2nd Parliament · 1st Session
The President took the chair, at 2.30 p.m., and . read prayers.
asked the Minister of Defence, upon notice -
– The replies to the honorable senator’s questions, are - as follow:
I may add that instead of using an expensive explosive for practice purposes, a certain quantity of . this ammunition is used, so that after all we benefit to some extent by the adoption of that system.
– So long as only its value is paid it is all right. ;
– That is all we pay.
asked the VicePresident of the Executive Council, upon notice -
– The answers to the honorable senator’s questions are as follow : -
asked the VicePresident of the Executive Council, upon notice -
– The answers to the honorable and learned senator’s questions are as follow: -
The Public Service Commissioner reports : -
Upon the value of the work performed, and the efficiency of the officer.
According to the work they were performing at the time of classification.
asked the VicePresident of the Executive Council, upon notice -
What are the respective weights of mail matter despatched by the Suez, Vancouver, and San Francisco lines of steamers during the last complete twelve months for which the returns are available ?
– The answer to the honorable senator’s question is as follows : -
The particulars in hand are not sufficient to enable an answer to be given, information has been asked for, and will be supplied as soon as possible.
asked , the VicePresident of the Executive Council, upon notice -
Is it the intention of the- Government to establish at an early date a Federal Meteorological Department?
– The answer, to the honorable and learned senator’s question is as follows : -
The Government will give this consideration during the recess.
asked the VicePresident of the Executive Council, upon notice -
How many persons have been prohibited landing in the Commonwealth under the powers given in section 3 of the Immigration Restriction Act 1901, in the aggregate, and under each of the paragraphs (a), (b), (c), (d), (e), (f), (g), since the Act came into operation, to 30th June, 1904, or to the last date for which the . returns are available?
– The answer to the honorable senator’s question is as follows: -
The persons prohibited under paragraph (a) were- coloured persons.
asked the Vice President of the Executive Council, upon notice -
Will the Government cause to be laid upon the table of the House a copy of the instructions they sent to Lord Jersey as representative of the Commonwealth at the forthcoming Pacific Cable Conference ?
– The answer to the honorable senator’s question is as follows : -
It is not considered expedient to make these instructions public until the Conference has concluded its deliberations.
asked the Vice-President of the Executive Council, upon notice -
Will the Government cause to be laid upon the table of the House a copy of the report received from the late Chief Justice and Acting Administrator of British New Guinea regarding the attack recently made on the Papuans of Goarabari Island, seeing that portions of it have already appeared in the press?
– The answer to the honorable senator’s question is as follows : -
The report referred to is now in the hands of the Commissioner in Sydney. The publication in the newspapers of portions of the report is accounted for by the fact that the inquiry now proceeding is open to the press. No copies of the report are available in Melbourne at present.
asked the Vice-Pre sident of the Executive Council, upon notice -
– The answer to the honorable senator’s questions is as follows : -
At the inauguration of Federation, the Victorian Ministry of the day very courteously offered the Commonwealth Parliament the choice of sitting in the present Parliament House or the Exhibition building. Parliament House was selected; and the terms upon which it is held were laid upon the table of this House on the 30th January, 1902. The Government is not in receipt of any Intimation that it is desired to depart from the arrangement made.
asked the Vice-President of the Executive Council, upon notice -
– The answers to the honorable senator’s questions are as follow : -
Motion (by Senator Millen) agreed to -
That one month’s leave of absence be granted to Senator Lt.-Col. Neild on account of ill-health.
Motion by (Senator Keating) agreed to-
That one month’s leave of absence be granted to Senator Mulcahy, on account of urgent private business.
Motion (by Senator Higgs) agreed to -
That one month’s leave ofabsence be granted to Senator Stewart, on account of urgent private business.
Motion (by Senator Matheson)agreed to-
That there be laid on the table of the Senate a return showing the number of field guns at present in each State, forming part of the 82 field guns given in Appendix K of the G.O.C.’s report1903-4,. and detailed under the following headings : - Muzzle Loaders, Obsolete Breech Action, Modern Breech Action.
Motion (by Senator Best) agreed to -
That the Select Committee on the case of Senator Lt.-Col. Neild have leave to extend the time for bringing up the report to this day month.
Motion (by Senator Higgs) agreed to -
That the Select Committee on the case of Major J. W. M. Carroll have leave to extend the time for bringing up the report to this day month.
Debate resumed from 14th July (vide page 3242) on motion by Senator Pearce -
That, in the opinion of the Senate, wherever practicable, the public works undertaken by the Commonwealth should be constructed under the day labour system.
Upon which Senator Playford had moved by way of amendment -
That the words “wherever practicable” be left out with a view to insert in lieu thereof the words “ whenever it can be done effectively and economically.”
– It would have been well if previous speakers had avoided making fine large assertions which really had no relevance to the subjectmatter of the motion.
– Give us a model speech.
– Unfortunately I cannot, because it is necessary to reply to some wild statements which had no justification in fact, and which were based on inaccuracies’. I believe it is quite possible for the people to do things for themselves without the intervention of middlemen. Unfortunately there are several honorable senators who do not agree with me. But I believe that the time is rapidly coming when the people, through the Federal and State Governments, will undertake to do all public services for themselves, rather than call in the aid of third persons who may not do them so well, who very often do them in a perfunctory manner, and who are invariably actuated by a ‘desire to make considerable profits. I fail to see why the community as a whole should be so exceedingly foolish as to refuse to carry out works which, it can be proved, they could do effectively and well, instead of affording an opportunity to the middle men to snake very handsome profits at their expense. Senator Pearce quoted several cases in which certain States have carried out public works on the day labour system with very considerable advantage to their people, and at a very considerable saving. Some of these statements have been disputed. I do not intend to discuss the merits or demerits of the cases which he quoted, or of the alleged refutations of his statements. A number of similar cases have been adduced, in which public works have been very successfully carried out on the day labour principle. I intend to quote one or two cases with which I am familiar, and which, I think, will bear out the contention of Senator Pearce and other supporters of his motion. One of the largest, and certainly one of the most expensive works ever undertaken in Queensland, was the Cairns railway. The second section, although it was for only a distance of fourteen miles, cost about ; £1 , 000,000. The contractor was Mr. John Robb, of Melbourne, who subsequently went insolvent. At the public examination into the causes of his insolvency, he admitted that he had made a clear profit of no less than half a million pounds out of that contract.
– Was that the cause of his insolvency?
– Very probably it was. Owing to the riotous extravagance which was engendered by the easy fashion in which he got money out of a gulled public, very likely he lost his balance and, thinking that he could repeat the coup, he became recklessly extravagant.
– When was this?
– It was in about 1890 that he completed the contract, and not long afterwards he went insolvent. In the case of that contract, I know that a sum of 4s. 6d. per yard was paid for the shifting of stuff which could have been very profitably shifted at is. per yard. I also know that in many cases the line was built in a very bad fashion, and it has cost Queensland a very considerable sum These are facts which are indisputable, and are within the knowledge of every individual, who is familiar with the State of Queensland.. I come now to a more important’ work which was carried out under my daily observation. The work was done in the district in which I reside, and consequently I could not help seeing it as it progressed. I allude to the tramway line constructed by the Cairns Shire Council. That council undertook the building of a line which, although it is called a tramway, is to all intents and purposes a railway, equal to the lines owned by the Queensland Government’. In fact, the locomotives and rolling stock of the Queensland Government go over it. It may, therefore, be described as in every respect a railway, and not a tramway. The first section of that line was constructed by a contractor named Mr. Frew, who was subsequently the engineer in charge of the construction of the Chillagoe railway line. That section was fourteen miles in length. The Shire Council found that the work done was not nearly so satisfactory as they desired. Subsequently they extended the line from fourteen miles to thirty-three. It was done in three separate sections. They decided that instead of constructing it by contract, they would do the work by day labour. It was built under the supervision of their overseer, Mr. O’Leary. The whole of the work was carried out under the day labour system, with the result that if was done very much cheaper than was the case with the first section, and in a thoroughly satisfactory manner. Indeed, the work cost less than the original estimate. These are proofs positive that the people themselves, through their Governments, can engage in important works without any risk, and can in that way save the enormous profits made by private contractors. I fail to see - and I think that any unbiassed person must also fail to see - why, as it is proved to be economical and satisfactory to construct importantworks by day labour, we should call in the assistance of contractors. I have quoted two instances in which public authorities have carried out important works for themselves, and have constructed them effectively and well, as compared with works that were carried out badly and unsatisfactorily by contractors. Now let me quote a case in which an important work was carried, out by a private company without the intervention of a contractor. The work to which I allude was undertaken by one of the largest companies that has ever operated in the Commonwealth. I allude to the Chillagoe railway, which is nearly 100 miles in length. The mines, as honorable senators are well aware, are situated in the district of North Queensland. The company built the line entirely under the day labour system, under the direction of Mr. Frew, whose name I have already mentioned in connexion with the construction of the first portion of the Cairns tramway.
These are cases within the knowledge of every one who is acquainted with the district which I have mentioned, and they cannot’ be disputed. In addressing himself to this motion, I wish to say that when it was last before the Senate. Senator Gray made the statement that a private contractor could undoubtedly undertake public works more effectively, cheaply, and economically than a Public Department, inasmuch as a contractor always knew where to put his hands on the best people to carry out any particular portion of the contract. Considerable weight might be attached to that statement in the case of a private individual, who, perhaps, carried out one piece of work to-day, and another piece a considerable time hence. Or it might apply to a man who built a house to-day, and did not propose to build another for some years to come. Undoubtedly, such an individual would be forced to look around in order to obtain the services of the most suitable and competent workmen. But it’ has to be remembered that the State is al ways carrying out works, and always has its own staff of experts who would necessarily be in just as good a position t(.; lay their hands upon men who would be as competent to carry out any particular portion of a particular work, as any contractor. If the State undertakes the construction of its own public works: it will necessarily have to maintain a permanent staff of experts to supervise them. That staff of experts will be continually in touch with tradesmen of all kinds, and will also be in just as good a position to purchase material as any private contractor. They will know where to place their hands on everything that is required, and to obtain the services of the best and most highlyskilled workmen to carry out the’ works in which they are engaged/ What I particularly quarrel with in connexion with Senator “Gray’s speech, and the remarks of others who have discussed the motion, is the attempt to saddle the party to which I belong with the responsibility of the financial depression and the dearth of employment that exists in some parts of Australia. It has been stated that, before the inauguration of labour parties and the institution of a policy such as is sought to be established by means of this motion, things were flourishing. Senator Gray said, as reported in Hansard, at page 3242, that at the present moment there are 20,000 unemployed in New South
Wales; and he represented that that was entirely due to the fact that the Labour Party occupied a dominant position in the politics of that State. He affirme’d, indeed, that the country was going to the dogs. And why ? Simply because the miserable little oligarchy - the moneyed plutocracy - which he happens to represent in this Senate, does not happen for the time being to possess power either in the Commonwealth or in the State from which he comes. The statement that there are 20.000 unemployed in New South Wales is one of those fine, large, loose assertions which we have no means of verifying, and which may or may not be true. I do not believe that it is correct. But even if it were true, I fail to see how Senator Gray could saddle the responsibility for it upon the shoulders of the Labour Party. I fail to see how it can be due to that party that there are so many unemployed in the State of New South Wales. As a matter of fact, I believe that there is no such number of unemployed in that State. Those who are best acquainted with the condition of affairs in New South Wales tell me that the statement is not correct. But even if it were correct, there are several other causes besides the alleged Labour Party domination and the influence of such a policy as is advocated in this motion, which account for the dearth of employment. In the first place, as we are all aware, there has been an unprecedented depression in the pastoral industry, owing to the fact that we have had several years of severe drought. Consequently, there has been a depression in the labour market. That depression has been intensified by the fact that the States Governments have not been able to borrow so freely as in the days of yore, when they could get money for the mere asking, -and fling . it round with a lavish hand. But before the Labour Party came into existence in New South Wales, and before any such policy as we advocate had been attempted, there were more unemployed in that State than the number now mentioned by Senator Gray.
– Has the honorable senator authority for that statement?
– I will quote my authority, which is more than Senator Gray did. I will also show the reasons why there was so little employment in New South Wales at the time to which I am about to refer. On page 637 of Coghlan’s
Statistical Account of Australia and New Zealand, for 1902-3, he says -
In the eastern States the year 1892 was the first to show a restricted loan expenditure, the total for the five States, which in 1889 had been over eleven millions, and in 1S90 about ten millions, falling to less than three millions - equivalent to a shrinkage of at least seven millions. This sudden contraction of expenditure had a most serious effect upon the labour market, and at least 40,000 men accustomed to look to the .Government or to contractors working under the Government for their employment, were thrown upon the labour market, which immediately became disorganized. Indeed, so far as New South Wales was concerned, the labour market was disorganized even in 1888, a’ state of affairs which did not altogether result from the cessation of expenditure on public works. Large numbers, of persons had been attracted from the other States by the extravagant expenditure and vigorous. immigration policy of preceding years, and on the Government reducing their expenditure from extravagance to moderation, thereby involving a decrease of about three millions sterling, some 15,000 men were left without employment.
That was in 1888, before the Labour Party came into existence in New South Wales, and when the population of that State was considerably less than it is at the present moment. Senator Gray says further that the depression is. due to some extent to the fact that, owing to our desire to have Government work done by day labour, with a minimum wage provision, and other arrangements of that character, we can get no more money brought into the country. Capital, we are told, does not come into Australia because of the desire of the Labour Party to confiscate everything, and to secure all the advantages and profits for labour. I will deal fully with some of those statements by-and-by, but I should like to say here and now, that so far from its being true that capital was frightened out of the country by the Labour Party, it was actually frightened away a considerable time before the Labour Party had any power in any of the States. What frightened foreign capital out of Australia, as shown by Coghlan, was the fact of the banks confiscating about ,£50,000,000 of money of investors in the old country. The banks had it in their possession, and, having absolutely confiscated it, in most cases they offered the investors merely interminable inscribed deposit notes, or something of that description.
– When was that?
– That was in 1893. I will read what Coghlan says upon that subject. On page 641 he says -
In 1893 the great financial crisis occurred, of which mention has been made so frequently, and was accompanied by a very large withdrawal of deposits, chiefly by persons resident in the United Kingdom.
Those withdrawals were not due to the Labour Party, but to the distrust of outside investors in the commercial honesty of the people in whose charge that money was placed -
In 1895 the amount on deposit was reduced to eighty-six millions, which included a considerable sum, estimated a£ about “fifty-four millions, locked up in reconstructed banks.
So that these banks actually “collared” ^54,000,000 belonging to British investors. They said “ This is ours, and we shall do as we like with it. You will get it in the sweet by-and-by if we choose to pay it back to you.”
– It was not merely British deposits that were locked up.
– No, the banks took everything thev could get, without respect to persons.
– I am quoting the highest authority we have in Australia in reference to statistical matters, and he says in so many words that the money was owned “ chiefly by persons resident in the United Kingdom.” If Senator Walker desires to correct Coghlan he is perfectly at liberty to do so, but he is not at liberty to correct me in a statement which I make on the authority of Coghlan.
– At no time did the British deposits in Australian banks reach to anything like the amount which the honorable senator has quoted.
– Coghlan .points out that even before that time British investors had begun to withdraw their capital from Australia. That was long before the advent of the Labour Party in any of the Parliaments of the States or of the Commonwealth Parliament. British investors commenced to withdraw their capital simply because of their distrust of the commercial honesty of the people who were handling their money at this end of the world ; and that distrust was undoubtedly well founded, inasmuch as within a few years it was proved conclusively that the money had been extravagantly wasted by men who were totally incompetent to handle it. I also wish to show that Senator Gray, in stating that the Labour Party are responsible for the bad position in which he says some people in Australia find themselves. in reference to low wages and dearth of employment, is speaking about a matter of which he evidently knows nothing; or else
Coghlan is altogether wrong. Because Coghlan says on page 647 -
The movement in wages from 1896 to 1901 was distinctly upward. Carpenters, for example, were in 189b paid 8s. per day in Sydney, while i-n 1900 their wages were 9s. 6d., in 1901 10s., and in 1902 gs. 6d. Though wages in Melbourne at these periods were lower than in Sydney, their upward movement has been even greater.
So that the upward movement in wages has been greater since that period. Coghlan gives a table on the previous page which shows that there was a general upward tendency of wages between 1891: and 1901. I think that those facts are an effective refutation of the fine large loose assertions made in the most reckless fashion by Senator Gray. On page 648, Coghlan points out the real cause of the depression. Coghlan, unlike Senator Gray, does not blame the Labour Party for it. He says -
But the pastoral industry, which is the key to the industria’l condition of Australia, was seriously affected during 1902 by the adverse climatic conditions which prevailed over a great part of the continent. The year 1903 opened under most favorable conditions. Abundant rains have fallen, and a larger area is now under crop than at any previous period, while the harvest promises to be very bountiful, so that the improvement in the industrial conditions manifested since 1896, but interrupted (Turing 1902, may confidently be expected to continue.
There Coghlan points out that, right up to the present time, the pastoral depression has been very great, and that that was to a large extent responsible for the general depression. I also want to show from the same authority that employment has largely increased in New South “ Wales since the Labour Party has had any considerable power’ there. I find from figures given on page 291 of the same work that the total number of hands employed in manufactures in New South Wales in 1892 - before the Labour Party came into power - was 47,916. In 1902 the number employed was 66,26g. In round numbers, the hands employed in factories have increased during that period by no less than 19,000. If that is due to the Labour Party, it is a very good (result. Notwithstanding all that has been said about the harsh treatment of the capitalist by such motions as that before us, and by provisions for a rninimum wage, a very fair share of profit is still left. Coghlan points out that,- in the manufactures of New South Wales, the raw materials and fuel used amount to 57-4 per cent, of the total value of the output, the wages to 214 per cent., miscellaneous expenses to 63 per cent., and interest, provision for trade losses and profits, to no less than 14-9 per cent. Notwithstanding the enormous amount of labour, and the great number of hands employed, we find that the wages . of the latter amount to only one-third more than the sum available for the profits of the few manufacturers. That fact is in itself proof that such motions as that before us, and provisions for a minimum wage, are necessary in order to insure that the workers shall receive fair remuneration. When the capitalist can get two-thirds of the total amount of the wages cost of production as profits, and when we consider that a company may consist of two or three persons, while wages have to be distributed amongst two thousand or three thousand people, the capitalist has little to complain of. It is high time that .those who do the largest share of the labour, and are dependent on the results, should be afforded some little protection by the Legislatures of the Commonwealth and the States. So much for that portion of my reply to Senator Gray. I recognise thai-“ I may be Out of order in going so wide of the subject, and I should not have attempted to deal with these matters but for the assertions made by that honorable senator. It comes with very bad grace indeed from any representative of the mother State to belittle that State in the eyes, not only of the Commonwealth, but of the world at large. To point out that in New South Wales there are many unemployed, and that everything is going to ruin, simply because the little oligarchy which the honorable senator represents ‘does not control the governing power, is tantamount to fouling the nest, because he cannot have it all to himself. There are some people in the Commonwealth who continually go out of their way to belittle Australia for exactly the same reason, and it is high time some protest was made, and the people of the world learned the exact truth. It is because of this that I quote the figures from Coghlan, in order to show that there is no foundation for the allegations made by Senator Gray. So far from the Labour Party having done anything to injure the Commonwealth or the general welfare and progress of tha people, it can be proved, by the official statistics of the several States and of the Commonwealth, that, since the advent of the Labour Party into the counsels of the nation, whether in the Commonwealth or State, nothing but good has resulted to the great mass of the workers. Enough has been said to show that contractors are not necessary In order that works may be effectively and economically carried out, and I hope the motion will be adopted by a large majority. It is fortunate for the contractors to have such an ardent advocate as Senator Gray proves himself to be. But I take it that most sensible men have come to the conclusion that the middleman, if he can be done without, is a useless excrescence on the body politic - that there is no excuse whatever for his existence. If the middleman had nothing to do in the way of contracting, he would necessarily undertake some form of useful work, and by adding to the wealth production of the Commonwealth, become a desirable citizen. As it is, however, the contractor is a disadvantage, inasmuch as he himself does nothing useful. He very rarely, indeed, personally supervises work, but, employing other people, he merely stands by and draws the profits. Why cannot the State employ a permanent staff of expert supervisors who would always know where to lav their hands on suitable people and ‘ material ? When State supervisors can do the work as effectively as contractors, why should not the State have the profits which now go into private pockets? No matter from what light we view the contractor, he is still an excrescence. Like sensible men, we should save to the people every possible fraction, so as to reduce the burden of taxation, and enable public works to be carried out effectively and economically. I hope other honorable senators will take the. same view as I do myself - that they will be convinced by the actual statements of facts put before them during this discussion, that the motion is a desirable one. Senator Gray was good enough to ask Senator Pearce to withdraw the motion after ii had been debated. I am totally opposed to that course, because I presume Senator Pearce did not submit the motion with the mere idea of providing matter for an academic discussion. That, I should think, was the object furthest from his thoughts. I am sure he had no desire to occupy the time of the Senate without obtaining some tangible result. We, who are acquainted with the facts, ought to be able to arrive at a sensible conclusion. At any rate, I long since came to the decision that the middleman can be done without, and that his abolition in connexion with public works would result in a considerable saving to an already overburdened people.
– I have to thank honorable senators for the attention which they have given to this subject. Both sides of the question have been placed before the Senate, and I should now like to reply to the attacks made by Senators Gray and Dobson on the principle of the motion. I am sorry that Senator Dobson is not present, because I wish to point out that, in order to find arguments against day labour, he had to go to the old country, and to instance what is known as the”Ca’ canny” system. Unfortunately for Senator Dobson, that system is not looked upon in the old country as detrimental to day labour, because it is condemned there’ in connexion with contract work. The “ Ca’ canny “ system, as I say, is not used in the old country as an argument against day labour, but as an argument against the methods adopted by the working men of Great Britain generally, whether under contract or in connexion with works undertaken by public bodies. In any case, the “ Ca! canny “ system - which, by the way, has been denied by leading labour men of Great Britain - has not been proved to exist in Australia, so that, so far as this debate is concerned, the reference to it was altogether beside the point. Senator Dobson went on to say, “We all know that in the Commonwealth, there is such a thing as the ‘ Government stroke ‘ - every one knows what is meant.” I do not know that everybody does understand what is meant by the “ Government stroke.” I have endeavoured to trace the origin of the term, which Senator Dobson should know, because I find it comes from his own State. As a matter of fact, the term “ Government stroke “ was first applied to the work done by convicts in Tasmania, in reference to the slow method by which the work was carried on. I hope that Senator Dobson does not intend to apply such a term to free labour - that he does not mean to say that a term of derision of that kind should be applied to Australians who have to earn their living by manual labour. Senator Gray’s objection to day labour was that political corruption would creep in. I do not think, however, that that result would necessarily follow. Certainly, Senator Gray quoted some very strong cases from New South Wales, notably that of the Fitzroy Dock, in which political influence was used, according to the evidence given before the Royal Commission. We can all readily admit that if we are to have public works properly car ried out, either by day labour or contract, we must have honesty in our officials. Without such honesty, the State will be robbed, whichever system is adopted. If the undesirable results in New South Wales followed from dishonesty, and if the officials were deterred from doing -their duty by political influence, they would be just as easily led astray by similar influence under the contract system, and would, perhaps, rob the country to even a greater extent. The Federal Parliament has already shown a determination to stop political influence in the Public Service, as witness the Public Service Act. I suppose there is no service in the Commonwealth which is more completely divorced from political influence than that represented by the Public Departments. These Departments have been placed under a Commissioner, who is elected for a term, and cannot be removed, except by a vote of both Houses of Parliament. No one can say that such an official is not independent of political influence. All appointments have to be recommended by the Commissioner, and no appointment can be made by the Minister without that recommendation. It seems to me that the Federal .Parliament has shown a disposition to free the Public Service from any detrimental influence, whether public works be carried out by’ day labour or under contract. We ought to remember, also, that contractors have to carry on their work by means of day labour. A contractor cannot supervise all that is going on, and in many cases he very seldom visits the works. He has to depend on honest supervision, and in this respect is practically in the same position as would be the Minister. If a Minister does his duty, he can only exercise a general supervision, and must depend on officers under his control. Senator Gray drew attention to the attacks which were made on my remarks in connexion with the’ Coolgardie water scheme. Let me say that those attacks emanated from a meeting held in Perth, and largely composed of contractors. Since the correspondence appeared in the Eastern press, I have been enabled to obtain the Western Australian newspapers containing a report of that meeting. It was. made to appear that the statements made in the Eastern press were a report of what took place at the meeting, but I find that that is altogether’ an erroneous impression. The West Australian of 2nd July contains a report of a meeting of contractors and other business men, who criticised my action in moving in the matter. The newspaper report states that a committee, consisting of Messrs. Atkins, Hargrave, Hedges, and Frank Wilson, M.L.A., was appointed to send some particulars of the Coolgardie water scheme to certain prominent politicians in the Eastern States in order to rebut my statements. I do not know whether Senator Gray is one of those politicians, but if he is, I may tell him that the committee appointed did not carry out their duties fully, because they put him in possession of only a portion of the facts. This was a work which was to cost £2,500,000, and I spoke of it as a whole. I pointed out that in some particulars in connexion with the pipe contract’ the report of the Royal Commission was unsatisfactory, as will be found from the report of my speech when I submitted the motion. I did not disguise the fact that some portion of the work was unsatisfactory, but I said that as a whole it was to be commended. But the work which was unsatisfactorily carried out represented only £145,000 out of a total df £2,500,000, and it seems unreasonable to condemn the whole because of this unsatisfactory portion. In order to prove my contention, I desire to quote the report of the Royal Commission on some portions of the work. The weir cost ov.er £300,000, and was a most essential part of the work, on which a large amount of labour was employed. As to this, the Royal Commission said -
So far as the evidence goes,’ it supports the view that the work has been done at’ reasonable cost.
During the construction of the weir, the engineer who was in charge of the pipe track, which afterwards turned out unsatisfactory, laid a complaint against the engineer in charge of the weir on the ground ‘of incompetency. But the engineer in charge of the weir challenged an inquiry, and the other engineer, Mr. Hodgson, did not press his charge but allowed it to lapse, and, , as subsequent events proved, he was very wise in doing so. It was afterwards shown, not only that the man in charge of the weir was doing his duty, but that the engineer who laid the charge was at that time actually receiving bribes, and under the influence of corruption. As to the excavation of the pipe track, the Royal Commission unsparingly condemned the’ way the work was carried out, so far as cost was concerned. The Commission,, in regard to the pipe-laying and jointing, speak of gross neglect of supervision, a neglect which eventually led to the suspension of the engineer in charge, and state that, owing to this, the cost has been excessive. According to the Commission, the loss from this extravagance, “ added to the cost of the machinery purchased from Messrs. Couston and Finlayson,” resulted in the original estimate being exceeded to the end of February, though the work was not half completed, by about £11,000. That portion has been carefully left out of the reports sent to the Eastern States by the Contractors’ Association. If we look over the letter sent by the Contractors’ Association, it will be seen that they point out that the loss was £100,000, whereas the Royal Commission, when the work was half completed, fixed the amount at £1 1,000. .
– How could the Royal Commission tell, when the work was only half completed?
– The work was estimated to cost so much per mile, and the report says -
It appears probable that the ultimate cost of this branch of the work will be about £ 100,000 more than the estimate, which appears to have been fair.
What led the Royal Commission to say that was that the Government had purchased those machines from Messrs. Finlayson and Couston, and the machines, when in operation for a few months, had turned out quite unsatisfactory. As Senator Croft, has informed the Committee, the Government had to perfect the machines at the expenditure of a lot of money. The work was then done at something like the original estimate. So that the final excess of cost was nothing like that which was. estimated by the Commission at the time. I propose to give a few particulars in order to show what led to this extravagance. The expert evidence was that good pipe-caulking machines could be made for £30 each. The engineer in charge of this particular branch was indebted to Couston and Finlayson to the amount of £200, and he gave them £150 each for the machines.
– Is he in gaol?
– He should be in gaol ; he was dismissed from the service. In addition, paragraph 4 of the final report shows that Messrs. Couston and Finlayson got £7>5°° for the patent rights of the machines, although the vendor would have been satisfied with £4,000. It was given in sworn evidence that the firm had said that they would have been satisfied with £4,000, but through the manipulation of this man they got £7,500. All this money was debited to the work. This was brought about- by Mr. Hodgson, engineer in charge, who was promised by Mr. Couston £1,000 to stock his land. The peculiar nature of this contract is that, while on the 16th June £2,700 was paid to the credit of Messrs. Couston and Finlayson by the Government, on the 18th June £100 was lent to Mr. Hodgson by Mr. Couston. The Commission estimated that ,£1,300 above the fair price of the twelve machines, and £3,500 more than was necessary for the patent rights was paid, or a total sum of £4,800 was lost on the contract for the supply of these machines. Then Mr. Couston found out that still another machine was necessary - a lead-runner - and offered to supply these at £175 each. The Commission reported that £2,016 in excess of the fair cost was paid for these machines, and that a total sum of £6,816 . was paid to this firm more than the fair value of the machines and the patent rights. When this contract was completed, another £100 appears to have passed from Messrs. Couston and Finlayson to Mr. Hodgson. Messrs. Couston and Finlayson advanced to Mr. Hodgson £230 on the nth June, and £100 on the 14th January. This was proved in evidence from the bank at which Mr. Hodgson kept his account. Two days afterwards, Mr. Hodgson recommended Mr. Couston as works manager in connexion with the pipe-caulking machines, and on his recommendation the appointment was made. Two days afterwards, a loan of £30 was made by Mr. Couston to Mr. Hodgson. It is stated, in paragraph 10 of the report, that pipe-jointing commenced in real earnest on the 16th March, 1901,’ about eight months after it might have been begun by hand-caulkers. Fifty hand-caulkers, in eight months, could have caulked 40,000 joints at a cost of £8,000. Up to this date £15,900 had been paid under the contract for machines from Couston and Finlayson. More money was wasted on these machines than would have caulked the pipes by hand labour. It is stated in paragraph 12 of the report that one motor could not work two machines, as was claimed, and that as an actual fact each machine had to have a motor. Moreover, the machine, instead of doing the work at is. 6d. per joint, as had been claimed, cost 4s. 3jd. per joint, whereas the estimate for hand caulking was 5s. nd. per joint. When it is recollected that that is the report of the Commission on the portion of the work on which I have been attacked, honorable senators will recognise that no further defence, from my point of view, is necessary. It- has been stated that I’he EngineerinChief, Mr. iC. Y. O’Connor, was a strong supporter of the day labour system; but that, as the result of the Coolgardie scheme, he went back on his opinion. Appendix G to the Commission’s report contains the notes by Mr. O’Connor. The report of a statement made by a member of the Legislative Assembly, t’hat day labour had been a failure, was sent to Mr. O’Connor by the Minister, and his written comment was -
As several times already stated I have not gone back on my previous convictions at all, my views as regards departmental versus contract work being set forth in memorandum to Hon. Mr. Throssel, the then Premier.
In that memorandum he had strongly advocated the carrying out of the scheme by day labour. The weir, as I said, cost over £300,000. On page 366 of the evidence, Mr. O’Connor says that a contract for the weir would have involved a great loss. He also says that the weir, if carried out By the Department, would not cost more than if done by contract. A gentleman named Hedges appears in connexion with the contract. No doubt you, sir, and Senator Playford, will remember the gentleman when I recall an incident in the public works history of South Australia. I had occasion to make some inquiries, and I found that Mr. Hedges was the contractor for the sinking of the shafts of the Happy Valley reservoir. On page 976 of the South Australian Hansard for August, 1893, it is stated that the cost of the shafts was £4 18s. per foot. The statement was afterwards corrected, and on page 1279 the cost is given at £5 18s. per foot. The price agreed upon averaged £7 5s. 9d. per foot. On page 1382 of Hansard the Commissioner of Public Works made a statement to the House -
Hedges’ tender was accepted. It soon became evident that the contractor had undertaken a work which was quite beyond his capabilities, and on August 15, 1892, He wrote abandoning the contract, and stating that he was unable to proceed further with it. He then claimed ^3,348 for the machinery, which he had obtained for the purpose of sinking the shafts. The Department obtained a number of estimates ranging from ^1,653 to ^1,800, and the Government, although entitled under the terms of the contract to forfeit the machinery, paid him j£i,653 17s. rd. The total additional cost to the Government as the result of Hedges’ failure was £2,898 and seven months’ lost time, on a contract worth about ^7,000 to ,£8,000..
That is how the gentleman who poses as an opponent of day labour, and advocates the contract system, carried out a contract for the Government -
Hedges’ claim against the Department, when only a comparatively small part of the work was done, was ^8,143, although, his first contract was for £7,494.
The comment of the Commissioner is as follows : -
He evidently has no sense of the responsibilities of contracting, and thinks political influence will obtain compensation for him in the shape of remissions of just penalties. He ‘ asked the House to reject the claim as altogether monstrous.
So much for those who have attacked us from Western Australia on this question. Senator Gray made a considerable number of comments about work done in New South Wales. I thought that there might be something to be said on the other side, and, therefore,. I obtained from the Public Works Department of the State some particulars of a few works which have been carried out by day labour. I shall read a comparison between the cost by day labour, and the cost as estimated by the Department, in some cases, and as carried out by contractors in other cases -
Long Cove Creek Stormwater Channel - One section carried out by contract at 50s. per foot. Next section (similar exactly), day labour, 45s. per foot, saving on job ^400. Another section same work, 1645 feet, contract price, ^5 per foot; day labour, £3 5s., saving to Government, £1,200.
Byrock to Brewarrina line - Day labour earthworks, 8d. per cubic yard; Nyngan to Cobar, same class of work exactly, “done by contract, is. 6d. per yard.
Koorawatha to. Grenfell; - Cuttings and side cuttings, day labour, is. 11 1/4 d. and 10 3/4 d. respectively. Same class of work, contract, Parkes to Condobolin line, 3s. and is. 3d.
Telephone Tunnels - Total length, 49,228 feet, or nine and one-third miles, 2,354 feet done by contract, cost £8,726 18s., or £’3 14s. 5d. per foot run ; 46,883 feet, done by day labour, cost ^145,433 iis-> average £3 2s. 0 1/2 d. per foot, saving 12s. 4 1/2 d. per. foot, or £29,008 17s. 6d. Besides this saving the parts of tunnels done by day labour were 4^ inches higher than those parts done by contract. This increase would have cost £7,500 Further, bricks could be supplied to the situation of the contract sections for 33s. per thousand, but cost as much as 44s. per thousand to some of the day labour sections. Cement also rose in price during the job from gs. to 13s. per cask. These items amount to a further £20,000 for the job. If the materials, &c, had been the same price all through the saving effected would have been £1 os. nd. per foot instead of 12s. 4id.
The Railway Engineer-in-Chief , Mr. Henry Deane, has reported that the saving effected iv the construction by day labour of earthworks on railways amounts to 37 per cent.
The saving on concrete work has been 10s. to 15s. per cubic yard. This statement has been indorsed by Mr. Kernot, the Acting Engineer for Railway Construction in Victoria.
Independent experts, as the result of the practical experiments made, assert that -
Work requiring high mechanical ability such as steel bridges, &c, has been executed much more economically by day labour than by contract. It paid to carry out works .without the aid of a contractor, provided suitable men were forthcoming to take charge ; that they have fair and proper control in the employing and managing of the men, and that the simplest and least harassing methods of ordering material and keeping accounts are adopted.
It has been the unfortunate experience in nearly all the States that a big railway contract has often been followed by a big law case, and the legal expenses have had rightly to be added to the cost of the work. The experience of New South Wales is illustrated by the following examples -
The total loss to the country on the above six contracts was £127,829 - under the contract system.
That document furnishes more than a complete rebuttal of the few weak points on which Senator Gray puts his finger.
– I suppose that document was got out to justify Mr. O’Sullivan’s policy ?
– It was got out to give the. actual results of the ‘ day labour system. It has been a public document for some lime, and my attention was first drawn to its existence by the press.
– Does the honorable senator know the difference between the contract system and day labour at Broken Hill? ‘ Under the day-labour system they got out “92 per ton; for the first two years under the contract system they got out i’83, or double; and now they are getting out 38.
– Perhaps Senator Dobson did not hear me quote the instance, of the public school buildings at North Broken Hill ?
– The honorable senator cannot quote a case like that.
– Senator Dobson is speaking of the times when the mines were worked at a high cost. He does not know what he is talking about.
– This is sworn evidence, which was given in the Arbitration Court.
– We have also to remember that if the Government undertake the construction of a building they will give the men an opportunity of carrying on their work safely. I am sorry to say that that is not always the case with the contractors. The Melbourne Herald, of the 13th July contains a report of a deputation which waited on the Premier, Mr. Bent, to ask for the appointment of an inspector of scaffolding. They made some grave , statements as to the ricketty nature of the scaffolding put up by contractors in this city. One member of the deputation, who, for fear of getting the sack, wished his name to be suppressed - instanced a suburban job on which he was employed. One of the scaffolding poles used in this job was like a fishing rod. He was called to hoist a heavy girder with a rope, the strands of which were “ played out.” He asked the clerk of works if he would not condemn this work, and the clerk said it was out of his line. If it was bad building material he would be able to condemn, but he had nothing to do with the rope, though he admitted that it was rotten. The winch used in the same job was almost in pieces, and was so old that it must have been used in Noah’s Ark. The barrel had to be levered over. The clerk of works, however, would not condemn it. The same speaker went ‘ on to say that when the contractor had run out of scaffolding cords he had been sent to the grocer’s for clothes lines. He had seen a scaffolding pole “ footed” on to the joist of a floor sixty feet from the ground. The pole was not even nailed down.
I am certain that under any Government supervision of the work the lives of the men would not be endangered in that way. I am confident that with honest administration day labour is more satisfactory than the contract system, because the contractor’s profits are eliminated, and the contractor, especially on big works, is under departmental supervision. .
– Very often the contractor depends on good supervision himself, and demoralizing the Government supervision.
– That is very often the case. If there is demoralized supervision of day labour it may be a costly affair, but at any rate good material will be used. With loose supervision, in the case of a contractor, the cost will not only be heavy, but the material will probably be poor. The amen’dment of Senator Playford means practically the same as my motion. Take the case of a school-house in the country. I take it that, from a common-sense point of view, it would not be “ practicable “ to send men from Melbourne to do that work by day labour.
– Certainly it would.
– The honorable senator confuses “practicable” with possible.
– Of course, it would be possible.
– If a thing is not’ possible, it is not practicable.
– If we lay down the principle of doing work bv day labour we must have supervision; and it would not be reasonable to ask the Government to send a man up country to do a bit of painting, and perhaps another man to supervise his work, when there might be a painter in the township who could do the job for a few shillings.
– The honorable senator’s motion would necessitate every job being done by day labour. I wish the Government to have some responsibility.
– My motion does not mean that every job is to be done by day labour, and I do not think that the Go’vernment would take it in that sense.
Amendment agreed to.
Question, as amended, resolved in the affirmative. ,,
– I move -
That, in the opinion of the Senate, a Bill should be introduced by the Government to provide for a rebate of the duties paid on all natural products of the soil imported into the Commonwealth vhich_ have been grown in the islands of the New Hebrides on land owned and occupied by British subjects.
During our short national life, the Commonwealth has laid down no broad guiding principles of external policy, nor have we denned the attitude that Australia intends to assume with regard to the islands in the Pacific Ocean. All our political energies up to the present ‘have been concentrated upon bringing into operation the necessary machinery for the conduct of Federal government, and upon passing legislation with reference to the internal affairs of Australia. Our political energies have been confined to passing largely what I may call Commonwealth by-laws for the conduct of trade and industry, almost to the total exclusion of broad national legislation which will guide us to the issue which Australian sentiment desires. I think I can show that there is no aspect of our national life and no Commonwealth interest which is of more vital importance and which demands more eternal vigilance than the question of our interests in the Pacific Ocean, Yet there is no subject that has been more neglected. The motion which I have submitted to the Senate has particular reference to the New Hebrides. These islands - most of them at any rate ; I think all, with the exception of one - were discovered by a Britisher, Captain Cook. The island of Santo was discovered by Spaniards, Torres, arid de Quiros, I believe in 1606. But with that exception, the New Hebrides were discovered by the British; they were surveyed by British people; communications with them were opened up ; some system of government was laid down; and British men-of-war have regularly called there to see that law and order are observed. British missionaries have gone to the New Hebrides, and in all, up to 1880, £140,000 had been spent in developing the territory, in promoting law- and order, in stopping inter-tribal fights, cannibalism, and other heathen customs, and in making the inhabitants practically a civilized people. From the time of their discovery until 1880 - over 100 years - the British had been absolutely paramount in the New Hebrides. Up to that time there was not a Frenchman on the islands. Therefore,’ by priority of occupation, we can say that we have strong claims to the suzerainty of those islands, irrespective of the fact which I think is generally admitted in international comity, that a nation has a prior right to islands that are unoccupied by civilized people, and which are contiguous to its coasts. Further, it has been stated in official documents that in .1:840 this group was annexed by Great Britain, together with the islands of New Zealand, by a charter bearing that year’s date. It has been alleged that the islands were absolutely in British possession at that time, and that that suzerainty was not revoked until the selfdenying ordinance- of 1873 was entered into by which Great Britain and France mutually agreed not to acquire the islands. I may state that I have not been able to verify the statement by recourse to a copy of the charter; but my information is obtained from a monograph which was written and sent by the Agents-General of Australia to Lord Derby in December, 1883. In that document they stated that the islands of the New Hebrides were included in the charter of suzerainty over New Zealand in 1840.
– Did we ever take possession of them and hoist the British flag over them?
– I am not able to say.
– That is the point.
Senator. STANIFORTH SMITH.That is not the main point, because the essential question, in international law, is that of effective occupation. If a navigator goes to an unappropriated island, and hoists the flag of his nation, but does not occupy the territory, by international law that navigator’s country cannot say that it has established a suzerainty. But if he is a commissioner delegated to hoist the flag, his nation may claim a suzerainty over the island. In 1883 there was a Convention in Sydney, which, I may say, made the first real effort, backed by popular feeling on the part of the Australian people, towards Federation. The matters discussed affected almost purely our interests in the islands of the Pacific Ocean, and the great danger that would result to Australia if foreign nations came to our front door and established themselves in close contiguity to our coasts.
– Are not foreign nations now established closer still?
-I will refer later on to the foreign nations that have established themselves close to Australian’ shores. That Convention, which particularly discussed this question, carried the following resolution: -
That further acquisition of dominion in the Pacific, south of the Equator, by any foreign Power would be highly detrimental to the safety and well-being of the British Possessions in Australasia and injurious to the interests of the Empire.
– What was the position of the New Hebrides then? Were they occupied by the British?
– They were occupied by the British solely. The French were not there at all. Lord Derby was at that time implored by the Australian Colonies and New Zealand to annex the islands, but he declined to do so. This question of the New Hebrides, New Caledonia, and British New Guinea was one of the most important factors in crystallizing Federal feeling, and in bringing about Federation. It was this dread of foreign Powers coming close into our coasts that influenced the minds of many thoughtful people. The resolution which I have quoted was, we may say, the promulgation of an Antipodean Monroe doctrine for Australia. It is a temperately-worded resolution, and one which no person can find fault with, in respect to its tone. It does not say that Australia herself should annex the islands.. It points out that the intrusion of any foreign Power close to our coasts is a danger to us. I think that the Commonwealth would be well advised in laying down some broad principle with regard to the Pacific, in very much the same direction. It may be asked, and it has been asked by some people, “ Why do we want to bother ourselves with islands outside Australia? Are we not much better employed in developing the huge natural resources of this great Continent? Why should we annex further territory that we cannot defend?” Such people advocate a policy of “ splendid isolation,” under which Australia should be content with the territory it has got, and not bother with external matters. Statements of that sort appeal to a great many people. But is is, I think, a very dangerous attitude for Australia to persist in. In answer to it I would say that we do not want any islands in the
Pacific for the purposes of territorial expansion. We do not want them for colonization purposes. We do not want them necessarily for economic reasons. I believe that the best interests of Australia are conserved by Australia annexing no territory in the Pacific ; and I was one of the first in the Senate to object to Australia taking over the suzerainty of British New Guinea from Great Britain. I pointed out- then that we were laying up for ourselves a considerable responsibility ; that we would have 1 .000 miles of our territory in contiguity to the territory of two foreign Powers, Germany and Holland ; and that we were taking territory that we could not defend. But the policy which I advocate is this : That while we ourselves should not annex islands in the Pacific, we should see that, as declared in the resolution passed by the Convention of 1883, foreign Powers do not do so. Our object should be to endeavour to induce Great Britain to establish a protectorate over these islands, and either hold them in trust for us, or keep them for herself.
– If Great Britain does not annex them, some other Power will.
Senator STANIFORTH SMITH.That is the point ; and that is why we should use every endeavour to induce Great Britain to annex the islands, even though we may have to pay a portion of the cost of occupation, as we had to do in the early history of British New Guinea. This question of the Pacific Islands and the New Hebrides is of supreme importance for national reasons. We want to prevent foreign nations from coming close in to Australia, and from establishing coaling stations for their cruisers in the vicinity of our coasts, by means of which in time of war they might destroy our Inter-State commerce, and bombard our coastal towns,
Ai well as being stationed right upon our principal trade routes. For ethical reasons, also, we desire to stop as far as we possibly can the horrible system of emptying al our doors the criminal out-scourings of European prisons. The military and naval policy of Australia has been, and, I hope, always will be, a policy based purely on thi exigencies of defence. We have no intention of going in for an aggresive policy. We want to work out our own destiny in these Southern Seas, at peace with all the world. We wish our battles to be the peaceful conquests of trade and commerce, we desire that the wealth which we create shall be beneficial both to ourselves and to those with whom we trade. We do not want to win spurious glory at the cannon’s mouth, but Ave want to make Australia a nation which we can look to with pride as one where the people are living in peace and are acquiring an increased degree of happiness and prosperity. In order that we may maintain that peace, which we all desire, we have to look to our interests in the Pacific, and to safeguard ourselves from attack. We want to make it as difficult as we possibly can for foreign nations to attack us, and to prevent foreign nations from establishing bases in the Pacific, which will always be dangerous to Australia’s peace. We want to make those oceans which surround Australia something analogous to buffer states, so that foreign nations shall have no interests there. In the absence of bases close to Australia it would be almost impossible foi them in time of war, by means of their fast cruisers, to come down upon our shores and to injure our commerce and our ports. Captain Mahan, who is perhaps one of the greatest living authorities on naval tactics, has laid down the- terms of the policy which he thinks the United States should adopt in the Pacific Ocean. He says -
It should be an inviolable resolution of our national policy that no foreign State should henceforth acquire a coaling position within three thousand miles of San Francisco, for fuel is the life .of modern naval warfare; it is the food of the ship ; without it the modern monsters of the deep die of inanition….. An enemy thrown back for supplies of fuel to distances of thirty-five hundred and four thousand miles - or between seven thousand and eight thousand miles going and coming - is an impediment to sustained maritime operations well nigh prohibitive.
If that be true - and it is true in the opinion of the highest naval expert in the United States - with regard to that nation, it is equally true with regard to Australia. If we can secure the islands within a 3,000- miles radius of Australia, we, by that act, would practically make it impossible for foreign cruisers to attack our shores, and we should therefore insure, as far as we possibly could, the peaceful progress of Australia.
– To do that we should have to take the whole of the MalayArchipelago.
– The map of the Pacific shows us the islands which are within a radius of 3,000 miles of Australia on its eastern flank.
With the exception of the Samoan Islands and New Caledonia, the whole belong to Great Britain, and we have, to a very great extent, defended ourselves from attack, so far as the eastern portion of Australia is concerned. But it may be asked, what about the islands north of Australia? Fortunately, those islands are held by Holland, a nation which is not aggressive, or likely to be antagonistic to Australia, and they would have to pass through the Torres Strait, which is capable of defence. With the exception of Germany, there is no nation with territorial interests in the parts close to our principal trading routes; and those islands are a great distance from OU] principal commercial ports. We can easily appreciate the great danger of foreign nations having strategical naval’ bases close to Australia, when we recall the doings of the Russian Vladivostock squadron in the war at present in progress. Even in the face of an overwhelming preponderance of naval power, that squadron has been able to do considerable damage, and will probably do greater damage in the future, to their opponent and those who carry contraband of war. We should, therefore, as far as we reasonably may, see- that no foreign nations obtain a footing close to the shores of the Commonwealth. But there is another aspect of the defence question, beyond that presented by the interests of our Inter-State shipping, or the necessity for the protecting of our territory. We have to keep in view the ‘protection of our future trade route. Australian commerce in the future will undoubtedly flow largely through the Pacific Ocean, with which the destiny of this country is more intimately bound up than it is with the Indian Ocean. With the millions of Asia, and with the 100,000,000 people in North America, we shall undoubtedly have extensive business relations; the fact that we are in a different hemisphere, with different seasons, must mean a large trade. The Panama Canal will be pierced, probably eight or ten years hence ; and the people of Australia have not yet, I believe, realized the enormous strategic and economic importance of that event. That Canal will create a new world’s highway, through the narrow portals of which will pour the enormous trade between East and West ; and by reason of all these events, the Pacific will probably become the storm centre of commercial life. The trend of trade has always been in a westerly direction. The discovery of
America broke up the. Mediterranean monopoly, at the expense of which was developed the great trade of the Atlantic Ocean. The Panama Canal will cause an enormous trade, to flow into the Pacific, which by reason of the increasing importance of the various nations on the borders of this ocean will probably become the scene of the greatest trading activity in the world. It will help us to appreciate the importance of strategic bases along what .will inevitably be our principal trade route, if we consider the relative value of Gibraltar, Malta, and Eden to Great Britain before and after 1869, when the Suez Canal was completed. Without these it would be almost impossible for British squadrons to protect her commerce on this great trade route. . The people of the United States, on the attainment of nationhood, never gave the islands in the Caribbean Sea a thought. All their energies were directed towards the acquisition’ of as much of the Continent as possible, and yet they now find that these islands, in the hands of foreign Powers, practically control and dominate the great trade route that will be created by the Panama Canal. Under these circumstances, we need not ask ourselves how important strategic bases are in the Pacific Ocean. We know that many of the groups of islands .have not any proper harbors, and from a strategical point of view are worthless. But the islands which have harbors, and which are on the prospective trade route, will be of enormous importance. Foreign nations have for years recognised this fact, and, in consequence, have made strenuous endeavours to obtain islands with proper harbor accommodation. It is realized that any nation which has no strategic bases in the Pacific is absolutely impotent, so far as maritime warfare is concerned. The route via the Panama Canal will be the shortest, safest, and most direct from Australia to the markets of Europe, and it is important that islands which practically dominate that route should not fall into the hands of foreign nations. If we allow foreign nations to establish strategical bases on this route, we shall, for all time, jeopardize our carrying trade; we shall enable squadrons of foreign vessels to patrol our principal trade route, and Australia will lay up a heritage of danger for which, in all probability, we, of this Commonwealth Parliament, will be blamed. A glance .at the map of the Pacific shows that the foreign-owned islands are not very numerous.. The French1 have the Marquesas Islands and New Caledonia, but the former, in the absence of proper harbors, is of no strategic importance. Practically, the French are restricted to the harbor of Noumea, in New Caledonia. Germany has Apia, in the Samoan group; and the prevalence of such storms as that in which the Calliope took so gallant a part, shows that that harbor is unsafe - that it is impossible as a strategical basis. Germany has no harbor or other islands nearer the trade route than the Solomons, or New Guinea, and is practically debarred from reaping any advantage in this connexion. The United States has a harbor at Pagopago, in the Tutuila Islands, and that harbor was no doubt secured in anticipation of the early completion of the Panama Canal. When the Samoan Islands were divided,- ‘the United States was quite content to take one-tenth of the area, and give Germany nine-tenths, because it was recognised that strategic position was the only object worth striving for, and that Pagopago harbor would afford a good base. The New Hebrides are strategically the most important islands, having regard to the future trade route by the Panama Canal. The harbor of Havannah, in the New Hebrides, is considered by experts to be one of the. finest in the Southern Hemisphere. There are also two smaller harbors, namely, Port Sandwich and Vila, and these are practically the key to this great trade route. In fact, French writers have stated that unless they can obtain possession of the New Hebrides, the fact that New Caledonia is close to Australia, and surrounded by British islands, will, in time, render their occupation of New Caledonia untenable. There is, therefore, an additional reason why we should see that the French do not get hold of important strategical bases on our principal trade route. Another important factor, which I scarcely need mention, is the transportation of French criminals to the West Pacific. The assumption of suzerainty over the New Hebrides would, I believe, lead to a determination of the question of whether that transportation of criminals should absolutely cease, or be allowed to continue. New Caledonia has an area of about 2,100,000 hectares - a hectare is about 2 J acres - of which about 1,000,000 hectares is barren, desolate land, useless for either agricultural or pastoral purposes. TEe transportation of
French criminals to New Caledonia has not been stopped from any punctilious regard for Australian susceptibilities, but merely because profitable remunerative employment cannot be found for any more convicts. It is as expensive to the French nation to keep convicts in New Caledonia as to maintain them in France. But directly we allow France to obtain possession of the New Hebrides, fresh batches of other criminals will be transported, and these magnificent harbors, with dry docks and fortifications, will be created a formidable naval base. There will be an immediate pouring out of more moral filth from the prisons of Europe. Our retention of the New Hebrides and the maintenance of the status quo is all important, meaning, as it does, not only the prevention of the creation of an important foreign strategical base on our future principal trade route, but also the stoppage of any further transportation of criminals to the West Pacific. At the present time Australia is showing an extraordinary apathy in these matters. For fifty years we have contended with more or less vigour against French aggression in the New Hebrides. Thanks to men like the late James Service, the late Sir Henry Parkes, and the present Chief Justice of the Commonwealth, Sir Samuel Griffith, the strenuous endeavours of the French to annex the New Hebrides have been so far frustrated. It was believed that only by Federation could a united Australian policy be arrived at, and foreign aggression rendered harmless ; but since the union of the States absolutely nothing has been done. French claims to the New Hebrides have been enormously strengthened by settlement, and every nerve is now being strained in order to obtain an effective occupation. The activity of the French is in inverse ratio to our apathy. French steamers to the New Hebrides are subsidized to the extent of £18,000 a year, while the subsidies paid to Australian steamers amount to only £6,000 for the whole of the islands of the West Pacific, the NewHebrides proportion being estimated at £2,000. The subsidies to the French steamers mean 8s. 4d. per mile, while that to our own steamers reaches only <)Jd. per mile. In addition, the French New Hebrides Company receives a grant from the French Government of £16,000 per annum; and it is reported that this has been largely increased in order to promote further settlement. The last batch of French settlers in the New Hebrides were each presented with £200 in order that they might have a good start. Under these circumstances it must be admitted that Australian settlers within the New Hebrides - the little garrison who are really holding the islands from foreign occupation - have not been treated too well. Their position is nothing like so favorable as that of the French colonists. We know that all this encouragement given by the French nation is for the purpose of obtaining possession of the New Hebrides. Is it likely for one moment that the French people would impose taxation to the extent of £40,000 per annum on an already overtaxed people in order only to benefit 255 French subjects who happen to have settled in the New Hebrides ? All this money is being spent for the purpose of obtaining what diplomatists call “effective occupation.” If the French can practically gain predominance in population, and obtain control of the bulk of the land and of the trade, then, by international comity and general precedent, they will be entitled to hold that they have prior rights over any other nation to proclaim a suzerainty. The handicap which I have described as borne by the British settlers is not the only one, nor is it the greatest, against which they have to contend. We have subsidized a line of steamers to the extent of £6,000 for the whole of the islands of the West Pacific, in order to increase our trade and maintain our interests and prestige. But by the Commonwealth Customs Act we have practically prohibited the raw products raised by Australian settlers in the New Hebrides horn entering Australia. The principal, industry in the Pacific Islands is the production of copra ; and it ought to be known that after the settlers have cleared their land and planted the cocoanuts they have to wait from six to eight years for any return for their labour. In the meantime they grow maize; but, owing to the duties in Australia, they cannot find a market. The duty on maize is 3s. 4d. a bag, or 40 per cent., seeing that New Hebrides maize is worth 8s. a bag; and, under the circumstances, its cultivation is absolutely unremunerative. Prior to Federation the Taw products of the New Hebrides were exported freely into New South Wales, and the million inhabitants of that State could absorb the whole. Since Federation, however, British settlers are in a worse position than they were before, although the belief was that under the Commonwealth their circumstances would be enormously improved.
– What labour is used in the production of the maize?
– Native labour. But how’ have our French rivals treated their colonists, irrespective of the subsidies and special grants which I have mentioned ? France has placed her New Hebrides colonists on the most favoured basis, not only in regard fo herself, but in regard to all other French possessions. The produce of the French settlers is admitted at a largely reduced duty, not only to New Caledonia and other French settlements, but also into France; whereas our unfortunate settlers have practically been ostracised by their kith and kin in Australia - they are, so to speak, marooned. We say to them, “ You may grow what you like, but we shall give you no opportunity to sell your produce at remunerative prices.”’
– The honorable senator’s proposal will help the Frenchmen who are growing produce on the islands.
– I hope that Senator Playford will not jump to conclusions. There is nothing in my proposal which will help the French colonists ; but I am asking that the Australian colonists in the New Hebrides shall be placed on the same footing as the French.
– How is it to be proved that a particular bag pf maize has not been grown by a Frenchman ?
– In the same way as the French authorities of New Caledonia discriminate with respect to imports, in determining whether they shall pay the ordinary rate or a reduced rate of duty. We made an arrangement with Messrs. Burns, Philp, and Co. that they should place practically at the disposal of the Commonwealth 100,000 acres of land. We told intending colonists that if they went to the New Hebrides they would get 50 acres of land each at the peppercorn rental of is. a year per acre; and we offered to give them free passages to the islands. Under this alluring offer, sixty-seven colonists went to the New Hebrides from Australia. ‘ They took with them at least £100 each, and they were men who were willing to work hard to make a living for themselves and for those dependent upon them. Those colonists were sent out to supplement our little garrison in the New Hebrides, and they are lighting for us the battle of the suzerainty of those islands. However, within this short time they have dwindled down to a wretched little band of ‘twenty persons, who are practically in indigent circumstances. Our colonization lias, therefore, been a failure. The colonists feel that they have been cruelly treated by the people of Australia, inasmuch as we will not allow them to sell their produce at a profitable rate in the Commonwealth. They naturally feel a certain amount of - resentment. The French people are extremely anxious that they shall become naturalized Frenchmen, and if they agree to do so they will be immediately admilted to all the advantages, privileges, and subsidies enjoyed by French subjects in the New Hebrides. It is only the patriotism of many of the Australians there, exercised against their own personal interests, that has prevented them from giving way under the great strain upon their loyalty, renouncing their Australian rights, and becoming French citizens. Some who have become naturalized Frenchmen are enjoying the subsidies and advantages offered by New Caledonia, and if those who are left are given reason to think that they are being treated unfairly by the Commonwealth, they will either leave the New Hebrides, or become naturalized French subjects. There is no reason’ to believe that the missionaries will ever become French subjects, but if the other British and Australian colonists at present in the New Hebrides- become French subjects, the French will have obtained effective occupation of the island, and that will be merely the prelude to a declaration of suzerainty by France. I remind honorable senators that our colonists in the New Hebrides are placed in an anomalous position. The French are holding out to them tremendous advantages if they adopt French nationality, and if they do, our interests in the New Hebrides will be practically nil, and they will irrevocably become a French Possession. On this point, I should like to read a short extract, giving the opinion of W. E. Hall, a recognised authority. At page 109 of his book’ on International Law, he says -
If, for example, colonists establishing .themselves in an unappropriated country declare it to belong to a State of which they are members, a simple adoption of their act by the State is enough to complete its title, because by such adoption the fact of possession and the assertion of intention to possess, upon which the right of property by occupation is grounded, are brought fully together.
So that there can be no doubt that by international law France would be recognised as tile: rightful owner of the New Hebrides if our little garrison there were to become naturalized subjects of France, and in a few years the French flag would fly over those islands for all time. There is another point I desire honorable senators to consider, and that is that a French company, subsidized by France, is now approaching the British settlers in the New Hebrides and offering to buy them out for cash at the fair market value of their lands. These settlers are unable to trade, and there is practically no possible way by which they can make both ends meet. If they accepted the French subsidized money offered to buy them out, the result would be that the French would have undisputed occupation of the islands. I may mention that the British residents of the New Hebrides are now preparing a petition to the Commonwealth Parliament asking that Parliament to provide some remedy for this deplorable state of affairs. The petition will be sent through Commander Rason, the Government representative in the New Hebrides. If we turn to New Zealand, we shall find that that Colony has extensive possessions in the Pacific, including the Manaliki Islands, Hervey, or Cook Islands, Suwarrow, Niue, Chatham, and Bounty Islands, and the Kermadec Group. What policy has New Zealand adopted in dealing with those islands? Under the legislation passed by the Right Honorable Richard Seddon, they can trade freely with New Zealand, and New Zealand trades freely with them. The Tariff wall which has been placed round New Zealand is extended to include those islands; there is absolute free-trade between them and New Zealand, with the result that British colonists settled in those islands are prosperous. The best subsidy we can give a steam-ship company is freight, and the great’est inducement we can offer to settlers to remain on the islands of the New Hebrides is to provide a market for the produce they grow. That is the policy we should adopt in dealing with our colonists in the New Hebrides. I know of no protectionist country in ‘the world which does not give sorry; advantage to its own colonists as against foreigners. When that is almost universally done as a pure question of trade, is it not advisable that it should be done on the national and ethical grounds I have submitted, and that we should bring about a condition of affairs which will enable us to retain our settlers in the New Hebrides, and in that way prevent the .French .obtaining possession of those islands? It must be remembered that the New Hebrides islands are practically the key to what will be our greatest trade route ; and in order to secure it, it is but a very small concession to allow the products of Australian settlers in those islands to be admitted free to the Commonwealth, when we know they can never reach very large proportions. What I propose will not cost the people of Australia an additional penny, but it will mean that our position in the New Hebrides will be maintained. The French have placed their colonists in the New Hebrides on the most favorable footing, and permit them to send their goods into New Caledonia at a reduced rate of duty. I can say, further, that the authorities of New Caledonia give French subjects in the New Hebrides a rebate of the full amount of the duty which they do charge. ‘I have no official document on which to base that statement, and no official authority for it, but it is genera ally admitted by French people in New Caledonia, and it is a fact. The reduced duty which is paid on goods imported into New Caledonia by French coloists in the New Hebrides is handed back to them in the guise of a subsidy for the construction of roads and bridges. The French settlers are supposed to construct these roads and bridges for the Government, on their own private lands. What I am asking the Federal Parliament to do is to place our Australian colonists in the New Hebrides in the same position as that in which French colonists are placed by the authorities in New Caledonia.
– The honorable senator asks more than that. He uses the word “ British.”
– I do not know why we should differentiate between British and Australian colonists.
– The honorable senator uses a particular term.
– As a matter of fact, our colonists in the New Hebrides are nearly all Australians. We should place them on something like an equal footing with French subjects in the New Hebrides, and although we may not give them special advantages and subsidies - and I do not propose that - we should give them the same opportunity of disposing of their produce..
– We should give them a better opportunity under the honorable senator’s proposal, because it would give them a better market.
– We should possibly give ‘them a better market. Unless what I propose is done, the New Hebrides will, in a few years’ time, become a French Possession. If what I propose is carried out, I have good grounds for saying that other colonists will go out to the New Hebrides from Australia, and those who are there at present will remain, and will continue to be British subjects. We should in this way absolutely preclude the French people from attaining an effective occupation of the New Hebrides. As a protectionist country, I think we ought not to object to the free importation of raw materials, and my motion contemplates no more than that. The whole of the islands of the New Hebrides do not comprise more than 5,000 square miles, or about one-seventeenth of the area of Victoria. If we assume the proportion of cultivable land to be the same as in Victoria, we may say that one-twentieth of the area to which I have referred is likely to be brought under cultivation, and, further, less than one-half of that is held by British subjects. It will therefore be seen that the amount of produce which can be imported to Australia -from the New Hebrides will be so small as not to affect in the slightest degree the commercial value of any Australian products with which it will come into competition. If we could secure the settlement in the New Hebrides of 200 or 300 of our colonists,- we should for a ‘I time be able to prevent the French securing an effective occupation of the New Hebrides. By adopting such a policy as I suggest we should not be laying down any broad principle governing future action, because the New Hebrides are the only islands in the Pacific which have not been annexed bysome foreign Power. Therefore, the application of the principle I propose -would begin and end with the New Hebrides. What I am suggesting is special legislation to meet . an extraordinary difficulty, in order to place our colonists on the same footing as the French colonists in those islands which are under the joint charge of Great Britain and France. I am urging that we should place the British colonists in the New Hebrides, who employ native labour, on the same basis as the New Zealand Protectionist-Labour Ministry has placed the native ‘inhabitants of their numerous islands in the Pacific, vhich in their case also meant the loss of two-thirds of the island revenue. As far as I can gather from (he debates which took place on the Bill in the New Zealand Legislature, no objection was raised to these fiscal proposals of the Premier (the Right Honorable Richard Seddon), and no complaints of any kind have been made by the people of New Zealand since. The system has worked well there, and I am convinced it would work equally well in this case, and attain “a much more important end. If we could have induced Great Britain, by diplomatic agreement, to exchange certain lands with France for the New Hebrides, the proposal I make would not have been necessary. Unfortunately, that has not been done. ‘ I blame the apathy and lethargy of previous Commonwealth Governments for not endeavouring to arrange such an exchange. In the first session of the first Parliament of the Commonwealth certain French writers proposed that France should withdraw her claims to the New Hebrides, if Great Britain gave her concessions in Nigeria which would afford her access to Lake Tchad, an important trade centre; and also some concessions in Gambia. The Government were asked to strenuously urge that this should be done. Apparently nothing was done in this direction, and we know that the negotiations carried on by the Anglo-French Convention, after continuing for twelve months, terminated in the signing of an agreement last April. Australia apparently made absolutely no effort to have the question of the New Hebrides brought within the ambit of the consideration of the Convention. Almost every difficulty between the two nations except that connected with the New Hebrides was settled, and the particular proposals made by French writers, by which we could obtain possession of the New Hebrides - namely, the concessions of land in Nigeria and Gambia - were availed of by the people of Newfoundland to settle their difficulties with France. They were practically enabled to jump our claim owing to the lethargy .of the Commonwealth Government. In conclusion, I desire to say that if mv motion is carried into effect it will render it impossible for the French to secure an effective occupation of the New Hebrides. I do not say that the carrying of this motion will give us the possession of the New Hebrides, nor do I think the Australian people want that. What we desire is that Great Britain should establish a protectorate over them. The carrying of this proposal may not lead to the establishment of a protectorate by Great Britain, but it will prevent the French from establishing such a protectorate, and will insure the maintenance of thestatus quo. With the maintenance of existing conditions in those islands there is always a possibility that we may have a Ministry in England alive to the interests of Australia, and to the enormous importance of protecting our trade route, and an opportunity may arise when, by the concession of some places to France, which are not of strategic importance to Great Britain, the French people may consent to a British suzerainty over these islands. The matter has become very urgent. If we were now to request the authorities of Great Britain, judging by their leisurely methods of diplomacy, to endeavour to obtain a suzerainty over the New Hebrides, some time would be taken in conducting the negotiations, whilst in the meantime British colonists would be ‘ absolutely crowded out of the place, the French would be in active occupation, and under international law France would be entitled to establish a protectorate over the islands. I trust that I have not wearied honorable senators in connexion with this matter. I consider it one of the greatest importance, and what I am trying to attain has. for half-a-century, been fought for as we have hot fought for anything else outside of Australia. Throughout Australia, as the records will show, public meetings have during this time been held, urging that our interests in the Pacific should be preserved. We have approached a period in which there is a strange disregard of these important matters. If this Ministry are neglectful of the interests of the New Hebrides, their strategical importance and their ethical value to Australia, they will layup a heritage of trouble for future generations, for which they will be justly- blanked. If the New Hebrides should fall into the hands of a foreign Power, it will always be a thorn in the side of Australia. We shall always have a foreign-owned strategic base on our principal trade route, and for all time that will be a danger and a menace to the interests of Australia.- And when a simple . method is presented, by which I believe our interests in the New Hebrides can be maintained, I feel sure that the Senate will adopt it, and thus see that conditions are brought about by which the New Hebrides, after a fifty years’ struggle, do not ultimately become the prize of the French people.
Debate (on motion by Senator Pearce) adjourned.
The Clerk laid upon the table the following paper : -
Return to an Order of the Senate of 13th July,1904, relating to the Bass Straits Cable.
In Committee (Consideration resumed from 27th July, vide page 3537) :
New clause, 1 7A (proposed by . Senator
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 false trade des- ‘ cription is applied, or to which any trade mark is falsely applied.
Upon which Senator Pearce had moved by way of amendment -
That the word “ shall,” line 2, and the words “ be forfeited to the King,” line 3, be left out, and that after the word “ exported,” line 2, the words “such attempt shall be deemed to be an offence against the Act,” be. inserted.
– Since this proposal was discussed last night, I have had an opportunity to consult the Government draftsman. He has drafted two clauses which have been circulated, and are in complete unison with the Bill as it stands. I ask leave to withdraw the new clause I moved last night, and I believe that Senator Pearce is willing to withdraw his amendment to that clause.
Amendments, by leave, withdrawn.
Senator PULSFORD (New South Wales). - I move -
That the following new clause be inserted : - “ 17A. (1) 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, shall be prohibited to be exported, and shall, if exported or entered for export or put on any ship or boat for export or brought to any wharf or place for the purpose of export, be forfeited to the King, and may in that case be seized as forfeited by any person acting under the authority of the Minister. (2). The Minister may, if he is satisfied that ‘ the owner of any goods which have been seized as forfeited under this section did not knowingly act in contravention of this Act, permit the obliteration, removal, or correction of any forgery, false trade description, or trade mark applied to the goods, and may, when the oblitera- tion removal or correction has been completed to his satisfaction, order the release of the goods either unconditionally or subject to the payment df the expenses of the seizure, and thereupon the forfeiture shall be remitted.”
The- clause, as now drafted, is uniform with the requirements of the Customs Act, and with the clauses of this Bill.
– It is desirable to bring this clause in accord with clause 17, in . which the phrase “ Comptroller-General of Customs “ ‘ is used.
– By leave, I will make that amendment.
Proposed new clause amended accordingly.
– I wish to know if this clause is to apply to goods which are imported and then exported.
– Undoubtedly it will apply.
– In that case it may do considerable wrong to innocent persons. I do not see any serious objection to products of the Commonwealth being treated in this way.
– If any imports are wrongly marked the Customs will seize them, and there will be no chance of exporting them.
– I can quite see that if wrongly marked goods come into the Commonwealth the receiver may be perfectly innocent. The exporter of those goods from the Commonwealth may be equallv innocent, and yet he may be mulct in extreme damages.
– No; he will be pulled up when he brings the goods into the Commonwealth.
– The importer may sell the goods to an innocent man who may export them. The clause should not apply to any imports which are dealt with in that way.
– Would the honorable senator allow persons to send out fraudulently marked goods?
– Any quantity of goods are brought in from foreign countries. I am afraid that this extreme clause may endanger the trade of the British public, and be the means of placing it in the hands of foreigners.
– I am sure that Senator Fraser desires to encourage honest ‘ trading. It will be observed that this Bill has nothing to do with goods which are not marked. If fraudulentlymarked goods come in they will be stopped, but honestly-marked goods will be allowed to pass. Supposing that a merchant imports and sells honestly-marked goods, and that the purchasers falsely mark them, and attempt to export them in’ that stale ?
– That is easily followed.
– The object of the new clause is to prevent persons from exporting goods bearing false trade marks or false descriptions. I think that the honorable senator will see that the clause can do no harm to honest trading.
Senator PULSFORD (New South Wales). - If any falsely-marked imports were brought in, the Customs officers would not delay action until they were sought to be exported, but would deal with them under the provision relating to imports, which has been agreed to.
Proposed new clause, as amended, agreed to.
Clause 18 agreed to.
Amendment (by Senator Pulsford) agreed to -
That the following new clause be inserted : - “18a. Whoever exports, or enters for export, or puts on any ship or boat for export, or brings to any wharf or place for the purpose of export, any goods to which any forgery of a registered trade mark or any false trade description is applied, or to which a trade mark is falsely applied, shall, unless he proves that he did not knowingly act in contravention of this Act, he guilty of an offence against this Act.”
Clauses 19 to 34 agreed to.
Postponed clause 17 and Title agreed to.
Bill reported with further amendments; report adopted.
In Committee (Consideration resumed from 27th July, vide page 3569).
Clause 4 (Definitions) -
Upon which Senator Best had moved, by way of amendment -
That the following new definition be added, “ Person “ and “ applicant “ include a body corporate and firm.
Upon which amendment,’ Senator Pearce had moved -
That the following words be added, “ and registered industrial organization.”
– I listened carefully to the remarks of my honorable friend, Senator Pearce, but the object which he desires to accomplish appears to me to be outside the scope of the Bill. Ha has told us very plainly what his object is. It is a laudable one in many ways, but it is not within the purpose of this measure.
– We are making a new law.
– But I do not see how we can ingraft such a proposal on to a Bill concerning trade marks without altering the whole law. What Senator Pearce desires might be very proper as a piece of Factories legislation; but it has nothing to do with trade marks. A trade mark is something in which there is a property that can be assigned, and which has no value whatever apart from the goodwill attaching to it. It goes without saying that if a manufacturer can assign, the goodwill which descends to his heirs on his death, or can be assigned on his bankruptcy, it is not a proper thing to add on to his trade mark a label stating the particular conditions under which the goods were manufactured. I do not see how such a label can be a1 trade mark within the meaning of this measure. Senator Keating has dealt fully with the point’, and I quite agree with his view. Sebastian says, in his book on Trade Marks -
A trade mark cannot exist in gross and unattached to Specific articles, for, if that could be done, the mark might come to be an instrument of deception instead of a guarantee of genuineness.
Take the case of a hat factory. The Denton Hat Factory may have - and certainly ought to have, for it makes very good hats - a certain trade mark. What is the use of attaching to that trade mark a statement that the goods were made in accordance with the Factories Act? If the workmen who are employed in that factory could induce the Denton Company to adopt such a statement as part of their trade mark, I could understand it. But to say that’ a trades union can call a certain statement a trade mark simply because it informs the public that the goods were made under certain trade conditions, is a proposition the reason of which I cannot conceive. Suppose that the workmen in a certain boot factory belong to the Bootmakers’ Union. It does not follow that all the boots sold by the owners of that factory are made within the factory. Some might be made outside. Could the men in that factory claim that a statement was a trade mark, simply because it was attached to the goods, and stated that they were made under the conditions laid down in the Victorian Factories’ Act? Would this trade mark apply to all the goods made in the factory, whether they were babies’ shoes or Wellington boots? The proposal is quite outside the scope of the Bill, and I would ask the ruling of the Chairman as to whether it is in order.
– On the point of order, I wish to say that, while the question of whether the Bill should be amended in this direction may .very properly be argued, I do not see that it can be argued that it is outside the order of leave. The Bill relates to trade marks, and while it may be debatable whether it is wise to extend- the scope of trade marks, it cannot be argued that the Committee has not that power. That is all that my amendment asks for. It seeks to extend the scope of a trade mark so as to cover a trade union label. Surely that is not out of order.
– I do not see any objection to the amendment, nor do I think that it is out of order. A company, or a firm, might register a trade mark and never use it.
– The Bill provides for the cancellation of the mark in that case.
– In the same manner, if a registered industrial organization adopted a trade mark, it would have the same right to register as any one else. But if it were not strictly speaking a trade mark, then, according to Part III. of the Bill, it would not be registerable. Nothing can be registered as a trade mark, unless under the provisions of this Bill. I want to point out how the amendment would benefit industrial organizations.
– I am inclined to think that the honorable senator’s argument might be applied to the question whether the Bill should be applied to trades unions ; but it does not turn upon the point of order. I am prepared to give a ruling on the point which has been raised. I cannot sustain Senator Dobson’s point of order. The clause deals with definitions, and Senator Best’s amendment proposes to enact that “ person “ and “ applicant “ shall include a firm and corporate body. If the
Committee chooses to add that it shall also include an industrial organization, I do not see that that is not perfectly in order.
– The main object that Senator Pearce has in view is to give power to industrial organizations to register a union label as a trade mark. That is a power which is not possessed by any Victorian union as organization.
– There are trade union labels in Western Australia.
– Some few years ago I was President of the Australian Typographical Union, which represents the printing trade throughout the Commonwealth; and at a conference of that organization a resolution was passed declaring that it was desirable, in the interests of the trade, and of fair, honest, employers, that a union label should- be adopted. A design was procured, but we were confronted with the difficulty that it was impossible to register the mark in the name of the union. We were informed that two or more persons could register the trade mark in their respective names; but there was great danger in taking that course. Men are only human; and if the label had been registered in the names of two or three persons, it would have become their absolute property, and in the event of their committing a breach of the union rules, all our efforts Would have been in vain. It has been ruled that the amendment of Senator Pearce is perfectly in order, and I hope that it will be agreed to by the Senate. It will afford trades unions the opportunity to adopt a label, and prove a protection to a number of fair employers, who, so far as the printing trade is concerned,have expressed their wilingness to fall in with the idea. Trades unions in this respect have no protection at present under the law; no punishment could be inflicted on an employer who wrongly used a trades union label unless that label were legalized by Act of Parliament. In the United States the system of labelling trades union goods was adopted some few years ago. At first the idea was not altogether popular, but after some years of experience, it has now been adopted in almost every State. In America the union label is registered as a trade mark under the label laws of the various States.
– Not as a trade mark.
– It is registered as a trade mark un3er the Label Acts of the various States.
– I beg the honor able and learned senator’s pardon ; I am in direct communication with men in America who follow the same occupation as myself.
– That may be so. At the same time the label is not registered as a trade mark, but as an industrial label.
– A label registered under a Label Act is not a trades mark.
– The label is, first of all, registered as a trade mark under the Label Acts; and what we desire is to have an opportunity under this Bill to register as a trade mark; union labels in the various States of the Commonwealth.
– Instead of amending the Trades Marks Act in the United States a fresh law was introduced in relation to union labels.
– That is so. And so popular are the labels in America, and so rigid the application of the law, that certain manufacturers, who a few years ago would not adopt such a mark for their goods, are now serving terms of imprisonment for fraudulently using them, particularly in connexion with cigars. The cigar makers’ unions throughout the United States issue a label, only, however, to manufacturers who work in conformity With the rules of the union.
– We should require a Bill to regulate all this.
– All’ we want is power to register a label, and that in the use of that label unions shall be protected against unscrupulous employers who ought to be liable to the punishment specified in the Bill.
– It should be understood that those honorable senators who discuss this matter from a strictly legal point of view are not in any way adverse to the suggestion of Senator Pearce. But such a proposal is novel, so far as Victoria, and, I believe, so far as Australia is concerned.
– Not as concerns all the States of Australia.
– But, as we understand the law of trade marks, the amendment proposes the adoption of a new principle. We have hitherto been accustomed to consider a trade mark as associated essentially with the proprietor of a trading concern, and with the goodwill of his business ; and that idea is carried out in the Bill. While I do not suggest for a moment -that it is not competent for us to alter the Bill so as to cover the case mentioned by Senator Pearce, I think that the matter ought to be dealt with’ in a separate part of the Bill, which could embody some of the label law provisions in the American Acts to which reference has been made. I have already referred to two clauses, picked out haphazard, in order to show that the proposed amendment is outside the tenor and scope of the Bill. I drew attention to clause 23, which provides -
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.
If a mark is common to the trade, either it cannot be registered, or if it is on the register, and used by more than three persons, some one may apply to have it removed.
– An exception would have to be made in the case of trades unions.
– That is what I am pointing out. lt would be a somewhat difficult matter to attempt to engraft the principles involved in the amendment on those of the Trades Marks Bill as now presented. My suggestion, therefore, is to have an additional part containing clauses dealing with the particular cases.
– We must first deal with the matter in the interpretation clause.
– Not necessarily, if we create an additional part. I am now pointing out to Senator Pearce and to the VicePresident of the Executive Council the difficulty which such an amendment will create at every stage.
– This seems to be *ha only clause on which difficulty would arise, and surely we can amend it.
– The two clauses to which I referred last night, namely, .clauses 22 and 59, would also have to be amended. Those clauses have to be read in conjunction with cases which have been decided, and all those cases go in one direction. The clauses also have to be read in conjunction with trade marks legislation, which is also in the one direction, of applying a mark, first, to a trading concern owned by a proprietor, and then to the goods of the trader.
– Does the honorable and learned senator not think that the whole application of these cases would be altered to the extent of the alteration in our definition ?
– One legal gentleman says “ No,” and another legal gentleman says “ Necessarily.”
– But if that was the only alteration made, it would not help Senator Pearce at all; the Bill will have to be altered right through in order to cover the conditions suggested. I think the title is comprehensive enough to cover the proposed amendment, and the most effective way would be for Senator Pearce and the Vice-President of the Executive Council to discuss the matter with the parliamentary draftsmen, keeping in view the American Label Acts. Half a dozen clauses would cover the ground contemplated by Senator Pearce.
– But this definition would be necessary.
– That is a matter of drafting, though the definition would not carry the honorable senator much further.
– Even if Senator Pearce succeeded in passing his amendment he would not be one step, further towards the end he has in view. With regard to my interjection just now that the amendment would’ not help the honorable senator, I am still of that opinion. Senator Best was pointing out that the definition of “ trade mark “ would have to be altered, and the whole tenure of the measure changed ; but, so far as I can see, there is no definition of “ trade mark “ in the Bill. The only reference to a trade mark is in clause 15, where the essential particulars of a registrable .trade mark are specified ; and the ordinary acceptation of the term will be observed in connexion with .this Bill. When an applicant goes to register his trade mark, it will have to be a trade mark as known under the common law. In order to show how utterly impossible it is to accept as a trade mark anything of the character indicated by Senator Pearce or Senator Findley, I refer honorable senators to Kerly, on Trade Marks, in which we find this statement -
The foundation upon which the law relating to trade marks and trade names rests is that the deception of the public by the offer for sale of goods as possessiong .some connexion with a particular trader, which they do not in fact possess, is a wrong in respect of which the trader has a cause of action against any person who is the author of, or is responsible for, the deception.
The whole basis of a trade mark is the connexion of . particular goods with some particular trader, whether .manufacturer or seller. There is not in contemplation an indefinite class of traders, who may consist of a certain number to-day and of a larger number to-morrow. Kerly proceeds - “ No man,” said James, L. J., “ is entitled to represent his goods as being the goods of another man ; and no man is permitted to use any mark, sign, or symbol, device, or means, whereby without making a direct false representation himself to a purchaser, who purchases from him, he enables such purchaser to tell a lie, or to make a false representation to somebody else who is the ultimate customer. That being, as it appears to me, a comprehensive statement of what the law is upon the question of trade-mark or tradedesignation, I am of opinion that there is no such thing as a monopoly or a property in the nature of a copyright, or in the nature of a patent, in the use of any name. Whatever name is used to designate goods, anybody may use that name to designate goods; always subject to this, that he must not, as I said, make directly, or through the medium of another person, a false representation that his goods are the goods of another person.”
That is the whole basis of the conception of trade marks, according to law. Further on in the book I find at page 30 this reference -
So no one can acquire an exclusive right to affix the trade mark to goods which do not fall within the class indicated by the mark, or, in other words, to goods which do not possess the attribute the mark is understood and intended to connote. Thus, in Cotton v. Gillard, the defendant had invented a sauce which was prepared from a secret recipe not known to the plaintiff, and was called the Licensed Victuallers Relish. The plaintiff had purchased from the assignee in bankruptcy of the defendant’s son all his interest in the sauce, and this he contended included the right to the trade mark used with the business. Jesse], M.R., however, held that this right could not exist or be transferred without the goods with which the mark was connected, and that the plaintiff could have no assistance from the court to enable him to pass off under the mark, as the original sauce, an imitation of his own..
The plaintiff in that case had bought out the business, but he was not allowed by the court to use the trade mark, because it was considered that it would indicate to the public that it was the sauce made by the original manufacturer who had registered the mark. Then, again, honorable senators must see the direct connexion between the. trade mark and the person who actually makes the goods. Going on to page 35 I find this stated - “ The right which a manufacturer has in his trade mark,” Lord Cranworth said in the Leather Cloth Case, “ is the exclusive right to use it for the purpose of indicating where and by whom or at what- manufactory the article to 6 k 2 which it is affixed was manufactured.” And the same judge, in Farina v. Silverlock, after distinguishing copyright from the right to a trade mark, added, “ Any one who has acquired a particular mode of designating his particular manufacture, has a right to say, not that other persons shall not sell exactly the same article, better or worse, or an article looking exactly like it, but that they may not so sell it as to steal the’ plaintiff’s trade mark, and make purchasers believe it is the manufacture of somebody else.” And in Massam v. Thorley’s Cattle Food. Co., James, L.J., said, “That in truth is the meaning and object and result of a trade mark. It indicates this ; that you may take this as a warranty that it has come from the particular manufacturer of the goods with which you have been hitherto pleased.”
– Or that they have been made under fair conditions.
– What I am quoting goes to show that a trade mark could not be issued in such a case as is desired by Senator Pearce, and it can only be issued in the case of the true manufacturer or seller of goods. At page 52 of the work from which I am quoting, I find this -
The office of the trade mark is to indicate some connexion between the goods to which it is applied, and a particular trader.
Not to a number of traders who may be selected or added to at will by the parties, who, under Senator Pearce’s proposal, would be enabled to register the mark. At page 98 in the same work I find it stated that -
A broader question is, whether registration can be properly made in respect of goods in which the applicant does not deal or intend to deal.
Further on the question of law is stated as follows : - “ Can a man properly register a trade mark for goods in which he does not deal or intend to deal - meaning by intending to deal, having at the time of registration some definite and present intention to deal - in certain goods or descriptions of goods, and not a mere general intention of extending his business at some future time to anything which he may think desirable? This question we answer in the negative.”
The case referred to here is Hedley’ s, 17; R.P., C., 719.
– That is English law.
– That is the common Jaw to which we are subject, as in this Bill there is no definition of “ trade mark.”
– Except in so far as we decide to deal with it.
– The conception of a trade mark is a mark connected with a particular trader, whether he be manufacturer or seller, in respect of a certain class of goods which he is dealing in, or about to deal in, at the particular time - when the application is made for the trade mark. The application must be made by the person who intends to sell, and intends at that- particular time to sell. He must not have a vague intention to sell it some future time. If that is the case with regard to the applicant who is engaged in dealing with the goods as manufacturer or seller, how much more must it apply to the case of a third party making application to the Registrar for a trade mark to be applied by other persons not then in contemplation by the Registrar, and to goods not then being manufactured, and which may not be manufactured until years afterwards ?
– Does the honorable and learned senator contend that we must make our law the same as the English law ?
– I am contending that, unless Senator Pearce succeeds in putting a new definition of a “ trade mark “ into this Bil], even though his industrial organisation should be properly registered, it would be found, when they made their application to the Registrar for a trade mark under this Bill, that he would say, “ No; what you are applying for is not a trade mark, and I have no power to deal with anything but a trade mark.”
– He would look at the definition of “ applicant “ in the’ Bill, and he would find that an organization might be an applicant.
– He would not be concerned with that, if the organization applied to be allowed to register what was not a trade mark in respect of goods which it did not intend to manufacture or sell.
– The honorable and learned senator might leave that to the members of the organization to deal with when the time comes.
– I desire to point out to Senator Pearce that the amendment he proposes will not achieve the object he has in view. I am in sympathy with his object, and I think I can point out how it may be better given effect to.
– Does not the Constitution come in here? Is the power we have under the Constitution to deal with trade marks a power to deal with trades union labels ?
– Yes, it is.
– It was said during the course of this discussion that in Canada these trade union labels are registered as trade marks. I distinctly denied that last night, and since then I have taken an opportunity to consult the statute in force in Canada. The Canadian Act is an “Act respecting Trade Marks and Industrial Designs.” It has been amended in some respects since it was passed, but not in any respect material to this discussion.
– The honorable and learned senator is not quoting the American law?
– No; I spoke last night with certainty about the Canadian law. I referred to the adoption of trade, union marks in the United States, and in Canada, and I specially mentioned The Toiler as enjoining its readers to purchase no goods other than those which had a union label. on them. The practice is extensively followed in Canada, as well as in America. Here is the definition of a trade mark in section 3 of the Canadian Act -
All marks, names, brands, labels, packages, or other business devices, which are adopted for use by any person in his trade, business, occupation, or calling, for the purpose of distinguishing any manufacture, product, or article of any description manufactured, produced, compounded, packed, or offered for sale by him, applied in any manner whatever either to such manufacture, product, or article, or to any package, parcel, case, box, or other vessel or receptacle of any description whatsoever, containing the same, shall, for the purposes of this Act, be considered and known as trade marks, and may be registered for the exclusive use of the person registering the same in the manner herein provided ; and thereafter such person shall have the exclusive right to use the same to designate articles manufactured or sold by him.
After dealing with trade marks, much on the lines of the English Acf; which has been adopted in some of the Australian States, this Canadian Act then goes on from clause 22 to the end to deal with industrial designs, and here is where I think an opportunity is afforded to give effect to the object which Senator Pearce has in view. The’ English Act’ is an Act which deals with patents, designs, and trade marks. In the State of Tasmania we practically adopted that Act bodily. Under the Commonwealth procedure we have split up the legislation upon these matters into separate enactments. We have already dealt with patents in the Patents Act ; we are now dealing with trade marks, and we hope to pass a Trade Marks Act that will bring our legislation into line with the best in the world on that subject. I think it was the intention of the last Government - and whether it is the intention of the present Government or not I do not know - to bring in an Industrial Designs
Bill; and that would have afforded Senator Pearce a proper opportunity to enable trade unions to register an industrial design. I may refer to one or two of the marginal notes of the Canadian Act, describing the clauses dealing with industrial designs, because they are practically the same as those in force in England, in Tasmania, and probably in some of the other States of Australia to-day. I find these marginal notes “Register of industrial designs to be kept,” “Registration,” “Certificate and its effect,” “Conditions of registration,” “Who shall be deemed the proprietor,” “Tariff of fees.” Section 28 deals with the certificate to be given and its effect, and provides that -
On the copy returned to the person registering a certificate shall be given signed by the Minister for Agriculture or the deputy of the Minister for Agriculture, showing that the design has been registered, the date of registration, the name of the registered proprietor, his address, the number of such design, and the number or letter employed to denote or correspond to the registration - which said certificate in the absence of proof to the contrary, shall be sufficient proof of the design - and of the name of the proprietor, and so on. The proprietor is given in that design exclusive right of copyright, and the fees for obtaining these designs are much lower than those charged for obtaining a trade mark. These designs may be applied to such class of goods as the person obtaining them then may wish, and in section 31 it is provided that -
During the existence of the exclusive right (whether it is of the entire or partial use of such design) no person shall, without the licence in writing of the registered proprietor or of his assignee as the case may be, apply such design or a fraudulent imitation thereof to the ornamenting of any article of manufacture or other article to which an industrial design may be applied or attached for the purposes of sale, &c.
We have similar provisions to those in the State Act in Tasmania. Turning to the Western Australian statute, 48 Victoria, No. 7, which is described as “An Act to regulatethe registration of designs and of trade marks in the colony of Western Australia,” I find that Part I. is preliminary ; and Part II. deals with designs. Section 4 deals with the application for registration of designs; section 5 with drawings, &c, to be furnished on application ; section 6 with the certificate of registration, and section 7 provides that -
And under the same section if he fails to do so his name may be erased from the register. It then deals with fees and registration.
– The Constitution says that the Parliament can deal with the question of trade marks, but it contains no reference to the question of designs.
– In the sections which the honorable and learned senator has quoted, there is nothing to indicate that they would effect the purpose any more than would this Bill.
– Yes, because, the conception of a trade mark is one throughout the British Dominions, except where the definition has been’ expressly altered by law. The Canadian Act contains a definition of a trade mark. This Bill containsno such definition. Right through its provisions we accept the definition of a trade mark which is accepted in the United Kingdom, and which has been accepted in these States. Unless we alter that conception, we cannot bring the designs referred to by Senator Pearce within the provisions of the Bill. A design covers a much wider field than a trade mark. A design can be much more easily and cheaply registered than a trade mark. But when a design is registered, it is not confined to any particular goods, or particular trader’s goods; it may be applied to any one whom the holder has licensed in writing to use it. Section 57 of the Designs and Trade Marks Act of Western Australia, contains three general definitions. It declares “ Person “ to include, a corporation, and then defines “The Court” and “Prescribed.” Senator Pearce would be well advised if he were to endeavour to get inserted in an Industrial Designs Bill a provision which would empower these organizations, without any doubt, to register their designs; and then, they could licence any person thev pleased in the community, to use those designs, in respect of any goods which they were manufacturing or selling.
– Where is the authority in the Constitution for passing that legislation ?
– It is contained in sub-section xviii. of section 51.
– No. That subsection refers to “Copyrights, patents of inventions and designs, and trade marks.”
– These are designs.
– They are simply labels containing the words “ Made by Union Labour.”
– For the benefit of the honorable and learned senator, I shall quote the definition of “ design “ in the Western Australian Act.
– We have to be guided by the legal meaning of sub-section xviii. of section 51 of the Constitution.
– Section 17 of the Western Australian Act reads as follows : -
In and for the purposes of this Act- “ Design “ means any design applicable to any article of manufacture, or to any substance, artificial or natural, or partly artificial and partly natural, whether the design is applicable for the pattern or for the shape or configuration, or for the ornament thereof, or for any two or more of such purposes, and by whatever means it is applicable, whether by printing, painting, embroidering, weaving, sewing, modelling, casting, embossing, engraving, staining, or any other means whatever, manual, mechanical, or chemical, separate or combined, not being a design for a sculpture or other thing within the protection of the Sculpture Copyright Act of the year 1814.
– Then a patent for it has to be taken out?
– Certainly not. To this Parliament a number pf subjects are remitted to deal with, and surely the honorable and learned senator does not think that we have to legislate in connexion with all those subjects in a mixed fashion? It is evident that at some not very far distant date this Parliament must complete the work on which . it has entered. We have dealt with the subject of patents ; we are now dealing with the subject of trade marks, and hereafter we must deal with the subject of designs, and also the larger subject of copyrights. In England, Tasmania, and Victoria, the subjects of designs and trade marks are dealt with in one Act; but the Parliament of the Commonwealth is dealing with those subjects separately.
– Is it possible in Tasmania for an industrial union to register a trade union label in its name?
– I cannot say.
– Evidently the sections in the Western Australian Act relating to designs are those which enable trade union labels to be registered.
– I should think so. The honorable senator would effect his object with much greater certainty by bringing forward a provision of this kind when we are dealing with an Industrial Designs Bill, than by seeking to amend this Bill in that direction.
Senator BEST (Victoria). - I have just looked up the” definition of “ trade mark “ in the Encyclopaedia of the Laws of England. It reads as follows: -
A trade mark is some symbol, consisting in general of a picture, label, word, or words, which is applied or attached to a trader’s goods, so as to distinguish them from the similar goods of other traders, and to identify them as his goods, or as those of his successors in ‘ the business in which’ they are produced or put forward for sale.
That view has been upheld in various cases which are cited -
A trade mark must, therefore, be a distinctive symbol. A word or device which is common to the trade, or is in general use, mere descriptive matter, or the name of the goods themselves, are the principal examples of marks which are not distinctive…… Trade mark rights are appurtenant to the goodwill of the business in the goods to which the trade mark relates.
– Would not a trade union label, adopted by a manufacturer who worked in conformity with trade union principles, distinguish his goods?
– I do not think so. That is outside the general scope of the law on trade marks. Supposing that in any State - Victoria, for instance - the manufacturers were all manufacturing in a similar way, and according to trade union conditions. There would be nothing distinctive in- the goods of any of those manufacturers.
– I wish I could conceive of that state of things -existing.
– Supposing, for the sake . of argument, that in Victoria all boots were made according to trade union conditions, and bore the trade union mark which has been referred to. There would be nothing to distinguish A’s goods from B’s goods, although that is the design and object of a trade mark.
– But there would be, so far as importations were concerned.
– That might be so. Supposing that in Victoria trades unionism were so strong that all the manufacturers were manufacturing according to tradeunion conditions, does not the honorable senator see that there would be no distinction between the various classes of traders’ goods ?
– But a trader makes his own distinction.
– No; the goods would all be branded alike. The very object of a trade mark is to give a distinctive sign or symbol to the goods of a particular trader. Supposing that, in Western Australia, this union trade mark were used by fifty bootmakers, and that one of them were to become insolvent. Will any honorable senator suggest for a moment that it would be competent for the trustees of that bootmaker’s estate to sell the union trade mark? No; but, under the general law -of trade marks, a trade mark could be sold in a case of that kind. Supposing that, of those fifty bootmakers in Western- Australia, twenty sold out. Does any honorable sena. tor. mean to say that any one could purchase the goodwill pf this union trade mark from a man who did not possess il ? Of course he could not. . I would call the attention of Senators Pearce arid Findley to the fact that it is laid down that -
Trade mark rights are appurtenant to the goodwill of the business in the goods to which the trade mark relates.
Therefore, in the case of the sale of that business, the general law on the subject would be inapplicable. The only party who could sell that union trade mark would be the proprietor of it - a trade or industrial organization. ‘ My honorable friends will, ses ;that the condition which they contemplate is quite outside the scope of the general idea of trade marks.
– The vendor could sell his right to the mark, subject to the observance df the same conditions.
– But there is no right in the mark. If the vendor had any right in the mark, it could be sold with the goodwill of the business ; but there is only one proprietor of the mark, and that is an industrial organization.
-; - It is neither a buy-, able nor sellable trade mark; it is a loanable trade mark to those who will comply with certain conditions.
– - Precisely. It, is an abstract sort of trade mark; it is supposed to be applicable to particular classes, of goods. A trade mark is a proprietary right, and it is saleable in connexion with the goodwill of a trading concern.
– For instance, a te:i merchant has a trade mark, which he puts on Indian, or Ceylon, or Chinese tea.
– Yes. A merchant puts on his tea a trade mark, which, has acquired a reputation, in order to assure the public that the article may be safely purchased.
– Could not the men who packed the tea put on a label containing the words, “ Packed by Union Labour “ ? That would not be a trade mark.
– No ; because it is laid down that -
A word or device which ls common to the trade, or is in general use, mere descriptive matter, or the name of the goods themselves, are the principal examples of marks which are not distinctive;
If it is not distinctive and common to the - trade, it cannot exist, and it can be taken off the register at the instance of anybody.
Senator- Dawson. - But supposing, that the mark is registered?
– It must be registered as a trade mark.” It must comply with the terms of the Act relating to trade marks, and, as the whole scheme of trade marks has the specific application of a trade mark to the goods of a trader, therefore, an abstract sort of trade mark made applicable to goods in general, as simply indicating the quality of the labour employed, is too broad ‘ and too general. .It is not distinguishable. It could not be sold by the trustee of a bankrupt estate, nor as part pf the goodwill of a business;, and these qualities are essential to a trade mark. As regards- the point raised by Senator Keating-the matter of designs for articles of manufacture, or works of art- -we have an Act in Victoria-called the Copyright Act, which includes copyright in designs, Ore. But the designs which are contemplated in that Act are at variance with those which have been mentioned by Senator Keating. They dp not necessarily mean indus! rial designs. I mention this because I do- not desire to postpone my amendment until we deal with the Copyright Bill, nor do I think that any other measure would be more appropriate for my amendment. But I would suggest to’ Senator. Pearce that he should propose the addition of a separate part to this Bill dealing with the question he has raised, but of course coming under the title of trade marks.
Senator PEARCE (Western Australia). ‘ - - Personally I am under a debt of obligation to Senator Keating and Senator Best for the time that they have devoted to this question, especially as their efforts have not been directed to defeat the object at which I am aiming, but to elucidate the point with which I have been dealing. After hearing their explanations, I can hardly be expected to do otherwise than ask leave to withdraw my proposal for the time being. I recognise that there is a great deai in Senator Best’s contention that I could by another method better attain the object at which I am aiming in This Bill. But to do it by the method he suggests would necessitate the framing of a number of clauses. I hold in my hand a copy of a law which has been passed in the State- of Minnesota, United States of America, dealing with the question of labels. The first section of it includes the term “trade mark.” It is designed to accomplish the object which I have in view. The section reads as follows : -
Whenever any person, or any association or union of working men, has heretofore adopted or used, or shall hereafter adopt or use, any label, trade mart, term, design, device, or form of advertisement, for the purpose of designating, making known, or distinguishing any . goods, wares, merchandise, or other product of labour, as having been made, manufactured, produced, prepared, packed, or put on sale by such person or association, or uDion- of working men, or by a member or members of such association or union, it shall be unlawful to counterfeit or imitate such label, trade mark, term, design, device, or form of advertisement, or to use, sell, offer for sale, or in any way utter or circulate any counterfeit or imitation of any such label, trade mark, term, design, device, or form of- advertisement.
– “ Trade mark “ is given a wider definition in that measure.
– That is the point I was about to make. In the United States, the tenm “ trade mark “ is held to cover such a device as we wish trade unions to have power to use, and it seems to me to. take much force from the objection urged that under the common law “ trademark “ has a limited definition.
– What is the definition in the Constitution ?
– So far as I can see -there is no definition in the Constitution. We have power to deal with copyrights, patents of inventions and designs, arid trade marks. I take it that if it can be held that a trade ‘union label is a design, we have full power to legislate in this direction. If I withdraw my amendment for the time being, shall I have an opportunity of framing such clauses as will meet my views ? . That would be better than to have a separate Bill dealing with -the point.
– I have every desire to meet the honorable senator, ‘and therefore, when we have disposed of the amendment I shall move that progress be’ reported.
Amendment of the amendment, by leave withdrawn.
Amendment agreed to.
Motion (by Senator McGregor) agreed to -
That the Senate nt its rising adjourn until Wednesday, 10th August.
Senate adjourned at 6.15 p.m.
Cite as: Australia, Senate, Debates, 28 July 1904, viewed 22 October 2017, <http://historichansard.net/senate/1904/19040728_senate_2_20/>.