2nd Parliament · 1st Session
The President took the chair at 2.30 p.m., and read prayers.
Assent to the following Bills reported: -
Seat of Government Bill.
Supply Bill (No. 3).
Senator Sir JOSIAH SYMON laid upon the table the following papers: -
Report upon the disposal of obsolete guns and carriages.
Report by Mr. Surveyor Chesterman upon proposed . Federal Capital Site in the Tooma district.
asked the AttorneyGeneral, upon notice -
In regard to the’ following paragraph which appeared in the Argus of 34th August, 1904 - “ Mr. R. L, Phillips (the junior vicepresident) proposed the toast of the Public Works Department.” “ Mr. J. H. Marsden (of the Federal Public Works Department) responded. He said that he had been sent over to New South Wales to give evidence before the Commission. He had made inquiries with regard to day labour on public buildings, and had found ‘ that the work done by day labour cost 50 per cent, more than that done by contract, and was not any better.”
Is the Mr. J. H. Marsden referred to as “ of the Federal Public Works Department” an employe of the Federal Government?
If so, is he not bound by the regulation prohibiting public servants from “ publicly taking part in politics “ ?
If so, do the Government intend to ask the Public Service Commissioner to call on Mr. Marsden for an explanation in thus publicly taking sides on a party political issue?
Is ‘it the intention of the Government, if they take no action, to allow equal liberties to all public servants, irrespective of party ?
– There is no Mr. Marsden in the Commonwealth Public Works Department.
I move -
That the Return to the Order of the Senate relating to imports and exports laid on the table on nth August, 1904, be printed.
May I make a few remarks, sir, in submitting the motion?
– The Standing Orders provide that a “ formal “ motion must be moved without debate. The honorable senator ought to have stated that it was not to be moved as formal business, if he wished to make a speech.
– I ask the permission of the Senate to say a few words.
– That will not be in accordance, with the Standing Orders.
– It is merely relative to a return.
– But another honorable senator might wish to speak.
– I do not wish to speak, but tp read a letter which has been received from the Department of Trade and Customs, and which bears on the return.
– I understand from the Clerk that it is only a correction which the honorable senator wishes to make.
– Yes. I only desire to read the following letter : -
Commonwealth of Australia,
Melbourne, 26th August, 1904.
In the return asked for by Senator Pearce re certain imports and exports of machinery, timber, boots, &c, appears an item for 1902, exports of axles and springs,£179,179. As a comparison with previous years will show, this is incorrect, and should be , £179, the mistake having been made by the typist, and overlooked in calling over. I would therefore be obliged if you could arrange for the correction to bc made.
Edward J. Ferguson,
Statistical Clerk, Trade and Customs.
– Does the honorable senator wish the return to be printed with that correction ?
Question resolved in the affirmative.
Motion (by Senator Lt.-Col. Neild) agreed to -
That there be laid on the table of this Senate copies of all papers relating to a statement alleged in the press to have been made by the General Officer Commanding the Military Forces of the Commonwealth at a public dinner, to the effect that Admiral Kamimura, of the Japanese fleet, had informed him that the Japanese and Chinese Governments were casting longing eyes upon the northern portions of Australia.
– I lay upon the table, by command -
Copy of a despatch from the Secretary of State for the Colonies with regard to the question of the adoption of the metric system of weights and measures within the Empire.
In order that I may be enabled to make a statement to honorable senators with regard to the course of public business, and the immediate programme to be submitted by the Government to Parliament, I move -
That the paper’ be printed.
I propose to follow the very excellent example set by my honorable friend, Senator McGregor, in. May last, of making my statement as brief as I can, consistent with clearness and plainness. I think that no wiser words were ever spoken than by the head of the late Government, when on the same occasion he called attention to the fact that the session had begun in March last; that two months of the session had expired, and that the course which the Government intended to pursue in respect to the business to bc undertaken was to submit what was practical, to lay before Parliament a practical programme, having regard to the work which there was any reasonable expectation of completing during the time at their disposal. I venture to say that no wiser expression could be used in regard to parliamentary business than that, and it is the test which we shall ask Parliament to apply with respect to the business now before us, and to be carried into effect before the close of the session. It is right that I should, in the first place, refer to the matters more immediately concerning the Senate. It is not my intention to move for the discharge of any of the Government business on the notice-paper. I do not see, and I never did see, why - although it has sometimes been regarded as a kind of sentimental notion - because one
Government goes out and another Government comes in, the course of business should be disturbed in such a manner, without some special reason or necessity. Therefore, we shall proceed with the Trade Marks Bill and the Evidence Bill, which were introduced by the late Government. There was an understanding, I gather, that the Trade Marks Bill’ would be recommitted if any honorable senator desired to move in that direction, in order that any matters which had been dealt with in Committee might be further considered. I intend to carry out the understanding entered into by Senator McGregor, and to give the opportunity which he proposed to give for the purpose I have indicated. The Evidence Bill is, perhaps, not one of altogether general interest, but it is of interest to lawyers. It is a very useful little Bill, which is conceived with the idea of lessening the expense of proving certain more,01 less formal matters, and the principles of which I may be able to explain to the Senate when it comes on in the ordinary course. The Fraudulent Marks Bill’, which has gone down from this Chamber to the House of Representatives will be proceeded with there. The Seat of Government Bill, the assent to which has just been intimated to the Senate - is now in force. And I think I ought to say that the late Government are entitled to credit for having got that Bill placed on the statute-book. We know the conflicts which have taken place in regard to it; we know the state of f deling which was set up in various directions in respect to both its principles and its details, and it is a creditable circumstance which I ought not to pass over that it has been placed on the statute-book by the late Government. I desire to inform the Senate that the Ministry have taken steps with a view to communicating the measure to New South Wales, and indicating the desire of the Commonwealth Parliament. Alternative plans are being prepared, the suggestions for which I have seen, embracing the various elements which may be considered essential in order to carry out the desire of all of us with regard to the conveniences, the access, and all the other matters to which attention has been directed. The areas are being defined, of course more or less roughly, in plans in an alternative way, so that every facility shall be given for harmonious negotiations between the Commonwealth Government and the Government of New South Wales, and we should be in a position, I hope, soon, to get some progress made with those negotiations, because of course everything requires the approval of the Commonwealth Parliament, and that we may be enabled to arrive at some definite conclusions as to the precise area, general area being all that is now indicated in the measure. Certainly we shall lose no time in having that matter, subject to further discussion, defined so far as regards the wishes of New South Wales, which, subject to the claims of the Constitution, we all desire to consult. There were two great measures of the first class with which this session began - the Navigation Bill and the Conciliation and Arbitration Bill. The Navigation Bill is now undergoing the consideration of a Royal Commission, as I think - I do not know whether there were any differences of opinion on the question - wisely appointed by the late Government. Honorable senators did me the honour of bearing with me, I am afraid for a very long time, at the second-reading stage, when I sought to explain my own views as to many parts of that measure. I thought then, as Senator McGregor did, when pointing out to the Senate the programme of the late Government in May last, that the Bill was unsatisfactory to almost everybody, and I shall not offer any opinion further than to say that no one can doubt that a Commission, constituted as this is, will render valuable service in regard to the principles, the objects, and the methods that should be followed in any such legislation. I am particularly pleased that my honorable friend from South Australia, Senator Guthrie, who has devoted immense attention to the whole subject, is a member of the Commission. We propose to take up the Conciliation and Arbitration Bill as it stands, and to carry it through if we can.
– That is a good proviso.
– We hope to have the Bill here at an early date.
– Is Senator Fraser going to vote for it?
– I have not questioned my honorable friend on that subject, but if I am not transgressing the Standing Orders by making an incidental reference, I would say that this Bill is in something like the position which the Trade Marks Bill occupies in the Senate. It has reached the stage of a motion for recommittal. There are, I believe, a number, perhaps a large number, of amendments to be proposed. Many of these amendments are more or less verbal or formal. There may be some which contain matters of substance, and which may involve debate. Therefore, it is impossible for me now to anticipate when thd Bill will be received here; but I trust that it will be sent up soon, and when it does come, whatever difference of opinion there may be - in fact, as there must inevitably be - I feel sure we shall devote our best energies* to its consideration from the lights that we individually possess. So far as the Government are concerned, we take the Bill, and shall endeavour to bring it into effective force, as far as possible, in the form in which it now stands. Last year, Mr. President, we had the Budget opened in the other Chamber, as early, I think, as about the 27th July. We are now in the month of September. Therefore, I need not say that it is of importance - perhaps I may go further, and say of vital importance, that the consideration of the Budget and the financial position of the Commonwealth - its financial arrangements and adjustments - should be proceeded with at the earliest possible date. I put that as the view of the Government, and I am sure it will commend itself to the Senate. However, looking at the position which the Senate occupies- the high and important position which it occupies - in relation to financial matters under our Constitution, it is desirable that we also should have sufficient time for the consideration of the Estimates and the Budget, and that that time should not be lessened if it can possibly be avoided. As far as I am concerned, .1 shall do everything that I can with a view to prevent the possibility of a sort of hurried consideration of financial matters, with the determination of which we are greatly concerned. This year, of course, owing to the exigencies of public business, it has not been possible to have the Budget laid before Parliament earlier. But as soon as the Conciliation and ‘Arbitration Bill is out of hand in the House of Representatives the Budget will be proceeded with, and we hope that that will be before the close of the present month. These matters in themselves form a fairly heavy programme, looking at the period of the session, and it will be difficult to squeeze much more into the time at our disposal. To use a home1])’ expression, I do not know that it is a good thing in political or parliamentary affairs, any metre than in other human affairs, to try to bite off more than we can chew.
– Did not Mr. Reid say that he would not leave the Labour Party a feather to fly with?
– I am not aware whether that is so, or not.
– They are in that position now ! ;
– We intend, if possible, in the time at our disposal, to proceed with the Papua Bill, which is already before the House of Representatives. I think that it is important that we should, if possible, proceed with that Bill this session. It is not contentious. It is not a party matter; and it seems, to the Government, to be desirable that we should have our relations with our dependency in New Guinea placed upon a clear footing at the earliest moment.
– Is that the New Guinea Bill?
– It is the New Guinea Bill, but the name of it is the Papua Bill. I have carefully gone through it. It was introduced by the late Minister of External Affairs, Mr. Hughes; and, in principle at all events, it follows very much the lines of our own Constitution, so far as it is applicable to a dependency in the circumstances of New Guinea. I think that in all probability, when honorable senators come to consider the Bill they will not find much in it that will require very grave alteration at any rate,and that we may be able to see it placed upon the1 statute-book this year. There is one part of the Bill’ - or rather, there is a question arising under it: - about which there may be some difference, and that is in connexion with the liquor traffic. There is a suggestion on the one hand for the absolute prohibition of the liquor traffic in New Guinea, and there is, on the other hand, the suggestion that the existing system which involves prohibition so far as the natives are concerned shall be continued, but that entire prohibition shall not be enforced. There is great diversity of opinion on that aspect of the matter, and that diversity will be given effect to by the Government by leaving that particular point an open question.
– Do the Government propose to alter the principles of the Bill ?
– We adhere to the principle of any of the Bills which we take up. We take up the Papua Bill as it stands. But we shall endeavour in every way to make it effective, and if there are any portions of it which we think lend themselves to improvement, we shall seek to amend it. We also intend to proceed with the Western Australian Survey Bill.
– Never !
– I know my honorable friend’s view of that measure. Senator Pearce. - It is weakening.
– Is he weakening? Senator Styles now occupies a seat near to my honorable friend Senator Pearce, and that lays him open to the influences of one of the most effective persuaders in this Chamber.
– I have succeeded to the seat which Senator Symon formerly occupied, and, perhaps, later on, I may succeed him on the other side of the Chamber.
– No one would rejoice more than I should do if that should happen, but I hope that it will not happen for a considerable time. At any rate, we are going to proceed with that Bill. ‘
– Will the Government make it a vital question?
– The Western Australian representatives regard it as vital. I do not say that the Government do. I, myself, come from a State in which I am free to say that there is not absolute unanimity in favour of that great work. But I am also aware of the fact that there is no sentiment against the desirability of having the information which we already possess enlarged and completed, or against obtaining that, without which I am unable - speaking for myself, and I dare say there are many others like me - to give that full consideration to the subject of the ultimate construction of the railway upon which we shall be called upon to express an opinion sooner or later. From that point of view, we feel that the measure which I have mentioned, if it is to receive the sanction of Parliament, ought to be brought forward for consideration at the earliest possible moment. If Parliament says that it will not sanction the’ survey, that is another matter, but my belief is that Parliament will sanction it, and I am quite certain that it will be a good thing to do. We shall do our utmost, in the time at our disposal, consistent with dealing with the heavier and graver matters which I have indicated, to pass those two Bills. But there is one Bill which has been put forward a good deal; and with which we do not intend to proceed this session. That is the High Commissioner Bill. There are two reasons which actuate us in coming to that conclusion. One is the period of the session, and the regard we must pay to what we can ask Parliament to undertake in reference, to the transaction of business. The other is that it is desirable, as I think honorable senators will see, that we should before actually going on with a measure’ of that kind, come to some kind of understanding with the States, with a view to accommodate their interests, as far as possible, and to lessen expense. If there is one thing more than another which was predicted of the Commonwealth - of thi union - originally, it was that it would be the instrument of reducing State expenditure in certain directions.
– Quite right.
– As a member of the Convention, I took that view, and I take part of the responsibility for having put that as a very strong argument in favour of the union. We had before us, amongst other things, the consideration as to the lessening of the expenditure in connexion with the Governors of the States, the expenditure in ‘ connexion with the Agents-General of the different States, and so on. It seems to me that we shall be doing good service - that is the Commonwealth Parliament, and the Commonwealth Government will be doing good service - if they make use of the proposed legislation, in concert with the States Governments, in order to give them a reason for reducing their expenditure in connexion with the States representatives in England, and, if possible “ fixing them up “ - if I may use that expression - in connexion with the Commonwealth representation. I believe myself that that will be - in fact, I feel sure that it will be - recognised as a course which ought to be taken, and ‘that we should not, independently of the States, simply pass our own legislation, with a view of setting up. a High Commissioner in London. At any rate, we do not propose to proceed with that Bill this session ; and we hope in the interim, by opening up negotiations, to carry out the idea which I have laid before the Senate. We have also in operation, a Select Committee in regard to a very important matter - I allude to certain electoral adjustments, having relation to a more effective method of working our electoral legislation. But it is doubtful if we can have the benefit of the report of the Committee in time, and if we had it before the session closed, it is doubtful whether we should be in a position to bring before Parliament legislation in accordance with the necessities of the case. The Government are not in a position to hold out any hopes that a Bill to amend the Electoral Act will be brought before Parliament at this stage. The Inter-State Commission Bill, which has also been under discussion in various ways directly and indirectly, stands in the position which it occupied when the late Government took office. It is in abeyance, pending the results of the conference of railway authorities and heads’ of the railway services of the different States. Until the information, which it is expected to obtain from that quarter, is available, the Bill will stand over. There is also a Bill which has been a good deal noticed. I refer to the Bonus for Manufactures Bill, upon which there is a diversity of opinion. We do not propose to proceed with any measure of that kind this session, and if the question is proceeded with, or brought forward, by a private member, either in the Senate or the other House, that also will be an open question, so far as the Government are concerned. The basis of the Government in regard to such matters is that we are in a position of fiscal peace.
– We are not quite sure of that.
– Well, we, as a Government, shall do our utmost to maintain’ that position. Whatever else may be .said or whatever criticism may be offered, I should say that the composition of the Government is an assurance - I go further, and say that it is, perhaps, an effective guarantee - that our policy will be one of fiscal peace.
– The Government are a peaceful crowd !
– I am always a man of peace myself. My honorable friend, Senator P’earce, referred with good-natured banter to my having pulverized - I think that was the phrase he used- the representatives of the Government during our exceedingly interesting Tariff debates. I had no more valuable ally on the free-trade side than Senator Pearce himself, for whose assistance I always was, and am now, most grateful. He put it very kindly in saying that I had pulverized the representatives of the Government who then represented the protectionist view. But since that great struggle ended, I have always thought, and I still ‘hold the view, that there ought to be fiscal peace. Whatever views others may have entertained, I expressed that view, and I had the honour of being quoted by my friend, Sir William Lyne, during his most interesting tour in Tasmania, as being unlike other free-traders - and I am still as strong a free-trader as ever I was - because I had stated that there ought to be peace for a time, in order that the effect of the Tariff could be fully ascertained, that the commerce of the country should not be thrown into confusion again, and kept in confusion for months and months, and that we should abstain, as far as possible, for a time, at least, from that Tariff agitation which always results in business uncertainty. I hope honorable senators will do me the justice of believing that. I merely mention it with the view of explaining that that was my own view, and that I have never departed from it. For my own part, I believe that though there are differences in every community, the great mass of the commercial, interests of this country is in favour of the Tariff which we passed with so much labour, after making it as pe’rfect as we could, having a fair trial; and that we should not seek to disturb it until that fair trial has been accomplished, and until we have an opportunity of really seeing not its influence upon one incident here and one incident there, one grievance here and one grievance there,. but its general effect upon the whole t progress and prosperity of “the Common- ‘ wealth. That is my view.
– Will the honorable and learned senator name a period for the operation of this fiscal peace? How many years is it to last?
– I do not think that the Government have gone into matters of prophecy of that description. Sufficient for the day is the prophecy thereof. At any rate, I have made it as plain as my capacity would allow me to do, that our- policy in regard to this matter is that of fiscal peace, and that we intend to do our level best to carry that out. Associated with that matter is a question which has been the occasion of very many platform and other references - that is the question of what is called preferential trade. We are not second to any citizens of Australia in our desire for the closest possible trade relations with the mother country. If we trade with one country more than another we, of course, naturally prefer to trade, so to speak, with those of our own house. At the same time, I am not one of those who think that the commercial classes of Australia - nor do I think the people1 of Australia - hold that their interests should be subordinated to any principle of trading with one country more than with another. Everybody is more or less selfish, but at present this question strikes me - and is so regarded by the Ministry - as being more or less one for academical discussion.
– Is it the honorable and learned senator’s opinion that we should deal with all countries alike?
– I did not say that we ought to deal with all countries alike. What I said was that if there has to be any preference it should be with the mother country. I think that the language I used was to the effect that if we have to trade with one people more than with another we should trade with those of our own kin. But at the same time I said that I did not believe in pushing the principle too far - that I did not believe that the trading community of Australia would consent to being altogether restricted in their trade operations by a consideration of that kind.
– The honorable and learned senator would treat all countries
– When the question comes to be submitted to us - we have had no offer from England yet - I think the people of Australia will in all probability be disposed to determine those matters by considerations of what will most benefit themselves ; in all probability that will be so. And when we have proposals from England on the question we shall be prepared to give them the most careful and favorable consideration, in view of our own interests and of matters of Imperial concern. But when I read in that great Tory journal - that historical conservative journal - the Quarterly Review, a statement like this -
But even Mr. Chamberlain’s admirers must admit that no parliamentary leader, since 1886, has blundered worse.
I can only come to the conclusion that we cannot anticipate at a very early date the submission of proposals with regard to preferential trade coming from England, for the consideration of the Commonwealth Parliament.
– Not this century. Senator Sir JOSIAH SYMON. - At any rate, the .present Government in England is not at one with that great statesman, Mr. Chamberlain, on this subject; and, in all probability, we need not reckon the question as within the region of practical or practicable politics, for consideration this session, or for some time to come.
– Are the Government taking up the proposal, suggested by Senator Dobson, to invite Mr. Chamberlain to
– The Government have not considered that matter yet, and, therefore, I am unable to definitely answer my honorable friend’s question. There are various other matters which remain to be dealt with. The Government have been considering these matters, and we hope during recess to arrive at the best way to bring under Commonwealth control, and uniform legislation, the imporant subjects of quarantine, banking, and so forth, as laid down in the Constitution. We also propose to take into consideration that most important question of the population of Australia, and the cognate matter of immigration.
– Are the Government going to offer a bonus on marriage ?
– The honorable senator’s question leads me to say that my own State is in rather a deplorable position in this connexion. South Australia shows the third lowest birth and marriage rates as compared with other countries. The population of South Australia proper was less by 2,089 than it it should have been with the natural increase during last year.
– Is that at the present time ?
– Yes; those are the latest statistics. I mention, for the information of the honorable senator - and this has been a subject of platform discussion before - that the number of births of infants registered in South Australia in 1903 was 8,475, which was fewer by 452 than the births recorded in the previous year, and that the birth rate per 1,000 of the mean population was only 23’ 33, which was below the rate of any other of the last fifty-two years.
– The South Australian people cannot get land in their own State, and they are going to Western Australia.
– The Commonwealth Government have not the power to deal with the matter of the land.
– Yes, they have.
– I am a strong advocate of that system of closer settlement, which, I am glad to say, is not merely receiving attention, but is making great progress, certainly, in some of the States. An honorable senator has referred to the countenance and assistance that may be given in this connexion ; and the Government propose to consider the whole question of aiding rural industries and formulating . some plan within the limits of the Constitution, so as not to trespass on the powers of the States, but to assist the latter as far as possible.
– By way of bonus?
– We have not considered the shape that the assistance shall take, or the methods that may be pursued, and at present I ask the honorable senator not to press the question.
– The Government will bring the matter before the States Conference ?
– That will present an opportunity ; but in this connexion there is also the other question on which great doubt exists as to the relative powers of the States and the Commonwealth ; I mean the matter of water conservation, particularly in connexion with the River Murray. Whilst the Government, with the assistance of Parliament, intend to ascertain and exercise, as far as they can, the powers which they may have under the Constitution, there is associated with this another question which greatly affects my own State - that is the question of maintaining navigation. I have always held the view, and I expressed it in the Convention, that as between the two interests, that of navigation, in a country like this, may probably be regarded as subordinate to the interests of irrigation.
– We can make roads, but we cannot make rivers.
– I am sure that every one desires to do the fullest possible justice to the claims of navigation - to the claims of South Australia in this regard - but I should not be dealing fairly with this great question if I did not saythat I have seen no reason to change the view which I formed during the Federal Convention, and which I have expressed just now. We must keep to our views as far as we can, until they are shown to be incorrect - we must do the very best we can’ straightforwardly and’ honestly, to aid the advancement of the country by the assertion of the views in which we believe.
– The honorable and learned senator is against irrigation?
– Indeed, I am not.
– Then the honorable and learned senator is against navigation?
– Indeed, I am not. I want to try as far as I can to harmonize the two interests. There is also the great subject which must be considered in connexion with the States, as suggested by Senator Higgs, namely, oldage pensions. That must necessarily be the subject of conference and some kind of basis for common action, even to a greater extent than that which I ventured to indicate desirable in so comparatively small a matter as the appointment of a High Commissioner. What I mean is that the States should be consulted, and the plan adopted should be one which is harmonious. The Government will take every opportunity, both at the conference to which Senator Higgs has referred, and in other ways, to arrive at a decision, and to formulate views to be submitted to Parliament.
– And in the meantime the poor old people can starve.
– Rubbish ! They are not starving.
– I ‘have given as clearly as I have been able, with due regard to that brevity which I said I should endeavour to observe, the views of the Government. I recognise one conspicuous obligation in respect of which, though chosen from this side, I regard myself as in the service of the Senate as a whole - the Senate as representing the States, and guardian of the States’ interests. That duty is to do my utmost to uphold the dignity and maintain the rights of the Senate, arid to see, as far as one can, that in the sphere allotted to it by the Constitution, the Senate is not restricted in the effective and patriotic use of its constitutional powers. I believe that in this regard, at any rate, I shall not appeal in vain for the assistance of honorable senators on whichever side of the . Chamber they may sit. On other questions there may be. and there certainly will be, strong differences cif opinion. There will be that keen controversy which is essential to the right solution of all problems of public moment; but I shall endeavour, so far as I am able, to do my part, so that when debate is over - when the fight is won and lost, and when the heat of conflict has passed away - no sting of bitterness shall remain.
Motion (by Senator McGregor) put -
That the debate be now adjourned.
The Senate divided.
Majority … … 17
Question so resolved in the affirmative.
Motion agreed to; debate adjourned.
Motion (by Senator Sir Josiah Symon) agreed to -
That the Bill be recommitted for the reconsideration of clauses 15, 72, and 93.
In Committee. - (Recommittal.)
Clause 15 -
The essential particulars of a registrable trade mark shall be one or more of the following particulars : -
A name of a person printed, impressed, or woven in some particular and distinctive manner; or
A written signature or copy of a ‘ written signature of the person applying for registration thereof or his predecessor in business as a trade mark : or
A distinctive device, mark, brand, heading, label, or ticket; or
An invented word or invented words; or
A word or words having no reference to the character or quality of the goods and not being a geographical name used or likely to be understood in a geographical sense.
Provided, however, that any word or words, letter, figure, or combination of letters or figures, used as a trade mark before the first day of January, One thousand nine hundred . and one, may be registered as a trade mark under this Act.
– I moved for the recommittal of this clause with a view to delete the proviso, and substitute provisions which 1 think will be more effective, and more in consonance with the law as it stands. The proviso was inserted at the instance of Senator Best, who, I am sorry to see, is not in the Chamber at this moment. Honorable senators will see that it is couched in’ very wide, large terms. Of course, they are now familiar with what a trade mark means. A trade mark is essentially a mark which indicates that any particular goods are the manufacture of a particular person, or, it may be, that they have been selected or imported by a particular person. But a trade mark, in its accepted, and its legal meaning, gravitates, so to speak, between those two points. Before! there was effective legislation on the subject, almost anything could become a trade mark as legally, as well as generally, understood. Then came the Trade Marks Act of 1875, which enabled the registration of marks of a particular kind to be made. All marks which were previously used as trade marks were not susceptible of registration. A limited number were taken from them and registered ; but in order that no injustice might be done to persons who had been using trade marks before 1875,and had acquired a kind of property in them, those trade marks were allowed to be registered, although not answering the definition in the Act, if they had been used previous to its coming into operation. That provision was adopted in all State legislation, and the proviso to this clause is intended, I apprehend, to meet the same state of things in regard to the Commonwealth registration of trade marks as to any word or words, and so on, used before the coming into operation of the measure. But if it were put in this way, instead of meeting the case, and doing justice to those concerned, it would have the effect of enabling any word or words, letter, figure, or combination of letters or figures, whether susceptible of registration under the State law or not, to be registered if used prior to the passing of this Bill, which, I think,. Senator Best does not desire to effect, and which would be wrong. If the desire be to protect unregistered trade marks which were in use before the passing of the State law, it ought to be limited to that. It should not allow any mark which is being used now to be registered as a Common- wealth mark, but it should allow a mark to be registered as a Commonwealth mark, if it was in use, and susceptible of registration, although not registered under the State law. That would protect everybody. I am not proposing this alteration from any antagonism to the principle of the proviso, but merely with a view to making the measure as perfect as possible. I have drafted an amendment which I think will meet the purpose, and which reads as follows : -
That will, I think, exactly meet the case contemplated by Senator Best.
– Does the honorable and learned senator wish to add those words to clause 15 ?
– I did propose to insert those words in Heu of the proviso, but it will be more clear if I ask the Committee to strike out the proviso with a view to insert a new clause at a later stage. I move -
That all the words after the word “ sense,” line 18, be left out.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 72 -
In this part of this Act - “ Trade Union “ means . any trade union registered as such under the law of any State or any organization or association of workmen or employes registered under any law of the Commonwealth or of a State, relating to conciliation or arbitration for the prevention or settlement of industrial disputes; and “ Trade Union Mark “ means a distinctive mark or device adopted by a trade union for the purpose of designating the products of the labour of the members thereof.
– I move -
That after the word “ State,” line 4, the following words be inserted, “ or association of such unions.”
– In the Conciliation and Arbitration Bill I think the word “ association ‘ ‘ is used. Would not that word do here ?
– No. The clause allows separate unions to register a trade mark, and I desire the whole of the unions, as an associated body, to possess that right. Instead of, for instance, the Bootmakers’ Union of each State registering a label, I wish this clause to be altered so as to allow any Association of Bootmakers’ Unions of Australia to register one trade union mark for the whole of that trade throughout Australia.
– Will that be an association under the Conciliation and Arbitration Bill ?
– It may not.
– Then a definition of “association” is required.
– I think that the word explains itself.
– I do not think that the word explains itself. I wish to direct the attention of Senator Pearce to the wording of this definition. “ Trade union “ means any trade union registered as such under the law of any State - that is, a registered union - or any organization or association of workmen or employes registered under any law of the Commonwealth -
That is, a registered association. If we insert the words “or association of such unions “ between . “ State “ and “ or “ we shall leave it ambiguous as to whether we mean a registered association. I see what Senator Pearce means. Would it answer his purpose to use these words? -
Any trade union registered as such under the law of any State or any number of such unions acting Itogether.
– My honorable friend will forgive me for taking advantage of this opportunity to say that it is a mistake to insert these provisions in this Bill. I thoroughly understand his object in desiring to legislate in this way, and
I am not saying one word adversely or otherwise with regard to the principle he has in view, but I think that from his own stand-point, it is worth consideration whether he should ask us to insert these provisions in a Bill relating to what is ah entirely distinct matter - trade marks - and whether it would not be better to have a separate piece of legislation dealing with this particular subject. I know that in America - and that is the pattern which’ my honorable friend has followed - some enactments for this purpose have been passed ; but it is noticeable that these are not Federal enactments. Our Constitution enables us to deal with “ trade marks,” and it is a moot question as to what is meant by that term. I am aware that the question was raised and debated here, and has been left to the determination of the High Court. But, apart from that constitutional aspect, I would ask my honorable friend whether it is not worth’ while to deal with the question of trade union marks in a separate measure. Sub-clause 3 of clause 73 provides that-
Except so far as otherwise prescribed only this part of this Act shall apply to trade union marks.
So that it is made an exception of the whole law of trade marks. I have given a great deal of consideration to this subject lately in another connexion ; and I throw out the suggestion to Senator Pearce, whether his proposals may not lead to confusion and to debatable questions of law, and as to their effect upon the other provisions of the measure, which have to do with trade marks, as strictly and legally understood. What Senator Pearce proposes, is not a trade mark. It is a mark, not to indicate that the goods are the goods of A, or are imported or selected by B, but that they are goods made under conditions which my honorable friend pointed out in proposing the amendment originally, having relation to wages, and so on. I merely throw that out as a suggestion, but if he desires to retain the clauses, the words which I have suggested will meet his view, instead of the word “ association.”
Senator PEARCE (Western Australia). - I accept the amendment suggested by the Attorney-General, and will substitute it for the’ amendment I have already proposed. I move -
That after the word “State” the words “or any number of such unions acting together,” be inserted.
I do not feel inclined to accept the advice so kindly offered, that I should propose to omit the clauses from the Bill under consideration, and embody them in a separate Bill. I am afraid that the AttorneyGeneral would use just as much eloquence - if not quite so much persuasion - against such a proposal as he now uses against the one now put forward. It is just as well to retain the clauses to which the Committee has agreed, considering that we believe them to be in accordance with the law of trade marks. It may be said that we are extending the meaning of the term “ trade mark” in an unwarrantable direction, and to an unwarrantable extent. We are prepared to take the responsibility of that, knowing that if we transgress the Constitution, the High Court will practically nullify what we do.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 93 -
Subject to the regulations, the Registrar may permit any agent to do, on behalf of any other person, any act in connexion with the registration of trade marks, or any procedure relating thereto.
– I have been asked by Senator Best to move an amendment in this clause, and in accordance with his desire, I move- -
That the word “agent,” line 2, be left out, with a view to insert in lieu thereof the words “ patent attorney or solicitor.”
– Will Senator Clemons give the Committee some reason for leaving out the word “agent”? It appears to me that the word enables any competent person to be appointed.
Senator CLEMONS (Tasmania). - The word ‘ ‘ agent “ is, as Senator Turley says, very wide and all embracing, and I admit that it would cover a patent attorney, and also that there can be no doubt as to whether it would cover a solicitor. If the Committee thinks that it is desirable that the Registrar should grant, on the application of any person interested, permission for a solicitor to attend to his case, I urge that the amendment should be accepted. The object is to insure that the person interested shall have the services of some person competent to appear by reason of his profession. Senator’ Turley will agree that it is obvious that a patent attorney is a man who would be competent to appear. It has also been urged that if an applicant chose to be represented by a solicitor it should be competent for him to appoint his solicitor to appear for him. It has to be remembered that an applicant may always ‘appear personally if he chooses.
– When this Bill was previously being dealt with in Committee every one recognised the valuable services rendered by Senator Best. He expressed to me a desire that this amendment should be made. His reason was that if an applicant employed any person to appear for him, he1 should be a responsible person. We have all heard of the confidence trick. Many persons might impose upon innocent applicants in respect to the registration of patents. I could give instances where that has been done. It was Senator Best’s wish that the word “agent “ should be altered to “ patent attorney,” as that term is already used in the Patents Act. As this measure is practically a corollary to the Patents Act, a patent attorney would be the proper person to appear. Senator Best also wished to provide that if any applicant wished to employ a solicitor to appear for him he should have the privilege of doing so. I entirely agree with that view. It would not hamper the applicant in any way. He could either apply himself or employ a competent person to apply for him.
– It seems to me that the wording of the clause as it stands is wider in its application than would be the case if the amendment were agreed to. Why should an applicant be confined to choosing a patent agent to represent him ? Would not the word “ agent “ embrace a solicitor or patent attorney whom an applicant might authorize to appear on his behalf? It would give rise to a large amount of trouble and expense if the designation used in the clause were altered. The word “ agent “ is a wider term than “ patent attorney “ or “ solicitor.” It would embrace both those classes ; whereas, if we put in the words “ solicitor or patent attorney,” they would not embrace an ordinary patent agent. If we limit these functions to a particular class, it seems to me, that we shall defeat the object that we have in view.
– There is, as Senator Zeal has said, very great force in leaving the language of the clause as wide as possible. At present, it is permissive, and it is subject to the regulations. No doubt Senator Best’s idea has been to bring the measure into line with the Patents Act in this respect. The term “ patent attorney “ is used in the Patents Act. But the whole point will be covered if we insert the words “ patent attorney, or solicitor or agent.”
– That would defeat Senator Best’s object ; he wishes to confine it to the other two classes.
-There is strong reason for that ; because when a person employs an agent, he should have the assurance that he is employing somebody who knows something of the business. But it is worth consideration, whether the power to give permission to appear^ which is left to the registrar, is not sufficient to protect persons in that respect. So far as I am concerned, I should prefer to have the word “ agent “ retained, because that leaves it to the registrar to say whom he will allow to appear before him. He may insist upon having persons who are acquainted with the practice in these matters. Is it not sufficient to leave the clause as it stands, with the discretion to the registrar as to whom shall appear before him?
Senator CLEMONS (Tasmania). - I wish to explain that I have merely brought forward the amendment at the t request of Senator Best, but practically, I intend to vote for the clause as it stands. I see no particular reason why we should limit the class of persons who may make these applications to the Registrar, and from my point of view the term “ agent “ is sufficient. The Attorney-General has suggested that we might make the clause read “ patent attorney, solicitor, or agent.” If we did that we might add the words “or otherwise,” because “ agent “ would cover both patent attorneys and solicitors. If Senator Best’s amendment is not to be adopted we had better leave the clause as it stands.
– I think that the choice should be left to the individual concerned. We are not justified in limiting his choice to one or two professional classes. A solicitor is not shut out by the language used in the clause, which will be better left as it stands.
Clause agreed to.
Bill reported with further amendments.
– I move -
That the Bill be now read a second time.
I move the second reading . of this Bill, in order that it may be advanced a stage, but I do-not propose to take it into . Committee to-day. I desire that some of the provisions of it may have additional consideration from the draftsman in regard to one or two verbal points that require, I will not say amendment, but alteration. The object of the Bill is simply to facilitate the proof in the Courts of the Commonwealth of certain documents, and to bring the law into line with an Act which we passed last year with regard to the proof of certain legal proceedings. It will certainly be a most useful measure. It provides, for instance, that certain signatures shall be judicially noticed. No one can doubt that that should be so, and that as far as possible that practice should be extended, so that when you have to prove the signature, for instance, of the Registrar of the High Court, or of a Judge, or of the President of any Federal Court, or of any tribunal’, such as an Arbitration Court, it should not be necessary to call evidence for that purpose. The signature should be judicially noticed. The Bill also provides that evidence with regard to -
Any proclamation, commission, order, or regulation, issued or made by the Governor-General, or by or under the authority of a Minister, may be proved by the production of the Government Gazette, and that that shall be taken as sufficient. Then again, in regard to. the production of public books and documents, they may be proved at present by producing the books themselves. But they are of importance as public records, and by having to be produced in courts of law they are perhaps liable to be lost or injured. It is provided by this Bill that proof of such books and documents shall be made by means of examined copies or extracts purporting to be signed and certified as true copies by a proper officer. As to the Commonwealth Gazette itself, the Bill provides that its production shall be in all Courts evidence that it is the Commonwealth Gazette; and where it is necessary that the printing by the Government Printer should be established, the Bill provides that if it purports to be so issued that shall be taken to be sufficient. These are mere matters of form,’ but they sometimes involve expense, as we who are engaged in legal practice happen to know, especially by reason of the technical objections which are’ raised,’ and which ought- to be dispensed with.
Provision is also made for the proof of acts done by the Governor-General, or Ministers, and, in this connexion, the production of. the Government Gazette is sufficient. This is a short Bill, but it is a measure the convenience of which is understood by lawyers, and from which suitois will obtain a benefit in diminished expenses.
– Is there no provision for the proof of service of the Gazette?
– That is not necessary ; the mere production of the Gazette is sufficient proof.
– After the explanation which has been made by the representative of the Government in connexion with this Bill, it may facilitate matters if, instead of having any extended debate just now, the second reading is allowed to pass, and questions of detail left for Committee. If honorable senators desire an adjournment after the second reading, no doubt that is a matter which can be arranged. I have gone through the Bill, which commends itself to me as one likely to be of very great service in the administration of justice. It will tend materially to save expense now incurred in proving many acts which might well be taken as formal.
Question resolved in the affirmative.
Bill read a second time.
Clause 1 agreed to.
Motion (by Senator Sir Josiah Symon) proposed -
That the Senate do now adjourn.
– I suggest, as ‘ the Government business has been postponed, that it would meet general convenience if private members’ business were now taken, so as to leave to-morrow free for the Government. Private business might very well be cleared off to-day, and the whole of to-morrow devoted to Government business. I suggest that the Attorney-General withdraw his motion.
Question resolved in the affirmative.
Senate adjourned at 4.15 p.m.
Cite as: Australia, Senate, Debates, 7 September 1904, viewed 22 October 2017, <http://historichansard.net/senate/1904/19040907_senate_2_21/>.