2nd Parliament · 2nd Session
The President took the chair at 2.30 p.m., and read prayers.
– I desire to ask the Minister representing the Minister of External. Affairs, without notice -
– I have read the telegram, but I cannot answer the latter part of the question without consulting my honorable colleagues. If the honorable senator will put a question on the noticepaper I shall do so.
– I desire to ask the Minister representing the Minister of External Affairs, without notice, whether he has read in the Age of to-day the following telegram: -
TASMANIA HAS NO ROOM.
When discussing the Crown Lands Amendment Act in the Assembly, the Premier received some information from the country members as to the practicability of Tasmania being able to deal with any of General Booth’s proposed immigrants. Generally speaking, the House was unanimous that this State has no suitable land available, and while urging the breaking up of big estates, consider there are plenty of Tasmania’s sons ready and able to take up the areas for settlement.
And, if so, whether the Government will take that matter into consideration, when dealing with any proposed scheme of immigration, such as that proposed by General Booth ?
– I have read the telegram, and I have no doubt that the Government, when dealing with the whole subject, will take into consideration the area of land which each State has at its disposal for new immigrants.
– I desire to ask the Minister representing the Minister of External Affairs, without notice -
Will the Minister make inquiries -
– If the honorable senator will put a question on the noticepaper in the usual way we shall make inquiries and be able to give a reply. I cannot answer the question off-hand.
– I desire to ask the leader of the Senate whether he will appoint a press censor, whose duty it will be to prevent paragraphs from getting into the press which may give occasion for the wasting of its time?
– Is the honorable senator in order in imputing to honorable senators a desire to waste the time of the Senate, or in saying that they waste its time in asking questions without notice?
– I do not know that the honorablesenatorhas imputed anything to honorable senators. I understood that he was asking a question without notice.
– The honorable senator had better give notice of the question.
– I desire to ask the Minister representing the PostmasterGeneral, without notice, whether a copy of the contract between the Orient Steam Navigation Company and the Queensland Government, which I observe has been laid before the House of Representatives, will be available to the rnembers of the Senate?
– A copy of the contract referred to will be available to the members of the Senate in order that it may be dealt with in the discussion of the general contract between the Commonwealth Government and the Orient Steam Navigation Company.
– I desire to ask the Minister of Defence, without notice -
In view of a statement made by a Mr. E. T. Jellicoe, of New Zealand, and published in the Morning Herald (Western Australia), 19th September, 1905, bearing on the industrial conditions of the Commonwealth, as follows : - “ ‘ There are,’ he said,’ 17,000 unemployed registered at the Government Labour Bureaus of five cities, and there is no sign of improvement. There has been serious loss of population for the last twelve months, and in Victoria, South Australia, and Tasmania the exodus continues,’ “ will the Government procure and lay upon the table information showing the number of persons registered as unemployed on the books of the ‘Government Labour Bureaus of the States of the Commonwealth?
– I do not think that the Government will have the slightest objection to getting the information which the honorable senator desires, but he had better put a question ‘on the notice-paper, so that we may have an official record of it.
– I desire to ask you, sir, if it is not possible to have the reports of Friday’s debates published earlier than at present ? We do not get the reports until the end of the following week, and, of course, when we are away, not until ten days after their delivery here. If the reports of Friday’s debates could be distributed in’ any form - even without a cover - on Monday or Tuesday, it would be a benefit to all of us, and a boon which would be much appreciated.
– Hear, hear.
– I am not prepared, at a moment’s notice, to go into the difficulties which surround this matter, but I may say that it has been inquired into several times. The cost of publishing Hansard is very great, and the Speaker and myself do not wish to increase that expenditure, at all events, by any great amount. All I can say is, that I shall obtain a report and lay it upon the table.
– Will you, sir, be good enough to ask those who will conduct the investigation to inquire what is the practice in the other States? When I was a member of the Legislative Assembly of Queensland its members were in the habit of getting the proofs of each day’s proceedings on the following morning.
– The honorable senator must recollect that pur reports are printed by the Government Printer for the State of Victoria. We have no printing office of our own ; therefore, we are not in exactly the same position as a State.
asked the Minister representing the Minister of External Affairs, upon notice -
– The answers to the honorable senator’s questions are as follow : - 1, a, and 3. ‘Not since the offer of the Territory was withdrawn by the then Government of South Australia in December, 1902, which may be resubmitted by them at any time.
asked the Minister representing the Treasurer, upon notice -
Referring to the £1 77,856 trust moneys held by the Commonwealth on 30th June last, as shown on page 57 of the Budget Papers, where were such moneys lodged, or how were they being used ?
– The answer to the honorable senator’s question is as follows: -
the latter amount of ,£119,816 being available . for the purposes of the several Trust Accounts as required by section 6r of the Audit Act 1901.
asked the Minister representing the Treasurer, upon notice -
Referring to the figures showing the adjustment of Inter-State Customs and Excise that are given on page 15 of the Budget papers, can the moneys representing duties on materials forming a portion of the value be separated from the moneys representing goods transferred as imported, and, if such a separation is possible, will the Government have a return prepared and laid on the table showing the figures so separated ?
– The answer to the honorable senator’s question is as follows : -
It is impracticable to separate the moneys as desired, as the necessary information is not compiled.
– I move -
That, in the opinion of this Senate, the refining and wholesale distribution of sugar within the Commonwealth being almost entirely controlled by one large corporation, constitutes a monopoly which is inimical to the best interests of those engaged in the production of raw sugars, and the citizens of the Commonwealth generally ; and this Senate affirms the desirableness of nationalizing the said monopoly, so as (0 secure 10 the people of the Commonwealth the whole of the benefits accruing therefrom.
This motion is exceedingly important, and, therefore. I have done my best to get the fullest possible ‘information, so as to be <in a position to deal exhaustively with the subject. But the difficulties I have met with in seeking that information have been almost insurmountable. I found the utmost difficulty in arriving at facts, and the information disclosed in the public balance-sheets of the sugar refining companies is so meagre as to be almost useless for my purpose.
– Did the Colonial Sugar Refining Company not supply the honorable senator with a balance-sheet?
– That company, with the utmost courtesy, made their balance-sheet available, and, I believe, it has also been published in the public press. My complaint is that the information disclosed in the balance-sheet is so., scanty as to be of very little use as disclosing the working of the company.
– Is that not ‘a matter for the shareholders?
– That is not so. In most of the States there are laws which hind public companies to divulge certain information for the benefit, not only of the shareholders, but of the public generally, and, as I have said, my complaint is that the balance-sheets of the Colonial Sugar Refining Company, and kindred institutions, are in this connexion of very little value.. The information I have has 1 een largely derived from official sources .,nd I may say that I have in every in stance taken care to verify it, so that what I say may be taken as thoroughly reliable. I have no desire to say one harsh word about the Colonial Sugar Refining Company or any other company engaged in the same industry within the Commonwealth. I recognise that it is the duty of directors of such institutions to do the very best they can for their shareholders, and I dare say that in accordance with the accepted commercial standard of the times, the directors !of the sugar companies have not exceeded their duty or transgressed the law in any particular. In passing, I may say that the directors of these companies have done very well, indeed, for their shareholders ; and I have no particular complaint to make on that score. But I contend that just as the directors of a public company conduct their enterprise in the interests of their shareholders, so should a Ministry, in charge of the country for the time being, do the best they can in the interests of the community at large. It is not at all derogatory to regard the functions of a Ministry as similar to those of the directors of a public company. The latter safeguard and develop the interests of their shareholders, and, in the same way, a Ministry ought to see that the largest possible return, consistent with fair play all round, is obtained for the Commonwealth as a whole. And in’ order to conserve the interests of the people, and to further the general prosperity, and insure the largest possible dividends for the country at large, it is essential that all monopolies, should be nationalized. Why does any monopoly exist? It is simply because of the advantages which a monopoly gives to the participators. There would be no monopolies if there were no accompanying advantages. By the establishment of a monopoly, the people interested are able to corner the market in any particular line, and, practically holding a pistol at the heads of the people, demand any price they please for the commodities distributed. That is a position which I do not think anybody at . this time of day would maintain is just or desirable. In the United States and other countries. attempts are being made to regulate monopolies so as to prevent their harsh operation on the general public. There is, however, only one way to effectively deal with monopolies, and that is to nationalize the industries involved, and have them conducted by the Government in the interests of the whole of the people. No matter what law we may pass for the regulation of monopolies, those huge public companies, having the best of advice, and being thoroughly acquainted with all the ramifications of the business, can always find a way of escape. If the. Commonweal tE Government or any, other Government’ take over the working of a monopoly of the kind I have indicated, they will have no interests to consider beyond those of the people whom they are called upon to govern. It is no new proposal that a Government shall take over the control of a business which amounts to a monopoly ; as a matter of fact, we have had such Government interference in every one of the States of Australia. The railways, which are now public property, would have been a huge monopoly in the hands of private individuals ; and everybody recognises that the railways are very much better managed in the interests of the whole of the people, than they would be if they were in the hands of private companies. Then, again, the Post and Telegraph Department represents a huge commercial undertaking which has been nationalized. In the old country industry after industry is being either municipalized or nationalized in the interests of the whole people, so that there is nothing to cavil at in a proposal that other monopolies shall be dealt with in the same way. It is the duty of the Government, whenever a monopoly is shown to be in any way injurious to the interests of the people as a whole, to nationalize that monopoly. It doubtless will be said, as it has often been said in the past, that the Government cannot manage commercial or industrial undertakings as well as they can be managed by private individuals. That view is absurd ; because, as a matter of fact, none of those large companies manage their businesses for themselves, but have to invite capable managers or directors to undertake the work. The various branches and their details are intrusted to men specially fitted for the positions by their training and ability ; and the talent of tlie country is just as much at the disposal of the Government as of any combination of private individuals. There is no earthly reason why these huge undertakings should not be as successfully conducted by the Government as by private corporations. I am glad that Senator Walker is present, because I know he is interested, in the Colonial Sugar Refining Company.
– I am only a small shareholder.
– I have said that the details disclosed in the balance-sheet of that company are very meagre ; but, doubtless, Senator Walker, who was at the last half-yearly meeting, and is apparently in the confidence of the directors, will be able to supply any additional information required. The motion presupposes that the business of sugar refining and distribution is a monopoly; and I think I shall be able to prove the practical truth of that view. I have here a return which was supplied by the Department of Trade and Customs in response to my request. It is headed, “ Commonwealth of Australia, Melbourne, 27th September, 1905,” and the letter from the Comptroller-General is as follows : -
In compliance with your request of 25th inst., I have much pleasure in forwarding herewith a return showing the quantity of raw sugar received and refined sugar produced in the several refineries of the Commonwealth during the 12 months ending 30th June, 1905.
I will read the return for the information of the Senate -
Return showing quantity of raw sugar received and refined sugar produced in the several refineries of the Commonwealth during the 12 months ending 30th June, 1905.
Honorable senators will notice the discrepancy between the amount received and the amount refined. That is easily explainable by the fact that all the raw sugar received was not refined by a certain date. As a matter of fact, in one instance the quantity refined was greater than the quantity received. The return shows that the Colonial Sugar Refining Company refined 80.6 of the total quantity of sugar passing through the refineries of the Commonwealth, and that all the other refineries dealt with only 19.4 per cent. Those figures, which are authoritative, and cannot be disputed, go to prove my contention that the Colonial Sugar Refining Company is nothing but a monopoly. Any company which deals with, in round figures, 81 per cent, of the output of an industry must, in the nature of things, be a monopoly. It is a well known fact - within the knowledge of every one who has studied the circumstances of the sugar industry - that the Colonial Sugar Refining .Company, in addition to refining that amount of sugar, practically controls the other factories; that it dictates the price that they shall pay for raw sugar and the price at which they shall sell refined sugar to the public. That has been proved over ,and over again. The Millaquin Refinery - and the other refinery also, I think - are at the mercy of the Colonial Sugar Refining Company, which would wipe them out to-morrow without compunction if they resisted its demands. I think, therefore, that my contention that the Colonial Sugar Refining Company is a monopoly is proved up to the hilt. But I have not finished with the matter. In support of my contention I should like to quote from a leading article published in the Agc on 7th September of this vear. Speaking generally of the sugar industry, the article says that with a view of establishing it on a sure foundation -
One step which must be taken in that direction is to ensure for the grower a larger share of the returns obtained from the sale of sugar. That he does not obtain better financial results is directly traceable to the fact that the profits which should go to the grower are absorbed by the renner. Queensland possesses only two refineries, whose output is small. The bulk of the 220.099 tons of refined sugar consumed in Australia is supplied by one big company, which practically monopolizes the refined sugar trade in Australia and New Zealand. The history of the Colonial Sugar Company, to a certain exlent, reflects in a lesser degree the growth of the United States Standard Oil Company. Its policy in the past has been to utilize its resources to eliminate competition in every direction, and this has proved so successful that the efforts made in Victoria to break down the monopoly have failed.
That passage supports my statement and shows that an influential and responsible public journal has come to the same conclusions as I have myself. The Age is merely quoting a fact known to every ontwho has studied the industry. The refineries which were established in Victoria gradu ally fell into the maw of this cormorant company.
– Every combine is formed by the amalgamation of small companies into one large company.
– The Victorian Company was “up a tree,” and the Colonial Sugar Refining Company absorbed it.
– It gobbled it up. The Age article proceeds -
At an earlier date Messrs. Joshua Brothers erected a large refinery at Yarraville to compete with the Colonial Sugar Company for the Victorian trade ; but the latter, with its enormous resources, was able to offer such a price for the Yarraville works that they passed into its hands. Subsequently a combination of merchants made another effort to introduce competition into the refining business; but here again the Colonial Sugar Company scored largely, absorbing not only all the interests of its would-be competitors, but securing their trade on such terms as to place the monopoly on even safer lines than in the past. The best evidence of how the monopoly works is to be found in the balance-sheets of the company- Taking the last thirteen, which bring the figures up to March last, we have the following : -
– I thought the honorable .senator said that the company did not give much information in its balance-sheet.
– What I have read is merely a statement of profits and dividends taken from the balance-sheets of the company, over a period of thirteen half-years. Later on, I will indicate in what respects the balance-sheets are deficient in respect of the information given both to the shareholders and to the public. I may remark that the last dividend mentioned is. I think, a mistake. In 1905, there was, I believe, a dividend of to per cent., with a bonus to the shareholders. The Age article goes on to say : -
These figures speak for themselves, and they show how a large proportion of the planters’ returns is absorbed. It is, moreover, stated by those who are in a position to give a fair opinion that the published accounts hardly show the whole extent of the company’s profits. Additions to plant, for instance, are charged to revenue account, whilst the writing off in values all round has been always steadily carried out so as not to show too big profits…..
The estimated yield to the grower is given by the officials as averaging, say, £7 10s. per ton of sugar for the equivalent quantity of cane. The cost of refining, excise duty, bagging, wharfage, freight, and other charges, it is claimed, brings the total up to ^18 per tcn. The company’s charges, not to consumers, but to merchants and large distributing firms, are as follow : - Brewers’, £21 15s. ; No. iX and No. iA, ; No. 1 ordinary, £20 15s. ; No. 2, £20 5s. ; No. 3, £iS 10s. These are the’ Victorian prices only. In New South Wales, South Australia, and Western Australia the prices are higher, and hence if £2 per ton is accepted as the company’s net profit on the sugar worked, the estimate will be below, instead of above, the actual return. Now, the company puts about 130,000 tons of Queensland sugar through yearly at its various refineries, and the profit, at £2 per ton, would be ,£260,000. The balance-sheets, for the two half years ended 31st March, 1905, show net profits of £266,433, which is sufficiently near, for the ordinary inquirer
Then the article proceeds -
The establishment of a public refinery would really mean a reduction of intermediary charges, and handing over to the cane-growers a portion of the fat dividends that have been going for years past into the pockets of the monopolists who compose the Colonial Sugar Company. Evidence from all parts of the world where sugar is grown proves that the refineries make the “ big money,” and it is this fact that suggests the direction in which the Queensland cane-growers’ position can be improved.
I said, a little while ago, that the Colonial Sugar Refining Company practically controlled the price paid for “raws “ and the price obtained for refined sugar. It is patent to anybody who has studied the question that a company dealing with such a large proportion of the total output of sugar is in a position either to make or unmake the market. It can practically cripple any competitor if it chooses. And as a matter of fact, at various times we have seen the Colonial Sugar Refining Company, without any apparent reason, lowering the price of sugar by £1 or 30s. per ton. That was evidently done only for the purpose of staving off opposition and bringing competitors to what the company would call reason. They not only control the prices which other refining companies obtain for sugar, but also the prices which retailers can demand for their sugar. In this connexion I quote- the following paragraph, taken from the commercial columns of the Age of September 19: -
Sugars. - There is apparently a little friction in Sydney between the retailers and the Colonial Sugar Company on the question of rebates to the large distributing firms. According to a local report, the association wants the large sugar distributers to refuse to sell sugar to any retailer if it is known that he cuts the price below that fixed by the association. They formulated a plan of procedure by which the sugar companies were to retain certain rebates from the retailer if they found that one was undercutting prices. It was pointed out, however, that the sugar companies did not see their way clear to undertake this detective work, and, furthermore, it was stated that when the companies had sold to a customer they had no just claim to dictate as to how he was to sell it. If the retail price was to be kept up to a certain limit, then it must be the retailers that must do it.
According to that paragraph, the company have admitted that they not only dictate the price at which other refining companies shall sell their sugar, but also the price at which it shall be sold retail.
– It was the large buyers who wanted the company, to interfere with the retailers.
– It was nothing of the kind. It was the company who wanted the large buyers to interfere with the retailers. I have quoted from the Age with regard to the profits made by this company, but I do not wish to rely solely on second-hand information for my statement of the case. I have here .a copy of the Colonial Sugar Refining Company’s last balance-sheet, issued on the 31st March of this year.
– Is the honorable senator aware that a large amount of the profits of the company is derived from Fiji?
– I intend to allude to that. I wish to disclose the position as set forth in the company’s own balancesheet. According to the report submitted by the directors, the profits made during the half-year, after providing for interest and all other charges, amount to £171,361 12s. 3d., or at the rate of £342,723 4s. 6d. for the year.
– Is the honorable senator aware whether a portion of that is not premium on new shares issued ?
– There is nothing in this balance-sheet to show that, and it would be an absolutely fraudulent balancesheet if the company showed as profit a portion of the capital subscribed. To the sum I have mentioned there must be added the balance at profit and loss account on 30th September, 1904, amounting to £94,320 14s. 2d., leaving available £265,682 6s. 5d. The company paid a dividend at the rate of 10 per cent., free of income tax, and that accounted for £109,745 4s. iod. They paid also what they call a “jubilee bonus” of per cent., amounting to £84,932. That is to say, they paid a total dividend at the rate of 12I per cent.
– What is the capital of the company ?
– The authorized capital of the company is stated to be £3,000,000; the subscribed capital, £2,200,000; and the paid-up capital, £2,198,400. Senator Walker interjected that a considerable portion of the profits made by the company is derived from their business in Fiji. I do not propose to dispute that statement. There is no doubt they derive a very considerable amount of profit from their business in New Zealand.
– In Fiji.
– Their Fiji sugars are very largely sold in New Zealand, and in fact they have a monopoly there just as they have here. I am prepared to say this on behalf of the company, though I have no absolute means of verifying the statement : I believe that, after paying this “ jubilee bonus “ of 2^ per cent., they gave a very generous bonus to the majority of their employes in their various refineries.
– They have never had a strike in the fifty years of the existence of the company.
– That may be so, but I have known instances in which they should have had a strike. I know that on some of their plantations in Queensland they have treated men like pigs, when one considers the accommodation that was provided for them.
– The honorable senator is not the best judge of that. The fact remains that the men did not strike.
– They were ground down to such an extent that possibly they had not the spirit left in them to strike, and, if thev had, their places would have been immediately filled by coloured labourers. I say that this statement of the company is defective in many particulars. It ‘does not show how much sugar was treated, and the profit per ton on “treating it. A mining company will supply information as to the cost of raising ore and of milling it, the value of the ore raised, and the profit on every ton. This company does not give such particulars, and the reason is that they desire to hide the profits of- their operations from the country.
– The public are satisfied.
– The public are not satisfied. As a member of the public, and speaking on behalf of a very large section of the public, I am not satisfied.
– Look at the last premium on the company’s shares.
– That is just what I wish to refer to. The men controlling this company have been howling for years that we have been ruining the sugar industry, and yet we find that the company’s shares have doubled in value; and for this the public have to pay.
– Have the profits of the company decreased since the introduction /.of our kanaka legislation?
– The profits of the company last year were greater than in any other year of its existence, although we have decided that the kanaka must go. It is mentioned in the company’s, report that the cost of sugar to the consumer in Australia is lower than the cost to the consumer in England. I quote the paragraph, which is as follows: -
Moreover, all our large yearly contracts with manufacturers were made last June at rates but little above the extremely low figures of 1903, so that these supplies have cost the purchasers many pounds a ton less than English firms have had to pay dining the same period.
– The honorable senator cannot complain of that.
– The people here may get their sugar cheaper than the people of England, but they still have some’ right to complain if , they do not get it at the cheapest possible rate when this company is making hundreds of thousands of pounds profit every year out of the business in Australia. I am endeavouring to suggest the remedy for the existing- state of things which I think ought to be applied. I have said that the total profit, as disclosed in the company’s balance-sheet does not represent the whole of the profit made by the company. I can prove that conclusively from the balance-sheet itself. I find that in addition to their capital the company are employing £90,000 of debenture capital, on which they have to pay a very considerable amount in interest every year. Where does that interest come from? It must come out of profits in addition to the profits shown in the balance-sheet. The company are making not only the profits shown to be available for dividends, but further profit, which has gone in the shape of interest to debenture-holders.
– The honorable senator might as well contend that a firm having a big bank overdraft is earning a profit if it makes sufficient to pay interest on that overdraft.
– I do contend that interest on an overdraft and on debentures must come out of the profits of the business. That must be self-evident.- We find that the company has built up a reserve for the equalization of dividends amounting to no less a sum than £165.000. They have also built up an employes provident fund amounting to £75,000.
– The honorable senator does not object to that, I hope.
– No, I do not; but it is my object to show th’a.t these things are done out of the profits earned by the company. I am trying to show the enormously large profits earned by this business. Then, again, they have a. general reserve fund amounting to no less than £483.594.
– Senator Walker might tell us how that money is invested.
– The honorable senator might do so. I have not yet indicated all the sources of profit in this company. In the article which I quoted from, the Age, there is some reference to a secret reserve held by the company for the purpose of fighting competitors, and other purposes of that nature. I have no proof that such a secret reserve exists, and the fact that it is “ secret “ accounts for the absence of proof, but I know that it is currently reported, and generally where there is smoke of that kind there is a little fire to account for it. Apart from that altogether, there is another way in which the profits of the company have been largely increased. Honorable senators are aware of the enormous enhancement in value of the company’s shares in recent years. They have made a practice of writing off the value of their properties year after year in an inordinately extravagant way. This matter is also referred to in the article which appeared in the Age. and the object of adopting this course is simply to deceive the public as to the amount of profits made.
– Does not the honorable senator believe that where machinery is largely employed there must be large writings -off ?
– I am personally aware that they have written-off large amounts in respect of plantations they held in Queensland, and which they subsequently sold at a price greatly in advance of that at which they were set down in their balancesheet.
– Perhaps that is’ where a part of the profits have come from.
– There is another method by which shareholders iti this company are enabled to enjoy handsome advantages. Honorable senators are aware that there have at times been companies which have been little more than family affairs. They have never aspired to pay dividends, but the operations of those companies have afforded shareholders the opportunity to provide snug and comfortable billets and sinecures for their friends and relations. This is a condition of affairs which largely obtains in connexion with the Colonial Sugar Refining Company. The finest billets are always available for the friends and relations of the shareholders of the company.
– It should be a good company to marry into.
– It certainly is. The present manager, Mr. Knox, is the son of a former general manager, so that we have the right of primogeniture actually established in this company. I do not say that the present Mr. Knox is not the most capable man who could be selected for the position he holds but it is a peculiar coincidence that the best man for any vacant position in the service of this company is generally one who has influential friends and family connexions amongst the shareholders of the concern. The reserves, as I have said, are exceedingly large. The advantages in many ways, in .addition to the enormous profits made, are very great. All these profits and advantages are made - why and how ? - because the company is in such a position that it can practically dictate the price at which it will purchase the raw material and the price at which it will supply the refined article. It is only because it has established a monopoly of that kind that it is able to squeeze such enormous advantages out of both the producers and consumers of sugar.
– What is the price of sugar :in the Commonwealth and Great Britain ?
– I have quoted the authority of the Colonial Sugar Refining Company.
– That is a general statement. What is the price of sugar in Great Britain now?
– I cannot at the present moment tell the honorable and learned senator.
– I believe it is less there than here.
– I know that the honorable and learned senator is always willing to stand up and fight for this company, and yet when I quote its statement on this point he refuses to accept it. The total profit for the year, at the rate disclosed by. the last -half-yearly balancesheet, was no less than £342,723. Various sums were applied to different purposes - to reserves, and in other ways in which profits are absorbed, and it is safe to say that the total profits during last year were mot much less than. £400,000. If we allow £j 00.000 to be the clear profit made by the company in Fiji and New Zealand, it is reasonable to conclude that the total profit made last year from the business in Australia was no less than £[300,000.. That is an enormous profit from a business of that sort As the total consumption of sugar in Australia is about 180,000 tons, that shows a profit of nearly £2 a ton on the total consumption, and, certaintly, a profit of over £2 per ton on the quantity treated by the company The consumers should not be called upon to pay such an enormous rate of profit. I shall show that the total profit on the refining of sugar, in contrast with the services rendered, is out of all proportion to the total advantage received by the producers of raw sugar.
-Is the honorable senator going to state what, in his opinion, ought to be the price of sugar?
– It should be the lowest possible figure consistent with enabling the producers to make a decent living. The way to that is to save the consumers and producers alike from all unreasonable Intermediary profits. I have tried to show that the company is making unreasonable intermediary profits.
– How are they doing with the monopoly ; are they raising the price of sugar ?
– Undoubtedly. I am trying to show that the company is charging the public for the sugar about £[2 a ton more than it ought to charge.
– Does the honorable senator say that the Government could make the article more cheaply?
-Undoubtedly, as I pointed out a little while ago. I shall proceed to prove that the profits of the company are out of all proportion to the services rendered as compared with the prices paid to the producers. From the report of Dr. Maxwell, Director of Agriculture in Queensland, presented’ to this Parliament in 1901, and ordered to be printed. I take the following extract: -
That shows an average difference of £6 1 8s. cd. between the value of “raw” and “ refined “ sugars, so that out of the total the refiners received 42 *</inline> per cent., and the producers of raw sugar 57J per centAfter the producer has acquired the land, often at a very high price, cleared and cultivated it, run the risk of his cro>p being destroyed by fire, frost, or adverse seasons, or a pestilence such as the grub, harvested and supplied the cane to the mill, paid I he total cost of trucking it, and manufacturing it to a very high degree of excellence - because all the sugar produced by these mills is over 88 per cent, net litre, and the value of the refined sugar is not more than 92 and 93 per cent. - after all that trouble how much does the producer get? He gets only 57 1 per cent., while for the mere refining of the sugar the company gets 42 £ per cent. As supplementary to that return,, let me point out the present position for the buying of sugar, by quoting the company’s general terms. They agree to give £8 per ton for 88 per cent, net tit re sugar at the mill, when it is selling at £14 10s. a ton in the capitals of the Commonwealth. That means that it is always left a margin of .£6 10s. a ton for the mere refining and distributing of the sugar. For every increase of £.1. the company will give to the producers of raw sugar 18s., and it fixes the selling price, so that it must have at the very least a margin of £6 10s. a ton. for the mere refining of and distributing of sugar, and may possibly have a great deal more. We know that last year the company made larger and greater profits than ever. It could only make profits by buying at a cheaper rate, or selling at “a dearer rate. Therefore, it fleeced both producers and consumers more last year than ever it did. and in ali conscience that was done religiously enough in former years. Let us now see what ought to lie about the total cost of refining sugar, and of conveying it to the refineries, and distributing it to the public. We know that the company has a contract with the shipping companies to convey sugar from various ports in Queensland to their refinery at the rate of 9s. a ton. We also know that, owing to the large quantities of stuff which have to be handled, wharfage, and everything else, is largely reduced to the company which in some instances has its own wharf. Practically 10s. a ton covers the total cost of conveying the sugar from the plantations to the refinery. But if we throw in 100 per cent., and say that the cost is
Ave throw in another discount of one-third, and say that the company has a profit of £2 ros. a ton. We find that one-eighth of the total price of sugar is the price it gets oxer and above what should be a reasonable trade profit for the refining and distributing of sugar. If we can save that one-eighth to the producer and consumer, undoubtedly it is our bounden dutv to do so. It is said that the company will treat every one fairly and generously and no doubt we shall be told that it is doing excellent service to the Commonwealth. I know that in Queensland, where it has had mills “alongside co-operative and other mills owned by other persons, it was paying from is. to is. 6d. per ton less for the cane than were those mills. Of course, the company’s mill was so situated that the cane had to go there - there was no hope of salvation for the unfortunate growers. That is an unfortunate state of things from which I wish to rescue them. I desire to enable the producers to get the highest price possible for their cane consistently with a fair deal to the public, and I want to enable the public to get their sugar at the lowest possible price, consistently with giving a fair deal to the producers. The only possible way in which that can be effectively done is by the Government taking over the industry, andi working it in the interests of the whole people.
– Do the Government Central Mills in Queensland pay?
– There are a few of these mills which have paid very well. There are other mills which have not yet paid.
-Col. Gould. - The majority.
– The majority of the mills have not paid, and that is largely due to the fact that the large proportion of profits, which ought to go to the producers, has been filched from them, in the manner I have indicated, by the Colonial Sugar Refinery Company. Years ago I tried to induce the Queensland Government to establish State refineries as a natural corollary of the central mill system. I then pointed out, and still maintain, that it was ridiculous for the Government to establish mills, in which the cane would be dealt with and made almost marketable, and to leave the final and most profitable stage to an outside company. If the Queensland Government had had the welfare of the people sufficiently at heart they would, by acting on the suggestion I made, have saved the producers of sugar many hundreds of thousands of pounds. Through one influence or other the Central Mills were not always established in the best places of Queensland; and, as I have said, they were not accompanied by the necessary corollary. When the mills were established first the chief effect they had was to largely increase the price of land held by private individuals, and by the banks, as I know of one particular case, with which Senator Walker is connected. Land which before the establishment of the mills could be obtained at £2 per acre, rose subsequently to £16 and £20 per acre, and the unfortunate people who went there to grow cane found that the enormous price they had had to pay for the land, was too great a burden. This, amongst other reasons, accounts for the non-success which attended the mills system. The private land-owner grabbed the chief benefit, and it ill becomes Senator Walker, and others like him, who have received -.advantages in this connexion to sneer at the non-success of the mills.
– I am not aware that I sneered ; I merely asked for an explanation.
– What Senator Givens has described is still going on.
– Of course it is. I do not think that any honorable senator will question my statements, because they have been taken either from official sources or from the side which is opposed to the view I am trying to impress on’ the Senate. All the facts go to prove that it would be of immense advantage to the people of Australia if this industry were nationalized. It would be of immense advantage, in the first place, to the producers of raw sugar, and. in the second place, to the consumers of refined sugar; and the nationalization of the industry is the only means by which such a desirable result can be accomplished. So long as the industry of refining and dis tributing sugar remains in the hands of a. private corporation, so long will that corporation continue to exact the uttermost farthing of profit from the producers, on the one hand, and from the general public on the other. That being so, it is the duty of the Government, and it is the dutv of this Parliament to urge the Government, in the interests of the whole of the people, to deal with this monopoly. 1 do not propose to confiscate the profits of the Colonial Sugar Refining Company. I have no wash to deprive that company of one shilling which legitimately belongs to it; but 1 say fearlessly that the well-being of that company cannot be allowed to stand in the way of the welfare of the whole people. I am prepared, and I believe that the Commonwealth would be prepared, to take over the company’s refinery works at their present actual value, and to leave the shareholders the full and peaceful enjoyment of the exceedingly handsome profits they have hitherto been paid.
– Oh, the honorable senator will allow that !
– I think those profits are a very handsome reward for the energy and enterprise, or any of those high falutin’ virtues we are told are possessed by private individuals and corporations. The shareholders will have nothing to complain of, if, after they have made handsome profits year after year out of the people, the latter, in self defence, say to them, “ We will not continue to allow ourselves to be fleeced by you, but we shall deal fairly with you, and buy the works at their actual value, and carry on the business for our own advantage.” Doubtless the company would reply, “ That be hanged for a yarn ! “ for that is the way our bluff friend Senator Walker would meet such a proposal. The honorable senator would’ doubtless say, “ We are entitled not only to the actual value of the mills, but also to compensation for our prospective profits year after year; we have fleeced the public of Australia of over a quarter of million annually for a number of years, and that gives us a vested interest to continue doing so for all time.’’ The company would claim compensation, but if they did, it would be for the people to reply, “All right; keep your works and distributing agencies, and we shall start works of our own.”
– And make a mess of them, probably.
– I am not at all afraid of that. A simple solution of the difficulty is to deal fairly and honestly by the company if the company will deal fairly and honestly by the people. There is no desire to take advantage of the company; but if, on the part of the company, there is any endeavour to take advantage, then we have the remedy in our own hands by proceeding as if their works were not in existence.
– And go on the way rejoicing !
– And doubtless the people would rejoice if the Commonwealth undertook this business, instead of, as at present, leaving the consumers to pay through the nose. I dare say we shall have considerable discussion before this motion is finally disposed of, and I hope that Senator Walker, as one who is interested in the company, and is evidently in the confidence of shareholders and directors, will be able to give us a great deal of valuable and interesting information.
– “ Very like a whale !” Senator Macfarlane. - Is this a fishing inquiry ?
– It should hardly be necessary to remind a gentleman of such distinguished intelligence as Senator Macfarlane that there is no proposal to have an inquiry. If the honorable senator, with his. very high intelligence, cannot comprehend the scope of the motion, I can scarcely be held responsible. I have adduced a mass of official facts and figures, which I believe will help honorable senators to form a conclusion on this important subject. If the Commonwealth Government, authorized by the Parliament, act on this motion, the people will have reason to bless them, because an intolerable public burden will be removed.
– A regular incubus, I suppose !
– Yes, an incubus which has been imposed on the people for a number of years. As a matter of fact, the Colonial Sugar Refining Company has at various times adopted the tone of a dictator, not only to the producer and the consumer, but to the people of the Commonwealth at large. When this Parliament attempted to deal with the industry some time ago, the company raised a howl from one end of the land to the other, that “ blue ruin “ was staring them in the face ; but during the four years of Commonwealth rule the shares of the company have about doubled in value.
– That is a mistake.
– I observe that before I gave notice of this motion the shares were quoted in Melbourne at £41 15s., whereas now, I suppose in consequence of some shareholder getting a scare, the value has dropped to about£40.
– The honorable senator must be happy.
– I did not anticipate or wish any such effect from my notice of motion, nor do I suppose that the two matters stand in the relation of cause and effect. The price of the shares does not affect me or the motion in the slightest degree. I merely refer to the price of the shares, to show that there was nothing to justify the howl raised by Senator Walker and his friends at the time Parliament attempted to deal with the sugar industry. And if a similar howl be raised now, I feel certain that their dismal anticipations will prove to be baseless. The nationalization of this industry would be a matter for congratulation and rejoicing on the part of the whole of the people of Australia.
– Excepting the shareholders.
– I am not particularly concerned about the welfare of the shareholders, who have had the advantage of the consumers long enough. I have no sympathy to spare for shareholders who have enjoyed the fat of the land at my expense and the expense of every other consumer in Australia. It would be a matter for rejoicing on the part of the great bulk of the people if the Government would establish Commonwealth sugar refineries, failing any reasonable terms being arrived at for buying out the interests of the company. If that result cannot be accomplished now, I confidently anticipate that the people, whenthey are seized of the facts, and of the advantages of such a course, will rise in their might and demand that the Commonwealth Parliament and Government shall deal, and deal effectively with this great question.
– Having for many long years fought against the system of finances adopted in regard to the sugar industry, and having, during that time, had to encounter the opposition of gentlemen like Senator Givensand his friends, I am somewhat amused to-day to find them now attacking a company which, by their policy, they have assisted to develop into a monopoly. Time after time, I have shown that the duties imposed on sugar throughout the various States of Australia have helped to build up this company, and enable it to take large sums of money out of the pockets of the people ; but up to to-day, I have not heard from Senator Givens and his friends that they viewed that financial system with regret. There is no doubt that this company has made very substantial profits as the result of our Tariffs, and the consumers of Australia have paid a great deal of money in taxation and increased prices. But the question now is, whether it would be to the advantage of Australia generally for an attempt to be made to nationalize the industry, and to begin buying up all the raw sugar and refining it. I think that Senator Givens did not take notice of the very large amount of money embarked in this industry by the Colonial Sugar Refining Company and others. The sum probably totals about £3,000,000, and, lodged in banks, would bring in about £120,000 a year. So that if the profits of the industry at present are £120,000, although that is a very large sum to talk about, yet the same amount could be obtained in interest on the capital from the banks of Australia. I think honorable senators will agree that the only possibility of saving is between what the ordinary interest on the capital invested, and what the consumers are paying for their sugar. But Senator Givens made no attempt to face the question. I venture to say that it did not even occur to his mind. Such questions as how to raise the £3,000,000 required to carry on the industry, do not generally arise in the minds of our friends opposite, to whom big undertakings of this sort are so easy of achievement.
– It does not require £3,000,000.
– Senator Givens himself said that the capital of the company is £2,200,000.
– But that includes the Fiji business.
– In addition to the Colonial Sugar Refining Company’s business, there are several other companies engaged in the industry. He told us, in addition, that debentures have had to be issued. When all these figures are added together, it is found that about £3,000,000 sterling is embarked in the industry.
– A considerable portion of the capital of the Colonial Sugar Refining Company is locked up in large estates and sugar mills in Queensland, which my motion does not propose to touch. r
– The sum of £3,000,000 is, I believe, the lowest sum that would be required to carry on the industry.
– The honorable senator is totally incorrect; after the information that I have given, he should not repeat that mistake.
– There is, in the first place, the value of the sugar refineries themselves, which have to be kept up. Then there is the value of the sugar. Whilst the Colonial Sugar Refining Company buys a very large quantity of sugar, which can be paid for by acceptances, the Government must pay cash. A Government must be prepared at all times with plenty of money on hand to meet its requirements. Then suppose there was a failure in the sugar crop in Australia in a certain year, and 100,000 tons had to be imported. The mere cost of buying that sugar, and bringing it to Australia, would stand at over £1,000,000, taking the ordinary run of low-priced raw sugar. These are facts that have to be borne in mind. There is, I think, no doubt whatever that the Colonial Sugar Refining Company is exceedingly well managed.
– Hear, hear.
– While, as I have said, it is making . enormous profits, there is no doubt that to some extent the honorable senator has exaggerated them, though probably not very much. But whatever the profits may be, they are subject to the deduction represented by interest on the capital invested, and it is only in regard to the difference between what the shareholders would get by lodging their capital in the banks, and the amount that would be obtained from the sugar, that any saving could be made at all. We have to ask ourselves whether it is desirable for the Commonwealth to enter into a commercial business which represents an output of 180,000 or 190,000 tons of sugar per annum, an initial expenditure of between £3,000,000 and £4,000,000, and interest to about £120,000 a year. I ask honorable senators to think that out. Is it becoming for this Commonwealth to embark in trading to that extent? Is it likely to be satisfactory ? Would not such a scheme open avenues to possibilities of a very undesirable nature? I have no intention to pursue the subject. I have for the last fifteen or twenty years been, I suppose, the most pronounced opponent in all Australia of the Colonial Sugar Refining Company. I have been more than any other man concerned to show the consistent profits which the company has been making, and the effects of the Tariffs of the various States in mulcting the public in very large sums on their sugar. But we have to consider the whole position, and I can see what would be the consequences if we were to decide to nationalize the sugar industry. I think we had better not attempt to enter into the affair, lest we find ourselves “ out of the f frying-pan and into the fire.”
Debate (on motion by Senator Staniforth Smith) adjourned.
In Committee (Consideration resumed from 14th September, vide page 225:1):
Proposed new clause 8 -
Whoever assaults, resists, molests, or obstructs any person in the execution of a warrant of apprehension issued under this Act, will be guilty of an indictable offence. ,
Penalty, three years’ imprisonment.
Upon which Senator Lt. -Col. Neild had moved by way of amendment -
That the word “indictable,” line 4, be left out.
– When this clause was last before the Committee there was some discussion as to whether or not some of these offences should not be permitted to be dealt with summarily. It was pointed out that a person might be guilty of an offence by assaulting, resisting, molesting, or obstructing, which was of such a trivial character as to be only technically a breach of the law. It is the practice to attach the maximum penalty at the foot of a clause, and then to rely on the Acts Interpretation Act to disclose what our meaning is. We say in this clause that certain offences are indictable, and the Acts Interpretation Act defines what indictable offences are. Some doubt has also been expressed as to whether we should not indicate the particular Court which shall take cognizance of these offences. That matter was provided for in our Judiciary Act, section 68 of which contains the provision -
The several courts of a State exercising jurisdiction with respect to (a) the summary conviction … of offenders or persons charged with offences against the laws of a State, shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth, committed within the State, ‘or who may be lawfully tried within the State for offences committed elsewhere.
It is therefore not necessary in any Act in which we provide that certain acts or omissions shall be indictable offences, to indicate the Court which shall take cognizance of them. As to whether offences should be dealt with summarily, those who have been responsible for the drafting of the Bill have made them indictable; and in order that proceedings might be taken on an indictable offence, it would be necessary in every instance that the Attorney-General should take action. I presume that if an offence were trivial in character the AttorneyGeneral would not subject an individual to all the pains and penalties of such a prosecution. It has to be remembered that there is a subsequent clause in the Bill, which provides that nothing in the measure shall derogate from the powers and privileges of either House of Parliament. There is a proviso that any person guilty of an offence shall not be punished twice for that offence, that is to- say, by proceedings under this Bill, and also by either House of Parliament, in virtue of any inherent powers of punishment it may have. We might, I think, safely leave the clause as it is, and rely upon those responsible for the administration of the law not to take proceedings for trivial offences, and where they do we might leave it to the Judges of the Courts to determine what they think of prosecutions in such cases.
-Col. GOULD (New South Wales). - I was quite satisfied when Senator Keating pointed to the practice under the Judicature Act, not t9 insist that we should take action in this respect under the Bill. But the difficulty, to my mind, in connexion with this clause, is that an offence must be dealt with as an indictable offence. It is true that if a case were of a trivial character, the Attorney-General might not prosecute the person committed to take his trial ; still, there would be many cases which would not be deserving of punishment as indictable offences, but which, nevertheless, should be punished in some way. It occurs to me that it might be as well to make provision for dealing with these offences either by summary conviction or committal for trial. When a case came before a magistrate in the Police Court, in the first instance, it might be left to his discretion to say whether it should be dealt with summarily, or is of such a character that the offender should be COrn.mitted to a higher Court. I see no provision of the kind in the Bill. We ought to be consistent in, the penalties imposed under this measure. I find that the penalty which may be imposed on a man who, being apprehended by virtue of a warrant of apprehension issued under the Bill, escapes from custody, may be two years’ imprisonment. That is under clause 7, and under clause 8 it is provided that whoever assaults or resists any person in the execution of such a warrant is to be liable to a penalty of three years’ imprisonment. I think that the second offence ought not to be punishable more severely than the offence of escaping from custody.
– The escape is the more natural thing.
.- I do not know that it is. Once a man has been secured he will probably have to use some violence in order to escape from custody, and if by that” means he effects his escape he cannot be punished by more than two years’ imprisonment, whilst if he uses similar violence before he is actually apprehended it is proposed that he shall be liable to imprisonment for three years. I think that the penalty, might very well be fixed at two years in each case.
– I do not think it is a matter of very great importance whether we fix the penalty at two years or three years’ imprisonment. I understood at the time the clause was submitted to the Standing Orders Committee that the reason why the draftsman proposed a penalty of three years’ imprisonment in clause 8 was that he copied the clause from the Queensland Criminal Code, and in that measure the punishment provided for the offence of obstructing the execution of a warrant is three years’ imprisonment. Surely the authority of the Commonwealth Parliament is as high as that of any of the Courts of Queensland; and if this penalty is right in Queensland, it is right here. There is some substance in the point raised, that a person obstructing the execution of a warrant might be guilty of a trivial offence, which ought not to be considered an indictable offence. I would suggest that a general clause might be inserted at the end of the Bill, covering all these clauses, and providing that, in any case where, in the opinion of the Attorney-General, of the House, or of a Committee, the offence charged is not of a grave nature, it should be dealt with summarily
– I find, at page 1406 of Hansard for this session, that Senator Neild, in dealing with this clause, said -
I am prepared to move that the proposed new clause be amended by leaving out the word “ indictable,” and bv leaving out the word “ three,” with a view to insert in lieu thereof the word “ one.”
The honorable senator, on that occasion, had moved the amendment of the clause by the omission of the word “ indictable.”
– Senator Baker stated just now that if a penalty was right in Queensland, it was right here. I wish to say with regard to all these penalties that our draftsman, or those responsible for the Bill introduced in this Parliament, have apparently adopted the following procedure: - When drafting a measure, they secure copies of corresponding Acts passed in the various States, and they adopt the severest penalty- imposed by any of those Acts. The result is that we have a code of penalties now which takes one, in recollection, perilously near to the times when the statute-book of England was too appalling for present-day contemplation.
– The penalty proposed is the maximum.
– I am aware of that, but why should we adopt the. highest penalty in every case? This was done in the Customs Act, the Post and Telegraph Act, and other Acts which I cannot at present call to mind. It is done in this Bill, and I should like to know why this course is adopted, when the tendency of modern and more enlightened times is to impose lighter penalties? In view of the opinion I have just expressed, it will be understood that I shall ‘vote for the lighter penalty in this case.
– With regard to the amendment indicated, as having been moved by Senator Neild, I think it would be a mistake to provide that these offences should only be punishable summarily. It might be better to leave in the word “indictable,” and reduce the penalty to two years’ imprisonment, to make it accord with the penalty provided in clause 7, and then to adopt the suggestion of Senator Baker, and insert a general clause. We might leave the magistrate dealing with the case in the first instance, the discretion to send it on to a higher Court, or to deal with it summarily and punish the offender by way of a fine not exceeding £50, and, in default, by imprisonment not exceeding six months. But it would not, I think, be wise to leave the matter in the discretion of either the House or the AttorneyGeneral. Once an offence of this kind has been committed, it would be far better that the House should not be charged with the duty of saying whether it should be dealt with as a summary or as am indictable offence. If that course were adopted, contentions of a very unpleasant nature might arise in either House of Parliament. The matter would be discussed in the House, and the case canvassed before it came into Court, and1 that would be a serious mistake. On the other hand the responsibility should not be thrown on the Attorney-General.
On the question of issuing the warrant, I think it might be held that the authority of a Select Committee or of either House of the Parliament in these matters would not be any greater that that of a Court in dealing with people who had been committed for ordinary offences.
Senator KEATING (Tasmania- Honorary Minister). - With reference to the suggestion made by Senator Gould, I point out that the omission of the word “ indictable “ would not have the effect desired. In the Acts Interpretation Act Amendment Act of 1904 we have provided in section 4 that offences which are punishable under any Act by imprisonment for a period exceeding six months shall, unless the contrary intention appears, be indictable offences.
– I should not give a magistrate power to impose a penalty of imprisonment for two years.
– If we leave a penalty of two years attached to an offence under this clause, in the absence of any contrary intention apparent in the Bill, it will be an indictable offence. When the clause was previously before the Committee, I suggested to Senator Neild that we might follow the course adopted in connexion with the Wireless Telegraphy ‘Bill . It was pointed out that some offences against that Bill might be of a very grave character, and justify the imposition of- the maximum penalty, but that, on the other hand, there might be some of a trivial or technical character, and we should frame our legislation to meet both’ such classes of cases. I had a new clause drafted which is now section 9 of that Act, and which reads -
Proceedings for any offence against this Act may. be instituted in any court of summary jurisdiction, and any person proceeded against under this section may be dealt with summarily, or may be committed for trial.
Honorable senators will see that proceedings in the first instance might be instituted in a lower Court, and the person prosecuted be dealt with summarily, or committed for trial. Paragraph 2 of the section reads -
The Court, in dealing summarily with any accused person under this section, may, if he is found guilty of any offence against this Act, punish him by imprisonment with or without hard labour, for any period not exceeding six months, or by a penalty not exceeding £50.
The substance of that section was that if an. offence were committed against the Act a prosecution might be insti tuted in a Court of summary jurisdiction, and if the circumstances disclosed an offence of a grave character which would not be met by the maximum punishment which could be awarded by the Court of summary jurisdiction, the offender might be committed for trial If, on the other hand, it thought that the circumstances were such that bv the exercise of its power it could mete out adequate punishment, it could proceed to deal with him summarily. I have heard some criticism of the section since it has been incorporated in that Bill. It is urged that it practically deprives a man of saying whether he shall be tried summarily, or whether he shall be dealt with by the justices, with a view to being committed for trial, or being dismissed. That procedure is adopted in many States, under what is known as Petty Offences Acts. I admit that, when a man is brought up under a provision of this character, he may not know whether he should enter into bis full defence, or whether he should reserve it. If he were to reserve his defence, it is quite possible that he might be dealt with summarily, and, therefore, might be prejudiced in that way. On the other hand, he might disclose his defence fully ‘at the time, and be committed for trial. A criticism of that kind mav be levelled at the procedure here. But I would suggest that the way to get over the difficulty, if it is not desired to make it an indictable offence in all cases, is to leave out the word “indictable,” and to put in an alternative penalty. It would then be competent for those responsible for the prosecution either to institute proceedings for recovering the penalty in. a Court of lower jurisdiction, or to cause proceedings to be instituted in a Court of higher jurisdiction as for an indictable offence, and in every instance the accused person would know what attitude to take up in regard to his defence.
– I trust that in this clause the Committee will not impose a penalty by way of fine. An offence under the provision will almost inevitably be a political offence. It will be a refusal to give evidence before a Select Committee, or an endeavour to obstruct that body in obtaining evidence. It will nearly always be dictated by political bias. If we enact the alternative penalty of imprisonment, what will happen? It will be an inducement to a man of means and position to defy a Select Committee, and- endeavour to defeat the law, because he will know that he would be let off with a fine in a Court of summary jurisdiction. On the other hand, a man without means might nominally be fined, but actually it would be equivalent to imprisonment, because when he could not pay the money he would be imprisoned. I hope that the Committee will provide that the penalty in every case shall be imprisonment, and not fine. The same monetary penalty in the two cases would not be the same punishment.
– Does the honorable senator think that the same term of imprisonment would be the like punishment?
– Yes; because, in my opinion, the two men are equal in that respect.
– In any case, does the honorable senator think that we ought to make a felon of a man who commits these small offences?
– The clause makes a felon of a man who is unable to pay the fine imposed ; but the man who has money is given the option of paying the fine. A fine of £10 is infinitely more to a man without money than to a man with money.
– Is the penalty of imprisonment even in its application?
– Yes; because the loss of liberty is the same to each man. We might, I think, reduce the term of imprisonment from three to two years.
Senator Lt.-Col. GOULD (New South Wales). - If Senator Pearce follows out the doctrine he has just laid down, it will mean that, no matter what offence a man may commit, he shall be sent to gaol. A man may commit a purely technical offence, or an offence of very slight importance, and to send him to gaol would be very unjust and harsh.
– He would be sentenced to imprisonment until the rising of the Court.
– I admit at once that a fine of £:ro is a very serious thing to a poor man, and little or nothing to a rich man ; but that is one of the inequalities’ which will always exist. On the other hand, imprisonment for three months is as much to one man as imprisonment for three years is to another man. Technically they ought to be treated exactly alike, and they are by the Courts; but the punishment always falls much more severely on one man than on another. Undoubtedly the provision in the Wireless
Telegraphy Act would meet the position which has been ‘raised. It would enable a Court of summary jurisdiction to deal with the case if, in its opinion, the man ought not to be sent on for trial. It is quite possible that a man might be prejudiced in the way which Senator Keating has suggested, but that difficulty could be met by the insertion of- a provision to the effect that the magistrate should, if he considered that it was a case which ought to be sent on for trial, or dealt with summarily, exercise his discretion accordingly. Probably, the accused person would reserve his defence when he heard that, in the opinion of the magistrate, it was an offence of a serious character. I am quite willing to agree to the omission of the word “ indictable,” and to fix the term of imprisonment at two years. The question as to whether the punishment shall be inflicted by fine or imprisonment can be fought out later on.
– I object to the creation of all these indictable offences, accompanied as they are bypenalties of varying terms of imprisonment. Whether they apply to rich or poor, it is a great mistake to enact provisions which will make felons of a number of persons who may be guilty of only comparatively minor offences. We are dealing with a Bill to provide for the mode of taking evidence before Select Committees. We have already passed a measure to provide the mode of taking evidence before Royal Commissions. I presume that a Royal Commission is not inferior in status, objects, or powers, to a Select Committee of either House. But in the Royal Commissions Act we provided for only one penalty of £50. Nowhere in the Act is a term of imprisonment fixed as the penalty for committing an offence thereunder. May I ask the Ministers whether thev are in charge of this Bill?
– Senator Gould took charge of the Bill on behalf of Senator Neild.
– May I ask who has taken the place of Senator Gould since he left the Chamber to catch his train ?
– Before Senator Gould left he asked me to look after the Bill in his absence.
– I take it that the honorable and learned senator can only act here in one capacity. Is this a Government measure?
– Are we to understand that the honorable and learned senator has taken charge of private business?
– Its a very extraordinary thing that an honorary Minister should be in charge of a private measure. Such a proceeding in any Parliament is unknown to me. I point out that clause 9 deals with an important offence, which strikes at the very root of this measure. That clause deals with a person who pays no attention whatever to a summons, and yet the only punishment provided is a monetary penalty. If it were Senator Pearce’s long-suffering poor man who committed this offence, he would not have the money to pay, and would get off absolutely scot-free; and I do not think that even Senator Pearce would say that the offence contemplated in clause 8 is more serious than that contemplated in clause 9. I oppose every attempt to create indictable offences of this character, and shall give my support to the amendment.
Question. - That the word proposed to be left out be left out - put. The Committee divided.
Majority … … 5
Question so resolvedin the negative.
Senator MILLEN (New South Wales). - With a view to providing a shorter term of imprisonment, I move -
That the word “ three,” line 5, be left out, with a view to insert in lieu thereof the word “ two.”
It may possibly be regarded as reasonable to substitute a punishment of two years’ imprisonment, and, while I am not wedded to any particular term, I desire to have the shortest the Committee will agree to.
Amendment agreed to.
Proposed new clause, as amended, agreed to.
Amendment (by Senator Keating) proposed -
That the following new clause be inserted : - “9. (1) If any witness, upon whom a summons under this Act has been served, fails without reasonable excuse, proof whereof shall lie upon him, to appear or to continue in attendance in obedience to the summons, he shall be guilty of an offence against this Act,
Penalty : Fifty pounds.
Senator PEARCE (Western Australia). - I move -
That the words “ fifty pounds,” line 7, be left out, with a view to insert in lieu thereof, the words “ two years’ imprisonment.”
I submit this amendment because I think Senator Clemons’ contention is correct, that this clause is altogether inconsistent with the remainder of the Bill. Every other clause provides for a penalty of imprisonment, and there is no reason why we should make an exception in the present instance. The offence dealt within this clause is as. deserving of imprisonment as the offences mentioned elsewhere.
Senator KEATING (Tasmania- Honorary Minister). - This is only one of the penalties that may be imposed on a person guilty of this offence. We provide in clause 6 that, in the event of a witness acting in the way described, a warrant may issue to compel his appearance in obedience to the summons, and in the schedule there is a form of warrant under which the witness may be brought before the House or the Committee, and dealt with otherwise than by punishment on summary conviction. This. I take it, is a different offence from those already dealt with ; and there are two methods of dealing with the offender, neither of which is exclusive of the other.
Senator MILLEN (New South Wales). - I cannot enter into the spirit of honorable senators who propose to multiply crimes and criminals in this way. Such a course makes offences of acts which, in the ordinary view–
SenatorMILLEN. - If the honorable senator were offered the choice between paying a fine or going to prison for a month, he would know the difference. I reiterate my protest against adopting the severest form of penalty which can be inflicted.
Question - That the words “fifty pounds,” proposed to be left out, be left out - put. The Committee divided.
Majority … … 1
If it appears upon a division (by which division no decision shall be considered to have been arrived at) that a quorum is not present, the Chairman shall leave the Chair of the Committee, and the President shall resume the Chair.
In the Senate.
The Chairman of Committees, having reported accordingly,
– Order ! No honorable senator must leave the Chamber after attention has been drawn to the want of a quorum.
– Senator Millen has already left the Chamber.
– I did not see him leave.
– He left before the President spoke.
– He ought not to have left. [Quorum formed.]
Amendment again put and agreed to.
Question - That the words “ Two years imprisonment ‘ ‘ be inserted - resolved in the affirmative.
Clause, as amended, agreed to.
Amendments (by Senator Keating) agreed to -
That the following new clauses be inserted : - “9. (1) If any witness, upon whom a summons under this Act has been served, fails without reasonable excuse, proof whereof shall lie upon him, to appear or to continue in attendance in obedience to the summons, he shall be guilty of an offence against this Act.
Penalty : fifty pounds.
The fact that a witness has been apprehended, and brought before either House or a Committee shall not relieve him from liability under this section.” “ 10. Whoever, by act or omission, dissuades or prevents any witness from obeying a summons under this Act, shall be guilty of an indictable offence.
Penalty : Two years’ imprisonment.” “ 11. (1) Either House may take evidence on oath or affirmation, and the Clerk of the House may administer oaths or affirmations to witnesses appearing before the House.
A Committee may take evidence on oath or affirmation, and the Chairman may administer oaths or affirmations to witnesses appearing before the Committee.” “ 12. The oath or affirmation administered to a witness may be in accordance with Form C or D in the Schedule, as the case requires.” “ 13. A witness who conscientiously objects to take an oath shall not be compelled to take an oath, butmay be compelled to make an affirmation.” “ 14. If any witness refuses, without just cause, proof whereof shall’ lie upon him, to bc sworn or make an affirmation, or to answer any question put to him by the House or the Committee before which he is summoned, or by any member thereof, or to produce any document which he is required by the House or the Committee to produce, he shall be guilty of an offence against this Act.
Penalty : Two years’ imprisonment. “ “ 15. Any person who wilfully gives false evidence on oath or affirmation before either House or before a Committee shall be guilty of an indictable offence.
Penalty : Five years’ imprisonment.”
– I move -
That the following new clause be inserted : - “ 16. Whoever uses, causes, inflicts, or procures any violence, punishment, damage, loss, or disadvantage to any person for or on account of his having appeared as a witness before either House or before a Committee, or for or on account of any evidence lawfully given by him before cither House or before a Committee,’ shall be guilty of an indictable offence. Penalty : Two years’ Imprisonment.”
– I move -
That the word “ indictable,” line 8, bc loft out.
Honorable senators must recognise that it is rather severe to make the offences enumerated in this clause indictable. The clause may be divided into two parts, tout it is a serious matter to make the term apply to all the offences.
Senator KEATING (Tasmania- Honorary Minister). - I think it would be inadvisable to eliminate the word “ indictable.” The clause deals with a very serious class of offences - the interference with witnesses summoned to give evidence. before a parliamentary Committee with the object of preventing them from giving their evidence, and so defeating the attainment of the objects for which the inquiry has been instituted. It has been pointed out more than once that we do not necessarily subject every individual who may be found guilty to the maximum penalty indicated at the foot of the clause. In this case, the maximum is two years’ imprisonment; but there is nothing to prevent any Court, if the circumstances warrant it, -imposing a trifling sentence. On the other hand, the circumstances surrounding an offence might be of a very serious character indeed. Bodily harm might be done to a witness.
– I call attention to the state of the Committee.
– I call attention to the fact that Senator Millen, after he had, a few moments ago, called attention to the absence of a quorum, immediately left the Chamber.
– I cannot take notice of that.
– It is not correct, either. [Quorum formed.’]
– I was pointing out that the circumstances in a case of this kind might be such that a person summoned as a witness might sustain great bodily harm or very severe loss of property. We know that in order to prevent persons giving evidence, there are some people who might resort to violent measures and great extremes, if they thought they could do so with any degree of safety to themselves. It is necessary when providing penalties to meet such cases that we should bear in mind not only trivial offences, but also the most serious offences that might occur. Seeing that the principle we follow in attaching penalties to sections in Acts of Parliament is to fix a maximum penalty, we are not, I think, in this clause imposing too severe a penalty by providing for a maximum of two years’ imprisonment ; nor are we when we say that an offence under the clause shall be an indictable offence, providing that the offence for which a person may be prosecuted under the clause shall be of too serious a character. It will rest with thi1 Attorney-General to institute proceedings, and where the circumstances disclose an offence of a trivial character, it is not usual for a person occupying the responsible position of Attorney-General to subject an individual to a prosecution by way of indictment. I ask the Committee not to agree to the- amendment.
Clause agreed to.
In Committee (Consideration resumed from 22nd September, vide page 2679) :
Clause 26, as amended -
Any second or subsequent edition of a book containing material or substantial alterations or additions shall be deemed to be a new book, but so as not to prejudice the right of any person to reproduce a former edition of the book, or any part thereof, after the expiration of the copyright in the former edition.
Upon which Senator Givens had moved, by way of amendment -
That, after the word “book,” line 3, the following words be inserted, “ and the copyright in the same shall vest in the then owner of the copyright of the former edition.”
– It will be within the recollection of honorable senators that we had a long discussion on this particular clause, and I moved an amendment which seemed torecommend itself to the good sense of the Committee. Since we last discussed the clause, I have had a consultation with the Minister in charge of -the Bill, and the amendment has been put in proper form, and has been circulated. I believe that as it is now framed it is acceptable to the Minister. I wish to withdraw the amendment which I previously moved.
Amendment, by leave, withdrawn.
Senator GIVENS (Queensland). - I now move -
That the following words be added to the clause - “ Provided that while the copyright in a book subsists no person, other than the owner of the copyright in the book, or a person authorized byhim, shall be entitled to publish a second or subsequent edition thereof.”
The object of the amendment is to prevent any wrong being done to the owner of a copyright by the author, or joint authors, of a book, making some substantial alteration, and then securing a new copyright for the new edition of the book. It will also protect the right of joint authors, where any alterations are made by any one of them, to the extent that no one of them can get a new copyright in the bookto the prejudice of the others. The amendment will in no way injure the author, because, while apparently it compels him to make terms with the original publisher, he has always a remedy. If the publisher does not choose to accept fair terms, the author can publish his alteration in an appendix, or a new book, which will be entirely his own. As I think the matter has already been sufficiently discussed, I content myself with simply moving the amendment.
– As indicated by Senator Givens, I have gone into this matter with the honorable senator. Although I think that the clause as it stands provides for what he desires, I understand that the amendment will meet the wishes of the Committee, and I have no objection to its acceptance, so that every honorable senator may be certain that the right which he desires to have secured shall be secured without any doubt.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 27 -
Copyright in a book shall not be infringed by a person making an abridgement or translation of the book for his private use (unless he uses it publicly or allows it to be used publicly by some other person), or by a person making fair extracts from, or otherwise fairly dealing with, the contents of the book for the purpose of a new work, or for the purpose of criticism, review, or refutation, or in the ordinarycourse of reporting scientific information.
SenatorPEARCE (Western Australia). - I do not wish to propose an amendment on this clause, but I should like to askthe Minister whether he considers that the wording of it is sufficient to fully protect the copyright of writers of articles, or whether it does not leave a loop-hole for what is practically the theft of such copyright? The clause provides that copyright in a book shall not be infringed by extracts made for the purposes of criticism, review, or refutation. Theworo “review” is very elastic, and its use in this clause may open the door to all sorts of theft of copyright. I have here a copy of Life, a so-called review which is published in Australia. From cover to cover it is nothing but a theft of the copyright of other persons, and a theft with the very barest acknowledgment. In the name of a review, the editor of this publication practically takes articles without payment from all the journals of the world. He is thus able, without cost to himself, to take advantage of the product of the brains of writers throughout the world. I am afraid that this clause will perpetuate such a state of things. I have marked a number of these thefts in the August number of this publication. Here is a sample of the “review “ of these pirated articles. In connexion with an article on “ Imported Fun.” this is the sole original matter published by the editor of Life -
Agnes Deans Cameron, Principal of South Park School, British Columbia, contributes to the Century a paper on school-child humour, We quote some examples that have come under her personal notice.
The editor then proceeds to appropriate practicallythe whole of this article for his publication. I contend that this is not in the slightest degree a review of the article. The same thing apolies to almost every article appearing in this number of this so-called review. Two or three words of introduction are given, and then the whole article ‘as put in. With very few exceptions, the review in question is prac- tically made up in this way. It would be a farce to profess to give copyright to the writers of articles, and allow any person to pirate their productions in an indirect way by the mere preface of a few introductory words. I,t isi evident that this procedure is legal under the different States Acts, because this publication circulates throughout Australia. I presume that if it were not legal, the writers of pirated articles would have taken some action to prevent; this infringement of their copyright. I should like very much to know whether this kind of thing would l>e legal under the clause now before the Committee ?
– Senator Pearce has cited an illustration of what appears to him to be an infringement of copyright. While not dealing specifically with this case, I point out that the law is that it is competent for any person to review the literary work of another. And for that purpose it may be necessary for the reviewer to draw to ‘some extent on that work. The law holds that, so long as the reviewer draws upon a work for the reasonable purposes of review and criticism, he is not infringing the copyright of its author. But if he steps beyond that reasonable boundary, then he is guilty of an infringement of copyright. In Copinger’s Law of Copyright it is stated at page 159 of the fourth edition -
Many pases of extracts for criticism have come before the Court. It is obvious that quotations to some extent must in some cases be made from the work reviewed, and this abstract right of the reviewer has never been impeached. To deny this privilege _would be, as
Lord Kinloch once said, “ to sentence to death all our reviews, and the greater part of our works in philosophy.”
Then come under consideration a number of instances in which the question whether the reviewer has or has not overstepped the lawful limits of quotation and extract is considered, and this rule is laid down -
Whether the limits of lawful quotation have been exceeded is a question to be governed by ‘ the circumstances in each case.
Then follow some instances in which it has been decided that those limits have not been overstepped, and other cases in which it has been decided otherwise but, as I pointed out. each case must depend entirely on its own circumstances. The proposal in the Bill is not to extend the rights of reviewers as they are held and enjoyed at present, but simply ‘to state that they may abridge or quote for the purposes of review. In every book on the subject of copyright there are given a number of cases more- or less interesting, simply for the purpose of showing as nearly as may be practicable to the reader whereabouts a dividing line can be drawn. But it is hard to set down as a hard-and-fast principle where the line in every instance should be drawn. Here is a case very much like the one to which Senator Pearce referred -
In a case in which the work alleged to be pirated was a play extending over forty pages, and the defendant had published a journal of theatrical criticism, in which, as illustrative of his critical remarks, he had introduced broken and detached fragments of the piece in question, amounting, in the whole, to six . or seven pages, some weight appears to have been allowed by the Court to the fact of the extent of the extracts being so inconsiderable, as affording ground for doubt whether the defendant had transgressed the limits of fair quotation.
Then there is a recent case of the proprietors of the Times against the proprietors of St. James’s Gazette -
In a recent case the proprietors of the Times brought an .action against the proprietor and publisher of the St. James’s Gazette to restrain the defendants from further publishing any copy of a newspaper containing any copy of an article by Mr. Rudyard Kipling, or substantial portions thereof, and also extracts from the Times contained in twenty-two separate paragraphs of the Gazette of the 13th of April. An interlocutory order had been made, restraining the publication of the Rudyard Kipling article. It was not denied by the defendants that they had copied some two-fifths of the article, and all the paragraphs from the Times practically verbatim, but it was contended that the consent of the proprietors of the Times might be assumed, if the four following conditions were observed : - (i.) That the source of the information was acknowledged : (ii.) That the paper copying and the paper copied were not direct rivals or competitors; (iii.) That the paper copied from had also copied, thereby implying that it agreed to a free interchange of literary and other matter; ,(iv.) That the editor of the paper copied had given no notice of his objection to matter being copied.
Eventually, after discussing the circumstances of the case, it was held that the defendants were entirely wrong in taking por-tion of a story by Rudyard Kipling, which1 had been published in the Times, and printing it in their own newspaper, and acknowledging the source of origin. The whole question is, do the quotations made by the “reviewer serve the purpose practically of a substitute for the work which he purports to review or criticise? If thev do substantially serve as a substitute for them, then obviously it is depriving the writer of the work of some of the benefits to which he is entitled. In a magazine published in Australia I have noticed several instances in which I should be inclined to think that the proprietors have transgressed very much the limits of legitimate quotation, but it does not always follow that it must be an extensive quotation. A case which arose in London out of the Boer war is referred to in Hinkson’s hand-book on copyright, atpage 58, in these terms -
An interesting case (Constable v. Martin and others, December, 1902), came before Mr. Justice Byrne in the Chancery Division, having reference to an infringement of copyright in a portrait and signature. The plaintiffs published a history of the Boer War, by General Christian de Wet, the volume including a portrait of the author, together with his signature. Copies of the book were sent out for review to the press in the ordinary course, and, amongst others, to the defendants’ newspapers - The Newcastle Daily Leader and The Northern Weekly Leader. In reviewing the book, both these papers published the portrait and signature of General de Wet. The plaintiffs thereupon sought an injunction to restrain the publication. The case was settled by the defendants agreeing to pay the full costs as between solicitor and client, and to give up all blocks and pictures connected with the appearance of the portrait in their papers. The plaintiffs waived their claim to damages and an account of profits.
In dealing with this point, Mr. Hinkson says : -
It should be understood that in all cases the extracts from a copyright book under review are republished at the risk of the person or persons republishing such extracts. Whether more is taken than is necessary for the purpose of an adequate review is a question of fact.
If a man starts to review a work, he makes every extract at his own risk. If he steps beyond the legitimate bounds or necessities of extract, for the purpose of review and comment, then he infringes the copyright of the author. It is not a matter which can be decided by attempting to draw a hard-and-fast line, but must be determined by the circumstances of each case. Of course, the matter cannot come up for consideration unless the party who imagines that he is aggrieved takes action to restrain the further publication of extracts from works, or takes action for damages for infringing a copyright. And, in every instance, it would be for the tribunal before which the case was brought to look at the quotations, and, judging by all the surrounding circumstances, to determine whether or not the reviewer or critic had stepped beyond the legitimate bounds of quotation, and if he had to determine that he had in fringed the rights of the other party, and award damages accordingly. The damages would be proportioned to the injury done. Of course, Senator Pearce and others will recognise that, in many instances, a legitimate review or criticism of a work is of great value. It acts not merely as a substitute, but as an incentive to the readers of criticism to get a copy of the book, in order that it may be read at length. That is one of the reasons why an author sends his work round forreview. But if the proprietors of periodicals and magazines step beyond the legitimate bounds, and practically lift the gist of a work, then, undoubtedly, they are not reviewing the work, but infringing the rights of its author.
Clause agreed to.
Clause 28 -
Where the author has parted with the copyright in his book, and a translation or abridgment of the book is made with the consent of the owner of the copyright by some person other than the author, notice shall be given in the title page of every copy of the translation or abridgment that it is not made by the author.
– Two questions occur to my mind in regard to the clause. In the first place why should notice have to be given, and, in the second place, if the form of notice is not adhered to, what penalty is provided for a breach of the provision?
– If an author has parted with the copyright in his book, he none the less holds himself forward to the world as responsible for the material therein from both the literary and material stand-point, and his reputation should not be subject to any injury on the part of the translator. The object of the provision is to preserve the author of a book in the cases dealt with from being criticised, as its translator, should the translation contain any errors.
– Does the last line of the clause mean that the name of the translator must be given, or that it must be acknowledged that the translation is not made by the author ?
– The clause, as it stands, does not expressly throw upon the translator the necessity of stating who he is.
– Would it be sufficient tosay that it was translated by so and so?
– But does that comply with the request to state that “it is not made by the author “ ?
– We should not compel a translator to use his own name. Very often a man may wish to publish anonymously, or pseudonymously, a book which he has translated. If we impose the condition that the name of the translator must be attached to the book, it would bar a man from publishing a translation anonymously or pseudonymously. So long as the notice on the page indicates that the translation is not made by the author, that will suffice. An author should not be held . responsible for the correctness of an independent translation of his work, or the method or material of the translator. It is obvious that many errors may creep into the translation of a book,’ and without this provision the reputation of the author of the book might seriously suffer, if he were to be held responsible for such errors. The object is that the author shall not be bound by any error which may creep into such a translation.
– I am referring to the limitation on the way in which the notice can be given.
– If the Committee desire to make the matter clearer, I shall offer no objection, so long as the spirit of the clause is not departed from.
– Might the end not be attained by inserting such words as “some person other than the author”?
– I think that might meet the case, and I move -
That the words “ is not,” line 7, be left out, with a view to insert in lieu thereof the words “has been”; and that after the word “by,” line 7, the words “ some person other than,” be inserted.
Amendments agreed, to.
Senator MILLEN (New South Wales). - I now ask whether any penalty is proposed for a breach of this provision? It is obviously useless to make a provision of the kind unless we attach some penalty.
Senator KEATING (Tasmania- Honorary Minister). - The object of the clause is that the author’s reputation shall not be prejudiced. A summary penalty is not provided, but if an author is injured by the omission on the part of a translator to comply with the clause, he will have ground for an action for damages. If we provide a penalty, and a penalty is imposed, there could be no further remedy, and a translator might continue to injure the reputation of an author.
Clause, as amended, agreed to.
Clause 29 - a
Where a translation of a book into a particular language is not made within ten years -
– Is the word “ Minister “ not an error? The word occurs three times in the clause, and I think that “Registrar “ is meant. I take it that, to all intents and purposes, the registrar is to have control of the administration, and the word “ Minister “ is not mentioned anywhere else in the measure.
Senator KEATING (Tasmania- Honorary Minister). - This is a desirable provision for many reasons. It is necessary that the discretion shall be that of the Minister rather than of an officer like the registrar, whose duty Will mainly consist of registration work, and partake little, if any, of a judicial character. This provision is international in its character, carrying out the spirit of article V. of the Berne Convention.
– But in time will the registrar not become more a literary man than any chance Minister may be?
– In ‘these matters a Minister does not act personally, but with a due sense of the responsibility cast upon him, and after proper consideration and report from his officers. Article V. of the Berne Convention provides -
Authors of any of the countries of the Union, or their lawful representatives, shall enjoy in their countries the .exclusive right of making or authorizing the translation of their works, during the whole duration of the right in the original work.
But the exclusive right of translation shall cease to exist where the author shall not have made use of it within ten years from the first publication of the original work, by publishing, or causing to be published, in one of the countries of the Union, a translation in the language for which protection shall be claimed.
Acting on that principle, it is provided that, at the end of ten years, if any one desires to translate a work, he may make application in writing to the Minister, who will have control of the measure, as provided in the Acts Interpretation Act. Section 17 of that Act provides - “ The Minister “ shall mean the Minister for the time being administering the Act or .enact’ ment in which, or in respect of which, the expression is used.
Which Minister shall have control is, of course, a matter for subsequent arrangement.
– “ Minister ‘’ is mentioned in clause 12.
– Clause 12 provides that all powers and functions under any State Copyright Act shall vest in the Governor-General, or in the “ Minister, officer, or authority” exercising similar powers under the Commonwealth.
– There might be one Minister under that clause, and another Minister administering the Act.
– I think the object is to allow the Minister administering the Copyright Act to exercise all the functions heretofore exercised by the Ministers administering similar Acts in the States.
Clause agreed to.
Clause 30 -
Copyright shall subsist in a lawfully produced translation or abridgment of a book in a like manner as if it were an original work.
– In whom will the copyright subsist?
– In the author of the translation or abridgment which, under this clause, has been lawfully produced.
– Is the Minister quite satisfied that the clause makes the intention clear?
– Presuming a copyright in a book ran out, and somebody then translated it for the first time, the copyright of the translation would subsist in that person as if it were an original work.
– That opens up interesting possibilities; and if the Minister is satisfied that the object is made clear, I am not.
– In this clause we say that the copyright shall subsist as if the work were original, and under clause 18 it is provided that’ the author shall be the first owner of the copyright in a book which includes also any translation or abridgment he himself may make.
– Suppose one person is the author, and another person is the translator?
– If the translation is lawfully produced, then the copyright of that translation .subsists in the translator. If a translation of a book be made with the consent of the author or owner of the copyright, it is treated as a new book, to the copyright of which the translator is entitled.
Clause agreed to.
Clause 31 -
– I direct attention to the question whether the word “may” is used correctly in this clause. Surely it ought to be “shall.” Here we state that certain circumstances shall entitle a plaintiff to a verdict. Then we proceed to say that the Court “may” grant him a verdict. Surely we ought to say that the Court “shall” do so.
– The honorable senator’s point opens up a question that we have often had to deal with in the States, as to the desirableness of using the word “may” or the word “shall” in connexion with certain officials. The very fullest consideration has been given to the point, not only in reference to this Bill, but as to the use of the word in a similar connexion in the drafting of other measures. The clause provides that in a certain set of circumstances, where the defendant would be entitled to a verdict, judgment may be given in his favour. In other words, we set out that, the conditions precedent being fulfilled, the defendant has a certain right. We use the word “may,” however, in connexion with a Court, “because it is considered to be the correct word to use as to Courts of justice, and also as to the Governor-General.
– The word “may” is used because it is thought to be more courteous than “shall”?
– Exactly ; and because we have the highest confidence that the Courts will do justice in accordance with the oaths of office of their members. We never use the word “shall” in connexion with a Court, but the Court always construes the word “may” in relation to its own duties as being mandatory where a right has been established. The draftsmen have carefully considered the matter. In going through the Bill with them some time ago. I myself drew attention to this point, but I was convinced that it is not’ desirable to use the word “shall” in this sense. The word’ “may” will always be taken by a Court as casting a duty upon it, and we can have the fullest confidence that that duty will be discharged.
Senator MILLEN (New South Wales). - Senator Keating’s statement simply amounts to this - that what is meant is “shall,” but that considerations of courtesy to the Court make it desirable to say “may.” I know what the practice is, but I think that it is extremely desirable that we should say in an Act of Parliament precisely what we mean. I know that it is not usual to employ the word “shall” in an Act affecting the duties of the GovenorGeneral or of Courts of justice. But if Senator Keating’s contention be upheld, there was no need to introduce paragraphs a and b. If a plaintiff establishes his right to a verdict clearly, he is entitled to have that verdict given to him. To say that the Court “may” give him the verdict to which he has a right is to reduce the whole matter to an absurdity.
– We say that he may get costs.
– The discretion given to the Court in the granting of costs is a necessary one, because proceedings might be instituted on vexatious grounds. But where we set out that certain conditions constitute a right, and that right is infringed, and where we provide also that when the plaintiff proves certain things he shall be entitled to a verdict, we ought not to say that the Court “ may “ grant him that verdict. Having secured him in his right, we turn round and say that the Court shall have a discretion as to whether he shall enjoy his right. Because certain things occurred in the past, when people stood in greater dread of high personages than we do .to-day, that is no reason why we should keep up the pretence. The phraseology of our Acts of Parliament shows the origin of Bills as petitions presented to the Crown. But no consideration for the feelings of a Court warrants us in using in an Act of Parliament the word “ may “ when we mean “shall,” and we ought not, after using the wrong word, to explain it by saying that the Courts will know what we mean.
– We shall get into difficulties if we use the word “shall” in our Acts of Parliament when the word “may “ has come to have a wellunderstood meaning. From a layman’s point of view there is much in what Senator Millen has said, but from a lawyer’s point of view what the word “may” means is perfectly well understood. If we begin to wobble about between “ may “ and “ shall “ we do not know what confusion will arise. I see no objection to the clause as it stands.
Senator MILLEN (New South Wales). - I move -
That the word “ may,” line 4, be left out,, wilh a view to insert in lieu thereof the word” “shall.”
There may be some force in what Senator Dobson has said, but there remains the question whether it .Is desirable to bring about the reform which the substitution of “shall” for “may” would lead to. Because we have used the word “may “ whenwe meant “shall” for so many years, wc are told : “ Do not let us introduce a wordwhich expresses more completely what we have in our minds, on account of the inconvenience that may arise.” Such inconvenience attaches to every reform
Senator KEATING “(Tasmania- Honorary Minister). - There is a good deal in what Senator Dobson has said that ought to induce the Committee not to accept the amendment. The word “ may “ is invariably used in connexion with Courts, and has a definite construction. If we introduce “shall” we shall give occasion for doubt in the construction of our Statutes. Maxwell on the Interpretation of Statutes gives two or three instances where the word “may” is dealt with. It contains the statement-
Though the 11 and 12 Viet., c 42, s. 9, enacted that justices “ may “ issue a summons on an information laid before them, only, “ if they shall think fit,” it was held that they were not at liberty to refuse it on any extraneous considerations, such as that the prosecution was inexpedient, or that the law would operate unjustly in the particular case.
Again, the authority from which I quote says -
So, in Backwell’s case, Lord Keeper North held, and of the same opinion were all theJudges, that the Statute which enacted that the Chancellor “should have full power” to issue a commission of bankruptcy against a bankrupt trader, on the petition of his creditors, imperatively required its issue; declaring that “may” was in effect “ must “… Under the provision of s. s of the Arbitration Act 1889, that where a submission provides that the reference shall be to a single arbitrator, and alf parties do not concur in appointing an arbitrator, any party may serve the other parties with a written notice to appoint, and if the appointment is not made in seven clear days, the Court “ may,” on the application of the party whogave the notice, appoint an arbitrator, it is obligatory on the Court to make an appointment if applied to.
In all the cases referred to the word “may “ was used in connexion with the Court. Here is another case -
A bankruptcy rule, which provided that where the court has given no directions as to the disallowance of the costs of improper or unnecessary proceedings, the Taxing Master “ may “ look into the question, was held equally imperative.
– The honorable and learned senator does not pretend that any
Other interpretation would be given than that “shall “ means “ shall “?
– It is desirable that we should adhere to the language that is universally adopted in Commonwealth and State Acts and in the old country. When the reasons for change are weighty we should be influenced by them. I do not say that the construction necessarily placed upon the word “ shall “ would be wrong, but it is desirable that we should preserve uniformity until there is something in the nature of an uniform deviation from it.
Senator MILLEN (New South Wales). - It is undesirable to continue that form of drafting if it requires twenty lines to set
Out what might be clearly stated in five or six. All that it was necessary to do was to say what constituted a right, and what constituted an infringement of that right, leaving the Court to determine whether the verdict in any case should be in favour of the plaintiff or defendant.
– But “ may “ means “shall “ here.
– I am aware of that, but is it not absurd to say so? -Why should we say that the Court may do something which’ we know it will do? I decline to believe that any Court intrusted with discretion would find for the defendant if the merits of the case were clearly with the plaintiff. There is no need to say that the Court shall enjoy a discretion which’ all Courts do enjoy from, the very nature of their functions.
– If Senator Millen has made up his mind to depart from accepted legal verbiage, he will have a very great deal to alter. The honorable senator understands as well as I do that a “ nominal consideration,” which’ is usually fixed at ten shillings, really means nothing, and is only a legal fiction. When we know that “ may “ means “ shall,” we should leave the clause as it stands.
Senator DOBSON (Tasmania). - In measures of this kind “ may “ almost invariably means “ shall,” and Senator Millen has overlooked the fact that if he insists on the use of “ shall”- in this Bill, whilst “may” is used in other similar measures, the Courts will have a most perplexing task given them to decide what their discretion in a particular matter is.
– Would it not have been better to have stated shortly what was a right and what was an infringement of it?
– It might have been; but, speaking generally, I have found this Copyright Bill to be an admirably drafted measure, and I should not care to interfere with any of these provisions, unless an absolutely good reason for doing so is given.
Clause agreed to.
Clause 32 (Report of lecture in a newspaper).
Senator DOBSON (Tasmania).- In discussing the interpretation clause, I presume we shall have another opportunity of dealing with the matter to which I propose to refer, but I should like to know whether the word “lecture” will be held to include a sermon?
– In the interpretation clause as it at present stands, the word expressly excludes a political speech or a sermon.
– I think we ought to. consider whether a man who preaches a set. of really good sermons should not have copyright in them. In my young days I read many most admirable sermons by men like Robertson. Caird, Temple, and Kingsley. It seems to me that such sermons are as worthy of protection by copyright as are lectures.
Senator KEATING (Tasmania- Honorary Minister). - Senator Dobson will have an opportunity to refer to the matter when we are considering the interpretation clause. In the meantime I may say that there is nothing to prevent a preacher of good sermons obtaining copyright in them. Honorable senators must distinguish between copyright and lecturing right. If a clergyman prepares a series of sermons he will have no lecturing right in them, but if he publishes them in the form of a book he will have copyright in them. If, on the other hand, a man prepares matter which will come within the definition of a lecture, he will have a lecturing right in his produc- tion. He may part with the manuscript of his lecture, and still retain his lecturing right; and if he should publish his manuscript in a form which will come within the definition of a book, he may at the same time hold a copyright and a lecturing right in respect of the same production.
– Why should there be any discrimination between a lecture and a sermon ?
– It has been the law throughout that sermons and political addresses are not the subject of a lecturing right, although if printed they are held to be the subject of copyright.
– If celebrated men like Kingsley and Farrar deliver a series of sermons, is it legal for ai shorthand writer to take them down and then publish an edition of them?
– Sermons are delivered ordinarily in a place of public worship, which is open to the world, and once delivered they are held to be dedicated to the public. That is the principle, I take it. on which sermons are excluded from the protection of a lecturing right. In many instances a lecture is not delivered to the world’, and the lecturer reserves to himself the right to make a charge to people who desire to hear his lecture. Sermons and political addresses are delivered in such circumstances that in the eye of the law they are held to lie dedicated to the public from the moment of their delivery.
Clause agreed to.
Cause 33 -
– I am aware that Senator McGregor has circulated an amendment to this clause, but I wish to direct attention to the words “specially and independently.” As these words are used in this clause, I think it is wise to consider whether they might not interfere with the operations of a combination of newspaper proprietors to obtain cablegrams. The big metropolitan dailies of Sydney and Melbourne combine to have one cable service, and I question whether under this clause they could be said to act independently.
– They form a newsagency.
– No; because they do not supply news.
– They form a monopoly, or a ring. .
– Any reference to’a business on a big scale and with a little money behind it is sufficient to bring the indignation of Senator Givens to boiling point. I believe that the object of the clause is to secure to newspaper proprietors combining in this way twenty-four hours’ copyright in the cables which they receive, but it does seem to me that, as it is worded, the clause might block co-operative action by newspaper proprietors. It is verv necessary that the matter should be looked into, because, in all the States the proprietors of country newspapers have made a practice of publishing cables which appear in the metropolitan papers. If the clause is effective in giving newspaper proprietors who have combined in the way I speak - of a copyright of twenty-four hours’ duration in their cables, we shall have a number of other (newspaper proprietors, who are unable to pay for an independent cable service, joining together in some way or other to secure cable information, just as the proprietors of the metropolitan newspapers now do. Senator McGregor’s proposed amendment deals with that aspect of the case, but I think it will be many years before we shall have newspaper proprietors independently providing for a cable service. I. ask Senator keating whether he thinks the words “specially and independently” would not absolutely prevent copyright accruing to the metropolitan newspaper proprietors who to-day do not act independently, but in unison.
– Since the adjournment for dinner, I have looked at the clause in the light of the criticism which was offered by Senator Millen. I think that the word “proprietor,” as used in the first line, would be held to cover the case of a number of proprietors acting in conjunction in the way he described; but in order that there may be more clearness, perhaps his views will be met by the omission of the words “ and independently “ in the second line, and the words “ in the same manner” in the fourth line, and the insertion in the place of the latter of the word “independently.” With those alterations made, the clause would read as follows: -
The proprietor of any newspaper or news agency who has obtained specially news of any fact or event which has taken place beyond the limits of Australia, shall, as against all persons who have not obtained the news independently, be entitled for the space of twenty-four hours immediately succeeding its publication to the exclusive right of publishing that news.
It is quite conceivable that there may be some persons who, acting in conjunction, may get news into Australia from abroad, and that outside that body there may be an individual person who may obtain the same news from1 abroad. Suppose that the clause is amended as I suggest, then if any one who had not obtained the news independently from abroad were to publish that news it would be competent for any one of the proprietors in the combination who had obtained the news by special arrangement from abroad to take proceedings and enforce the penalties provided in clause 3.
Senator MILLEN (New South Wales). - So far as I can see, the amendments which Senator Keating has suggested admirably meet the case I submitted. I am obliged to him for having looked into the matter. I trust, however, that if they be found not to be quite sufficient he will consider the expediency of making the clause clearer.
– I shall have no objection.
– I am inclined to- think that, although the suggested amendments may meet the situation, still the clause will not be absolutely clear. I would suggest the insertion of the words alone or in conjunction with others,” after the word “ who,” in the first line.
Senator MILLEN (New South Wales). - Of the suggested amendments, I am inclined to think that it would be an advanrage to adopt that of Senator Dobson.
– I have no objection to the amendment other than that it will lengthen the clause a little.
Amendment (by Senator Dobson) agreed to-
That, after the word “who,” line 2, the words “ alone or in conjunction with others-“’ be inserted.
Amendments (by Senator Keating) agreed to -
That the words “ and independently,” lines 2 and 3, and the words “in the same manner,” line 6, be left out.
Amendment (by Senator Keating) proposed -
That the word “ independently.” be inserted after the word “ news,” line 6.
– I should like to know the effect of inserting the word “independently.” Will it mean that the proprietor of a newspaper, acting independently, will be entitled for the space of twenty-four hours to the exclusive right of publishing the news, or will it mean a proprietor who has obtained the news independently?
– The latter.
– In that case is it not proposed to insert the word in the wrong place?
– No; previously we had the words “ in the same manner.”
– But this is a prohibition against a person who has not obtained the news independently.
– Two persons acting independently may get the news of an event, and both would be entitled to publish it.
– But this part of the clause applies to a person who has not obtained the news independently. I think that the words “ in the same . manner “ were preferable to the word “ independently.” If a man is a member of the combination he is entitled to publish the news independently, otherwise he is not so entitled.
– Does not the honorable senator see that a person outside the combination may obtain the news independently, that is in like manner?
– I should like to hear a better reason given for the insertion of the word “independently.”
Senator KEATING (Tasmania - Honorary Minister). - Before the amendments were made the clause said that the proprietor of any newspaper or news agency who had obtained specially and independently news had the exclusive right of publishing it for the space of twenty-four hours as against all persons who had not obtained the news in the. same manner. It is quite possible that some person may obtain the news independently pf the others, that is in a like manner. Therefore, it is now proposed to say that a person who has obtained specially any news shall have protection for the news for the space of twenty-four hours against all persons who have not obtained the same news independently.
Amendment agreed to.
Senator DOBSON (Tasmania). - I move -
That the word “ twenty- four,” line 7, be left out, with a view to insert in lieu thereof the word “ thirty-six.”
It is well known that some outlying townships are becoming important. For instance, a morning newspaper cannot reach Mildura until the evening of the publishing day, or the evening of the following day, and cannot be obtained until the following morning. A local journal can get hold of a copy of a Melbourne newspaper and publish its cables next morning at six or seven o’clock simultaneously with the appearance of the Age and the Argus in the township. I am inclined to think that in view of the vastness of our Continent, and the fact1- that many towns are far distant, the protection, in order to be full and ample, ought to be extended to a period of thirty-six hours.
– That would not be sufficient if it is to apply to the whole Commonwealth.
– The proprietor of a newspaper told me that a protection of thirty-six hours would do. He was inclined to think that the shorter term of twenty-four hours would answer ; but that I think is too short, and therefore I have moved the amendment.
Senator MILLEN (New South Wales). - If we are going to give protection absolutely against the proprietor of a newspaper in the remotest hamlet in Australia then the period of thirty-six hours will not be sufficient. There are places to which a newspaper cannot be conveyed within a fortnight. In Western Australia I believe a period of two or three weeks will not be sufficient. Again, in Queensland a train from Brisbane with a newspaper hardly reaches the terminal point in thirty-six hours, and to that has to be added the time to be consumed in a coach journey. Therefore, a period of thirty-six hours is not sufficient to secure protection against newspapers published in the remoter portions of the State. If Senator Dobson wishes to be logical and thorough he must give protection to news not for a limited period, but for a period so extended as to amount to actual copyright. The time occupied to reach various places within the Commonwealth is altered every day. One place which it now takes thirtysix hours to reach may in the future be reached in twenty-four hours, and later on in twelve hours; and there is no possibility of framing a provision which will apply equally to all the different newspapers of the Commonwealth. In my opinion, twenty-four hours is a reasonable compromise between the interests of the public on the one hand and the interests of the newspaper proprietors on the other.
Senator DOBSON (Tasmania). - The honorable senator forgets that there is now telegraph communication with almost every part of the Commonwealth, and in the case of Mildura, which I have already cited, it would be possible for the local journals there to publish the whole of the cables simultaneously with the Age and the Argus. In conferring with a person interested in one of the newspapers, I mentioned thirtysix hours as reasonable, and he approved of the suggestion. If we affirm the principle that cables are to be protected, let us give ample protection, but, at the same time, not lock up the cables for all time.
Senator DOBSON (Tasmania).- I think there ought to be some definition of “ publication,” and I suggest that a new subclause be inserted with that object. Some of the morning journals are sent away by train at 2 o’clock a.m., while others are despatched at 3 o’clock or 4 o’clock, and thousands of copies are issued at 5 o’clock and 6 o’clock a.m..
Senator- KEATING (Tasmania - Honorary Minister). - The question of publication depends on the hour at which newspapers are offered to the public, and the hour varies with each newspaper. Some newspapers claim to be out earlier than others ; and I have noticed letters in the newspapers from country correspondents, commending the enterprise which enables copies to reach the country before breakfast. That means that the newspapers must have been in the hands of other persons outside the offices some hours before 7 or 8 o’clock in the morning. The whole question depends on the time at which the newspapers are sent out to the public?
– What time is that?
– That depends on the circumstances in each case. I do not know that any provision could be framed to meet all cases, because the hour of publication cannot be made the same for every particular morning newspaper. There is as much difference between early and late newspapers as there is between an early baker and a late one ; and each case ought to be settled on the facts.
Senator MILLEN (New South Wales). - I see no other course but to accept the suggestion of Senator Keating. Even breakfast hour varies, and yet the newspapers are always on hand. I remember ‘distinctly, on occasions of late sittings of Parliament, receiving the newspapers before 5 o’clock in the morning.
– We had the newspapers here at 3 o’clock last session, when we were discussing the Kalgoorlie to Port Augusta Railway Survey Bill.
– I was fortunately absent on that occasion. Not only does one newspaper vary from another in this connexion, but even in the same newspaper office the hour of publication may be later or earlier, according to circumstances, such as when important news is expected and waited for. A paper is published when it is issued to the public.
– I do not think we ought to adopt the suggested amendment, because the hour of publication depends . entirely on circumstances. Newspapers are issued as “late as possible so as to contain the latest news, providing that the copies are in the hands of the public when required. The hour of departure for railway trains is one element in the case, and since the alteration of the service, many metropolitan newspapers are sent away, perhaps, even as early as midnight. If cable news is pirated, the aggrieved paper may, I presume, commence an action, and on that newspaper would lie the onus of proving the hour at which’ it was put into circulation. It is impossible to fix any specified time, and, in my opinion, the matter ought to be left to the Court.
Senator DOBSON (Tasmania).- All the arguments which have been adduced seem to be in favour of the amendment which 1 have suggested. Qf course, the hour of publication varies; and it is for that very reason that I regard an amendment as necessary. The first case which arises under this clause will cause no end of dispute as to the hour of publication ; and I only desire a definition in order that it may be clearly shown when protection is to commence and to end.
– If the honorable and learned senator desires to fix an hour, let him make it half-past twelve.
– Newspapers are not put into circulation at that hour ; but if Senator Keating thinks an amendment is not required, I do not desire to press the suggestion.
Senator PEARCE (Western Australia). - I beg to direct attention to sub-clause 2, from which it would appear that a person who published only part of the news which he had received, would thereby obtain copyright in the whole.
– That sub-clause refers to a pirate, who might, as it were, take the soul out of an extensive cable message and publish it.
– I should like the assurance of the Minister that that is the intention of the sub-clause.
Senator KEATING (Tasmania- Honorary Minister). - That is the intention of the sub-clause; but, perhaps, the position would be made clearer if sub-clauses 2 and 3 were transposed. I did not at first agree with the view of Senator Pearce; but it is now apparent to me that the clause, as at -present arranged, might leave room for a little doubt. I move -
That sub-clauses 2 anc! 3 be transposed.
Amendment agreed to.
Senator MILLEN (New South Wales). - I should like to direct attention to subclause 4. I take it that the penalty is distinct from damages?
– Yes; the penalty is provided for in sub-clause 3.
– Is the penalty- in sub-clause 4 limited to clause 33?
– And does that apply to the whole part of the Bill?
– No ; there is, I think, a common law right to copyright in news, apart from any right that this Bill may confer.
Senator PEARCE (Western Australia). - I desire, on behalf of Senator McGregor, to move the insertion of two new subclauses to follow sub-clause 5. I move -
That the following new sub-clause be added : -
The protection afforded by this section shall not apply in the case where the proprietors of any two or more newspapers or any two or more news or press agencies have entered into an agreement for a supply of current news of any facts or events taking place beyond the limits of Australia, unless such proprietors or news or press agencies allow any other proprietor of a newspaper or a news or a press agency (so desirous) to become a party to such agreement, or to participate in the reception of news obtained by virtue of such agreement, on such proprietor or news agency giving an undertaking to contribute fro raid to the expenses or costs of such agreement and of the obtaining of news supplied according to the terms thereof.
If this amendment is agreed to, I shall move the addition also of the following : -
The practical effect of this proposal is to prevent any combination now in existence, or to be formed, from obtaining and keeping a monopoly in the news of the world, to the detriment both of the people of Australia and of other newspaper proprietors who may lie prepared to pay an equal share of the cost of obtaining the news, but who are debarred from so doing ‘by existing agreements.
– The proposed subclause does not speak of an equal share ; what is meant by “ fro rata “ ?
– That means an equal share. At the present time, the position is that half-a-dozen newspaper proprietors - I do not believe that there are more than half-a-dozen - have an agreement with the Eastern Extension Company, and also an agreement with a news-collecting agency in England, which practically pirates news that is published there. These people in Australia do not pay for the cost of collecting the news first-hand. It is practically a scissors and paste collection .from the news published in the English newspapers. That news is cabled to Australia by this combine, and any newspaper proprietor wishing to obtain a share of it has to pay the rate laid down toy the combine. The rate has been fixed at such a figure that it is a matter of common repute that the newspaper proprietors who form the combine practically get their cables for nothing.
– How for nothing?
– Those to whom they farm out the news which they get have to pay such a price for it to the combine as more than covers the whole cost of cabling out the news.
– To what. State does the honorable senator refer?
– I think that applies practically to every State in the Commonwealth.
– So far as the press of’ Sydney is concerned, I believe that it has been supplying the country newspapers gratuitously for years ; I mean that the country press makes use of the cables without payment.
– I am speaking of the daily press. Certain daily newspapers which have been started, and others which it has been attempted to start, have been met with this difficulty - that the combine refuses to allow them to come into the arrangement. It refuses to allow any other , newspaper to come’ into it ; and the news that is cabled from England can only be obtained at the combine’s own price, which is fixed at such a rate as to compel the newspapers which do obtain their European news second-hand, to pay the whole cost .of cabling. I am informed - taking two daily newspapers in my own State, published in the same town, one in the combine and the other out of it - that the newspaper which is out of the combine has to pay such a rate as practically to incur the cost of its own cables, and to pay for the cables of the rival journal.
– Why does it not start on its own?
– Because the agreement is of such a character that it cannot. The combine works in with the cable company. Unless another combine could be formed, there is no possibility of anybody getting the same facilities. These two new sub-clauses would have this effect - that newspapers could form combinations for obtaining cable news if they desired, but that they would be robbed of the protection of copyright given them by this clause unless they allowed other newspapers who wished to get the news to come in with them on an equal footing. That seems to me to be a perfectly fair proposal. It only takes away a monopoly right - a right which has grown out of a set of fortunate circumstances. It does not in any way do an injury to the newspaper ‘proprietors. They are not’ placed in a worse position than are the other newspaper proprietors who would come in with them. I think that this is a question of national importance. It is of the utmost importance to Australia that we should have an unrestricted flow of news from outside sources. At the present time we have practically only one source. That is largely due to the existence of this combination. If we pass clause 33 as it stands, we shall give added power to the combination. At present the rights of newspaper proprietors in this respect are safeguarded by copyright in only three States of the Commonwealth. I understand that they have rights which’ are largely safeguarded by the common law, or in some other way in the other States. But only in Western Australia, South Australia, and Tasmania, have newspapers the protection of copyright such as is provided by this Bill. I am not sure what the common law rights are, but I suppose there must be some protection in the other States, or they would not have been able to work their combination successfully. There is this further fact to be borne in mind. It cannot be said that the combination is put to great expense to collect its news. It is practically news that has appeared in newspapers in the old country.
– Still it costs something.
– It costs something to cable it to Australia, and there has to be an agency in London and a means of distribution on this side. I know of cases where newspapers have endeavoured to start in centres where newspapers belonging to the combine are published. They have practically had to start without any cable news, because no single newspaper could enter into competition with a newspaper that belongs to the combination. The cost to a single newspaper to get cables independently from England would be too much. The newspapers which get their news collectively, if there are six of them in the combine, get it for one-sixth of the cost that a single newspaper would have to pay.
But we have the additional fact to consider that, not only does it not cost them more than one-sixth of the whole expense, but that by selling the news to newspapers that are not in the combination they get their news for nothing. Any one can easily understand, therefore, how impossible it is for an independent newspaper, no matter how heavily capitalized it may be, to compete on such terms. ‘ Competition should be on something approaching fair lines; and I think that if these people want to have the protection of the copyright law they should be prepared to extend to their rivals in business the same terms that they themselves enjoy in this respect. That is only asking for just and equal treatment.
– Does -pro rata mean paying an equal share of the cost ?
– I take it to mean that the cost is to be equally distributed - pro rata - amongst ali those who are parties.
– If there were ten parties they would have to pay one-tenth each ?
– Yes. But the circulation of the newspaper would perhaps be a consideration, and also the quantity of cable news that was used. If one newspaper did not publish as much cable news as another, it should not pay a pro rata share of the expenditure. I should, think that . the quantity of news published and the circulation of the newspaper would be taken into consideration.
– That would hardly be fair, I think.
– Of course, the matter would have to be determined by the persons interested, and the only way in which it could be definitely decided would be by some one who was refused the opportunity to come into the combination because he would not pay what was deemed to be a pro rata share of the expenditure, taking action.
Senator DOBSON (Tasmania). - I understood my honorable friend Senator Pearce to say, when. I first interjected, ihat the term pro rata would mean the payment of an equal share of the expense. That is to say, if there were ten newspapers, and an eleventh newspaper wanted to come in, it would have to pay an eleventh share. Now, however, he tells us that he does not * think that it would mean that, but that the newspapers would pay only in proportion to the cables they used. That does not seem to me to be a fair idea. He also says that they would pay in proportion to their circulation. Suppose that two large morning newspapers have a circulation of 50,000 each, and that another newspaper with a circulation of only 1,000 wanted to use the cables. The third newspaper would pay a very small proportion of the cost.
– That is not what is meant by pro rata.
– I do not think it is- I think that Senator Pearce’s first idea was right. If, for instance, 500 words were cabled out to Australia, and one newspaper took 500, whilst another took only 250 words, it would not be fair that the latter should pay only half of what the former paid. We must understand the probable effects of the amendment before we pass it. It is quite likely that it would be a gross injustice to say in an Act of Parliament that one newspaper proprietor should be allowed to pick the eyes out of the cables, and only pay in proportion to what he used. I quite see that it would not be right to give newspaper proprietors the protection of copyright, and to allow them deliberately to keep out all persons who wanted to start fresh papers. Therefore, I am prepared to support an amendment, provided it is in fair terms. It must also be recollected that those who founded these news agencies have gone to a considerable amount of trouble and expense. No doubt, in the first instance, they had to pay a great deal for their experience. It certainly would not be fair to allow the proprietors of journals with a small circulation to pick the eyes out of a long message, and to pay for it in proportion to the number of words used. It is not a question of paying in proportion to the words, but in proportion to the value of the news obtained. If I had the choice of fifty words out of 500. I might choose fifty, the money value of which would be greater than that of the other 450. We should be very careful about adopting any amendment of this clause.
Senator STANIFORTH SMITH (Western Australia). - I have a great deal of sympathy with the contention of Senator Pearce, but I can see no ethical reason why certain newspaper proprietors should not combine, in order to obtain cable information or any other kind of information. It seems to me that we shall be treading on very dangerous ground, if we say that a partnership can be altered by Act of Parlia ment. What is proposed is really that we shall say that, where three or four individuals are partners in a commercial concern, by an Act of Parliament we can compel them to admit others to the partnership, whether they like it or not.
– It is a ring.
– It may be a ring, but I am referring to what I think is a matter of principle. Certain individuals have joined together to purchase something for a certain sum of money, and they give the benefit of the operations of their partnership to their clients. Are we going to say by an Act of Parliament that we will alter’ that partnership, and compel those engaged in that business to allow others to come into it on the same terms as themselves? If so, I see no reason why the principle should not be extended to every other business.
– What if they are doing an injury to the public by their combination?
– I have every sympathy with what Senator Pearce has said, but the question is, where this proposal will lead to? If we can do this we can do the same thing in connexion with every line of business in which we may happen to think there is a monopoly.
– The proposal is not to force the combination to admit other newspaper proprietors, but to provide that unless they are prepared to admit them on reasonable terms, they shall not have copyright in their cable news.
– That is to say that some property which they have paid for shall not be of any value to them. The news they get is a marketable commodity which they sell to the readers of their newspapers. As a matter of broad principle, I think they have an exclusive right to the cable news for which they pay.
-They have pirated the news in the first instance.
– And they cannot be got at, because they do not publish it in England.
– If certain sharebrokers comb’ine together to get out by cable every morning certain share quotations, that will be a partnership formed to obtain certain information which is, and should be, the exclusive property of the partners. We might just as well say that those people must admit others to their partnership, whether they choose to do so or not.
– That is a combination to acquire private information.
– The circulation of newspapers is exclusive, inasmuch as they are circulated only to people who are willing to pay a certain price in order to obtain cable and other information. Senator Pearce has said that the news cabled out to Australia is practically pirated -from English newspapers. The correspondents of the combine may take the -evening papers published. in England, and cable out the news they contain for publication in the newspapers issued here on the following morning. It seems to me that their right is created by the cost of the transference of the property from C;rea Britain to Australia. If these people, b’ combining together and defraying the necessary expense bring news from one end of the world to the other, as a matter of principle I think they should have an exclusive right in the publication of that news. I admit that it would be an advantage to the public if the information obtained were- distributed as widely as possible, but that might with equal force be said of a great deal of other information which is imported. I do not think it is possible to pass such an amendment without violating what I believe to be a great principle.
– We certainly ought to see the partnership agreement.
– I understand that the press agency is located in Adelaide, and that the information acquired is distributed from that centre throughout Australia. T believe that these cable messages from Great Britain cost the partnership is. per word. They may get each day 1,000 words, which would mean an expenditure of £50. It would certainly be difficult for any individual newspaper proprietor to compete against a partnership in newspaper telegraphy if he had to incur so much expense, but there is nothing to prevent other newspaper proprietors combining and getting their news in exactly the same way. I heard of an instance where certain persons desired to establish a newspaper in a certain centre. The capital required was subscribed or guaranteed. The (publication proposed was to be a daily newspaper, and the persons interested applied to the newspaper association for admission to its press agency.
As the proposed newspaper would come into competition with one owned by a member of the newspaper association, the application was refused, and the proposed new daily newspaper was not issued for that reason. I admit that such a thing is regretable, and possibly injurious in the interests of the public, but I do not see how we can legally prevent the newspaper association refusing to allow other persons to be admitted to their press agency. I do not believe that the refusal is in any sense immoral, and we should not by Act of Parliament force the newspaper association to admit other partners, whether they wish to do so or not.
– Does the honorable senator think that we should give a privilege ?
– I think that when they have acquired certain property which they have paid for, and their right is created by the cost of bringing information from one part of the world to another, they should be given the same right in their property as they would have in any other commodity of a more tangible nature. I have given notice of a motion that the Commonwealth Government, which has a one-third share in the Pacific Cable, should endeavour to obtain press messages through that line. These messages could be sent to an agency here, from which they could be telegraphed to all parts of Australia. The small country newspapers, and other newspapers doing good work in disseminating information, should have an opportunity, irrespective of the operations of this newspaper syndicate, to obtain equally good information at the mere cost of telegraphing it from a centre in the Commonwealth. I refer to this as an illustration of the way iri which such a combination as the newspaper association could be broken up without injury to its members, because they would be able to obtain equal facilities.
– The honorable senator is proposing that the Government should nationalize the collection of foreign news.
Senator STANIFORTH SMITH.Yes. The proposal was. I think, first made bv Sir Sandford Fleming, who suggested that the Pacific Cable Company should send out a certain quantity of press news. He pointed out that, from a national and imperial 1)01nt of view, it ‘was exceedingly desirable that the fullest knowledge of various momentous affairs occurring within the Empire should be disseminated in every part of it. I remind honorable senators that the Pacific Cable is never utilized to the fullest extent of its sending capacity, and that with, exactly the same operators we can send a very much larger quantity of cable news at no greater expense. Therefore it would be practicable to send through the cable, without cost to the Government, press news which would have the effect of nullifying the exclusiveness of the syndicate, and giving to all the newspapers in the Commonwealth a full opportunity of obtaining this information -for the benefit of the people.
– Does the honorable senator propose to connect these remarks with the question before the Committee ?
– I recognise, sir, that my illustration has been rather lengthy. I do not feel that I can support the amendment, although I have the greatest sympathy, as Senator Pearce knows, with the. object he wishes to attain. It seems to me that if the members of the partnership have, by using their money, obtained a certain commodity we should not say that it must admit other persons on the original terms, if they want to have the ordinary right of copyright in news. We cannot admit a principle like that, because if we do we shall have to withdraw a certain privilege from persons in other classes of business if they do not allow partners to come in and share with them.
Senator KEATING (Tasmania - Honorary Minister). - With Senator Smith, I feel that Senator Pearce is entitled to sympathy to some extent with his amendment.
– I want votes.
– I am very much afraid that on this occasion votes will not assist my honorable friend very far on the road he wishes to go. He has pointed out rhat in the Bill we propose to give to persons’ enjoying what may be termed a monopoly certain rights which they have not hitherto enjoyed, and which they can not enjoy apart from its provisions. As I indicated by interjection, I am not altogether inclined to the opinion that apart from statutory provisions, such as these, newspapers have nothing in the nature of copyright in their news. At page 47 of Hinkson on Copyright, this passage may be seen -
There is a copyright in the literary form in which news is conveyed, so that one newspaper proprietor can restrain another from copying special articles or telegrams from his paper, but to enable him to do so he must prove his copyright.
That is altogether apart from any statutory provisions of this kind in Great Britain. Before the Royal Commission which sat, not in 1875, but a few years ago, Mr. Bell, the manager of the Times, gave some very interesting evidence, and singularly enough’ he suggested that it might adopt as English statute law on this point, the law in force in Tasmania. I mention that fact in order to show that apart from any provision such as we have in the Bill, there seems to be, without very much doubt, in newspapers a copyright in the news which they have specially acquired.
– It has been very largely latent. I think.
– That may be so. The difficulty always has been, as in many instances of copyright, for the plaintiff to establish’ an infringement of copyright in addition to establishing the copyright itself. An interesting case is given in Copinger’s Law of Copyright, an English law book published as lately as 1904. At page 43 the learned writer says -
There can, of course, be copyright in newspaper telegrams.
Senator Pearce said that in Tasmania, South Australia, and Western Australia there was statute law on this subject, -but the learned editor of this work on copyright says -
There can, of course, be copyright in newspaper telegrams. A case came before the Supreme Court in Melbourne in which it appeared that the proprietors of the Melbourne Argus paid a large sum for the purpose of obtaining the latest telegrams from Europe, and any newspaper proprietors who might wish to publish the telegrams so obtained could do so by paying a contribution towards the expenses incurred. The proprietor of the Gippsland Mercury made an agreement for the right of republishing the telegrams, but after carrying out the arrangements for some months cancelled the agreement. The European telegrams received by the Argus were, however, republished in another form, as from a Melbourne correspondent of the Mercury, with the preliminary words, “ It is reported,” or “The_news about town is.” This was considered a breach of the copyright which the proprietors of the Argus possessed in the telegrams, and a suit was instituted in the Equity Court to restrain the proprietor of the Mercury from republishing the telegrams.
After dealing with the arguments advanced on behalf of the defendant, the editor goes on to say -
Mr. Justice Molesworth held that the plaintiff had a property in the telegrams, and that no one could republish them without the permission of the person to whom they had been sent in the first instance. An injunction was, therefore, granted to restrain the defendant from publishing the telegrams.
– What was that - common law?
– Judge Molesworth did not hold that on a common law principle, but on the general principle of an old Copyright Act, which did not deal specially with newspapers. The case is reported’ rather extensively in Volume I. of the Victorian Law Reports. To show honorable senators how an infringement of a copyright of that character can take place, I shall read a few instances of the alleged infringement of some telegrams in the Argus, of the 7th May, 1875 -
The Chester Trades Cup, of 500 sovs. in specie, added to a handicap sweep of 25 sovs. Two miles and a quarter.81 subs. Mr. Heneage’s ch g Freeman, by Kettledrum - Haricot, 6yrs., 6st.131bs., 1.
The Belgian Government, in reply to a com munication from the Chambers, promises to follow the initiative of Germany in a modification of the ecclesiastical laws.
The Pope is suffering from weakness.
These three telegrams were compressed into one telegram from Melbourne in the Gippsland Mercury of the 8th May, 1875 -
The news about town to-day is that the Chester Cup, England, was won by Heney’s (?) Freeman. We also hear that the Belgian Government promises to follow the initiative of Germany in a modification of the ecclesiastical laws. The Pope, it is reported, is suffering from weakness.
Here are four telegrams which appeared in the Argus, of the 10th May. 1875 : -
The reported arrival of the Californian mail on the4th inst. was false. The steam-ship Schiller, homeward bound, from New York, with the Australian and New Zealand mails, via San Francisco, and over 260 passengers, has been totally wrecked off the Scilly Islands. Only a few of the passengers were saved.
The Berlin Post considers the recent Belgian note, in reply to Germany, to be meaningless and unsatisfactory.
The April exports from Great Britain show an increase on those of the previous month. Wheat is depressed. Metals are unchanged.
At the wool sales the competition continues unabated, foreign buyers, especially French operating keenly, the buyers being eager to supply the immediate requirements of the trade. The average prices obtained are equal to the highest realized at the March sales. Total sales to date amount to 26,000 bales.
These four telegrams were compressed into one telegram from Melbourne in the Gippsland Mercury of the nth May. 1875-
The steam-ship Schiller, with the Australian mails,via San Francisco, was, it is reported, lost off the Scilly Isles on the 7th instant with 260 passengers, of whom only a few were saved. The Berlin Post considers the Belgian note meaningless and unsatisfactory. The commercial news to-day is that at the London wool sales buyers were operating keenly ; the average prices were the same as at the March sales ; 26,000 bales were sold.
A very elaborate argument was indulged in on each side in connexion with the alleged infringement, and in giving his decision Mr. Justice Molesworth said -
The defendant represents that he employs a correspondent in Melbourne to collect and send him all the news which is in circulation ; and his counsel have argued that the news may be thus learned in Melbourne as a matter of common talk, and sent by the correspondent, and so inserted by the defendant. If that were so, I would say that the news was like gar. escaped into the atmosphere, the property in which was lost; but here the odour of defendant’s publication is so perfectly identical with the plaintiffs’ that I think it clear that it is as of gas taken from the plaintiffs’ pipes. The defendant and his correspondent give . 1 long story of the manner of their proceedings, but the correspondent does not say, as upon a matter within his knowledge, nor the defendant as upon a matter within his belief, that the Sale news is not virtually copied from the Argus.
The Judge ordered that - the defendant, his printer, publisher, agents, and servants be restrained from printing or publishing as news from Melbourne, or in any other form, in the Gippsland Mercury newspaper, or otherwise, any copy or colorable alteration, or adaptation in the nature of copies of any telegrams from England received and published by the plaintiffs, until further order. Let an injunction issue, if necessary, under the seal of the Court to this effect. Cost of application to be in cause.
That injunction was afterwards made perpetual. From these extracts honorable senators will see that, apart altogether from any statutory provisions of this character in Victoria dealing with this sub- jeer, the Court held in these instances that colorable adaptations of the telegrams published in the Argus, and republished in a provincial newspaper under such headings as “It is reported,” or “The news about town is so-and-so,” were infringements of a copyright which the Argus had.
– In the Statute there is nothing such as is now before us specifically dealing with newspapers. The Argus was registered as a newspaper, and it was also registered under the Copyright Act which was in force here. In the course of his judgment Mr! Justice Molesworth said -
In Cox v. Land and Water Journal Company, Vice-Chancellor Malins held he had power to grant an injunction against a newspaper publishing a “list of meetings of hounds borrowed from another paper which got information by writing to the owners of hounds (although he did not hold that under the Act the copyright protection extended to newspapers, and the plaintiff’s paper was not registered), as upon a common law right apparently, though in that particular instance he did not think he should grant an interlocutory injunction.
He went on to say that -
The existence of a common law right -of copyright is questionable, and I have not to deal with it.
On the w hole, I think that the person who gets the news together is entitled _ to a measure of copyright protection,, just the same as is a person who collects information for a directory or guide. Let me point out why the amendment does not meet the case. We are not giving for the first time something in the nature of copyright to newspapers. Apart from any special provision such as is contained in clause 33 of this Bill, the newspapers have a copyright which the Courts would secure to them in cases such as the one I have cited, and in cases such as those which have occurred in the English Courts.
– We are continuing it to them.
– We are continuing it to them in a certain form.
– Would the newspapers have that copyright in spite of any provision in this Bill ?
– They would have a copyright, and I think it would not be so limited as to time. On the 20th June, 1898, Mr. Bell, the manager of. the Times, gave evidence before the Royal Commission. After speaking of the decisions which had been given as to copyright protection for news, Mr. Bell gave the following evidence, in answer to the question - “ I gather that in your opinion some protection beyond that is necessary?” -
I consider that there is a very gross injury which the press sustains, for which there is nominally a legal remedy ; but for which we have practically no legal remedy. A person who walks down a street, arid takes a list of the names over the shops in the street is granted copyright in that-
That refers to the case of a directory, and in the case of Kelly v. Morris he got a perpetual injunction. Another man going down a street, and giving an account of an accident, a cab accident, or anything of the sort, has no protection whatever, because it is in a newspaper.
The witness here deals with domestic news as well as with foreign news. Question and answer 870 is -
He would have protection as regards the literary expression of it, I gather from you? - He might have ; but it is an illusory protection that we have even in that. For this reason : When I speak of a cab accident, that is a matter of no importance ; but the Times publishes a telegram on Monday, say, which costs £1,200, in reference to (I am speaking of an actual case) a revolution in Argentina; it interests the Cityvery largely ; there is an immense demand for the paper, all the papers are sold in a very short time, and we cannot print fast enough to supply it for sale. At 10 o’clock the demand stops, the papers come back ; another paper has taken out verbatim the whole of that thing, and is selling for a penny. What is our remedy? You say we have one? We can go to a Judge in Chambers. After a great deal of formality to prove that we have the copyright, we have an audience fixed for Wednesday ; the matter isdiscussed for two days, and then, lastly, there comes out the result. What is it? An injunction that the Piccadilly Gazette of Monday is no longer to be sold. But they never wanted to sell it after Monday. The wrong has been done, and we have no remedy. We have an injunction which is valueless, and have spent j£6oo, perhaps, in getting it.
– Could they not get damages ?
– That may be. The witness is dealing not with a special statutory provision for protection, but with what I might call the ordinary right for protection as a publication. Then the witness was asked -
But then the giving a copyright in news would make no difference in that respect, because the remedies against infringement would remain the same as they are at present?
The answer is important -
I think that the declaration that there was copyright in news would form a protection, but I think we ought to have protection such as is accorded in Australia, which was found necessary because, of course, the majority of telegrams which appeared in Australia, were naturally very costly, and they passed a Bill giving forty-eight hours’ actual copyright in the news ; df we had a distinct pronouncement of law to the effect that there was copyright in news’, then there would be a certain danger in infringing it.
– That shows that not only is the clause necessary, but also my amendment.
– Question 1001 is -
I understand that you think that twenty-four hours would be enough for the purpose? - I think twenty-four hours would be fair. May I draw attention to the Tasmanian Press Act on copyright?
The witness then quoted from Copinger’s Law of Copyright, the substance of the Tasmanian Act; and it is evident, later on, that that is the principle for which he contended. Question 1068 is -
Then the Act of Parliament would make it -dishonorable, so that if we gave you this remedy they would be so discouraged that the practice would cease ; that is what you mean? - Yes; that 5s what I mean.
The witness was asked just before that -
Then do you think that people would be so frightened by the fear of being fined? - No, not the fear of being fined, but it would come to be -considered a dishonorable thing.
Question 1069 is -
Would that be the ease, if the interest were so great in the particular fact; would they not risk any degree of penalty? - I do not think so.
What the witness meant was a practical declaration of the law, with a limit for a -certain time, and a provision for a summary remedy. Mr. Henry Whorl aw. who was examined before the Commission on the 1 2th June, 1899, was asked a question, No. 1647, in connexion with the literary form of telegrams, and after a long reply, he added -
I speak, for instance, of Reuter’s Telegram Company, that spend many thousands a year in collecting news. There is no real danger that any newspaper will deliberately and systematically appropriate Reuter’s telegrams, relying on the fact that they could not be touched under the copyright law. We have no case of the kind.
In that case, of course, provision is made by the agency for the distribution of news. This touches the amendment submitted by Senator Pearce; and all honorable senators who have addressed themselves to the ques tion, have dealt with one set of circumstances. They have dealt with an agreement which is stated to exist amongst anumber of newspaper proprietors in Australia to obtain from Great Britain news of current events in’ Europe and the outside world. But this amendment goes further. For instance, it might happen to-morrow, if a war broke out in the East, that the Melbourne Argus and the Sydney Morning Herald would, in conjunction, send a special commissioner at great expense to the seat of war, and obtain from him, either by cable, or by post, news for publication in Australia. Clearly that news would come from outside Australia, and those two newspapers would be acting conjointly. On the other hand, the Melbourne Age and the Sydney Daily Telegraph might send to the Philippines, in the event of trouble there, and incur a considerable amount of expense in obtaining news. The special commissioner, in either case, would have to be well paid, and would incur many risks to his health and life ; and even, after he had obtained news, it might cost an amount very much in disproportion to the intrinsic value of the news, to get it conveyed with the utmost despatch to Australia and published. If the amendment were carried, it would be competent for any other newspaper proprietor to claim to join the two newspapers, Sand to threaten that if he were mot allowed to do so, he would publish the news without consent. In sending out commissioners in this way, newspapers show considerable enterprise, and this is a field in which there is a great deal of competition, resulting in much benefit to the public. During the war between Russia and Japan, many newspapers of the old countries sent special correspondents to the seat of operations, and the London Times not only had an Australian officer there to represent them, but instituted a system of wireless telegraphy, the messages by which were, by the way, intercepted by others. If two Australian newspapers! exhibited sufficien’t enterprise and energy to send a special commissioner to South Africa, China, Siberia, Canada, or elsewhere, and thus obtained news at great expense, it would be, as I say, competent under this amendment for other newspaper proprietors to be allowed to participate in the advantages.
– If they paid an equal share of the expense.
– Does the honorable senator think that would be fair?
– Why not?
– If the principle is right as applied to two newspapers, why should it not apply to one newspaper?
– Honorable senators have addressed themselves mainly to the question of cables from England ; but it would be quite possible for a combination of newspapers to take such steps as I have indicated. Indeed, I am not sure that some of the Australian newspapers did not send special correspondents to the Chinese- Japanese war. At any rate, I know that Mr. Lambie for the Age, Mr. Donald Macdonald for the Argus, Mr. Paterson for the Sydney Morning Herald, and a special correspondent of the Sydney Daily Telegraph were sent to South Africa during the war ; and if any two newspapers had joined in securing the services of these gentlemen, other newspapers here, on the arrival of the news, might have claimed to participate in the benefit on paying a certain proportion of the expense.
– Other newspapers would only come in when the venture was successful
– Exactly. I myself know of cases where people, in starting newspapers in populous centres, have been confronted with the difficulty pointed out by Senator Pearce. It is absolutely useless for a newly-established newspaper to attempt to compete with the older newspapers, unless the former are able to obtain a fair supply of cable news from the outside world; and to get such a supply independently, would mean the expenditure of several thousands of pounds. The older newspapers, who get their cable news on the combination or farming-out system, incur much less expense, and thus the competition is very unfair. As I say, people have asked to be allowed to participate in the supply of news thus obtained, but have been refused, although they were willing to pay what might be considered by the other parties to the agreement a fair share of the cost. The amendment, however, would not effect the object in view, and is full of dangers.
– As the Minister appears to sympathize with the object of the amendment, will he postpone the clause and endeavour to frame a provision to meet the case?
– I have intimated to Senator Millen that if he is not satisfied that the clause indicates with sufficient certainty the meaning which, so far, we have all agreed upon, I shall have no objection to its recommittal.
– If the amendment isnot accepted, then undoubtedly a copyright for twenty-four hours is too much.
– That may be, but: I really think the amendment will not achieve what Senator Pearce desires, while it may have results of which we should not approve. I have endeavoured to frame: a provision which would, while fair to the public and newspaper proprietors generally, be also fair to newspaper proprietors whohave embarked their capital and displayed enterprise and business ability in obtaining, news from abroad. But, so far, I candidly confess that I, and those with whom I have conferred, have been unsuccessful in finding a proposal which would not infringe the rights of somebody. Senator Smith has pointed out that the newspaper proprietors, who now obtain this news, haveestablished the system by which it is obtained; and there is no principle on which, we can call upon them to open the door of their partnership on terms Ave lay down. It has been stated that this combination is a monopoly ; but it is not a monopoly in. the sense in which the word is ordinarilyused. The newspaper proprietors do not withhold anything from the public - they only have the’ benefit of their own enterprise and business ability. Their answer to any suggestion of monopoly is that it is quite open to other newspaper proprietors to establish an organization of the same character. Suppose there was an organization of the kind” comprising seven or eight distinct news agencies, and one man after another claimed” the right to be admitted ; those who originated the system must have met with a certain degree of success before others would’ desire to join them. They would have their own regulations and principles which, they follow in collecting the news; and if a number of other people were admitted, could it be contended that the latter ought to be given an equal voice iri the management and control ?
– The originators havetaken all the risks.
– That is so ; and I ask whether it is intended that ten or twelve other people are to be allowed tojoin, and, if they do not approve of themethods adopted, to outvote the originators ?
By that means you would have an organization which would be capable of indefinite expansion, and perhaps all the ability and all the intelligence displayed by those who originally formed it and brought it to successful fruition would go for nothing, and would be overshadowed by the influence of persons who were subsequently admitted. “Under the circumstances I must ask the Committee to reject the amendment.
Senator STORY (South Australia).With all due deference to Senator Keating, I think that the whole of his argument is based upon supposititious cases. He has pointed out certain dangers that he thinks might arise if this amendment, which I consider to be a most desirable one, were agreed to. He has alluded to newspapers that send special commissioners to obtain war news. That was done by leading journals at the time of the South African war. But the contributions of special correspondents are quite different from the cabled news provided for by this clause.
– But the amendment is not limited to cabled news.
– The letters of special correspondents are not likely to be pirated, because they are published, as a rule, weeks after the events to which they relate.
– They may be cabled.
– I propose to give an instance showing the necessity for the amendment. Senator Smith has mentioned a case where an attempt to establish a newspaper was frustrated by the fact that this combine existed, and refused to allow the new venture to obtain cable news even by paying for it. A similar case occurred in South Australia. Senator Dobson has said that the fact that a news combination was able to withhold news was not a public injury. It was proposed to establish a new daily newspaper in South Australia, because the present newspapers do not satisfy the public. Now, the public are injured if they are not satisfied in this respect. There are two leading newspapers in South Australia. One of them publishes news only in accordance with its political views; or perhaps I should put it in this way - that it suppresses certain news that is against its political convictions. Advertisers also complain that as there is a combination between the two leading newspapers they have to pay exhorbitant rates. The establishment of another newspaper would be to the advantage both of the reading public and of advertisers. That is what I had in my mind when I inter- jected that it was a public injury that a combination in news should be allowed. It was found that the capital to establish a fresh newspaper could be obtained. The promoters entered into correspondence with the syndicate, or press agency 2 or whatever may be the term by which it is known. They were willing that the .new venture should have the right ‘.to purchase information from them, on condition that the two other Adelaide newspapers had no objection. As far as I can understand, there is a syndicate of two or not more than three newspapers who get the information, and who have agreed to sell it to various other newspapers ; but they cannot sell to any other news>papers that may be established in Melbourne. Sydney, or Adelaide, unless th-i journals with whom they have already made arrangements are agreeable. In this case one of the Adelaide daily newspapers was perfectly willing that the syndicate should, if it thought proper, sell news to the promoters of the new paper. The other newspaper, fearing competition, said that it objected. That stopped the venture. But I feel satisfied in my own mind, that the public are deter-‘ mined to have a better daily newspaper than they have at present, although it may be necessary to form a new combination, or even to obtain news from Europe independently. I believe the thing will come off. Bui: the fact remains that it is within the power of two newspapers to prevent competition, and that they can object to the syndicate selling press news to new ventures.
– Suppose that . these two newspapers are, buying the cables under contract; if two other newspapers could also get them, the cables would not be so valuable.
– As far as I understand, the people who purchase the news from Reuter sell it again to such newspaper’s as the Adelaide Register and Advertiser. The Register and Advertiser are not in the syndicate. That does away with the objection that any one should have the right to come in. and that the number might be increased to hundreds. That could not possibly occur. The number is already limited. The newspapers who buy from the syndicate have made the stipulation : “ You shall sell to no others in our city.”
– Because the more newspapers the cables are sold to, the less valuable they are. It is evident that this amendment would interfere with private contracts.
– Information is always valuable. It would be a very great advantage to the people if they were dissatisfied with their newspapers, to have the right to establish others.
– Suppose the two Adelaide newspapers have made the condition that the honorable senator suggests; how could we interfere with a contract of that sort?
– I do not think that the proposal would interfere with any contract.
– The honorable senator says that there are contracts now.
– It is not proposed to interfere with them. This Bill will give further protection to newspaper proprietors. If we extend further protection to them we should sa.y - “ You shall not withhold your news to any purchaser, who is prepared to pay a price for it.”
– I doubt whether we are giving the newspaper proprietors any further protection than they have already.
– Then what is the use of the clause?
– We are defining the existing law.
– I should be in favour of striking the clause out rather than leaving it in its present form. It has been shown that the newspaper proprietors are already protected, and we ought not to protect them further, unless we compel them to sell their news to those who are willing to purchase it. I hope that the amendment will be carried.
– The principal reason why we are asked to insert the amendment is the alleged existence of a combination. Have we sufficient information regarding the alleged combination to enable us to take legislative action? Can any one tell us anything as to its scope, the agreements that at present exist between its members, its objects, and so forth ? In the absence of definite information of this character we ought not to legislate either to suppress the combination if it exists, or to restrict its operations.
– This amendment would not suppress if. .
– We ought not to legislate regarding it at all. unless we have definite information.
– We should give it no further protection.
– We are not legislating with respect to trusts and combinations, but as to copyright.
– We ought to study the public.
– Certainly; but newspaper proprietors are a portion of the public. If we are going to study the public, irrespective of individual rights, do not let us give copyright at all. Let us say that the moment an author publishes a book or a newspaper publishes news it shall be made available for the public-. We are asked by this amendment to legislate adversely to newspaper proprietors, without a full inquiry into the circumstances which are alleged to exist. I have no doubt that the circumstances which have been alleged are fairly accurate, but it would only be common-sense, before legislating adversely to newspaper proprietors, to make ourselves acquainted with the true state of the case by inquiry. Let us understand the facts. We have not the facts before us now, and for that reason I shall vote against the amendment at this stage.
– The best way to deal with a press monopoly, if it existed, would be by means of the charges for telegrams.
– I also wish to show how the amendment would fail in its object. Take that part of it which deals with the making of proportionate charges. So far we are not agreed as to what is meant by pro raid.
– What does it usually mean ?
– If we accept the usual meaning the amendment is useless. If it means that every additional newspaper that uses the cables is to pay pro rata in the ordinary meaning of the term, we shall certainly block every country newspaper proprietor. Sa.v that there are halfadozen newspapers in the alleged combination. They are, I suppose, the leading newspapers of Australia. The Age, in Melbourne, claims to have a circulation of 100,000. The number would also include the Argus, the Sydney Morning Herald, the Sydney Daily Telegraph, and perhaps the leading newspapers of the other metropolitan cities. Suppose that a provincial news- paper, with a circulation of 1,000, were to claim under this arrangement the right to come in pro rata. Does any one think it could afford to pay the price? Could a small provincial paper say, “ You are paying ^15,000 a year for your cable service from Europe, and we want to pay our share”?
– It would not be allowed to come in if it did not.
– If that is the meaning of pro rata, honorable senators opposite are not securing the object they have in view.
– There .are cases in which the pro rata amount could be paid.
– Then the fact is that honorable senators wish to legislate for a certain section only.
– The reply is that there are newspapers that buy news at greater than the pro rata cost at present.
– All that that means is this : that the amendment would benefit some people, and not the whole. It .is injurious enough to legislate for a class, but it is ten thousand times worse to legislate for a section of a class. If the object of the amendment is good it should be drafted in such a way as to apply to every case likely to arise under it. I have dealt with Senator Story’s definition of pro rata. Let me now deal with Senator Pearce’s explanation of the term. The fact that we have two varying” explanations from advocates of the amendment is sufficient of itself to show that its drafting ought to be further considered. Senator Pearce’s explanation of pro rata is that the amount to be paid should be in proportion to the quantity of matter used. Senator Dobson has answered that by showing that if newspaper proprietors are given the right of selection they will cull only the more valuable portions of the news.
– That would be unfair.
– Exactly. I take another meaning which might be given to the words pro rata. It might be held that the payment should be in accordance with the benefit conferred, and the proprietor of a small country newspaper having a circulation of 1,000 might come in and say that, as the Age has a circulation of 100,000, he should pay the ‘one-hundredth part of what the proprietor of the Age pays. These are all factors which should be taken into consideration in apportioning the charge, and surely it will not be contended that they are clearly expressed by the words pro raid. There is much to be done before we can adopt any proposal of this kind. Even if it were thought desirable to give any newspaper proprietor the right of admission to the alleged combination we must provide machinery by which he could be admitted in a manner equitable to the combination. This amendment does not provide that machinery. In the circumstances I would suggest that at this stage it should be withdrawn, in order that some further consultation might take place, with a view to providing effective machinery to carry out the intention of the proposal.
– This is quite good enough to test the principle, and the amendment can be re-drafted afterwards if that is found to be necessary.
– The honorable senator has spoken without a knowledge of what I was going to say. I feel that something should be done in the way of restricting any injurious combination, if such a combination exists, but I am unable to vote for this amendment. The honorable senator submits an amendment which is full of defects, and then says that it is. good enough to test the principle.
– I do not admit that.
– Will the honorable senator deny it.
– The honorable senator’s denial amounts to an affirmation that the words pro rata provide adequate machinery for the equitable apportionment of the cost of the joint service amongst the various beneficiaries. No man free from prejudice in the matter can accept this amendment as providing a reasonable solution of that difficult)’. Further, a distinction must be drawn between a combination of newspaper proprietors and a press agency. The terms have been used rather loosely to-night. Certain honorable senators have used the term press agency as applying to the alleged combination of newspaper proprietors. There is a vast difference between a combination of newspaper proprietors for the purpose of obtaining information for publication in their various newspapers, and a telegraphic agency such as that carried on by Reuter, who supplies news, not to the public, but to newspaper proprietors. Senator Drake, I think, interjected that if it is desirable to permit persons to join such a combination as has been
– That is not proposed under the amendment.
– I am aware of that, but would any person have any better right to make such a demand if Reuter joined with, say, Gordon and Gotch, to provide a more economical service for Australia? If such a thing is unfair in the case of an individual firm it would be equally unfair if Reuter and Gordon and Gotch entered into a joint agreement to carry) on the same business. No one will contend that it would be reasonable or fair, after this business has been built up by the expenditure of considerable sums of money, and a great deal of enterprise, and has become an assured success, that any person should have the right to come in and participate in that success. The proposition has only to be stated in an abstract way to insure its condemnation by every one willing to consider it on its merits. I have said just now that I should have some sympathy with a clause proposed to restrict a combination if it existed, and could be shown to operate injuriously to the public. That is my attitude with regard to al] trusts. But I say that with the information available we are not now in a position to legislate on that aspect of this question. It does not follow that because two or three persons combine to do a certain thing their action will, on the whole, be injurious to the community. I venture to say that Australia has benefited considerably from the existence of the combination which has been referred to. The people of Australia have been supplied with a volume of news, the cost of the collection of which would have been absolutely prohibitive if each individual newspaper proprietor had had to pay for it himself. The effect of the agreement between the newspaper proprietors has been distinctly beneficial to the Australian people, and we must remember that those concerned in the matter had to run very considerable ‘risks. I have
– The principle underlying this clause is one of protection to newspaper proprietors provided they act fairly towards others, and are willing to remedy the injustice from which the journalistic world has been suffering for a very considerable time. In each State of the Commonwealth we have two principal daily papers voicing, the political views of two sections of the people. There is a section holding other political views which never find expression in these “newspapers. This state of things amounts to a monopoly, and it has existed in the different States’” for some time. By passing clause 33 as it stands we shall be strengthening that monopoly. If I can gauge public opinion and the tendency of our legislation to-day, the general desire is that we should weaken, and not strengthen, monopoly, and in consequence there is a demand for anti-trust legislation. Only a very little time ago we had the Arbitration and Conciliation Bill under consideration in this Chamber, and when a certain measure of protection was asked for unionism, we were told that this preference to unionists, as it was termed, should only be granted on condition that the unions should give the right of entry to any workman engaged in the callings in connexion with which they were organized. Applying the same principle in this case, we can reasonably say that if we are to give these rich newspaper corporations any preference or protection under our law. it must be fair and equitable to all.
– The honorable member’s analogy fails because they have protection.
– There is no reason why we should /not extend the privilege to others.
– Honorable senators are proposing not to extend it, but to cut it down.
– When, in dealing with the Conciliation and Arbitration Bill, we pointed out that in two of the States the compulsory principle was in operation, the fact did not influence Senator Dobson to agree to extend the principle to the Commonwealth. I hold that at the present time there is a press monopoly, which is likely to continue, because it is a well-known fact that no newspaper can hope to exist in Australia unless it supplies cable news from all parts of the world. Local news takes a very secondary place, and people will not buy a newspaper unless they can be sure “that they will find in it cablegrams giving news from all parts of the world. We know that the cablegrams appearing in (the principal daily newspapers have been pirated and collected from newspapers published in the old country.
– They have to be paid for. I presume.
– Yes; but that is not the principle underlying this Copyright Bill. We are considering the question of protecting the production of the brain rather than the culling of news from newspapers. Although we do not consider that the publication of second-hand matter deserves to be protected, we recognise that the proprietors of newspapers have certain rights, and these we are willing to continue, if they will consent to admit the proprietors of other newspapers to the combination on fair and equal terms. In Australia the press has acquired a great amount of influence, though not so great as in other countries.. Although in some States the press is in the hands of certain political parties, those parties cannot get very much representation. At the last Federal elections in Western Australia, only one party could secure representation. Apparently public opinion was wholly in favour of the Labour Party. We can afford to be somewhat liberal towards the newspapers, knowing tha* their claws have been somewhat clipped. They are not so powerful as they used to be, and perhaps that may induce, us not to deal so harshly with them as we might do if they had that powerful political influence which they used to possess in certain States. So long as we have had a press, there has been going on a struggle to » break down its monopoly in cablegrams. Unless this amendment be enacted, these rich corporations will continue to control the supply of cable news to the public. That, I hold, is a danger against which we ought to provide as far as possible. The proprietors of these journals ought to be well satisfied with the advantages which they have enjoyed so long,” and ought not to be granted additional advantages. From a financial stand-point, the amendment will inflict no great hardship upon the newspapers, because if they are obliged to share their news with other newspapers, the latter will have to pay their fair share of its collection and transmission to Australia. It has been said that, it would lie unfair to allow the proprietors of other newspapers to enter the combination on equal terms. But our duty is to consider what is best for the whole of the community, and net what is best for the interests of a few rich corporations. It would be a very great error indeed on our part to continue a monopoly which is in a position to do very much harm by stultifying news, spreading misstatements, suppressing the expression of certain opinions, and so manufacturing public opinion. If the principle of the amendment is acceptable to a majority of honorable senators, and only certain alterations are .required to meet their views, I hope that Senator Keating will frame a clause for that purpose. I really cannot understand how the honorable and learned senator, who is reputed to hold liberal ideas, can say one word .against this very liberal proposition. I hope, however, that he will see whether he cannot embody in the Bill, that principle which has been outlined in this amendment.
– I earnestly hope that the Committee will not dream of accepting the amendment. So far as business arrangements are concerned, it seems to me to be distinctly unworkable. And I do not see much difference between the principle of the amendment and a deliberate steal. If this be allowed, will the principle be carried any further? If I, or any two or three persons are in business, and have made arrangements for receiving cable messages relating to market prices, will somebody else be allowed to come in and demand the information upon paying a certain proportion of the cost? Or, if a merchant has imported a cargo of goods which have been well bought, will it be proper to allow certain persons to say, “ We cannot let you have this monopoly ;we want a portion of the profits accruing from the sale of these goods “ ? That is practically the principle at stake here. Certain persons enter into an arrangement to buy (news from all parts of the world, and then to sell it. If the power to deal with the news is largely taken out of their hands, its value is lessened, and consequently a blow is at once aimed at this system of contracting for news. The cost of cable and inland’ messages has been decreased considerably of late, and it is not a great difficulty for new journals, or a new combination of newspapers or news agencies to arrange for getting a fresh cable service. Surely in this age we must allow them freedom to buy the news, and freedom to dispose of it ! I hope that this absurd amendment will be rejected.
– I am very much interested in this provision. I believe that although the majority of the speakers have opposed the amendment, still, if they could see their way clear to destroy the present monopoly in cable news they would pass an amended clause to that effect. The instance of the Times paying £1,200 for a cablegram, as mentioned by the Minister, and the instance of the sharebrokers and others do not apply, I think, to the very palpable newspaper monopoly which is known to pretty well everybody throughout the Commonwealth. The cable news which appears in the daily press of Australia is the same. There is no resemblance whatever to the case mentioned by Senator Millen and the Minister, where two newspapers combined to send a correspondent to the East. The news which appears in the principal daily newspapers of the Commonwealth is the same morning and evening.
– But the amendment does not deal with that.
– I am afraid that the amendment does not deal with that question in a practical way. I think that a clause might be proposed to allow the Minister to discriminate, and to withdraw the copyright from, say, the Melbourne Argus, Melbourne Herald, and Melbourne Age, if those three newspapers prevented any person or persons from starting a newspaper in Melbourne, and gettingequal privileges in the way of cable news. This afternoon
Senator Guthrie instanced a case where the daily newspapers put in their objections successfully against a fresh newspaper obtaining cable news. I remember a case where the Brisbane Telegraph and the Brisbane Courier refused to allow a fresh newspaper to enter the combination. A similar case has occurred in Victoria. From a newspaper man in Tasmania I received a letter asking if I could find some person in Queensland who would go in with him, and endeavour to obtain cable news. If the gentlemen forming the combine were acting upon their individual responsibility, and receiving no concession from the Commonwealth, it would be avery different matter. Their successful business has been built up by the grace of the people in the various States who have granted them certain concessions which are not given to the general public. If a sharebroker as mentioned by Senator Keating wants information by cable from the old country he has to pay the full rate of 3s. a word, but the newspapers are enabled to get their cable news at about a third of that price.
– That is where the honorable senator ought to deal with them.
– I suggested that the Minister should have jurisdiction in the matter. The Minister would be enabled to withdraw the copyright if it could be shown that any section of this combine had refused to allow another individual or firm to share in the benefits ; and provision of the kind would allow newspapers who send correspondents to the East, and so forth, to retain their copyright.
– The cases which Senator Keating has quoted from both the Victorian, law and’ the English law form no objection to my amendment any more than they form an objection to the clause. If the quotations mean anything they mean, that without the clause the newspapers have all the protection they require. Senator Keating, in referring to the case of the Gippsland Mercury, admitted that the decision of Judge Molesworth was based not on common law, but on an old copyright law, which did not specifically deal with newspapers, but with the question generally.
– Judge Molesworthin his decision found that a newspaper was a book.
-In the absence of the statutory provisions which are now proposed, the copyright of newspapers would exist for the term laid down in the general copyright law. In Victoria, for instance, the copyright in a press message would extend for the same term as the copyright of a book, and the Minister, in. introducing this limiting clause, admits the necessity there is for taking away from newspapers that extended copyright. If my amendment takes away existing rights, so does the clause; and the Ministry, in introducing this provision, recognise the necessity, in. the public interest, in the three States where there is no limit, of imposing a limit in this connexion. Even in the three States! where a limitation is imposed, the Minister proposes a further limitation. What harm would, my amendment do in the case of correspondents sent by newspapers1 to the East or to South Africa? In the South African war the newspapers acted individually, and the news so obtained would, even under, my amendment, be copyright.
– But what if two newspapers sent one correspondent?
– As Senator Story pointed out, the usual practice in the case, of war correspondence is for the cables from South Africa, China, or elsewhere, to come by way of London, only the weekly letters of the special commissioners coming direct from the scene of operations. In the case of a weekly letter, it could not be copied until it had first appeared in the columns of the newspapers which engaged the correspondent. Only when two or more newspapers acted together would the amendment operate; and how would it operate? The whole of the expense of telegraphing, and all the incidental expenses, would have to be shared by every person who wanted to participate in the copyright. The person who wished to use the news would have the alternative of paying one-third of the share of the enormous cost, or of waiting for twenty-four hours, at the expiration of which he could publish) it without am- expense. If the particular case mentioned toy Senator Keating comes under clause 33: the news is safeguarded for only twentyfour hours, and where, then, would be the terrible hardship under mv amendment? In almost every instance, the alternative of waiting twenty-four hours would be accepted, especially in the case of a weekly letter, which has not the same value as a cable message. Under all the circumstances, the particular illustration given is of no value as an objection to the amendment. Senator Millen endeavoured to make some capital out of the fact that, when my mind was concentrated on the main principle of the amendment, and I was being met with a fire of interjections, I could not, on the spur . of the moment, give an exact definition of the words pro rata. I said I thought that they would mean an equal share, but, subsequently, I was of opinion that the circulation of the newspaper in question might have to be taken into consideration. I was careful to say that I was not prepared to give a definition off-hand, especially in reply to an interjection which broke the thread of my thought; but, on reconsideration, and having consulted with the draftsman, I feel sure that the only meaning is that, if twelve people were sharing in the cost, they would each have to pay one-twelfth.
– Then the amendment is useless.
– I cannot see that. There are newspapers to-day in Australia which are outside the combine, and which pay infinitely more than a pro rata share for the news supplied. Those newspapers would gladly embrace a chance of paying a pro rata share, and obtaining better news. At present the news is supplied by the grace of the few companies in the’ combine, and at the price fixed bv the combine .: and, further, the prices paid by those outside newspapers amount to practically the whole cost of cabling the messages. Thus the newspapers in the combine get their news practically free.
– If that be so, these outside newspapers could, for the same money, get their news independently of the combine ?
– The honorable senator was not present when I submitted the amendment, or he would have heard me explain that -there is an agreement between the Eastern Extension Telegraph Company and the newspapers, which debars other newspapers from carrying out such a plan. This agreement practically constitutes a monopoly arranged between the newspaper proprietors and the Eastern Extension Telegraph Company; and outside newspapers which have tried “to obtain cable messages on the same terms have failed on innumerable occasions. The amendment might _ be accepted, and any drafting alterations which are absolutely necessary could be made afterwards.
– We have no business to pass an amendment which may do injustice to others.
– I do not think the amendment will do any injustice.
– Why does the honorable senator wish to push this amendment through now ?
– Because the Committee are in full possession of the facts, and this is the proper time to deal with the question.
Senator KEATING (Tasmania- Honorary Minister). - In spite of what I said, in opposing this amendment, it seems that there is some misconception in the minds of one or two honorable senators. Senator de Largie seems to be under the impression that I am opposed to the principle of the amendment; but what I am opposed to is the insertion of such an amendment in this Bill. If the amendment be inserted, it will be absolutely out of place, and will not serve the purposeintended by the f ramer and the mover, and, so far from having the result expected, it will inflict hardship in many cases.
– Where would the amendment be in place ?
– I do not think the amendment would be altogether in place in this Bill at all, for the reasons I gave in opposing lit in the first instance. Senator Pearce, if I may say so with all due respect, misconceives the scope and purpose of this clause. By providing a limit of twenty-four hours for the exclusive publication of news, we do not take away from any newspaper proprietor any right he now enjoys at common law, or would enjoy under the provisions of the Statute. I have not the case of the Argus v. Gippsland Mercury at hand, but it was decided in 1875 by Judge Molesworth, who referred to the Argus, which had been registered under the Copyright Act, as a book; and, therefore, the copyright of the pirated news existed for a much longer period than twenty-four hours. What we propose now is to declare the law. I have read the evidence of Mr. Bell, the manager of the London Times, given before the Imperial Commission in 1898. That gentleman, it will be remembered, admitted that already there was a certain amount of copyright, but the difficulties in enforcing that right were so great that many people were tempted to commit piracy. Mr. Bell gave an instance in which one particular cable cost the Times £,1,200, and before ten o’clock that cable had been copied, and was being sold at a penny, with the result that the Times edition, which had been in great demand for a few hours, began to come back unsold. You, Mr. Chairman, have pointed out that that evidence applies more to England than to Australia, but the amendment would cover not merely cables from Europe, but all kinds of news regarding current events outside Australia. I gave as an instance the possible case of two newspapers banding together for the purpose of sending a special commissioner to the East in the event of hostilities between, say, China and Japan. We know that during the South African war several newspapers sent correspondents to the front.
– Was that for the purpose of cabling news ?
– It does not matter whether it was for cabling news or for sending letters. The honorable senator has said that a weekly letter would have to be published before it could be pirated, and that a pirate would have to wait twenty-four hours. The same applies to cabled news. If cabled news is published in this morning’s Argus, another newspaper could not “ lift “ it until it had been published. In this clause we are simply giving expression, so to speak, to the sentiment expressed by Mr. Bell before the English Commission : That a newspaper proprietor should have copyright for a certain period in news for which he has paid, and that if any one republishes that news a summary remedy should be available. This is an additional privilege. And we are making the offence punishable in a Court of summary jurisdiction, instead of leaving the proprietor of a newspaper to apply for an injunction which he might obtain at a cost of hundreds of pounds several days after his rights had been infringed and when it could be of no use to him. Exception has been taken to the drafting of the amendment, and we have been asked to accept it, leaving defects to be remedied afterwards by the draftsman. But some of these defects are, to my mind, inherent. No matter what ability was put into the redrafting, the amendment could not be made to deal with the subject in a manner that would be practicable and satisfactory. Before the Bill was circulated I gave a great amount of attention to this particu- lar point. I sought, with the assistance of others, to draft a provision to give effect towhatwas desired. But I candidly confess that I was unable to frame any provision that would effectively meet the case, and at the same time conserve the undoubted rights of those people who have put their enterprise and business acumen into this cable service, and who wish their rights to be conserved against others who desire to be purreyors of news to the public largely at their expense. Many of the defects of the amendment, I repeat, are inherent, and I fear that we should be unable to eradicate them from it. Some of them are obvious on the face of it. Suppose that a number of men are banded together to get news from the outside world, and another man comes along, and says to the people in the combination, “ I wantyou to allow me to participate in the news which you get, and I willpay a pro rati contribution towards the cost.” If they answer “ No,” what is the position? This amendment would provide that not merely the individual who has been refused but the people of Australia as a whole should have the right to participate. Surely that would not be equitable. The amendment also provides that a person shall be entitled to participate in this news on giving an undertaking to contribute fro rati. Any number of men may be prepared to give an undertaking, but what is to compel them to honour the undertaking when it comes to be a matter of paying?
– There would be a remedy.
– What remedy will there be against a man of straw ? It is like saying to a sheep-owner, “ Take me into partnership with you, and I will pay a certain amount; but if you do not, I will tear down your fences.” If the members of a syndicate for obtaining news held an unprofitable venture no one would care to share the burden with them. But if such a venture is profitable, the supporters of this amendment want to allow any one else to come in and share the benefits. I have already said, toy way of interjection, that in my opinion the proper way to deal with the difficulty, if it exists, is by means of the cablerates.
– It would be impossible to impose larger charges on one setof newspaper proprietors than on another.
– But where a press agency claimed press rates,we could require to be satisfied that the agency distributed news to all who wished to obtain it on reasonable terms.
– Could that be put in this Bill?
– A Copyright Bill is not the proper place for such a provision.
– We are giving newspaper proprietors a remedy which they did not formerly enjoy, and can we not. make provision against what are alleged to be gross abuses?
– We cannot provide the necessary machinery in this Bill.
-Does the honorable senator think that we can provide the remedy he speaks of in another way?
– I think We might. At any rate, I certainly think that this amendment will not carry out Senator Pearce’s intentions.
– Then why oppose it?
– Because it will be a blot on the Bill, and will lead to a great deal of mischief in the case of people whom we do not desire to affect at all.
Question - That the new sub-clause proposed to be added be added - put. The Committee divided.
Question so resolved in the negative.
– We may consent to the passing of the clause without a division if the Minister in charge of the Bill will agree to its recommittal in order that we may see whether it is not possible -to reduce the time for which copyright snail subsist in news of this description. I am strongly of opinion that twenty-four hours is too long.
– I think that it is a very reasonable time.
– Then the Minister refuses to consent to the recommittal of the clause ?
– I do not refuse to consent to its recommittal if honorable senators will agree to pass it now.
Senator DE LARGIE (Western Australia). - If the Minister is not disposed iri a reasonable way to meet honorable senators who are opposed to this clause I shall be compelled to vote against it. We know that at the present time proprietors of newspapers derive great ana special benefits from the operation of Government agencies, such as our Post and Telegraph Department. In consideration of those advantages we have, I think, a right to insist that something like fair play shall be extended by them to persons WhO may desire to start newspapers in the various States. Unless the Minister in charge of the Bill will agree to recommit it, I shall be compelled to vote against it.
– I voted against the amendment reluctantly, because I was afraid that possibly some injustice might be done under it. But I distinctly recognise, and it is indeed notorious, that the principal press combination exercises at present an influence in connexion with cablegrams which is baneful and against the general weal. Although I was not prepared to vote for the amendment as submitted, I do think there ought to be devisable some means by which injustice might be remedied, and the power of this vicious, baneful combine somewhat weakened.
– Ministers have heard all these arguments.
– I am arguing now in support of the applicant for a recommittal pf the clause.
– I haw said that I am not opposed to its recommittal.
– I did not understand that. That is all. I rose to urge, so that ‘ a further opportunity might be afforded honorable senators to consider the matter, though I confess that I do not at present see any way in which the difficulty can be met.
Senator KEATING (TasmaniaHonor*ary Minister).- As soon as the division on the- amendment was, recorded, Senator Givens intimated that he was prepared to consent to the clause being passed without a division if I had no objection to its recommittal. The honorable - senator stated that his object was to cut ‘down the term, of twenty-four hours for which it is proposed that copyright in news should subsist. I intimated by interjection that I had no objection to the recommittal of the clause, and I thought that honorable senators generally heard what I said. I hari previously informed Senator Millen, in connexion with sub-clause i,’ that I should have no objection to the recommittal of the clause if he thought his views and the views of other honorable senators would not be given effect to by the clause as amended. I have all along indicated th’at I think something, should be done inthe direction suggested by the amendment moved by Senator Pearce. I did all I possibly could to put something into the Bill which would be in conformity with the rest of the measure, and at the same time secure to every one his just rights. If honorable senators can frame something of the kind that can- be shown to be workable, I am sure that several honorable senators who have voted’ against Senator Pearce’s amendment, will be found supporting such .a provision.
Senator! (DOBSON (Tasmania).- This matter has been most fully discussed, and every argument used in connexion with it has been carefully listened to. Honorablesenators have voted against the amendment who have expressed themselves in sympathy with some restriction of what may be an injurious monopoly. But apparently if Senator de Largie cannot secure just what ,he desires, he is prepared to wreck the Bill.
Clause, as amended,’ agreed to.
Senate adjourned at 10.40 p.m:
Cite as: Australia, Senate, Debates, 28 September 1905, viewed 22 October 2017, <http://historichansard.net/senate/1905/19050928_senate_2_27/>.