
Clauses 1 -to 3 agreed to.
Clause 4 -
In this Act, except where otherwise clearly intended - “The Registrar “ means the Registrar of Trade- Marks.
– I wish to move an amendment to the definition of the term “ The Registrar.” Under clause 10, I find that the Governor-General may appoint a Deputy Registrar, who will have all the powers of the Registrar, subject to his control only. I therefore think it is right that the term “ The Registrar” should include the Deputy Registrar. I ‘move -
That the words “ and Deputy Registrar “ be inserted before the word “ of,” line. 3.
– Before that amendment is made, I think we should have a definition which would include a firm. I think that “person” should be defined to include an applicant and a firm, because, as I have already pointed out, the Acts Interpretation Act is not sufficient for the purpose.
– Have we been so unwise? Does not “person” include persons ?
– Yes, but it does not include a firm. As a matter of fact, many persons trade under a firm. name. There may, for instance, be an old-established business, like that to which I have already referred of Buckley and Nunn. I do not suppose that any of the original partners in that firm are now living, but certain individuals are trading under the name. I mention that for the purpose of illustration. It does not necessarily follow that the persons whose names form a portion of the title of the firm are at present members of the firm, and as honorable senators are aware, there are oftentimes sleeping partners of firms. It is very difficult at a moment’s notice to define a “firm.” For the present I suggest that “person” may be defined to include an applicant and a firm.
– I should like the honorable and learned senator to use the words “firm or organization” in order to meet the case to which I referred on the second reading.
– There is grave difficulty in including an organization. A trade mark can only be used in connexion with a goodwill, and there can be no goodwill in connexion with an organization such as the honorable senator has mentioned.
– Before any amendment is moved, I think we should consider whether the word “ person,” according to the definition given in the Acts. Interpretation Act. is not sufficient to cover everything.
– I am afraid it is not.
– It is certainly a strange omission if it is not. I know that it includes a body corporate or politic.
Amendment, by leave, withdrawn.
Senator BEST (Victoria).- I think that “ person “ should be defined to include a company, limited or unlimited, a trading name, or style, or a firm. I am adopting the words of Mr. Moulton’s Bill, which in that measure are inserted in a different place altogether. If we were to follow the drafting of Mr. Moulton’s Bill, clause 15 of this Bill would read -
The essential particulars of a registered trade mark shall be one or more of the following particulars :-
A name of an individual or firm -
And then it should go on to say, “ or limited, or other company, or corporation, or trading name, or style.”
– Who would register under a style?
– Many trade marks are registered under a particular style.
– “ The Phoenix Foun-. dry.”
– “ Waulkenphast Boots.” Who is he?
– The owner of a trade mark registered by that name.
– What the honorable and learned senator has quoted is not in the definition clause of Mr. Moulton’s Bill?
– No, because they would rely upon the Acts Interpretation Act. In . the interpretation clause of his Bill clause . 52, “person” and “application,” are defined to include a body corporate and firm. They evidently have an Acts Interpretation Act in Great Britain somewhat similar to our own, but notwithstanding that Mr. Moulton puts in these words -
In and for the purposes of this Act, unless the context otherwise requires, “ person and applicant “ include a body corporate and firm.
Personally, I should be perfectly satisfied with that.
– Would that cover organizations ?
– I do not think it would, because first of all an organization is not a body corporate, and the honorable senator must remember that a trade mark can only be attached to the goodwill of a business. I understand that the organizations to which Senator Pearce refers are trades unions. If they are carrying on some particular business there would need to be a proprietor of the business, and he would be the owner of the trade mark in connexion with that business. Clause 55 of this Bill provides that a trade mark is attached to a good-will. It says -
A trade mark, when registered, may be assigned arid transmitted only in connexion with the goodwill of a business concerned in the particular goods in respect of which it has been registered, and shall be determinable with that goodwill.
– That is exactly the condition.
– If it is, I have misunderstood the honorable senator. Such a radical alteration is involved in the honorable senator’s suggestion that it would be very difficult to formulate on the spot a provision which would meet the case to which he refers. I move, in the meantime -
That the following new definition be inserted : - “Person” and “applicant” shall include a body corporate and firm.
– T move, as an amendment of the amendment -
That after the word “ corporate,” line 4, the word “ organization “ be inserted. “ Organization “ is the term used in the Conciliation and Arbitration Bill to define a trades union. With regard to what Senator Best has said about goodwill, when the owner of a trade mark assigns the trade mark with a goodwill he meets what is laid down in clause 55. For instance, if the Bootmakers’ Union registered a label or trade mark, it is assigned to the man who uses it in the manufacture of boots, with the goodwill of the owners of the trade union mark, for the purpose of stamping his goods.
– Who carries on the business ?
– The man to whom the union has assigned the trade mark.
– It can only be assigned in connexion with a business, and the trade union has no commercial business.
– They have a property in the trade mark.-
– They can only have it for a trade or business.
– Any person may register a trade mark, even if he has no business.
– Look at clause 31.
– Clause 31 provides that any person claiming to be the proprietor of a trade mark’ may make application for its registration, and he is supposed to specify the goods in respect of which he desires the trade mark to be registered ; to state the essential particulars of the trade mark ; to disclaim any right to the exclusive use of matter added to the essential particulars ; to state an address within the Commonwealth as an address for service; and it is also provided that he need not disclaim his own name.
– The trade union does not make the boots.
– I can see nothin/-in clause 31 to show that the goods must be made by the applicant for the trade mark. ‘ It says that he must specify the goods in respect of which he desires the trade mark to be registered, but not goods of which the applicant is the manufacturer.
– The goods must be made by the union, and it would be a fraudulent trade mark if they were not.
– If the trade mark applied for described the goods as being made under union conditions, it would be a fraudulent trade mark if they were not so made ; but it might only describe the goods as being made under fair conditions, and not necessarily union conditions. Dealing with the case which I have referred to as an illustration, there is nothing in this Bill that provides that the applicant must be the manufacturer of the boots, and I, therefore, believe I am quite in order in moving the amendment I have moved to provide that an organization may- be able to register a trade mark.
– How would the honorable senator fix the proprietorship? Who would sue for infringement ?
– The trades union that made the application. Under the Trades Unions Act, a trades union can sue and be sued. Before they can come under the Conciliation and Arbitration Bill, which is being dealt with in another place, to be an organization in the eyes of the law they must’ be registered.
– Will they not become a body corporate then?
– I am afraid not in the trading acceptation of the term. In Western Australia we had an Act’ by which companies could be incorporated, as they could not sue a secretary who levanted with their funds. After the Arbitration Act was passed in Western Australia the unions became bodies corporate.
– An organization does not necessarily mean any registered body.
– Under the legislation proposed in another place, trades unions will be registered as trades organizations or industrial organizations.
– If we use the word “ organization,” it may mean anything.
– I tam prepared to move the amendment in the form I have stated it’, and honorable senators can discuss it.
– It is meaningless, as the honorable senator puts it.
– Under the Acts Interpretation Act, section 22, “person” is denned to include a body corporate and politic as well as an individual.
– If an organization is made a body corporate it will be all right.
– If legal members of the Senate believe Chat will include trades unions there may be no necessity for the amendment; but there can be no harm in agreeing to the “amendment, even though it should involve the repetition of words covered by the Acts Interpretation Act.
– Are trades unions bodies corporate under the Western Australian law ?
– Some are registerd under the Trades Unions Act and some under the Arbitration Act ; but they are not all registered bodies. I take it that if my amendment is agreed to trades unions will be able to apply as industrial organizations for a trade mark.
– It will be necessary to alter almost the whole of the clauses of the Bill. The honorable senator’s proposal alters the whole principle of trades marks.
– The object of putting in a definition of “ person “ is to enable firms and organizations to act in the name of a person.
– Is the honorable senator prepared to satisfy the Committee that what he refers to is a trade mark and not an industrial mark?
– Certainly it is a trade mark. >It is just as much a trade mark as is a label indicating that certain goods are the product of a certain district, or that the products of a certain district are used in their manufacture. A brewery in Senator Dobson’s own State has a trade mark which says that the water from a particular locality is used in the manufacture of the article, and the object, of course, is to encourage the sale of the liquor supplied from that brewery. I am endeavouring to provide for a trade mark which will indicate to the public that a certain class of labour has been employed iii the production of certain articles, or that they have been manufactured under certain conditions. By leave, I will amend myamendment, by inserting the word “ industrial “ before the word “ organization.”
Amendment amended accordingly.
– If I had any doubt as to whether the Acts Interpretation Act covered any interpretation not set down in exact terms in this Bill, I should be quite willing to support ‘the amendments which have been proposed, both by Senator Best and Senator Pearce. The amendment moved by Senator Pearce has been objected to on the ground that an organization does not actually manufacture goods, and has, therefore, no right to register a trade mark. We know that when this Trade Marks Act is passed there will be firms in Melbourne, or in some portion of the Commonwealth, who will be having goods manufactured in other places, and carrying their trade marks, only indicating where they were manufactured. I have no doubt that an organization, such as that to which Senator .Pearce has referred, would be able to register under this Bill as it stands, but I think all these definitions are covered by the Acts Interpretation Act, which defines a person to include a body corporate or politic.
– The word “firm “ is not covered by the Acts Interpretation Act.
– I do not see how that can be, as it must be an aggregation of individuals.
– It need not, indeed.
– And if it is registered it must be a corporate body. I can see no objection to allowing the clause to pass as it stands. I point out that the language adopted by Mr. Moulton in his latest draft is more in accordance with the language adopted in this Bill than with the amendment moved by Senator Best.
– I was quoting from his Bill.
– Not the latest copy.
– Will the honorable senator show me the later Bill?
– Does the honorable senator say that in his latest Bill Mr. Moulton does not include the definition that “ person “ includes a body corporate or firm?
– No. Another, point is that the draftsmen employed in drafting this Bill adopted everything that has been introduced into the legislation of the old country, which they considered to be applicable to our conditions in Australia. I object to amendments which are simplybased upon the language used in English legislation. That certain language has been used by British draftsmen is no reason why we should use it, when we have draftsmen of our own who are able to select the best features of the measures that have been passed elsewhere.
–Will the honorable senator accept Mr. Moulton’s definition in his last Bill ?
– In what respect?
– Does the honorable senator say that it does not include what I wish to insert in this Bill?
– What I say is, that the conditions in Australia are so different from the conditions in England that it is not necessary to adopt the exact words of Mr. Moulton’s Bill, either as introduced in 1902 or in 1904..
Senator BEST (Victoria). - The VicePresident of the Executive Council gave us to understand that he would be guided by Mr. Moulton’s last Bill. In the meantime, I have had an opportunity of looking at that Bill, and amongst the. definitions I find the following : - “ Firm “ shall include a company or person carrying on business.
That is what I wish to have inserted. I have already pointed out that our Acts Interpretation Act does not include1 the word “ firm.” The Vice-President of the Executive Council says that- Mr. Moulton’s last Bill does not include the words used in my amendment. But it includes other words which are exactly the same in their meaning, and which carry out’ my purpose. As my honorable friend apparently is satisfied with Mr. Moulton’s amended form, I shall have no objection to withdraw my present amendment, with a view to moving another.
Amendments, by leave, withdrawn.
Amendment (by Senator Best) proposed -
That the following new definition be inserted : - “‘Firm’ shall include a company or person carrying on business.”
Amendment of the amendment (by Senator Pearce) proposed -
That the words “ or an industrial organization “ be added.
– It seems to me that there is a possibility that if we amend the clause as Senator Pearce desires, certain organizations may obtain trade marks in connexion with certain goods, which would prevent the proprietors of those goods from using their own trade marks. That is one difficulty that is suggested.
Senator PEARCE (Western Australia). - With regard to the proprietorship of labels used in connexion with the sale . of goods, I should like to read a passage with regard to the law of trade marks, from
Sebastian. Upon page 4 of his work he says -
The use of the trade mark is not in all cases to designate the maker of the substance to which it is attached, though that is usually so ; it may indicate some, other person who has expended labour on the article, so that, as finished, it owes some portion of its value to him.
Surely that covers the case of the Bootmakers’ Union. Here is a proprietor wishing to indicate to the public that certain persons have expended labour on certain articles. This quotation shows that he may ‘ indicate that those persons have expended labour on his goods, so that the goods owe some part of their value to- them. The work from which I am quoting proceeds -
Thus, in a case in the Supreme Court of New York, it was held that, where one person manufactured cotton cloths, and another printed them, the mark was indicative of the printer, and not of the original manufacturer.
That clearly shows that a trades union would be legally entitled to register a trade mark, although not actually the proprietor of the business to whom it assigned that trade mark.
– With reference to the contention raised by Senator Pearce, it appears that there are two classes of organizations which may come within the description given by him. One is an organization that is registered in some way or other, and as a registered organization is known to the law, and can be dealt with as an individual can be dealt with. Another class of organizations consists of those which are not registered.
– But which are legalized.
– In what sense?
– Under the Trades Unions Acts of the various States.
– A trades union is a purely voluntary association of members working under certain rules, which are binding upon them legally in some respects, and in other respects merely morally. Such an organization, if unregistered, cannot appear before the rest of the world as an individual.
– In the Taff-Vale case a trades union did appear, and was mulct to the extent of ^2 0,000.
– They had a definite status in the eye of the law. Otherwise the law would not have been able to operate against them, and they could not have appeared as a party in the Court. The members of the union affected would otherwise have had to appear as separate individuals, combined together for a common purpose. As I have already explained, in this instance, there would be two classes of organizations, one of which could be registered, and could appear in any legal proceedings in the same way as a private individual. But, given an unregistered voluntary organization, there are no means of dealing with it. If Senator Pearce succeeds in having this amendment adopted, I do not think that it will be of any value, so far as unregistered organizations are concerned ; and so far as concerns registered organizations, if they come within the term “body corporate “ they come within the Bill, wherever a person is referred to.
– But are they bodies corporate ?
– That is what I do not know. If they are registered organizations, and have a definite status recognised by law, they come within the purview of this Bill. But if they are unregistered I do not think that any attempt on the part of Senator Pearce to introduce them in this Bill will have any effect. With regard to the other contention raised by Senator Pearce, the quotation which he has read has only gone to demonstrate the awkwardness of his position. I take it that the organizations to which he refers are trades unions, which do not themselves claim any share or interest in the particular goods which are to be sold. With regard to the quotation made by Senator Pearce, it appears that Sebastian does not assert that the trade mark should be owned and enjoyed by the manufacturer of the goods, or by any person who has, at any time, given a value to them. In the New York case quoted it appears that not the manufacturer but the person who had printed on certain calico had the trade mark. If that printer had thought fit to affix a trade mark, which concerned his own work, he was perfectly at liberty to do so.
– Or on any work?
– It was not the workmen of the printer who put any trade mark on that merchandise to represent the work which they had done thereon.
– Nor did they do so in the case which I instanced.
– That still further complicates the position, and shows that it is not such a case as is intended to come within the purview of the Bill. Senator McGregor has pointed out that trade marks would be put on many articles of merchandise here, which were noi manufactured or produced by the persons doing that marking. No one for a moment doubts that position. There are consumed in Australia a large number of articles to which a trade mark is applied by the importers. But, in every instance where a trade mark is applied for in connexion with goods, it is applied for either by the manufacturer or the intending seller, wholesale or retail. It may be the manufacturer who applies for a trade mark, and sends the goods out wholesale to distributing houses, from which they pass to retail -houses, and finally reach the hands of the consumers with the trade mark on them. He may release the goods from his factory without any trade mark on them. He may send his goods from England to Australia, Canada, and America. The sole importer of his goods into Australia may think it is quite good enough for him to have a trade mark applied to them, and, if so, he will get a trade mark applied to them. In every instance Senator Pearce will find that the applicants, whether they are the manufacturers or not, are concerned in selling the articles, and placing them in the hands of the public. For that reason I think there must be considerable doubt, as to whether anybody outside - in this instance, a trade union - which may have been concerned as individual members in the production of the goods, should be allowed to apply for a trade mark to be applied, not to goods which they take the responsibility of selling to the public, but to goods which they have made, and which at the time of the application are the property of somebody else, over whose actions in connexion with the sale they have not the slightest control.
– Does the wholesaler retain any control over the retailer selling his goods with a trade mark?
– Certainly not, because the goods have been sold by the merchant. He applied for the trade mark before he sold them. But in this instance, in the disposal of the goods to the public, whether by wholesaler or retailer, the persons who applied for and used the trade mark would have no concern. I hope that Senator McGregor will give an opportunity to Senator Pearce to bring this matter up at a later stage, when it can be dealt with after more mature consideration than it can be this afternoon.
Bill received from the House of Representatives, . and (on motion by Senator McGregor), read a first time.
Bill received from the House of Representatives.
Motion (by Senator McGregor) proposed -
That the Standing Orders be suspended to enable the Supply and Appropriation Bills to pass through all their stages without delay.
– I have no intention to offer any opposition to the motion, but I think that attention ought again to be directed to a practice which seems to be growing up of treating the Senate in financial matters in a Very cavalier manner. It has practically been deprived of any opportunity to give serious consideration to proposals for the expenditure of large sums! I am not blaming this Government, because the practice was initiated long before it came into existence ; but it must be evident that sooner or later the Senate will have to make up its mind either to consent to be absolutely ignored in financial matters, or to decline, even in order to meet the convenience of a Govern ment, to continue the practice of suspending the Standing Orders.
– Cannot that be done on the Estimates-in-Chief ?
– I am drawing attention to a practice which is growing up.
– I am quite in agreement with the honorable senator.
– The longer the practice is continued, the more firmly will it become established, and sooner or. later the Senate will have to determine whether it is content to be deprived of a voice in financial matters, or whether, on some occasion, it will, in order to mark its displeasure at this growing practice, decline to suspend the Standing Orders, and pass these measures in a haphazard way.
– The appropriations have all to be confirmed afterwards in the Estimates-in-Chief.
– But when that time comes the money will have been spent. If that argument had any weight, it would mean that we need not bother about the examination of the Estimates until the Appropriation Bill comes up towards the close of the session.
– This is only to replenish the Treasurer’s Advance Account.
– I do not know what appropriations are provided for in the Bill, but I imagine that it covers more than an advance vote to the Treasurer.
– The expenditure to be authorized is to be made on the basis of last year’s appropriations.
– Are we to have no opportunity to revise that rate of expenditure if occasion should offer? If honorable senators think that because’ a certain expenditure was incurred last year, there should be no opportunity of revision, then once a set of Estimates is passed, there is no need to pass another set, and the Government can go on spending at that rate until eternity.
– The vote cannot be exceeded
– This Bill is only appropriating the salaries for the month of July.
– I am not referring to this particular instance. I have not kept count, but I venture to think that the Standing Orders have been suspended a dozen or twenty times to permit of the passage of Bills appropriating large sums. Can ‘honorable senators say that a reasonable opportunity is afforded to the Senate to revise the expenditure?
– Yes. On the EstimatesinChief.
– I have heard that, plea used in a State Parliament time and again. I have known six or nine months’ appropriations to be expended before the Parliament had an opportunity to revise the Estimates. I am not finding fault with the present Government, who probably could not avoid bringing in this Bill; but I wish to protest against the continuance of the practice. If it is continued it will become the duty of some honorable senator to take such action as will impress on the Government that the Senate is not prepared to take a subordinate position in financial matters, and will insist on being afforded d reasonable opportunity to consider the items in any Appropriation Bill presented for its concurrence.
– Senator McGregor is only following the usual practice. The only way in which the difficulty pointed out by Senator Millen can be obviated is by our insisting on the Estimates-in-Chief for the year being passed before it commences. The financial year began on the1st July, and shortly we shall have to provide for the financial requirements of the Commonwealth for’ the year. This Supply Bill is brought in for the purpose of enabling the Government to pay their way until the Appropriation Bill for the year has been passed. The Minister in charge of a Bill of this kind usually intimates, that the items of expenditure contained in its schedule are based on the appropriations for the previous year, and in no case exceed them. We must provide the money for paying the salaries of our officers, and meeting other obligations before we can - deal with the EstimatesinChief; and when that time comes the Senate will have every opportunity to make known its request to the other House.
SenatorMillen. - After the money has been spent ?
– After a portion of the money has been spent. The only way in which the view of the honorable senator could be met would be by passing the EstimatesinChief before the commencement of the financial year. The position in which we find ourselves can be met only by. means of a Supply Bill. So long as the Government assure us that they have not increased any of the items beyond the amounts voted by the Parliament last year, we cannot complain; the usual practice is being adopted on the present occasion. As a matter of fact, the members of the House of Representatives have as much right to complain as have honorable senators.
– The suspension of the Standing Orders has not to be moved in the House of Representatives.
– I do not know thai the suspension of the Standing Orders matters much under the circumstances.
– The House of Representatvies must have taken this Supply Bill through all its stages tp-day.
– The practice being followed now by the Government was that’ followed in the State Government of which I was Treasurer; and there never was any discussion that I can remember on the items in the schedule. We must make provision for the salaries of the public servants, and for carrying on the necessary public works, and I understand that there is no expenditure proposed which has not been previously authorized. The constitutional privileges of this Chamber will be in no way interfered with by the passing of this Supply Bill. Of course, if Parliament chooses to insist upon the Estimates being submitted before the end of the financial year, Supply Bills of this kind will not be necessary; but, as I say, under the circumstances, we are bound to pass a measure of this description. There is a great advantage in not passing the Estimates before the close of the financial year. The delay enables the Treasurer to state to Parliament exactly the financial position during the previous twelve months. The Treasurer is able to show whether there has been any excess of expenditure or otherwise, and tp compare the actual expenditure with that proposed for the succeeding year.
– Does the honorable senator think that the Estimates ought to be submitted as early as possible after the close of the financial year?
– The Estimates cannot be presented immediately afteT the close of the financial year.
– Then the honorable senator does not think it would be a convenience to present the Estimates as earlyas possible?
– It would be a convenience to present the . Estimates as early as possible, but not so early as within twenty-seven days after the close of the year.
– I did not suggest anything of that kind.
– Then why should tha honorable senator grumble at a Supply Bill of this nature being -introduced ?
– What I complain of is the growing practice of presenting Supply Bills month after month.
– That is not a growing, but a very old-fashioned practice, which has a great deal to commend it, though, at the same time, it must be admitted that something may be said for the other view. In the State Parliament of South Australia, where we found this practice of great convenience, we used to show in parallel columns the amount voted, the amount expended, and the amount proposed for the ensuing year, so that honorable members could see the financial position at a glance. If the Estimates were presented before the end of the financial year, Parliament would not be in such a good position to intelligently appreciate the figures.
– Then the Estimates had better be left until the end of the year, when all the money has been spent, and there is no “ estimate” about the business.
– All the authorized expenditure, of course, would then have taken place with the addition, it might be, of certain unexpended balances.
– According to one of the Bills before us, more money has been spent than was appropriated.
– Possibly that may be so in certain instances - that is, expenditure may have taken place under Executive warrants ; and the Government have to justify this expenditure, or take the consequences, whatever these may; be.
– Which Government? The late or the present Government ?
– The Minister need not be so thin-skinned on a matter of this sort. The present Government had nothing to do with passing the Estimates, or with spending the money ; whether they have passed any excess warrants or not, I am not aware. But, knowing the gentlemen who now compose the Government, I am sure that they look carefully into the finances, and will pass no excess warrants unless circumstances justify that course.
– But it was the late Government who expended the .£5,000 which it is now sought -to appropriate.
– That is only a trifle. A Government is in power for the purpose of spending money if the expenditure be necessary, and no doubt the leader of the Government will be able to justify every item.
– I shall do so if the honorable senator will give me the opportunity.
– I am defending the Government. It is idle to say that the constitutional rights of this Chamber have been overlooked by another place, which, in regard to Bills of this kind, is in exactly the same ‘position as is the Senate.
– I have the greatest possible sympathy with Senator Millen in the protest he has made; not, as Senator Playford appears to think, against the Supply Bill, but against the practice of suspending the Standing Orders. Time after time when the late Government were in power, honorable senators, including a number now sit- ting on the Government side, protested against the practice.
– The honorable senator knows that the suspension of the Standing Orders could not be” helped.
– As a matter of fact, it could have been prevented perfectly well last year, and the practice of the late Government was very much worse than that pf the present Administration. The late Government habitually moved the suspension of the Standing Orders at 2 o’clock on Friday afternoon, and the result was that if an honorable senator desired to say a few words, he was reminded that other honorable senators wished to catch their trains. It is said that there is no use in debating these Bills ; but that is not the case. I should like to show from .what happened a week or two ago, the danger of suspending the Standing Orders. A Supply Bill was introduced coupled with a re-appropriation Bill. I do not suppose that there was a single honorable senator who paid any particular attention to the latter measure, and the result was that some tens of thousands of pounds, which were deliberately voted last year for certain public works, were coolly re-appropriated to other purposes.
– Under a separate item.
– This Chamber last year decided that certain works were necessary, and the Government were authorized to spend the money ; but the Government deliberately went behind the decision of Parliament, and refrained from spending the money in the direction contemplated; in order that it might be spent in some other direction in regard to which we were, not consulted. I am now alluding entirely ‘to the late Government in order to point out the absolute necessity of looking carefully into every Supply Bill.
– Was that Defence expenditure ?
– As a matter of fact it was Defence expenditure, but my desire is now to deal merely with the principle involved.
– The money was expended on ammunition.
– Quite true; but we are now dealing with the principle, and with the fact that the majority of honorable senators were not aware of the reappropriation.
– Yes, Ave were; it was perfectly explained.
– Perhaps the honorable senator knew, but several other honorable senators were not aware of the fact. I am ‘not attacking the Government, seeing they had nothing to do with the matter ; I am attacking the principle of suspending the Standing Orders in order to consider Supply Bills. Unless we have a Bill in our possession beforehand, we cannot consider the various items, and that is the reason why Senator Millen and others, including myself, make so strong a protest on the present occasion. This Bill is to appropriate a sum for the service of the year 1902-3, so that the expenditure is two years old ; and I should have liked time to look into the matter. It would be most interesting to know how the AuditorGeneral came to pass accounts for expenditure which had been made without’ appropriation.
– That is not the Bill under discussion.
– There is no Bill under discussion just now.
– We are asked by one Bill to authorize the appropriation of . £5,65 1 for the year 1902-3 ; and I should have liked ample information as to the circumstances connected with the expenditure. I know that the Vice-President of the Executive Council, is not responsible ; but I have no doubt that if I discussed the matter with him, I should find him defending the action of the previous Governments.
– There will be ample opportunity on the general Estimates.
– But not as to the
– We do not know when the general Estimates will be presented ; and, as a rule, when they do come before us nothing is said about these matters. I intend to support the motion, but I do so reluctantlv.
Question resolved in the affirmative.
– I move -
That this Bill be now read a second time.
I do not think that honorable members desire to go into particulars, though I am quite willing to do so if necessary. It has already been pointed out by Senator Playford that the financial year ended only on the 30th June, and it has not been possible in the interval to submit the Estimates for the year 1904-5. However, I have the assurance of the Treasurer that the Estimates will shortly be before Parliament. One reason for delay is found in the Public Service classification scheme. It is impossible to yet estimate how that scheme will affect the finances for the ensuing year, but as soon as the facts are known, the Estimates will be submitted, and there will be no further necessity for interim Supply Bills. It has, for some time past, been the custom to pav public salaries . on the last Friday in the month, and considering the financial ramifications of the Commonwealth, it is necessary to give the Treasury as much notice as possible. I shall be happy to give any further information during the discussion of the items in the schedule.
Question resolved in the affirmative.
Bill read a second time.
In Committee :
Clauses 1 to 4 agreed to.
– I desire to say a word or two as to the reclassification scheme of the public service, not as it affects individuals, but as it affects the grading of offices. I notice that the post and telegraph office at Launceston has been graded as second class in grade 2. The only post-offices in the Commonwealth of the second class, grade 1, are at Newcastle, Ballarat, Bendigo, Rockhampton, Townsville, Fremantle, and Kalgoorlie. I have no means of ascertaining the basis on which the classification of these offices is made, and why they should be in grade 1, while the Launceston office is in grade 2. I do not even know whether it is revenue and expenditure which forms the basis; but, so far as I can ascertain, if the volume of work be the standard, then it would seem as if Launceston should really be in the first grade of the second class. I find that, the employes at the offices in the first grade are as follows: - Newcastle 51, Townsville 52, Rockhampton 53, Bendigo 57, Ballarat 67, and Fremantle and Kalgoorlie 97 each. At the Launceston office there are 80 employes; and if the number is to be taken as an indication of the volume of work, and the importance of an office, then, with the exception of the offices at Kalgoorlie and Fremantle, the Launceston office stands higher than any of the others I have mentioned. Ballarat and Bendigo are two inland towns, whereas Launceston is a port, and a large distributing centre for the greater portion of Tasmania. At the Launceston postoffice mails are received from, and despatched to, every part of the world direct, and that cannot be said of Ballarat, Bendigo, or even Kalgoorlie. It may be said that at Townsville and Newcastle, these being ports, such mails are made up and despatched.
– Not from Newcastle.
– I know that the mails are made up in London and despatched direct to Launceston and Hobart, and that mails are made up at Launceston for the north and north-western parts of Tasmania, for England, for America, for European countries, for the colony of New Zealand, and other parts of the world. The question has been asked as to whether I am justified in bringing this matter forward in connexion with the Department of Home Affairs, or whether I should not. wait until the vote for the PostmasterGeneral’s Department is reached. I have brought the matter up now, because I had some doubt as to when it would be appropriately introduced, and I thought that it would be better to take advantage of the first opportunity which presented itself. I wish to impress upon the VicePresident of the Executive Council that the case* is not one of an individual in the Public Service, who may be wrongly classified. If an individual were affected, he would have his own means of redress. He could appeal to the Appeal Board. I am not sufficiently familiar with the procedure under the Public Service Act and the classification, to say off-hand whether there is any analogous provision to enable a Postoffice to appeal. But I .understand that the grade of persons employed in a particular post-office would be determined more or less by the grade of the post-office itself. I find that I was wrong in saying that there are eighty employes in the Launceston office. There are seventy-nine. But the point is that there are more employes in the Launceston office to-day than there are in any other office in the first subdivision, except Kalgoorlie and Fremantle. Launceston occupies what may be described as an unique position as a Commonwealth post and telegraph centre; It despatches mails direct to all parts of the world without any communication with Hobart, which is the principal office in the State. A number of Tasmanian. offices are served from Launceston, and their letters do not pass through the Hobart’ office. The same applies to mails sent from Tasmania to the mainland or to other parts of the world. Senator Pearce has asked me, by way of interjection, whether I could state the amount of revenue produced by the Launceston Post a>nd Telegraph Office. I want to- get that information from the Government later on. But the important point is ‘that, by virtue of the fact that the Launceston office, does so much work in the way of distributing and making up mails for so many centres, it “saves a considerable amount of expenditure, which would have to be incurred if the mails were railed to the other end of the island. Furthermore, every cable message which comes into Tasmania, either from the other States or from the outside world, must pass through the Launceston office. All messages have to be repeated from Launceston, whether coming out or going into Tasmania. The work done in repeating telegraph messages might not show in the finance records of the office any return whatever. Therefore, the revenue returns would be no indication of the amount of work done there. The fact is, that the work done at the Launceston office is very much greater than the work done at any other office in grade I. I atn quite sure, for instance, that the amount of work done at an office graded, like Ballarat or Bendigo, is not nearly so great as the work done at the Launceston office. Take the mails which may be sent from Ballarat or Bendigo to British Columbia, the United States, or South Africa. Practically the bulk of the work in connexion with them is probably done at the Melbourne office. Every letter is sent through there. But the Launceston office has to deal directly with the outside world. I am not able to make comparisons between Launceston and places like Ballarat, Bendigo, and Townsville,’ so far as the calibre of the staff is concerned. But I venture to .say, without the slightest hesitation, That nobody who has seen the work which is done at Launceston will suggest for a moment that the office is overmanned. The officers have as much as they can possibly do. I trust that the VicePresident of the Executive Council will bring the subject under the notice of the Public Service Commissioner, and that the Commissioner will consider that the importance of the Launceston office is to be judged, not merely by the fact that seventynine employes are engaged there, but by the nature and volume of the work that has to’ be done. It also has to be remembered that the grade of the office is of importance to the employes themselves, and of even greater importance in respect to those who may succeed them. A telegraph officer may be asked to take a position at Launceston. He may know that the cable business there is extensive. He may be aware that Launceston receives all the press messages from the mainland to Tasmania. He may consider that it is’ advisable to stay in another office, where the work is not so great. He may say, “ If I stay here, my salary as an officer is likely to be higher than if I go to Launceston.” The Launceston office should be classified higher, in order that it may attract the services of officers who may be fully qualified to do the important work that has to be done there.
– I wish to direct the attention of the VicePresident of the Executive Council to the item £7,000 for “ Conveyance of members of Parliament and others.” and also the item ,£700, “ Cost of Commonwealth elections.” I take it that the ,£7,000 is for more than one month’s supply. I presume that it represents the expenditure for the greater part of the year. I also presume that the £700 in connexion with the elections is not the total amount of the current year’s expenditure. Certainly, it cannot represent anything like the total amount of the expenditure upon the elections.
– Senator Keating will hardly expect me to enter into full particulars as to whether the post-offices at Ballarat, Kalgoorlie, or Fremantle are rightly classified. I can assure him that I will bring his criticisms under the notice of the Postmaster-General, and the Minister of Home Affairs. I advise that the honorable and learned senator should call the attention of Ministers whose Departments are affected to such matters by means of questions. He would then elicit such information as it is hardly possible for me to give to-night. Of course,- he has a perfect right to bring up such matters at this stage; but in a
Supply Bill no consideration is paid to the classification’ of post-offices or anything of that description. The sums provided for are based upon the amounts appropriated for the same services last year, and the Bill is to be passed, pending the introduction of the Estimates, in connexion with which Senator Keating will have every opportunity of expressing his opinion as to everything that has been done by the Government. I will make representations to the Ministers concerned, in respect to what he has stated. Senator Walker has asked whether the amount set down in this Bill for the railway fares of members of Parliament represents the full sums to be voted. As far as I can gather, different systems are adopted by the Railway Departments of the different States, in respect to the close of the financial year. The financial year of some of the Railway Departments begins about the 1st April, and extends to the 31st March in the following year. It has been the practice to pay those Departments, in the month of July, for services rendered. That is the reason why so large an amount is contained in this. Supply Bill. It is desired to pay the money in accordance with previous practice. The amount voted last year for this purpose was £10,000. Senator Walker will therefore see that the sum now to be voted is only a portion of the total ; but this Bill will enable the Treasurer to meet the demands that may be made upon him by the various Railway Departments before the Appropriation Act is passed. The sum that has been referred to in connexion with Commonwealth elections is required to meet claims during the present financial year. Further particulars will be contained in the ordinary Estimates.
– In the Estimates of the Department of Defence an amendment is required in two or three instances. Under the heading of “Royal Naval Reserve,” on page 9, honorable senators will observe the line “ To be repaid by Imperial Government.” I move -
That the words “ Imperial Government “ be left out wilh a view to insert in lieu thereof the words “ the Government of the United Kingdom.”
This is more than a verbal amendment. Technically speaking, although we are accustomed to use the phrase “ Imperial Government” pretty freely, there is no such thing in connexion with the Parliament of’ Great Britain as an Imperial Government.
It is true that we are all in the habit of talking loosely and colloquially of the Government of Great Britain as the Imperial Government. But honorable senators are well aware that when the term “ Empire “ was first introduced into the titles of the British Crown, Lord Beaconsfield carefully stipulated that it could only be used in connexion with and in the Empire of India. Now to prove that my contention is correct in this respect - and I admit that several honorable senators question its correctness - the schedule to the Naval Agreement, which was prepared by the Government of the United Kingdom, has the following heading: -
Agreement between His Majesty’s Government of the United Kingdom, the Commonwealth of Australia, and the Colony of New Zealand.
That is the proper legal title of the Government which carries on the political business in Great Britain. We are at the commencement of our career as a Commonwealth, and I submit that it is most desirable to be technically as correct as we possibly can in every measure which is placed on the statute-book.
– Does it matter a halfpenny stamp what expression is used?
– I think it does. We cannot be too accurate in recognising the position which the Crown occupies towards the Commonwealth,- and the position which the Commonwealth occupies towards the Crown.
– It would cost more to print the other phrase.
– This is not a question of printing. It is really an important question. If honorable senators will refer to the Constitution of the Commonwealth, they will find that the Parliament . of Great Britain-
– There is no Parliament of Great Britain.
– Well, the Parliament of ‘the United Kingdom, if the honorable senator prefers that term.
– The Parliament of Great Britain and Ireland.
– The Parliament of Great Britain and Ireland - and I believe the Isle of Man - have waived all further power to interfere with us practically by legislation. Under our Constitution, the governing power consists of the King and the Parliament of this country, comprising the Senate and the House of Representatives. We, in fact, occupy towards the Crown as direct a position as the Parliament of the United Kingdom occupies towards the Crown in Great Britain and Ireland. And it is, I consider, of the gravest importance that we should not, even by a heading of this sort, lead any one to suppose that the Government of the United Kingdom has any imperial power of controlling our legislation. That undoubtedly would be inferred from the title “-Imperial.’’’ I consider it is most important that the title should be made correct. I have brought forward evidence that “ Imperial Government “ is not a title which the Government of the United Kingdom claim for themselves, and I submit that it is desirable that the title used in the schedule of this Bill should be made to correspond with what they claim.
– Senator Matheson has quoted from the title or preamble of the Naval Agreement Act, but he did not quote from the operative section which reads in this way -
There shall be issued and paid out of the Consolidated Revenue Fund in each year during which the Agreement remains in force such sum as is necessary to pay the amount which the Commonwealth is liable to pay to the Imperial Government in each year under the Agreement.
So I think that the application of the term “ Imperial Government “ to a refund is correct.
– I have a great deal of sympathy with the claim made by Senator Matheson, but on this occasion, in order to avoid delay, it is advisable that he should not press his amendment. I certainly agree with the honorable senator that whatever terms are used in our Acts of Parliament, they ought to be absolutely accurate and., intelligible. I think that after making a protest against the use of the term, he will find that an alteration will be made beforeanother Supply Bill is presented. I ask the honorable senator not to press the amendment now, because if it were carried, the Bill would have to be returned to the other House, and the delay which would result from taking that course would cause inconvenience to a number of persons.
Senator MATHESON (Western Australia). - Senator Drake, thinks that he has made a point in quoting section 3 of the Naval Agreement Act, but he has simply strengthened my contention. That section is part of the Act which owed its origin to Commonwealth drafting. It has nothing to do with the agreement as adopted by the authorities at home, and agreed to tentatively by the Prime Minister. It is against the very use of the term “ Imperial Government” in this slovenly way by Commonwealth draftsmen that I protest. If I understand the Minister of Defence rightly his statement is that, attention having been called to the desire for accuracy in this matter, he will see that when other Supply Bills come forward the Government of the United Kingdom shall be designated by their correct title.
– Quite so.
– With that understanding I ask leave to withdraw my amendment. I have gained all I had in view.
Amendment, by leave, withdrawn. Senator DOBSON (Tasmania).- I desire to elicit a little information from the VicePresident of the Executive Council with regard to contract post-offices. A few days ago I read in the press some comments in reference, to this matter, and also an expression of opinion by the PostmasterGeneral with regard to the future administration of contract offices. Am I right in understanding that whenever the* revenue of a contract office has reached about £400 per annum it is the intention of present Ministers to do away with the contract, get rid of the contractee, and appoint a person as a permanent officer of the public service? If that is the case, I think that there ought to be no rigidity. I am inclined to think that the case of every postoffice which brings in a- revenue of £400 ought to be looked into very closely indeed before the Government disturb the contract system, and put the Commonwealth to the expense of appointing an official at a minimum salary of £110. In my small State we have innumerable contract postoffices, where the salary paid is £10, £15, or £30, a”d there is very little work to do. If a contract post-office is converted into an official post-office, the . Commonwealth will be charged, not only with the salary of the officer, but with the cost of a building, cleaning, lighting, and all sorts of expenses. I gathered from what the Postmaster-General said that he was ‘ inclined to en on what I should call the side of extravagance. I am quite sure that it is the desire of present Ministers to err,’ if at all, on the side of economy. Everywhere there is an ouTcry against the new or other expenditure increasing, and I do not see that any good purpose will be gained by abolishing a contract post-office immediately a fixed revenue is obtained. I shall be glad if Senator McGregor can give me some information on the point, and if he cannot now, possibly he may be able to enlighten us on another occasion.
– It would be hardly fair to expect that I could go into all the ramifications of the PostmasterGeneral’s Department. But I can assure Senator Dobson that so long as this Government remain in office they will be very careful that nothing shall be done to run the Commonwealth into unjustifiable expenditure. When the necessity arises to convert a contract post-office into an official establishment, ‘ every inquiry will be made with respect to the stability of the revenue, and as to which system would be ia the best interest’s of the people concerned. I hope that Senator Dobson, if he has any instance which he can put forward, will, by question or otherwise, elicit such information as will satisfy him. I am sure that the Postmaster- General will be only too happy to answer any inquiry.
– About a fortnight ago 1 asked the Vice-President of the Executive Council whether any fur- ther steps had been taken to give effect to the resolution of the other House affirming the desirability of an improved mail service being given to King Island, and the answer 1 received was that inquiries had been made, but that it was found that the population of King Island was not .sufficient, and the mining industry on the West Coast had not been sufficiently developed to justify the increased expenditure. My reason for mentioning it now is to impress upon the Vice-President of the Executive Council and his colleagues that they ought not’ to lose sight of this question, which is of the very greatest importance to the residents of that island. I was rather surprised to get the reply that- the population was not sufficient, and that the mining and other industries of the island had not been sufficiently developed to warrant the increased expenditure which would be necessary. I understand that the reason why a large extra sum would be required to give something like a decent mail service to the residents of King Island is because there is really a shipping monopoly in existence, and only one company runs steamers to the island. If honorable senators could understand the circumstances of the case, they would feel quite as much sympathy with the residents of the island as I do. At least twice a week a boat passes from Melbourne to one of the northern ports of Tasmania, and round the West Coast twice a week boats go from those places to Melbourne, and although they’ all pass within a few miles of this island, the people there can only get a mail when it suits the owner of one small steamer that trades between Tasmania and King Island. They have sometimes to go, I believe, several weeks without getting a mail. It was hoped by the residents of Tasmania doing business with the island, as well as by the residents of the island, that some arrangement might have been come to with the Union Steamship Company to give them a- fortnightly or a weekly service if possible. I feel that the inquiries which have been made, and which have led to the answer given to my question, have not covered all the ground. I hope that the Minister will impress upon his colleagues that they ought not to lose sight of the question, and that they should get further information, and make further efforts to provide the people who are doing splendid work in developing that island with a mail service consistent with our present state of civilization.
– What is the population of the island?
– Where is it?
– The honorable senator from that land of sin, sorrow, sand, and sore eyes, Western Australia, is accustomed to such a large desert that he is apt to forget the existence of small islands at a distance from Western Australia. I believe the population of the island is between 500 and 600.
– And they have not a regular mail service?
– They have from Burnie.
– They have no regular mail service from Melbourne and Launceston, although, as I have said, steamers pass within a few miles of the island three or four times a week. In the’ last few years almost the whole of the island has been taken up for pastoral and agricultural purposes, and there is also a good deal of mining going on there. Almost the whole of the surface of the island is composed of rich soil, and if the development is not now sufficient it will not be long, and probably not many months, before the population of the island will be sufficient, and it will have been sufficiently developed to warrant a far greater expenditure than is now incurred in’ providing a mail service for the residents. I hope the matter will not be overlooked by Ministers.
– I shall see that further inquiries are made.
– Whilst the Vice-President was speaking, and asking me to give examples of a practice of which I scarcely approve, I was reminded that I have seen in a newspaper something about the Leongatha post-office. I understand that the Leongatha people went to the PostmasterGeneral with a view to securing a new post-office, and having it declared an official post-office, and, in his reply, the Postmaster-General said that he was quite astonished to learn that the revenue amounted to£1,100 a year. He then went on to say that he would make it his business to declare the post-office at Leongatha an official post-office at the earliest possible moment. I venture to think that the honorable gentleman made a slight mistake. He might very well have said that he was surprised to find that the revenue of the post-office was so great, but the question for him was whether the work was be ing done efficiently, whether the office was in charge of a postmaster or postmistress, what salary the officer was getting, and whether he would be doing the people of Leongatha any particular good by making it an official post-office, and increasing the expense all round. I gathered from the remarks which the Postmaster-General is reported to have made, that he was inclined’ to adopt a hard-and-fast rule, and that,, without inquiring whether under existing circumstances the work was being well’ done, he was inclined” to furnish official post-offices broadcast, when under the contract system the work could be done more cheaply and quite as efficiently.
– Up to the present time, honorable senators will have recognised that the present PostmasterGeneral is - I was going to say, no fool. Everything that he has done up to the present has been agreed to by the Cabinet, and found to be justifiable. I have every confidence that, even though the statements in the newspaper referred to by Senator Dobson may be correct, before the PostmasterGenerai will make any definite promise of the kind referred to he will be thoroughly convinced of the necessity for the alteration.
– There is’ one line here concerning which I should like some explanation. I am not sure whether it is included in Part
– I cannot exactly understand the honorable senator, but I think the item to which he refers deals with revenue that was taken, and was found unnecessary for the actual purpose for which it was taken, and was then refunded. That is a very proper thing to do.
– I quite understand that the VicePresident of the Executive Council cannot be expected to have at his fingers’ ends detailed information regarding every item, but surely th’e answer he has given to Senator Guthrie is hardly a sufficient’ explanation for the Committee. What the honorable senator asked, and what I now ask is, What is this £5,000 for? On what has it been expended? If it is necessary only to state the matter in this form, we might have a Supply Bill with a schedule in one item.
– In the different States there was always power given to the State Treasurer to make advances, but under the Commonwealth that cannot be done without authority. Honorable senators must recognise that we are acting under a different system from that, which has prevailed in the majority of the States.
Senator MILLEN (New’ South Wales). - That does not answer the question at all. What is this £5,000 for ? The VicePresident of the Executive Council possibly has his officers here, and I ask him to ascertain what this amount is for. If it is an advance to the Treasurer, we should know it, and if it is to recoup money which the Treasurer has already spent, the honorable senator should say so. The Committee is entitled to some information concerning the item.
– Honorable senators appear to be very particular. I shall give a particular instance to explain the item. Suppose there has been an overcharge of Customs duties, and a refund has had to be made. Under the Victorian State system, the Department would make the refund, and it would not be necessary to go to Parliament; but under the Commonwealth system, we can make no refund except out of appropriation.
– Is this for refunding amounts overpaid?
– It is to refund amounts overcharged.
Schedule agreed to.
Bill reported without request ; report adopted.
Motion (by Senator McGregor) proposed -
That this Bill be now read a third time.
Senator MILLEN (New South Wales). - I desire to detain honorable senators for but a minute, in order to ask the VicePresident of the Executive Council to see that Supply Bills are in future brought forward in a form which the Senate can more readily understand. One item, the last in this Bill, dealing with a refund of revenue, has been referred to. We have been asked to vote £5,000 in a lump sum, and some indication should be given under an appropriate heading to show the particular purpose for which the vote is required. The information which has been given may be said to be generally satisfactory, and I have no doubt that the item is all-right; but, if honorable senators are to take an intelligent interest in the Supply votes, they should have some information showing what the money is voted for. I hope that in future Supply Bills submitted to the Senate will be prepared in such a way as to inform honorable senators of the purpose for which the votes are provided.
– I shall do all I possibly can in connexion with future appropriations to see that Senator Millen’s wishes are carried out. But the honorable senator must understand that, according to the methods adopted by the Commonwealth, when amounts are paid into revenue by way of excess payment they cannot be paid out again unless by vote of Parliament.
– I only want to know what the appropriation is for.
Senator GUTHRIE (South Australia). - We have been charged to-night with re-appropriating money voted on a previous occasion, and probably when the Estimates come before us we shall be charged with passing items of which we know nothing. This £5,000 is under Division 30 of the Estimates, and it is’ an advance to the Treasurer to enable him to make advances to public Departments in order to meet expenditure, the particulars of which can afterwards be included in an appropriation. I take it that we are voting this £5,000 probably for the purpose of granting increments to public officers, and not to refund money paid out in connexion with overpaid duties. I hope we shall yet have some further explanation in regard to the matter.
– I have made some inquiries concerning this item, and I understand that it frequently happens that money is paid into revenue in error, particularly in connexion with the Customs administration.
– This is under Division 30.
– I know; and as a matter of fact, sums have been wrongly paid into revenue to an amount approaching £5,000.
– This is ,£5,000 exactly.
– As we are aware, no money can be paid out of revenue unless it is appropriated, and th’is amount is placed in the Supply Bill for the purpose of meeting that condition. ‘ The Vice-President of the Executive Council has made an explanation to that effect, and if he were to talk for a month I do not think he could make the matter clearer.
– Is it money already paid in, or to be paid in?
– It is money already paid in.
– Then why is the exact amount not given?
– I cannot say why the exact amount was not given.
– Perhaps some accounts are still in dispute.
– It would be idle to attempt to give the exact amount. It is a matter to be subsequently adjusted ; and the Supply Bill, together with the explanation of the Vice-President of the Executive Council, affords ample information to the Senate. It is a usual item, which we should have no hesitation in passing.
- Senator Guthrie is in error. I wish to inform the Senate that last year the refunds were under Division 29, and this year they will be under Division 30 ; and, consequently, there is a misapprehension on the honorable senator’s part in this connexion.
Question resolved, in the affirmative.
Bill read a third time.
Bill (on motion by Senator McGregor) read a first time. 6 g 2
. —I move -
That this Bill be now read a second time.
Honorable senators will see that this appropriation is one that should have been made prior to this month ; in fact, prior to the end of the financial year.
– It should have been made prior to the last financial year.
– So far as I can understand, the money was voted by Act No. 10, of 1902, but there was some irregularity, and there was a great deal of work to do in the Treasurer’s Department. This appropriation would have been included in a previous Bill, but it had not been thoroughly looked into by the AuditorGeneral, and until that gentleman fully certified as to the correctness of the different items, it could not be dealt with. It is hardly fair that the Government should be blamed and harassed for endeavouring to carry on the business of the country in a legitimate way. No money can be appropriated without the sanction of this and another place, and our desire is, after all arrangements have been made and precautions taken, to legitimatize expenditure which was incurred before this Government came into existence.
– I am rather surprised to hear a complaint from the Vice-President of the Executive Council that the Government are being harassed in their efforts to carry on the business of the country. I am not aware that any one has attempted to harass the Government in ‘any way. Surely we have a right to ask for the most minute information as to every item in regard to which we are asked to appropriate revenue. Because we venture, humbly and timidly, to ask for information, are we to be charged with harassing the Government in its legitimate duties? What special shield is there around t’his- Government, as compared with any other Government, that it should not be called. upon to answer questions?
– We are very young.
– The members of the Ministry may be young in office, but not in other respects. . So far as this Bill is concerned, the Senate recognises that any iniquity which it may contain rests on the shoulders, not of the new young Government, but of the Government which has ceased to exist. This is- an appropriation for expenditure incurred in 1902-3, and all I can say in regard to it, is that it does appear to me, in spite of the explanation which has been given, that either the accounts of the Treasury are in a somewhat backward condition, or there is remissness somewhere. It is twelve or thirteen months since the accounts for which we are asked to make provision, were in, because, under the cash system, all accounts must “be in by the 30th June. The circumstances do suggest a little laxity somewhere, seeing that this appropriation was not presented long ago.
– I trust that the Vice-President of the Executive Council will be able to give an assurance that there will be no further appropriations relating to 1902-3. I notice that in some of the States estimates of the kind date back three or four years, but I should be glad to think that the Commonwealth is proceeding on a safer financial system. 1 have no wish to harass the Government, who, I recognise, are acting with the best intentions. I agree, however, with Senator Millen, that we should have every opportunity to ask questions.
– Without laying myself open to the imputation of harassing the Government, I should like to ask the Vice-President of the Executive Council for some explanation as to the two amounts which appear in this schedule. One is a payment into the “ Trust Fund - Government Printer,” .to enable temporary charges to be made in respect of departmental printing; and the other is a payment into Trust Fund for the purpose of the International Telegraph Account. Those two items amount to £5,000, and without absolute knowledge of how it comes to pass that we are now asked to ^authorize this appropriation, it seems to me that this sum is being paid out of the Treasurer’s Advance Account, and that the Auditor-General passed it, believing it was recoverable. That is the only interpretation at which I can arrive ; but it is now said that the payments cannot be recovered, and that the Trust Funds are not in a position to refund the money to the Advance Account. The result will be that when we pass this appropriation, the Treasurer’s Advance Account will be increased by £5,000, because the debit will be relieved to that extent, and transferred direct to these two Trust Accounts.
-A complaint has been made that the late Government ought to have introduced these appropriations to the notice of the Senate. All I can say is that the Auditor -General’s statement was not made until very shortly before Parliament rose, in November last. The whole of the information necessary to ascertain that these suspense accounts are in operation, and that the sums set down in the schedule have necessarily to be voted, is to be found in a parliamentary paper laid before Parliament some nine or ten months ago. These suspense accounts are absolutely necessary, and they are to be found in every Government of which I know. Everything iri the- present instance has been done in a perfectly proper way. The Treasurer took upon himself the responsibility of making the payments, knowing that he would get the authority of Parliament, and nobody will say that he did wrong. As I say, the matter did not come before the Government until it was a little too late to introduce a Bill making the necessary appropriation ; but the earliest possible opportunity has been taken to adjust matters. Everything is perfectly fair and straightforward; and there is no doubt that the Commonwealth will never get a more careful Or more economical Treasurer than Sir George Turner. The amounts in the schedule are made up practically of the two payments referred to -by Senator Matheson.
– Are they still liquid ? Are they still carried on as credits ?
– They are still carried on, and as fast as the funds are depleted the Treasurer pays more to their credit. These suspense accounts are well known to all who have had to do with the Treasuries of the States. Although, in every instance where I could, I did away with them, because they were liable to abuse, as are all things in this world, still they are very necessary and convenient in certain cases. It is very advisable that the Treasurer should have a fund upon which he can draw as may be required. Of course the amounts spent are afterwards audited.
– I think I am justified in drawing the attention of the Senate to the fact that the Supply Bill which we have just passed, and the Bill which is now before us, are both headed “ House of Represenatives,” aand that the name of the Senate does not .appear ‘ upon them.
– That is because they are brought up in such a hurry.
– That is the excuse offered by the Government, but the fact shows how little inclined we are to harass the Government. We have taken r.o action to resent the fact that the Senate is not mentioned upon the Bills. But the same thing ought not to occur again, and probably the Government will endeavour to avoid it.
– Of course, when I referred to “ harassing “ the Government, I did not intend the remark to be taken seriously. I have had no reason to complain of the treatment which we have received with respect to these Bills. Senator Matheson has a perfect right to make inquiries as to the Trust Fund in respect to the Government Printer. But he must recognise that it is necessary to pay sums into a Trust Fund upon which the printer can draw. As Senator Playford has indicated, the money was paid into a fund by a gentleman whom the whole Commonwealth must recognise as one who was always most careful and cautious with reference to public expenditure. I allude to Sir George Turner.
– Is the fund still liquid, or has the money gone?
– I cannot say whether the money previously voted has been spent, but certainly if more money is required application will have to be made to Parliament for it. Senator Pulsford says that we must take the passing of the Bill as a matter of courtesy, because the name of the Senate does not appear upon it. But honorable senators recognise that it was necessary to proceed with the Bill in a hurry. The Treasury has to pay accounts all over Australia, and whenever such Bills are brought before Parliament at the end of the month it is necessary that they should be passed quickly. For my own part, I think that it shows an economical spirit in the distribution of Bills that we have worked upon copies furnished to the House of Representatives. As to the necessity for monthly Supply Bills, I may point out that in some of the States prior to Federation the practice was to grant supply for three months in anticipation of the passing of the Estimates. Instead of that, we pass monthly Supply Bills, so that members of both Houses may have an opportunity of checking extravagance if there is any. Of course, if the Treasurer can introduce the year’s Estimates next month, and they are passed in time, there will be no necessity for a further Supply Bill ; but if that cannot be done, another Supply Bill will be necessary.
– The honorable senator has misunderstood me. My question was with regard to supplementary votes for 1902-3.
– We could not avoid it in this instance, and if a similar thing should occur once within the next twenty years I am sure that honorable senators would consider it as favorably as they have considered this measure.
Question resolved in the affirmative.
Bill read a second time.
In Committee :
Clauses 1 and 2 agreed to.
– I should like to be quite clear as- to whether the £[5,000 which is to be voted to the Treasurer’s Advance Account will practically increase that fund by this amount? Apparently the position is that, by means of this Bill, we are increasing the Treasurer’s advance by £5,000.
– The off-hand way in which it is proposed to spend £[5.000 of the people’s money, without any adequate explanation, hardly appeals to me. I take it that the position is that Parliament previously passed a vote placing to the credit of the Treasurer’s Advance Account £[20,000. Of that sum £5,000 was subsequently passed to two subsidiary Trust Funds. Now we are asked to vote another credit of £5,000. It would appear, therefore, that the total amount voted to the Treasurer’s Advance Account will be £25,000.
– If we passed £[20,000 previously, of which £[5,000 would afterwards be paid into two other funds, and we are now voting £5,000 more, the total is evidently £25,000. Let me assume that the amount voted for the Government Printer upon the EstimatesinChief was £100,000. Subsequently £[2,000 is also advanced to the printer. I want to know whether the further vote is in excess of the £100,000 voted on the Estimates-in-Chief? Apparently the expenditure of the Department has been increased by this amount. But upon that point we can get no information. Of course nobody doubts that everything is square and above board, and nothing is said with regard to the bona fides of any official or Department; but we have no adequate information concerning it.
– I think I have already furnished sufficient information with respect to the Government Printer’s Trust Fund. With regard to the payment into the Trust Fund for the purposes of the International Telegraph Account, I may explain that in the earlier stages of Federation the Treasurer of .South Australia advanced the necessary payments. But the Commonwealth Government decided to set aside that method, and determined that every State should pay its own share. Then the Post and Telegraph Department said to the Treasury, “ You will have to make an advance out of the Treasury to this Department on account of the International Telegraph Account.” That has been done. I can assure the Committee that these amounts do not increase the total amount of our expenditure.
Schedule agreed to.
Bill reported without request ; report adopted.
Bill read a third time.
In Committee (Consideration resumed, * vide* page 3553).
Clause 4 (Definitions).
– Since the Committee reported progress, I have pointed out to Senator McGregor that the first amendment I moved, and withdrew in deference to his wish, would be more in consonance with the language of the Bill, which refers more frequently to a person than to a firm, and he has agreed to accept my first suggestion. I ask leave to withdraw the present amendment, with a view to move the other.
– Before the amendment is withdrawn I wish to point out that there is a danger in putting an interpretation of “ person “ into this clause, because it may be held to cut down the interpretation of that word in the Acts Interpretation Act.
– My amendment will be to this effect - “ Person “ and “ applicant “ include a body corporate and firm.
– Section 22 of the Acts Interpretation Act reads as follows : -
In any Act, unless the contrary intention appears -
” Person “and “ party “ shall include a body politic or corporate as well as an individual.
If in this Bill we give a meaning to “ person” it may be held that it is limiting or cutting down the definition of the word in section 22 of that Act. I do not know whether the case would ever occur; but supposing that a body politic were applying to register a trade mark, the question might arise whether the particular definition in the Trade Marks Act did not override the general definition in the Acts Interpretation Act, unless the contrary intention appeared.
Senator BEST (Victoria).- I do not share the apprehensions of Senator Drake. All that my amendment says is - “Person” and “applicant” include a body corporate and firm.
– The word “ means “ is used in all the other definitions in this clause.
– The use of the word “ include “ by no means exhausts its meaning. The Acts Interpretation Act defines what “ person “ means, and for the purposes of this Bill we say that that word shall include something else. Surely that is by no means cutting down the interpretation in the Acts Interpretation Act? As I have used the word “ include,” and not the word “ means,” I think that the argument of Senator Drake does not apply.
– I think it is dangerous.
Amendments, by leave, withdrawn.
Amendment (by Senator Best) proposed -
That the following new definition be inserted : - “Person” and “applicant” include a body corporate and firm.
Amendment of the amendment (by Senator Pearce) proposed -
That the words “ and registered industrial organization” be added.
Senator BEST (Victoria).- It is very difficult to follow exactly the meaning of Senator Pearce’s amendment, but if he refers to a registered industrial organization, which is a body corporate and has its seal, it need not be mentioned, because it would be protected in two ways - first, by section 22 of the Acts Interpretation Act ; and, secondly, by the amendment I have proposed. I have learned from Senator Henderson that the institutions to which he referred are registered and have their seals.
– But many of them only for the purposes of the State Arbitration Act.
– They are not regis,tered .iri the States in which there is no Arbitration Act.
– If there are any industrial organizations which are not registered and have no seals the position is different.
– I have in view another object than merely to specify the organization. My proposal is an innovation, to a certain extent. It is not specially provided in any State Act that an industrial organization may become an applicant, and shall be regarded as a person under the Act. But we know that this movement for the use of trade union labels, to indicate that goods, are manufactured under fair conditions, is of new growth. One object I have in view in moving the addition of these words is to indicate that the Act is to be regarded as bringing those bodies within its scope for the purpose of enabling them to register their labels as trade marks. Even if a body corporate does include a registered industrial organization - and there seems to be same doubt in the minds of our legal friends as to whether it does - I think it would be better to put plain words in the definition of “ applicant,” so that it would be an indication to ‘the Registrar that the opinion of the Parliament was that these organizations could register their trade union labels.
Senator BEST (Victoria).- It is only fair to revive in this connexion the objection I previously took, and to warn Senator Pearce that his amendment will not carry him very much further. His case, as I understand it, is that certain trade union organizations - same of them being bodies corporate, and others not - have in use atrade mark which indicates that certain goods made in certain shops are produced under fair conditions. The Bill provides that a trade mark can only be made applicable to goods or classes of goods, and, moreover, that a trade mark can only be associated with a trade goodwill. I do not think that the case which Senator Pearce has put will be covered by the Bill, because he does not pick out a trade mark in regard to goods made by a particular person, but a trade mark in regard to goods which may be sold at fifty places in a town. Take, for instance, boots, which may be manufactured at fifty different places, and bear the trade mark “ Pro bono publico.” That is not contemplated by this measure.
– That was not contemplated by such measures in the past ; but cannot we shape this Bill in that direction?
– My chief object in rising, was to point out that two clauses will require to be . recast if Senator Pearce, wishes to effectively carry out his amendment, which I admit introduces a new principle. Clause 22 says -
A trade mark must be registered in respect of particular goods or classes of goods as prescribed.
That does not contemplate the case put by Senator Pearce.
– I think it does not.
– lt contemplates the labels of the Bootmakers’ Union being applied to boots, and the labels of the Cigar Makers’ Union being applied to cigars.
– I am quite certain that not only that clause, but clause 55, will have to be recast. The latter clause 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 goodwill.
– That is right.
– The first part of clause 5 would also have to be altered.
– Why? That onlydeals with subjects not dealt with by the amendment.
– Yes; but the common law of England does not apply to a trade mark of the character to which my honorable friend refers.
– If this Bill dealt with a trade mark of that description the common law of England would not apply.
– Not so far as it was specifically expressed in the Bill. If the honorable senator desires to carry out what he has suggested he must not content himself with merely moving the amendment he has submitted on my amendment.
– Pursuing further the argument used by Senator Best, and considering the two cases of boots and cigars instanced by Senators
Pearce and Guthrie, we come to this difficulty : Assuming that the views enunciated by Senator Pearce are given effect to in this Bill, a trades union may take out a mark in respect of boots. There may be six different boot manufacturers who, in the opinion of the union, should receive the trades union label - Mr. Jones, Mr. Smith, Mr. Brown, and so on. Each of these manufacturers would be entitled to apply the trades union label to his goods. But Mr. Jones may make a totally different boot from that manufactured by Mr. Brown, and there may be something particular about it which, following his own desire, he may wish to have covered by a trade mark. Will it be competent for him to go before the Registrar and ask him to issue to him in respect of that particular boot a separate trade mark, which he can apply to it? In the same way, if Mr. Smith and Mr. Brown wish to use separate marks for boots of their manufacture, will they also be entitled to do so?
– What is there in the Bill to prevent half-a-dozen of t’hem doing so ?
– That is just the difficulty to which I call attention. The whole principle of trade marks is based upon the assumption that, in respect of particular goods in one country, you have only one trade mark. Under Senator Pearce’s amendment, we should have six or more different manufacturers using a common mark given to them by some one outside themselves, and applied for and obtained by some one outside themselves, whilst four or five of these manufacturers may wish to apply for a separate trade mark under the same Act to the same Registrar in respect of several separate classes of boots which may all bear the trade organization mark.
– One will be a guarantee of material, and the other of workmanship.
– It is very questionable whether, under this Bill, we can provide for two trades marks being used in respect of one class of articles.
– How many trade marks are used in respect of whiskey, for instance ?
– I may deal with that directly, but I have first to deal with cigars, referred to by Senator Guthrie. A trade mark must be registered in respect of particular goods. Particular goods, as referred to in the Bill, means, as I take it, goods that can be identified, as the goods of some particular person, who is responsible for sending them out amongst the community, whether it be the manufacturer, or the wholesale or retail trader. The proposal is to allow a trade mark to be taken out by any organization that holds particular ideas concerning the manufacture of a certain class of goods. That is not the object of a trade mark. The object is to get a mark from a Government office to attach to a certain class of goods for which the person taking out the trade mark will be absolutely responsible, and may be able to say that thev always conform exactly to the description given, in order as Senator McGregor has said, when moving the second reading of the Bill, that the public may be protected, and may know what they are getting. If such a mark, as has been referred to by Senator Pearce, were applied for and granted, and were then let out by the trades union to six different bootmakers, it would not follow that boots distributed to the public under that trade mark would correspond in any way.
– - -They would, so far as the workmanship is concerned.
– No doubt the union mark would indicate to the public that the goods were produced under conditions of the best character as regards employment ; but with regard to the question of material it would be worth nothing; it would be no indication to the public.
– And it does not profess to be.
– That is not the object of a trade mark. Let us take the case of cigars, ‘ instanced by Senator Guthrie. One manufacturer may be producing cigars of varying degrees of quality, some of which could be retailed at 6d., and others at 8d., whilst another manufacturer might produce cigars which could be retailed at 2½d. or 3d. Each might employ labour under similar conditions, and, were Senator Pearce’s amendment carried, it is possible that a trades union might register a label and give it out to each of these manufacturers, to be applied indiscriminately to cigars of a totally different value and material. The proper way is for a person concerned in the distribution of articles, whether as the manufacturer or trader, to apply for a mark to be attached to those articles when distributed to the public. The public^ will then be given some indication that the articles come from a certain definite source, which can be traced on application to the Registrar.
– Does not a tea merchant put the same trade mark oh his shilling tea as on his two-shilling tea?
– He may; but he does not put the same trade mark on another merchant’s tea also. He may have one mark in respect of different grades of similar tea sold by himself ; but he does not take out that mark to be applied to tea dispensed by other people for whom he is in no way responsible. The difficulty is that the right to use a mark of the description referred to by Senator Pearce may be given to different distributors in the community, and, although it may show that the different articles are produced under certain similar conditions of employment, it will not be a trade mark in any sense of the -word. Again, it seems, to me that there is no object’ to be . served, by the amendment, because an organization can take out its own mark and use it.
– There is a. doubt whether it can, unless the amendment moved by Senator Pearce is agreed to.
– Why should there be any doubt? They need not register their trades union label as a trade mark. The principle referred to is largely adopted in Canada, and from what I have read of the practice there, I do not think the trades union label is adopted as a trade mark at all.
– Yes; it is registered as a trade mark in Canada and in the United States also.
– I have some doubt about that.
– I have it on the authority of a man who was a leading member of a union there, and is a member of ‘another House at the present time.
– I have some doubt on the point. I have seen references to the practice in- some newspapers published in the United States and Canada, and I know it is constantly referred to in the Toiler.
– It’ would have no value unless it was registered, as any one might copy it, and apply it to his goods.
– I dp not know whether he would not be punishable if he did so. I doubt whether we ought to agree to this amendment’ to-night. It has not ‘been - suggested- for our consideration before, and though I have the utmost sympathy with the object intended to be served by it, I should be sorry if we included in the Bill something to which we could not give proper effect. -I hope that a decision on the matter will’ be postponed until we have the amendment in print; and Senator Pearce is given a further opportunity to explain it.
Senate adjourned at 9.25 p.m. -
Cite as: Australia, Senate, Debates, 27 July 1904, viewed 22 October 2017, <http://historichansard.net/senate/1904/19040727_senate_2_20/>.