2nd Parliament · 2nd Session
The President took the chair at 10.30 a.m. and read prayers.
asked the Minister of Defence, upon notice -
If the statement published in the Age of9th instant, to the effectthat the Government does not intend to proceed with the Bill for determining the representation of the several States in the Parliament, is correct?
– The answer to the honorable senator’s question is as follows : -
Seeing the interest the honorable senator took in connexion with the Bill, I am all the more pleased to say that the statement is not correct.
asked the Minister representing the Postmaster-General, upon notice -
Have any arrangements been made, as stated in the press, for the printing of postage stamps for the Commonwealth at Adelaide; if so, will the Minister state fully the terms under which such arrangements have been made?
– The answer to the honorable senator’s question is as follows : -
No arrangements have been made for the purpose indicated in the question.
Senator KEATING laid upon the table the following paper: -
Public Service Act 1902. - Repeal of Regulation No. 155, and substitution of new Regulation; and Repeal of Provisional Regulation (Statutory Rules, 1905, No. 42) - Statutory Rules, 1905, No. 68.
Motion (by, Senator Playford) proposed -
That Notice of Motion No. 1, Government Business, be an order of the day for the next day of meeting.
– On Wednesday, last the Minister of Defence gave notice of this motion relating to the Queen Victoria Memorial for the following day, but yesterday it was not dealt with. It is not desirable that the notice-paper should be trifled with in this way. If the Minister really did not intend to move the motion on Thursday, it would have been better if he had allowed it to stand over for a week or two.
– Suppose that we had gonethrough the business on the noticepaper before that time, the Senate would have had to adjourn.
– I protest against the postponement of the notice of motion in this way.
– I am treating this notice of motion in exactly the same way as my honorable colleague treated the notice of motion relating to the renewal of the Vancouver mail contract. Necessarily it has to appear on the notice-paper before the Government Orders of the Day. Some time ago I said that I intended to proceed with the consideration of the Commerce Bill until it was finished, because I like to take one thing at a time.I think that honorable senators were aware that, although this notice of motion appeared as the first Government business on the notice-paper of the day, it was not my intention to take it until the Commerce Bill had reached the third reading stage.
– I can assure the Minister that some honorable senators did not so understand him.
Question resolved in the affirmative.
In Committee (Consideration resumed from 9th November, vide page 4859) :
Clause 1 -
This Act may be cited as the Commerce Act 1905, and shall commence on a day to be fixed by proclamation, not being earlier than six months after the passing of this Act.
Senator PULSFORD (New South Wales). move -
That the word “ Commerce “ be left out with a view to insert in lieu thereof the words “ Trade Descriptions.”
I believe that in connexion with the Bill there are one or two matters in respect of which an understanding was arrived at in another place, that in the Senate some alteration would be permitted, and I think that its members wereencouraged to expect that a change in the title would be made. Clearly the title is not a very satisfactory one. In the first place, the term “commerce” is very wide. It is, in fact, ail-embracing, so far as commerce is concerned. It is a little too big for what is proposed. It is so wide that it confines the Bill to commerce with other countries, and prevents the Government from carrying out to the full extent their alleged desire to promote honest trade. The provisions of the Bill, as they stand, cannot affect any operation, However gross it may be, in connexion with the transfer of goods from State to State. For these reasons, which I think are ample, I submit this amendment, and if it is carried we shall be able to insert a clause which will make it quite clear that the Government have power to deal with Inter-State transfers.
– I know that the Minister of trade and Customs consulted the Comptroller-General’ of Customs to see whether they could not invent a more appropriate title than the one they had chosen. Originally this was described as “A Bill for an Act relating to Im-‘ ports and Exports.” and its title was changed to “A Bill for an Act relating to Commerce with other Countries.” After considering the matter fully, they could not find a more appropriate title than the latter. It ig a matter of very little consequence what the Bill is called. The title adopted is certainly descriptive, because the Bih relates to commerce with other countries, and not to commerce between the States. It apnea rs to me that it is quite as appropriate as the one which Senator Pulsford proposes with a view to makins: the Bill apply tn InterState trade as well as foreign trade. We must oppose the amendment.
Senator MACFARLANE (Tasmania).I intend to support the amendment. I think, however, that it would be an improvement if the title of the Bill were altered to “ Fraudulent Importation- and Exportation Act.” That is what it really is, and what the Government want the public to understand that it is. The expression “commerce7’ embraces many things which the Bill does not touch at all.
– I admit that the title is an awkward one; but sometimes it is very difficult to get an absolutely accurate title.
– If the Government will adopt my suggestion, the title will express what they really mean. I understand that when a similar suggestion was made elsewhere it was not objected to.
– We prefer the present title.
Senator MILLEN (New South Wales).I must admit that my experience has been widened this morning, when we are told, as the only reason why the title given to> this . Bill should be adhered to, that two gentlemen who are not members of the Senate have had a conference and decided” that this is the best title. With all deference to Sir William Lyne and the ComptrollerGeneral of Customs, and without wishing to underrate their powers, the mere fact that they have come to that decision does not prove anything.
– But the other House has accepted the title and sent up the Bill.
– -What is the good of the Senate if the mere fact that the other House has agreed to the title is to settle the question?
– Oh, no; it does not settle the question.
– According to the Minister, it does, or his argument means nothing. “We ought to consider the question of the title on its merits, and without any regard to the fact that two gentlemen outside have decided that the best title has been chosen.
– Let the honorable senator suggest a better title.
– The first thingwe have to do is to show that “ Commerce Act” is not a correct title. The Minister has admitted that the title is faulty, and that he is not satisfied with it. Instead of scouting, suggestions for the improvement of the title, he ought to work with us in our endeavour to design a better one. Surely “ Commerce Act “ does not define the purpose of -the Bill. It cannot be said to deal with commerce in the larger sense of the term; certainly not in the sense in which the word is used in the Constitution. “Trade Descriptions Act,” to whatever objection it may be open, is a verv much more appropriate title for the Bill, because all through” it sets out: that its purpose is to secure that there shalT be no false trade descriptions, and, in clauses 7 and n, that the descriptions shalT tally with those prescribed bv the Minister. The Bill has nothing to do with commerce as I understand the meaning of that term, but it has everything to do with the marks which are placed on goods for the purposes of commerce. The Minister is treating the amendmentin too light a spirit, I think that it ought to be adopted.
– I could not help noticing that the Minister of Defence did not think it worth his while to take up the subject of making the Bill apply to Inter-State trade. The whole of the accusations which were hurled at honorable senators on this side yesterday were to the effect that we really did not wish to repress the use of fraudulent trade marks. That was quite untrue, because we are as anxious as any honorable senators can be to put down fraud, and I am taking the first step this morning to enable the Minister to have increased powers. If the title of the Bill remains as at present, the Minister’s hands will be tied, however undesirable the proceedings may be that are taking place under his very nose ; and I cannot understand why he does not at once accept the suggestion. The idea mooted by Senator Macfarlanes, that the title should refer to fraudulent importation and exportation, would also confine the Bill to external trade. If the Commonwealth has any power to repress fraudulent trade, that power should be used, not only in regard to foreign trade, but also Inter-State trade.
– Perhaps it is not too late even now to incorporate this Bill with the other (measure known as the Fraudulent Marks Bill, and give the combined measure the title of Merchandise Marks Bill. Why have two separate measures, one dealing with false trade descriptions in Australia, and the other dealing with false descriptions of goods imported or exported? Both deal with exactly the same subject. If the suggestion I have made is objected to, or considered too difficult of accomplishment, I shall support the amendment suggested by Senator Pulsford, as being more appropriate to the measure before us.
– Either of the suggested titles is preferable to the title proposed by the Government. I am inclined to think that Senator Drake is correct, and that the Bill ought to receive the title of the Act from which it has been derived, because in every sense of the word this is a Merchandise Marks Bill. I should like to know from Senator Keating whether, if either of the alterations suggested is made, the Bill will then apply to Inter-
State commerce as well as to commerce with other countries, and, if so, whether itis intended to insert a clause setting forth that fact. The Bill as it stands is altogether too restrictive, and the most able Minister that ever lived would not be able to administer it without doing harm. I am not prepared to support any amendment of the title, if, by so doing, the operation of the Bill will be extended to commerce between State and State.
SenatorMillen. - How could an alteration of the title affect that?
– I am merely asking what position the Ministry propose to take up if the title be altered. Will the Bill be confined to commerce with other countries, or also applied to Inter-State trade?
– Certainly not to commerce between State and State.
– I listened with some surprise to Senator Pulsford when he suggested an alteration in the title. One of the arguments used by the honorable senator was that his amendment would give the Bill more extensive scope, and affect not only external trade, but Inter-State trade. I cannot see how the alteration would bring about that result; and I can only anticipate that, if the honorable senator is successful with his amendment, he intends to extend the scope of the measure by subsequently proposing additional clauses. It is desirable to adhere to the present title, containing, as it does, the words used in that section of the Constitution from which we derive our power to legislate in matters of this kind. There is a large ambit of legislation reserved to the States in connexion with merchandise marks and trade descriptions, and it is much better that the Commonwealth measure should bear a distinctive title, which at once conveys the information that it. is Federal, and not State, legislation. Even if we exercised our fullest authority to deal with both external and Inter-State commerce, each Statewould still be at liberty to pass Bills covering commerce within the State itself. If the Commonwealth Parliament pass a Merchandise Marks Bill,, or any measure of the kind, each State may do the same ; and, under the circumstances, it is better that the titles should differentiate. I pointed out last night that, so far as concerns Inter-State transactions, each State may, by domestic legislation, to a large extent nip in the bud the evils which we are endeavouring to cure in regard to fraudulent’ importation. For that reason, the Government at this stage refrain - and I think wisely - from exercising to the fullest the legislative powers conferred by the Constitution, and leave the States to legislate supplementally, in connexion with the sale of fraudulent goods within their own borders.
– Why miss the intermediate stage of Inter-State commerce?
– It is desirable that the States should be given an opportunity to follow our legislation, and that we should on this occasion confine ourselves to external exports and imports.
Senator DOBSON (Tasmania).- Senator Keating has given no reason whatever why we should not adopt a better title than that of Commerce Bill if one can be found, and either of the two suggested would be more accurate. If we adopt either, a new clause may be inserted providing that the BiH shall not apply to Inter-State trade, and I hope that honorable senators will not be led away by the fact that the Government wish to adhere to the present title. The words “ commerce with other countries “ have, in my opinion created much unnecessary suspicion, and, while there are grave objections to the Bill itself, I believe that the title has caused them to be regarded as much graver.
Senator PULSFORD (New South Wales). - I did not assert that the change which I suggest in the title would automatically extend the scope of the Bill to the supervision of commerce between States. I merely pointer! out that if the Minister, in his very laudable anxiety to restrain fraud, desired to do that, it could be accomplished by the addition of a newclause. The term “ commerce “ is altogether misapplied, and the first step is to eliminate it, deciding afterwards what shall take its place.
– The whole trend and object of the Bill is to deal with trade descriptions, and it does not appear to me that either the present title, or the title suggested, would make any difference as to the effect of the measure. It is set forth that a false description of goods may be punishable by a penalty of £,100; and yet the Bill itself bears on the face of it a false description.
– I cannot see that the title is false. The Bill relates to commerce with’ other countries.
– So does the Customs Act.
.- Are there any provisions in the Bill except those dealing with descriptions of goods? Not a word is said as to how commerce must be conducted between the Commonwealth and other countries ; there are no provisions, for instance, that certain- vessels shall be licensed for commerce, or that they shall not be undermanned.
– These are matters for a Navigation Bill.
.- That is so; but, at the same time, they relate to commerce. The Bill does not relate to all commerce, but merely to that infinitesimal part of commerce which has to do with trade descriptions.
– In the title the words are used “ relating to commerce.” People will refer to the Bill to see in what particulars it does relate to commerce.
.- According to Ministers, this Bill is an adaptation of, and an improvement on, the English Act; and although we were led to believe that the alterations were only verbal, I regard them as the real crux of the Bill and the possible cause of danger. A person is to be liable if he does not give an accurate description, and we ought to adopt that principle in regard to the title of the Bill.
Senator MILLEN (New South Wales). - Surely it is not intended that this question shall be decided with such slight consideration.
– “ Dumbdriven cattle.”
– We know the reason for this opposition.
– I might with equal candour say that I know the reason why no arguments addressed from this side will be entertained.
– Try us with an argument !
– The Committee apparently have such a lot of time to waste, that certain honorable senators do not seem disposed to afford me the opportunity. Senator Playford said just now, in an interjection, that shipping and similar matters are related to commerce. On that argument he might as well call the Customs Act a “commerce” Bill.
– Or the Navigation Bill.
– Navigation, Customs, and all similar matters are, more or less, related to commerce. The Bill deals only with one branch of commerce, and surely we should not apply to it a title which covers the whole subject. The Minister having admitted the defect in the title of the Bill, might agree to accept some of the suggestions made from this side. The honorable senator has deplored the title which has been adopted for the Bill.
– I did not deplore it.
– The honorable senator has repeatedly said that it is a defective title, but that it is the best that Sir William Lyne and Dr. Wollaston could arrive at. Is .the Senate to be merely the recording angel of the decisions of those two gentlemen? I have heard nothing in support of the retention of the title adopted, whilst I have heard a great deal in support of its rejection. The title suggested by Senator Drake briefly, accurately, and aptly describes the purpose of the Bill, and I have not heard a single objection to it. Senator Playford, in insisting on the retention of a title which he admits to be defective, has prolonged a discussion which should have terminated long ago.
– I hope that honorable senators opposite will be prepared to listen to argument on this question. If Dr. Syme, in his work on “Anatomy of the Human Body,” had dealt only with the anatomy of the human leg, it would ha.ve been reasonable to contend that the title of his book should be “The Anatomy of the Human Leg.” We have here a Bill dealing with a very small branch of commerce, and the title applied to it covers the whole subject. I am prepared to_ support Senator Pulsford’s amendment,” and if it is defeated I hope that some consideration will be given to that suggested by Senator Drake. It is proposed under this Bill to punish people for a misdescription! of goods, and we begin by ourselves committing the great crime of applying a misdescription to the Bill.
Senator PULSFORD (New _ South Wales). - I am quite prepared to withdraw my amendment in favour of that suggested by Senator Drake. The honorable and learned senator has suggested the_ title which is adopted in England for a similar measure. This is a Merchandise Marks
Bill, and we should bestow on it an> appropriate title. No person abroad desiring to consult a Commonwealth Act dealing with fraudulent trade marks would dream of finding it in the index to our Acts under the word “commerce.” The title of a Bill is supposed to be a short index to its contents, and the title of this Bill should indicate that it relates as it really does to merchandise marks.
Senator DRAKE (Queensland). - I am sorry that the Government will not listen to reason in this matter. Their mistake must be patent to them. They are giving the name of a comprehensive subject to a Bill dealing only with a small fraction of it. That is not a rational way of naming a Bill. Senator Keating referred to the term used in the Constitution, but it should only be applied to a measure dealing with the whole subject of commerce.
– We are not dealing now with the title of the Bill, but with the short title used for reference.
– The short title should convey some idea of what is in the Bill. We should not adopt a short title which gives no indication of the nature of its provisions. The title of a Bill should give some indication of the particular subject with which it deals. The particular subject dealt with by this Bill is that of merchandise marks as applied to goods imported to and exported from Australia.
– If we adopted the “ Merchandise Marks Act “ as the short title of this Bill it would be equally misleading, because the Bill refers only to a portion of the subject of merchandise marks.
– I have suggested the incorporation of this Bill with the Fraudulent Marks Bill under the title of Merchandise Marks Bill, and the fact that that has not been done is no reason why the term “Commerce” should be applied to this Bill, in view of the fact that so many other matters relating to commerce will have to be dealt with in other Bills. I hope the Committee will decide the question on its merits. The Government have admitted that the title adopted is not appropriate, and they refuse to adopt a title which clearly is appropriate.
-Col. GOULD (New South Wales). - Speaking from the Government benches, I may be permitted to say that honorable senators on this side of the Chamber realize the great force of the arguments submitted by honorable senators opposite, and I must express my surprise that the representatives of the Government in the Senate are not prepared to accept the suggestions offered them, when they can give no reason why an appropriate title to this Bill should not be adopted. It has been repeatedly pointed out that they are proposing the adoption of a title which will convey a false impression of the nature of this measure. The Minister in charge of the Bill realizes the force of the arguments submitted by honorable senators opposite, because, while he says that the Bill deals with commerce, he admits that it deals with but an infinitesimal part of the subject. Surely a reference to the short title of a Bill should enable any one to discover the subject with which it deals. The short, title of this Bill would indicate that it is a measure relating to commerce, whilst it is merely a measure relating to trade description’s. I invite the Minister to point out in what respect this Bill deals with anything appertaining to commerce, except trade descriptions. I urge the Government, on behalf of honorable senators sitting alongside of me, to take the matter into- serious consideration. I am sure that honorable senators on this side are agreed that an appropriate title should be adopted and that they will not slavishly follow the lead of other individuals in the settlement of a question which may be fraught with grave constitutional consequences.
Senator MILLEN (New South Wales). - In view of the fact that from both sides of the Chamber the Minister has now had arguments addressed to him in support of the amendment, he should accept it. I should not so strongly object to his action if the honorable senator had not admitted’ that the title in the Bill is not appropriate.
– I have admitted that it is not the best possible title, but I” have heard no better suggestion.
– Surely, when it is pointed out that there is no clause in this Bill which doe’s not deal with merchandise marks, the term “ Merchandise Marks Act “ must be a better title than “ Commerce Act,” which covers many matters, that are not touched on at all ? A Customs Act, a. Shipping Act, or a General Navigation Act might be called a Commerce Act with equal inappropriateness. If it does- not matter a tittle what we call” a Bill - provided, of course, ‘ that deference is paid to any suggestion by Dr. Wollaston and Sir William Lyne - the work of the Senate will be lightened considerably. But it is the duty of the Senate to see that, legislation does not pass from this Chamber in “an imperfect form, and a defect admitted by the Minister in charge of the Bill should certainly be remedied.. If the Minister is not satisfied with the title of the Bill, and is not satisfied with the suggested title, the proper course is to postpone the clause, in order to see whether in the interim we can arrive at a’ title which will be satisfactory.
Senator PULSFORD (New South Wales). - I have heard of a fly on a wheel that thought it was the moving power, and much more important than the wheel itself. That seems to be the position in connexion with this Bill. Marks are to commerce something like the fly to the wheel. The Bill, is named, not after the fly, but after the wheel. That is carrying things to a ridiculous point. As I have said before, a gentleman from any part of the world comingto Australia, and desiring to find out what legislation we had with regard to fraudu-lent markss would look up the index of our Statutes for something which indicated that purpose. He woul’d never believe that in a Commerce Act he would find provisions regulating fraudulent trade marks. I assure the Committee that I am not proposing this amendment with any wish to delay the Bil! or to injure it, but simply because’ I regard it as desirable, and think that it will improve the measure.
Senator Lt.-Col. GOULD (New South Wales). - I am surprised that Ministersshould not have repudiated the- charge that’ the title of this Bill is a slovenly one. Senator Millen has made that charge, and the members of the Government have taken no steps to resent it. Senator Playford has informed us that if we could suggest a more acceptable title he would be prepared to give way. That affords an opportunity to honorable senators. Senator Pulsford appears to have desired to likenthe Minister in charge of the Bill to a fly.Senator Playford may naturally object to being compared with such an insect. We must recollect, however, that unless the wheel were a very big and solid one, hewould certainly be am overwhelming fly, and might very well consider that he had a’ great deal to do with its movement. Apart from such considerations, the representatives of the Government must realize that- the Bill has been given a title which is inappropriate. The title to a Bill is intended to indicate its purport. The title of this Bill should not make it appear to cover all commerce, when as a matter of fact it merely deals with an infinitesimal part of commerce. I dare say the Government feel that, as an amendment has been suggested by the Opposition, they are bound to stand to their guns ; but surely when they find that there is a strong desire on the part of the Committee to make a change which does not affect the character of the Bill, but merely indicates that it applies only to trade descriptions, they ought tobe satisfied to accept the amendment.
– It appears that two or three members of the Opposition have simply been marking time until the appearance of Senator Symon. Now that the honorable and learned senator has appeared they will be relieved. When this debate commenced I listened with considerable interest to hear whether any argument would be advanced for an alteration of the title. But I have come to the conclusion that honorable senators opposite are so excited by the measure that they must either amend it or burst. That being the case, I venture to make a suggestion to them. Why do they not ask the Minister to agree that the measure shall be printed in a coloured ink? That probably would relieve them.
-Col. Gould. - What colour would the honorable senator suggest?
– Red would be appropriate. I really think that some concession ought to be made to them.
– It would be exceedingly discourteous if I were to remain silent any longer than is necessary, and were not to express my deep indebtedness to my honorable friend who has just sat down. Not only did I receive from him a cordial welcome when I arrived, but I am also indebted to him for the information which he has given, and for the little delay which he has caused to enable me to gain my breath.
– To get instructions.
– I do not know that any instructions were necessary. I understand that the amendment is to substitute for the word “Commerce” the words “ Merchandise Marks.”
– No; “Trade descriptions.”
– At any rate, the intention is todelete the word “Commerce.” Surely there cannot be any possible objection to that. To label this a Commerce. Bill is simply ludicrous. It is like looking through the wrong end of the telescope to call this meddlesome, interfering, twopenny-halfpenny measure-
– And hypocritical.
– I will not call it that ; but to call this Bill an Australian Commerce Bill is simply a perfect travesty. It is the most inappropriate name that could possibly be applied. The Senate was informed some little time ago by the Minister of Defence that this Bill was prepared by the late Government. When he made that statement my honorable friend, who has a powerful imagination, was entirely drawing upon it.
– He said that it had not received the final revision of the late Government.
– That is the way he reconciles the statement to his sensitive conscience. I am happy to say that the late Government was not in anv respect responsible for this measure. I am proud to believe that they never sanctioned it - that neither in this form nor in any other form was the Bill ever sanctioned by the late Government. But what happened was this : Probably some honorable senators are aware of the history of it. When a very weak Government was in power, known as the Deakin Government-
– No, no.
– They introduced a measure which was called a Trade Marks Bill, and which has been dragging along a lingering existence, and waiting for a favorable opportunity to have crushed into it what are called Trade Union Marks provisions. The Deakin Government also introduced at the same time a Bill called the Merchandise Marks Bill. It was based upon a piece of Imperial legislation which has been more or- less adopted throughout the States of Australia, and is known as the Merchandise Marks Act. The object of it was to provide that a person who deals with a retailer - or it may be with a wholesale merchant - may not be imposed upon by goods which are fraudulently marked. The Bill was one to deal with internal trade. The Act in England itself, which is still upon the Imperial Statutebook, was for the same purpose. It was that measure which was submitted to this Parliament. These two Bills were introduced in the Senate, if my recollection serves me rightly. The Trade Marks Bill had embodied in it at the instance of Senator Pearce, provisions with regard to the trade union label. When the Watson Government came into power, in order, I suppose, to make it more attractive, and to give it that facility for being swallowed which, if you dub a measure something to stop a fraud, it is sure to have withdrew the Merchandise Marks Bill from the noticepaper, and changed its title to “ Fraudulent Marks Bill.” Of course the object of that was perfectly legitimate. I will not say that it was to gild the pill, but it was to’ suit the taste, and to make the measure more easily swallowed by some. When that Fraudulent Marks Bill was going through the Senate, my recollection is that it was subjected to a great deal of criticism from the point of view, first of all, of the Constitution, and our right to deal with matters of that kind ; and, secondly, from the point of view of the States. Because there can be no doubt whatever that the States are far more deeply interested than we are. In fact, it is a matter for a State Parliament and State administration much more than for ourselves. We have little or nothing to do with it, and nothing that we can do, so far as some of the provisions of the Bill are concerned; can possibly affect the great object which we should all entertain of securing the consumer in obtaining pure and unadulterated articles, whether of food or of any other nature - of securing that they are articles which correspond with the name under which they are described. The criticism was justly levelled against the Bill that it was ultra vires of our powers, that it encroached upon the domain of the States, and, in some of its provisions, that it mixed up matters that would more properly be left to a Trade Marks Bill. That is the history up to that stage. Under these circumstances, and I presume under the direction - the very proper direction - of the Watson Government, the officers set about analyzing the Fraudulent Marks Bill, and endeavoured to place on the one side the powers which they thought more properly belonged to a Trade Marks Bill, to set upon the other side the powers that seemed to encroach upon the domain of the State, and to put into a third classification the powers that they thought might possibly be applied to goods imported through the ports of the Commonwealth. The officials accordingly made that analysis and called the Bill, not the Commerce Bill, but the Imports and Exports Bill. That was the state of the draft print as I first saw it. At the time I last saw the Bill it was undergoing an examination, not by me, but By the officers, by my instructions, with a view to showing clearly, for the information of Parliament, the principal parts which were considered to bc ultra vires, or to encroach upon the domain of the States. The Bill was not advanced enough to be .considered by me, and of course it follows that it was not considered by the Government. The title was to be limited in the way in which it was limited, even in that suggested framework. The Bill does not deal with commerce in the sense in which it would be. understood either in the Commonwealth or outside. If we appropriate the term “commerce” to the Bill we shall debar ourselves, at least in ordinary circumstances, from using that word where it might be more appropriately used. If we were dealing with the entire subject of commerce throughout the Commonwealth, it would be an accurate title. But when we are simply seeking to make imports and exports liable to certain supervision, with a view to preventing the use of fraudulent descriptions, then I think we ought to make the Bill, even in its title, if I may use the phrase, understandable by small as well as big traders. My honorable friends must see that it will be better understood if it is called the Merchandise Marks Bill, or even the Trade Descriptions Bill, than if it is called the Commerce Bill, because the latter title is absolutely misleading. It is generally agreed that it is undesirable to give an opportunity to any one to defame or belittle us. or to say that we are legislating for the mere sake of legislating. We shall give such an opportunity if this is called the Commerce Bill of Australia. I understand that in another place it was understood - I shall not s3.v promised - that there would be no objection to delete the word “commerce.” and substitute a ‘word more appropriate to the purpose of the Bill.
– I can find no reference to it.
– I have not had sufficient time in which to lav my finger upon the exact phrase which was used, but if it was not absolutely promised, it was very nearly promised, that in the Senate, if the Government would not see to the word being deleted, they would offer no objection to its deletion. It is well to have a title that will describe the Bill and its objects, and we must all admit that Commerce Bill is not a descriptive title. The object of a short title is to earmark the subject-matter of the Bill, so that a man can very readily make himself and any one with whom he is dealing aware of what its purport and intention are. “Commerce” is a fine, euphonious word, but surely we can find a better use for it than by pinning it to this Bill. Certain of its provisions are taken, not from the Imperial Merchandise Marks Act, but from the Imperial Customs Act, so that literally the Bill has nothing whatever to do with commerce as ordinarily understood. So far as those provisions are concerned, it would be just as appropriate if it were Galled the Customs Act Amendment Bill as the Commerce Bill. I hope that the Ministers will see their way to consent to the deletion of the word “commerce.” There seems to be some confusion as to what word should be substituted. The expression “ merchandise marks ‘ ‘ is one which is well understood. It would almost enable us to have the benefit of the decisions given under the Imperial Merchandise Marks Act. The purpose of the two measures is not exactly the same, because, while the English Act relates to internal trade, this Bill relates to over-sea trade. If it encroaches, as I think it does, in spirit, if not in letter, on the domain of the States, it is very much better that it should be confined to that which we intend.
Senator PULSFORD (New South Wales). - For the benefit of Senator Symon, I may mention that my original proposal was to insert the words “ trade descriptions,” but that when Senator Drake suggested the adoption of the English title, I at once intimated my willingness to accept the suggestion, as I thought that “merchandise marks” was a better term than “commerce “ to apply to this Bill.
– Does the honorable senator wish to withdraw his amendment?
– Not yet.
– If it is not withdrawn, it must be put in the form in which it was moved.-
– I withdraw the latter part of it, and move simply that the word “ Commerce “ be left out.
Amendment amended accordingly.
– Section 51 of the Constitution empowers this Parliament to legislate in respect of thirty-nine distinct subjects, and the term “commerce” might just as appropriately be applied to a Bill dealing with any one of twenty of those subjects as to this Bill. For instance, the expression “trade and commerce” is an all-embracing one, and a Bill dealing with taxation might be called a Commerce Bill, because there is the taxation of commerce. There are bounties in connexion with commerce, and therefore a Bill relating to bounties) might be called a Commerce Bill. Money has a good deal to do with commerce, and therefore a Bill relating to the borrowing of money might be called a Commerce Bill. The postal and telegrahpic services have a good deal to do with commerce, and therefore a Bill dealingwith those services might be called a Commerce Bill. Surely lighthouses and lightships have to do with commerce, and a. Bill dealing with those subjects might be termed a Commerce Bill. Quarantine has to do with shipping and commerce, and therefore a Quarantine Bill might be called a Commerce Bill. A Bill relating to fisheries in Australian waters might be called a Commerce Bill. Statistics have to do with commerce, and why should not a Statistics. Bill be called a Commerce Bill? In the same way, the term might be applied to a Bill relating to currency or coinage, or legal tender or banking. There could be at least twenty Bills to which with equal justice, the term “commerce” could be applied. To adopt the illustration I used before, we are giving to the fly on the wheel the name of the wheel itself. That is altogether ridiculous. Let the Bill bear a title - Merchandise Mark’s Bill - which will clearly and accurately describe its subject-matter.
– If Senator Playford will peruse Hansard, he will find that his colleagues in another place made it clear that, so far as they were concerned, they would offer no objection to an amendment of the title of this Bill. I do not believe that there would be any serious objection offered to an amendment of the title. The word “commerce “ is understood throughout theworld to include all the details to which SenatorPlayford has just referred. Apparently the Minister of Trade and Customs does not realize that with this title the Bill would be understood to include all classes of commerce. No greater mistake could be made than to give a wrong impression of the Bill to those who have business relations with us in the commercial centres of the world. I ask Senator Playford to accept the amendment. I do not regard the measure from a party standpoint. I realize that we are all animated by a desire to do the best we can in the interestsof the Commonwealth’; and although we may differ from the Minister’s view of the effect of the Bill, surely we can all agree that its title should truly indicate its subject-matter.
Question - That the word “ Commerce,” proposed to be left out, be left out - put. The Committee divided.
Majority … … 3
Question so resolved in the negative.
Senator PULSFORD (New South Wales). - The narrow division in which a majority was secured by the votes of two members of the Ministry, must, I think, be accepted as indicating that it would have been reasonable and fair of them to have agreed to the amendment. But I do not suppose that the resources of civilization are yet exhausted. There may be found some means to bring this title more into conformity, with the measure itself, and enable the representatives of the Government within this Chamber, to fall more into line with what I think is the feeling of Ministers in another place. The Committee have decided not to omit the word “ commerce,” but I think honorable senators may be willing to insert a word or two in order to attain a more explicit definition. As a reasonable sug gestion, to which I think Ministers can have no objection, I move -
That after the word “ Commerce,” the words “ (Fraudulent Marks)” be inserted.
Senator PLAYFORD (South Australia - Minister of Defence). - I do not regard this opposition to the Bill as sufficiently serious to merit consideration. I do not look upon the amendment except as one that is moved by the honorable senator with the intention of - well, I shall not say what.
Senator MILLEN (New South Wales). - If the Minister does not regard the amendment as sufficiently serious to merit consideration, I do.
Senator Sir JOSIAH SYMON (South Australia). - The Minister in charge of the Bill has, I think, a verv curious notion of what his duties are under the circumstances.. When an honorable senator submits an amendment, in order to give effect to views expressed in regard to an earlier amendment, the Minister regards it as not offered seriously. But the Minister thought it serious enough to cause him to consult a visitor on the subject before he made that statement? Did the Minister not leave the table, and take his instructions from a gentleman visible, though not in the Chamber ?
Senator PLAYFORD (South AustraliaMinister of Defence). - I do not look upon the question as one of very great importance. With respect to the position taken up by the Minister in charge of the Bil! in another place, I shall ‘ just read from Hansard what the honorable gentleman said, so that there may be no mistake with respect to his views on the subject.
I am not wedded to this title, and I am quite prepared to consider the question of asking honorable senators in another place to alter it.
No senator shall allude to any debate of the current session in the House of Representatives, or to any measure impending therein.
Senator Sir JOSIAH SYMON (South Australia). - I congratulate Senator Playford on speaking in so reasonable a way. It is not necessary to re-debate the question, since the honorable senator admits that the “Commerce Act” is far too large a title for this Bill. The measure really deals with trade descriptions, and if the words “ Trade Descriptions “ are inserted there is less objection to the retention of the word “Commerce.” Senator Playford might accept the amendment in that form, and if he does so I can assure him that honorable senators on this side will not regard it as binding, and it will be open to the Minister, if it is subsequently considered necessary, to propose the elimination of the word “commerce,” or to substitute some other term for it, and we will assist him as far as we can. I ask the honorable senator, therefore, to accept the amendment,pro forma.
Senator PLAYFORD (South AustraliaMinister of Defence). - I will accept the suggestion to insert the words “Trade Descriptions,” pro forma, on the understanding that if, on reconsideration, ft is thought necessary to recommit the Bill for the purpose, honorable senators will assist me in adopting a more satisfactory title, if one can be suggested.
Amendment, by leave, withdrawn.
Amendment (by Senator Sir Josiah Symon) proposed -
That after the word “ Commerce “ the words “ Trade Descriptions “ be inserted -
Question put. TheCommittee divided.
Ayes … … … 14
Noes … … … 12
Majority … 2
Question so resolved in the affirmative.
Amendment agreed to.
– I move -
That the words “ six months after the passing of this Act,” be left out, with a view to insert in lieu thereof the words “ 1st July, 1906.”
There are two good reasons for this amendment. One is that the 1st of July will be the beginning of a half-year, when new business arrangements are made, and it is for that reason a suitable time for the commencement of the operation of the Act. Another reason that weighs very strongly with me is that by the 1st of July next the Federal Parliament will, inall probability., be again’ sitting, and we shall be able to review any regulations which may have been gazetted under this Bill. The matter is perhaps not of much consequence, because I do not suppose that in any event the Bill is likely to become law much before the end of December, but the reasons I have given are sufficient to induce me to ask the Committee to accept the amendment.
– I respectfully suggest that the desire to propose frivolous amendments’ of this sort-
– Does the honorable senator call this amendment frivolous?
– The difference between the time proposed by Senator Pulsford and that mentioned in the Bill cannot be more than six weeks. If honorable senators have a desire to propose a considerable number of amendments in order to block legislation, and set up a stone-wall, let us get to some of the interesting clauses of the Bill.
– There isno justification for saying that.
– I desire, Mr. Chairman, to ask your ruling as to whether the honorable senator is justified in alluding to the proceedings of last F riday when he refers to a stone-wall?
– I did. not understand the honorable senator to referto last Friday’s proceedings.
– That is the only recent “stone-wall “ I can call to mind.
– That is owing to the honorable senator’s stupidity.
– Is that in order ?
– I think honorable senators will see that on a question as to whether the date of the coming into effect of the Act shall be altered, remarks about “ stone-walls” are not relevant. I trust that as honorable senators are entitled to use the forms of the Senate, they will do so in a legitimate and good-humoured manner.
– I think that this amendment is not a serious one. The Bill does not allow of the proclamation being issued earlier that six months after its passing. If it were mandatory that the proclamation should be issued earlier, I could understand such an amendment being moved. But as it is, I hold that on the face of it the amendment is frivolous and trivial, and can only have been introduced for the purpose of wasting time.
– Is it in order for the honorable senator to accuse another honorable senator of moving an amendment to waste time?
– No, it is not in order.
– Then I withdraw the remark, and say that this amendment has evidently been introduced for the purpose of making this Bill something transcendent in the way of accuracy and efficiency. I hope that is in order. If the amendment is made it can only tend to endanger the passing of the Bill. That may be the object. I regard it as being an important and necessary measure, as I explained in my speech at the second-reading stage. I shall resist all amendments which I do not consider to be serious, and which will not, in my opinion, make the Bill more perfect.
– I am sure that Senator Givens is labouring under a mistaken idea in regard to this amendment. It is serious. I happen to know that some time ago it was Senator Pulsford’s intention to submit the amendment on the Bill getting into Committee. His object is only to insure that the Bill shall not come into force earlier that the ist July next year. It may come into force at a later date than that, but at any rate he has given good reasons why it should not come into force earlier. It would still be necessary to give the six months’ notice. Let us assume that the Bill receives the assent of the GovernorGeneral next week, and that the Government then issues a proclamation bringing it into force, possibly three or four weeks earlier than Senator Pulsford’s amendment provides. Great inconvenience might be caused by that course. The amendment has the great advantage that it makes the measure come into operation concurrently with the commencement of the financial vear of the Commonwealth, and of all the States.
– Does not the honorable senator think that the Government will consider that?
– Possibly they will, but the amendment will make it certain ; and if there is a general wish that the Bill should not come into operation before a certain date, it is our duty to respect it. If we do not, and the Government bring the Bill into force at a broken period of the year, and it is objected to, they will say : “ Why did you not object in the first instance?” Senator Puls ford cannot generally be accused of proposing amendments for the purpose of delaying business, and he is just as serious in this matter as he is in others.
– I must emphatically repudiate the imputation that I have brought forward this amendment with any other object than that of improving the Bill, and doing my duty as a senator. Senator Gould is perfectly correct in stating that he knew some time ago that I intended to propose the amendment. Senator Givens is the only member of the Senate who has doubted it. I gave two reasons, and I stated them in the briefest terms possible. My reasons are first to make the coming into operation of this measure synchronise with the commencement of the financial year. The financial year for the Commonwealth, the States, and many business firms begins ora the ist July. The second and even stronger reason is that Parliament wilt probably be sitting on the ist July next. There will have to be regulations under this Bill, which, indeed is to be worked mainly by means of regulations. On the ist July, when Parliament may be sitting, the regulations may be before us, and we shall have an opportunity of dealing with them. For these reasons, both of which are strong, I feel justified in asking, the Committee to accept the amendment, and shall, if necessary, call for a division upon it.
– I did not at first quite gather the effect of Senator Pulsford’s amendment, although I was perfectly certain, knowing him as I do, and as we all do, that the last thing he would propose would be an amendment that was not seriously and honestly intended to improve the Bill.” Whenthe amendment was first proposed, I did not feel prepared to support it, as it did not appear to me to be necessary. The Bill itself provides for its being brought into operation at a day to be fixed’, not being, earlier than six months after the passing of the measure. Remembering that we are now in the middle of November, and that weunderstand - at least I gather from statements in the press - that we may be herefor five or six weeks longer-
– We may be here longer than that. ‘
– Certainly; -I enjoy the prospect myself; and, considering that we have a new programme of most interesting legislation, of which’ we have not yet reached even the threshhold, I think there is every prospect of this Bill not becoming an Act until about the beginning of next year.
– Ifthe honorable and learned senator thinks that the proclamation cannot be issued before the 1st July, why dotes he support the amendment ?
- Senator Pulsford assures me that it may not be, and that even if it were there would be no opportunity for the Parliament to express an opinion with regard to the regulations. There will really be no legislation in regard to exports until the regulations are made, and we shall have only a limited time in which to discuss them. Does not Senator Playford see that that is a very strong reason why the Bill should not be brought into force earlier than the probable date of the re-assembling of Parliament?
– Under any circumstances, it could not be brought into force more than a few weeks before that event, and in a matter of this sort that period is of precious little importance.
-If that is so, why cannot my honorable friend agree to fix the date as the 1st July?
– Why should I agree to an amendment which is of little importance, ask the other House to reconsider the Bill, and go through all the trouble in connexion with that proceeding? I have to considerthat point, but the honorable and learned senator has not.
– My honorable friend has disclosed what is in his mind. He, in effect, says that we are to make no alterations, because if we did they would have to go down to the other House. If our amendments are trifling, they are of no consequence, but if they are serious, he will at once say, “Do not make a. serious alteration in the Bill, because if you do it will have to go back to the other House.”
– In some parts of the world they can talk a week on a trifle.
– Does not my honorable friend see what that means? It means that the Senate is merely to record the resolutions of the other House.
SenatorPlayford. - It ought not to make trifling amendments in a Bill merely for the sake of making them..
– My honorable friend did not say that before. Why should he now in a moment of illtemper, and because he is cheered by his colleague, say that this is a trifling amendment? He cheered the statement that Senator Pulsford was serious.
– Oh, yes ; but he may be serious about a thing which is trifling.
– My honorable and learned friend has no right to say that the amendment is trifling, when his leader says he regards it as having been made seriously by Senator Pulsford.
– A trifling thing can be put forward seriously.
– I quite appreciate the statement of SenatorPlayford, that if we make the amendment it may lead to very great debate in another place. But what is the logical consequence of that observation?
SenatorMulcahy. - It is not an argument that should be offered to the Senate.
– It is not an argument in relation: to what Senator Playford calls frivolous amendments, because they would be scouted in another place. But it is an argument which will be used when any amendment whichmy honorable friend may consider of importance is offered. He will then say, “For goodness sake do not try tocarry that amendment, because, ifyou do, it will lead to fresh debate in the otherChamber, and imperil the passage of the Bill. ‘ ‘ I quite appreciate his objection, but the result will be that if we give it logical effect we shall move no amendments. We shall simply say, “The other House would debate our amendments for a week or two, therefore we had better leave the Bill alone.” I am quite sure that mv honorable friend does not wish to put us in that position.
– The honorable senator admitted that it was a matter of not much importance, because the time was so brief.
– My honorable friend lengthens the debateby making these charges about frivolity. I do not think they ought to be made. Let him answer the amendment, and not merely say that it is frivolous. I quite recognise the distinction that Senator
Pulsford might seriously move an amendment which other senators might consider as frivolous, but if it is called frovolous, surely, that will provoke resentment? I appeal to Senator Playford, if he wishes to get the Bill put through, to treat all amendments as having been seriously proposed.
– I hope that party feeling will be kept out of the discussion as far as possible. The amendments which have been moved to the clause may have been instigated by a little party feeling, but if, after consideration, they are found to be based upon commonsense, they ought to be adopted. I cannot understand why the Minister refuses to accept the present very sensible amendment, to secure an opportunity which we all desire, and that is to deal with the regulations, if possible, before the Bill is brought into operation. Where so much is left by the Bill to prescription and regulation, it is most essential that we should have an early opportunity of discussing the regulations.
– So there will be under the clause as it is drafted.
– We may or may not have an early opportunity. What objection can there be, except on party grounds, to the acceptance of this amendment ?
– There is no necessity for it.
– I am Speaking quite impartially. I do not sympathize with obstructive tactics, but it seems to me that the Minister might very reasonably accept an amendment to insure that the Bill shall not come into operation earlier than the1st July of next year.
– Practically it provides for that already.
– In that case, why does not the Minister accept the amendment?
– Simply because it is moved for the sake of making an alteration, and long discussions are not business.
– I do not admit that the Bill practically does that which the amendment seeks to do.
– I am astonished that honorable senators should persist in attempting to press the amendment on the ground that it is important. In mv opinion, the clause already does that which Senator Pulsford claims that his amendment is designed to do. It says that the Bill shall come into operation -
On a day to be fixed by proclamation not being earlier than six months after the passing of this Act.
Senator Symon has clearly shown that the Parliament will be in session before the expiry of that period.
– I did not show that. I said that that is what the Prime Minister stated, as reported in the press.
– Why should we, merely for the sake of altering the wording of the clause, delay the consideration of the Bill by discussing an amendment of so little importance as the fixing of the date at the1st July next. It is quite evident that the Bill cannot be brought into operation before that date, therefore to adopt the amendment is merely to change the wording of the clause.
Senator Lt.-Col. GOULD (New South Wales). - If in the opinion of Senator Henderson the amendment is of little moment, and a. number of honorable senators consider that it is of some moment, then from his stand-point he might well advise the Minister to accept it, and so let us get on with the business. I do not take exactly the view which SenatorSymon takes. He says he doss not see that the Bill can be assented to before the first of next year. But I see the possibility of the royal assent being given at least a month earlier than that date.
– I did not say that. I said that a statement had been made that we should be here for five or six weeks.
– When the royal assent is given bythe GovernorGeneral, the Bill will become law. If the Government consider that the amendment is immaterial, and a number of honorable senators think it is material,why should it not be accepted? If Senator Playford, on behalf of the Government, will now give a promise that the Bill will not be brought into force by proclamation before the1st July next, no doubt honorable senators on this side will be prepared to allow the clause to pass as it is.
– I hope he will not.
.- Why does the honorable senator express that hope? Because he wants the Bill to come into force on an earlier date. In view of the fact that the Bill has been upon the stocks for such a long time, I assume that, once it has obtained the Royal assent, the Government will very quickly advise the Governor-General to issue a proclamation bringing it into force. I can only assume from the interjection of Senator Styles that he would like the Bill to be assented to in the coming week, the proclamation to be issued immediately afterwards, and the regulations to be gazetted two months, possibly three months, before the Senate could have an opportunity of considering them. It would be monstrous to take such a course, and an assurance would be acceptable that Parliament will meet again before the Bill absolutely comes into force. It is only fair and reasonable that the Government should meet the Opposition in a trifling matter of this kind; even the amendment may, by some honorable senators, be deemed unreasonable. When a Government, in consequence, possibly, of the attitude taken by their supporters, decline to give way on minor points, they simply invite opposition, and further discussion. If the Government are prepared to accept the suggestion I have thrown out and to give the assurance indicated, there will, so far as I can see. be an end to the debate.
– I hope the Government will not budge an inch, seeing that they have already given way too much.
– The Minister of Defence will not give way, seeing that he has arranged an all-night sitting.
– Honorable senators opposite have been consulting one another with that object, and one invited the Minister to sit all night..
– Yes ; I did.
– And the honorable senator is one of the Government party !
– I do not speak very often, and I should like an opportunity to do so now.
– The honorable senator will have all night; there is no hurry.
– As I live in Melbourne, an all-night sitting will not hurt me. Honorable senators opposite would apparently like the Bill to be delayed for six months, until Parliament meets again, with the view of further delaying it until this Parliament ceases to exist bv effluxion of Time. On the other hand, if the clause be passed as now drafted, the
Bill will come into operation several weeks’ before we meet again next year.
– Where, then, will be the opportunity to discuss the regulations?
– The honorable senator appears to be very particular about the discussion of the regulations. The other day, however, this Chamber decided that it was not at all necessary that we should review the decision of three or four irresponsible officers, who were empowered to divide the States into electorates. Now, it is contended that the regulations under this Bill must be reviewed.
– They may need reviewing.
– They may, and if the Bill comes into operation before the meeting of Parliament next year, there will be an opportunity to test the regulations, and ascertain whether they need reviewing. I hope the Government will “ stick to their guns,” and not run away as they have done once or twice already. Just now we had the curious spectacle of the Opposition and the representatives of the Government voting together, against the whole of the Government supporters, except one.
– It was a disgraceful exhibition of. Government supporters running away from the Government !
– It was a discreditable exhibition of the Government running away from their supporters. It would appear as though Senator Symon had come over specially to play euchre with the leader of the Chamber, with the joker up his sleeve every time. That honorable and learned senator spoke of Senator Playford’s enormous parliamentary experience, and all that sort of thing.
– Surely Senator Styles agrees with me in that?
– When the honorable and learned senator sits down smiling he may be regarded as having achieved his object”; but if the Government- stick to the Bill they will find a majority behind them.
– I have not taken any part in the discussion of this clause, and had not intended to do so until it was impressed on me, as it must have been on other honorable senators, that there is a conspiracy to arrange for an all-night sitting. That arrangement having been arrived at either bv the Government supporters at the instigation of the
Government, or by the Government, at the instigation of their supporters, there is any amount of time at our disposal.
– The arrangement has been come to by the Government at the instigation of their supporters.
– I am a Government supporter, but I know nothing about such an arrangement.
– I certainly know nothing about it.
– I heard Senator Playford talking to Senator Croft about the matter, and the Minister desired the arrangement.
– I asked the Minister for advice.
– Senator Croft asked me whether I was prepared to sit after four o’clock, and I put the question to Senators Story and Guthrie. I have never said a word about sitting all night.
– Then how long does the Minister propose to sit ?
– I was asked the question about sitting late, and I replied, “ Yes, I am prepared to sit all night.”
– And what happened when the reply was given? Senator Keating cheered the reply. There is nodoubt that an arrangement has been made which places ample time at our disposal, and there is material in this Bill demanding every moment’s consideration that can be given to it.
– There is plenty of time.
– Senator Smith was one who agreed to prolong the sitting, and, therefore, he cannot object if I occupy a few minutes in submitting my objections to the clause. We have all heard of the “cracking of the parliamentary whip,” but the “whip” is invariably “cracked” by the Government to call their party. We have now an instance of the party “ cracking the whip “ and the Ministry “ coming to heel.”
– We had an instance of the Opposition “ cracking the whip “ a moment ago.
– It is nonsense to assert that the Opposition can “crack the whip.” This question could have been settledby the Government some time ago.
– Yes, if the Government had done exactly what the Opposition desired.
– Was the request made to the Government so monstrous that it should not be complied with?
– It did not seem necessary, in my opinion.
– The honorable senator is a very fair example of the attorney who represents his own opinion, and that of nobody else. I cannot understand that spurious kind of democracy, which, instead of saying, “ Another man is as good as myself,” says, “ I am much better than another man.” I do not quarrel with the honorable senator for having his own opinion, butsurely I have the right to an opinion of my own ?
– Is Senator Millen in order in discussing “democracy,” and those other matters which he has mentioned ?
– The question is the amendment before the Committee, and I hope honorable senators will endeavour to keep to it during the discussion.
– I am personally under very great obligation to the Chairman for reminding the Committee of the question before us.
– Come back to common sense !
– That is quite right ; but when accusations are hurled about the chamber I desire an opportunity to reply to them.
– A surreptitious arrangement has been made.
– A surrep titious arrangement to apply the gag, and take advantage of the absence of honorable senators.
– A surreptitious arrangement was made by the Opposition to block the Bill, when trivial amendments were passed from one to the other.
– Order ! An honorable senator addressing the Chair has a rightto be heard in silence.
– The Chairman has pointed out that I am in possession of the Chair, but I had begun to have very great doubt about it. Only last night we were told that there was nothing to be afraid of in the regulations. Why? We were told that a Minister could not do anything very wrong, because the regulations have to be submitted to Parliament, which has the power to punish a Minister. That was the reply which Senator Playford gave when I directed attention to the enormous powers conferred on the Minister who will have the administration of the Bill. It is prevention more than cure which Senator Pulsford’s amendment seeks to attain. If the amendment be carried, there will be greater assurance that Parliament will have reasonable time to consider the regulations. Section 10 of the Acts Interpretation Act is as follows : -
Where an Act confers power to make regulations, all regulations made accordingly shall, unless the contrary contention appears -
be notified in the Gazette;
take effect from the date of notification, or from a later date specified in the regulations ;
be laid before both Houses of the Parliament within thirty days of the making thereof, or, if the Parliament is not then sitting, within thirty days after the next meeting of the Parliament.
But if either House of the Parliament passes a resolution of which notice has been given at any time within fifteen sitting days after such regulations have been laid before such House, disallowing any regulation, such regulation shall thereupon cease to have effect.
I draw special attention to sub-section b ; and I ask honorable senators to remember that for the last three or four sessions Parliament has invariably been called together late in the year.
– Except in the case of the first session of this Parliament.
– That was not due to any Ministerial act, but in order to comply with the Constitution, that being the first session after the general election. The practice is, and it must be continued, to call Parliament together towards the end of the first half of the year - that is, the end of the financial year. I think I am correct in saying that this year Parliament met in June. Assuming that Parliament meets next year, well on towards the termination of the first half of the year, it will be inevitable that a long discussion will subsequently take place on the Address-in-Reply to the Governor-General’s Speech. In the course of that debate, a motion may be moved involving the fate of the Government, and if the practice which has hitherto obtained is followed the Senate will adjourn during the time that motion is under consideration, and we shall have no opportunity of discussing the regulations framedunder this Bill until after the stipulated time set out in the Acts Interpretation Act. That Act allows thirty days for the presentation of the regulations’ after they have been published. If they are published early in May they need not be presented until thirty days afterwards. Something may happen in another place in the meantime, which will lead to the adjournment of the Senate, and we shall have no opportunity to consider the regulations.
– The Acts Interpretation Act allows fifteen sitting days for their consideration.
– But in the meantime the regulations may become operative.
– Then we shall have an opportunity of finding out their defects, and will be able to remedy them.
– If that is the view we are to take, we have only to legislate blindly, pass all sorts of laws, and trust to Providence to see how they will work out. Senator Pearce would not venture to submit a motion to the Senate in any such way.
– This is a disgraceful waste of public money and time.
– Is Senator Croft inorder in characterizing what I am saying as a disgraceful waste of public money and time?
– The honorable senator is not in order.
– I do not refer to what the honorable senator is saying, but to the whole discussion.
– Then I must ask the Chairman if the honorable senator is in order in characterizing the discussion as a disgraceful Waste of public money and time?
– The honorable senator is not in order, and I hope he will not continue to transgress.
– I withdraw, the statement.
– Senator Givens has complained that there should be so much discussion about a couple of weeks in point of time, and honorable senators opposite must take all the responsibility for holding up the Bill on a matter which they regard with indifference when they have heard that we considerthe amendment extremely necessary.
– The honorable senator desires to defeat the Bill altogether.
– The honorable senator is doing me an absolute injustice. We know very well that underneath his fighting aspectthe Honorable senator has the genial nature characteristic of his race. If he had paid me the compliment of listening to my remarks last night he would know that I support the major principles of the Bill.
– Did not the honorable senator vote against the second reading?
– Then the honorable senator is opposed to the Bill.
– That is a very inaccurate way of stating the case. There are eighteen clauses in this Bill, and there are only three to which I object.
– Why did not the honorable senator vote for the second reading in the hope of having those clauses struck outin Committee?
– Because it was made clear by the interjections of honorable senators opposite that they would not support the elimination of those clauses, and if they are to be retained , I should prefer to lose the Bill altogether.
– The honorable senator believes that what is bad in the Bill outweighs what is good?
SenatorGivens. - Then the honorable senator is opposed to the Bill, and I get back to my original contention.
– I am opposed to the Bill if the clausesto which I refer are to be retained, but I still hope that honorable senators opposite may be induced to agree to some amendment.In the event of the contingencies to which I have referred, it would be impossible for the Senate to have sufficient time to discuss regulations framed under the Bill, unless the amendment is agreed to. If it is accepted we shall at least secure the two or three weeks’ additional time, and we shall have better assurance that the regulations will come before usin time to be considered before they become operative. It has already been contended that enormous powers are proposed to be conferred on Ministers under clause7 - powers which find no parallel in any other legislation the world over. The Czar of Russia has no greater powers than those conferred on the Minister in this Bill. In view of the further fact that these powers are absolutely vague, that there is no indication as to the limits to be placed am their exercise, and that the Minister is at liberty to apply the provisions of the Bill to seven-tenths of the imports and exports of Australia, the matter is certainly serious, and it is incumbent upon the Committee to see that ample time is given for the discussion of regu lations framed under the Bill before they are put into operation. It is on this account that I am now pleading for an extra week or two, and the answer is that the matter is not worth fighting about. It will make all the difference between the Senate having an opportunity to consider the regulations and losing that opportunity. Will honorable senators opposite contend that it is an insignificant matter that Parliament should exercise some control over the Executive? If I were to put the question to them in an abstract form, they would admit that Parliament should exercise control over the Executive, and yet the only way in which the Senate can expect to exercise that control in connexion with regulations framed under this Bill is by agreeing to the amendment.
Senator CROFT (Western Australia).I may, perhaps, have used rather strong terms in the interjection which I made, but I do believe that there has been a waste of time in the consideration of this Bill in Committee. I do not think that the importance of the amendments proposed on this clause justify the time occupied in their discussion. We have not yet passed one clause of the Bill. I asked several honorable senators whether they were prepared to sit all night to consider this Bill, and we are certainly justified in talking of sitting all night when we find honorable senators on one side prepared to talk until they get what they want, especially when the amendments they desire to see made are not important: When I spoke of sitting all night, I did not mean that we should do that if we made reasonable progress.
– The honorable senator is to be the judge of that.
– I am entitled to form my own opinion. I think that if we make reasonable progress we shall be warranted in adjourning at the usual time. But if honorable senators talk a lot of twaddle that is not warranted-
– Is that in order ?
– Well, I withdraw the word “twaddle.” What I say is that I shall be prepared to sit late, if reasonable progress is not made. I speak entirely for myself. I am not the leader ofthe party to which I belong, nor do I hold office in it. This is not a party question, although honorable senators opposite appear to desire to make it one. If honorable senators were in earnest they would reserve their criticism until we came to the more vital clauses of the Bill. Any amendment then sought to be made for the betterment of the measure will receive my support, whether the Government approve of it or not. I admit that an attempt was made by me to organize a number of honorable senators who were prepared to sit late. But I deny that there was any desire to gag any one.
– Does the honorable senator think that that has anything to do with the question, which is that the words “six months” be omitted?
– I think I ought to be allowed to explain what has been done. It is very ungenerous to suggest that I had any desire to apply the gag. It is also untrue. I belong to a party which would be the last in the world to attempt to gag discussion, because that party in its earlier career was subject to the gag in every Parliament where its members appeared.
– Is this relevant to the question ?
– I shall be very glad if the honorable senator will deal with the question before the Chair.
– I hope that the Government will not back down on this question, but will stick to the Bill as it stands.
Senator Lt.-Col. GOULD (New South Wales). - I am sure that honorable senators are very much indebted to Senator Croft for the little lecture that he has given them. It was just as well that he should have an opportunity of explaining his attempt to apply the gag. I can assure him that if he desires to sit all night a number of us are prepared to accommodate him. If we do not catch our trains to-day we can catch them to-morrow. We are perfectly willing to accept the challenge if honorable senators opposite wish to organize a system of gagging.
– I have already asked honorable senators not to deal with any question that is not before the Chair. I direct attention to standing order 404, which says that no honorable senator shall use offensive words of any other honorable senator. There is no doubt that it is a reflection upon a senator to say that he wishes to “apply the gag,,” and I” hope that that expression will not be used.
– I realize the full force and effect of the standing order to which reference has been made, but I am not aware that I have said anything offensive. My statement was that there was an attempt to organize a gag-by means of an all-night sitting. In fact, Senator Croft spoke for the express purpose of telling us that he had suggested that we should take such a course.
– I denied that I did if for the purpose of gagging any one. I did it in the interests of public business. We ought to do some work.
– The honorable senator said-
– Will Senator Gould kindly refrain from dealing with that question any further, and confine himself to the amendment ?
.- I certainly do not wish to dispute your ruling, but I think I was justified in making an explanation. Senator Croft is quite willing to support amendments of which he approves, but he does not like to see others supporting amendments which they think will improve the Bill. He appears to claim the right to say which amendments shall be supported, and which opposed.
– Really, Senator Gould must see, as an old parliamentarian, that that ha,si nothing to do with the question of the omission of certain words.
Senator Sir JOSIAH SYMON (South Australia). - There is one other matter which I think is in order in Committee on a Bill, and that has reference to the conduct of business. It is always, I think, legitimate when suggestions are made with regard to the progress of a Bill for that subject to Be discussed, though the discussion need’ not be) prolonged. Honorable senators on this side could not help overhearing the whispers of Senator Playford.
– Senator Playford never said anything about sitting late.
– I desire to pour oil on the troubled waters. We could not help hearing the suggestion of Senator Croft about sitting late. We do not know now what course the Government propose to take. I do not think any one has a right to blame Senator Croft for his attitude. He had a perfect right to make a certain suggestion, and has explained his reason. I gather that he had no intention of applying the gag, as it is termed. But any ordinary man, much less an Englishman, an Irishman, or a Scotchman resents anything in the nature of the application of the iron hand. I do not think that Senator Croft would set himself up to be the infallible judge of what was sufficient progress.
– I rise to order. I ask you whether these remarks are in order, or whether the discussion should not be confined to the amendment ? .
– It is my desire to suit the convenience of the Committee. In doing so, I am more likely to conduce to a smooth method of carrying on business. If honorable senators desire at a stage in Committee to ascertain what course is proposed with regard to the progress of business, I do not consider that I ought to act upon the strict letter of the standing order and compel the discussion to be applied absolutely to the amendment before the Chair. But I would urge honorable senators not, on every amendment to a clause, to ask the Minister how far he proposes to proceed with the Bill. If it be the wish of the Committee to ascertain his intention, perhaps it will hear a statement, and, as soon as it has been made, consider the question before the Chair.
– I shall not be a party to anything which savours of obstruction or to the proposing of amendments which are frivolous or apparently not calculated to subserve the general purposes of the Bill in some way or other, i merely rose to say that I think we ought to accept what Senator Croft has said by way of explanation, to assent’ to his proposition that there should be some progress made, though on the point opinions may differ, and to ask Senator Playford to state definitely, on behalf of the Government, what he proposes to do. Does he intend on this - the first day on which the Bill has been in Committee - to sit after the usual hour of adjournment? If he does, then we shall endeavour to ascertain how much longer he proposes to sit. Certainly this is the first occasion on which I have known any departure from the ordinary course of procedure in regard to the details of a Bill during its first day in Committee to be suggested. If it was the second or third day on which the Bill had been in Committee, not after three months, as was the case in another place, and my honorable friend wanted ray assistance in bringing the discussion to an early close, it would be given. He knows perfectly well that never in any House of Parliament has an attempt been ma(ie to force a Bill of importance through Committee at the first sitting. I take the liberty of asking my honorable friend to state definitely whether he intends to keep us here after the usual hour in order that some at present undefined progress may be made?
– I think that honorable senators on this side of the chamber ought to be heard before the Minister replies to the appeal which has just been made. In my opinion it ought not to have been made until we had come to the usual hour of adjournment, when the responsibility would devolve upon the Minister of determining whether reasonable progress had been made. I remember that when Senator Symon was AttorneyGeneral he spoke very emphatically regarding amendments to Bills.
– When on the Appropriation Bill one night, Senator Stewart asked for an adjournment at an early hour, I declined to give my consent because I thought that no progress had been made; but, ten minutes afterwards, seeing that it was only a fair thing to do, I immediately agreed to adjourn, although I thought that we ought to have sat much later.
– That is only one occasion.
– I always acted on that principle, and I expect Senator Playford to do the same.
– I do not wish to raise too many issues. I, as a supporter of the Government, am not satisfied with the progress which has been made with this Bill. And if they are prepared to sit for four, or six, or eight, or ten hours, I am prepared to stop, although I should be put to considerable inconvenience.
– How much progress would the honorable senator like to be made?
– If the Government are prepared to go on with the Bill - until it is finished if they like - I am prepared to stop. The question before the Committee is the omission of the words “six months.” Two reasons have been given in support of the amendment.
– Will not the honorable senator allow the Minister to say definitely what he intends to do?
– I have no objection to allowing the Minister to. state his intention.
– It is not very courteous to the Minister not to allow him an opportunity to answer the question.
– This is my first speech to-day, and I think I have an absolute right to say why I support the Government in their ‘action. One argument which’ has been used in favour! of the amendment is that, because the financial year will end on the 30th June, the Bill should be brought into operation on the ist of July. It contains no financial proposal1, and it would be just as reasonable to ask that it should not be brought into force until the 12th July - that day of. “pious and glorious memory.” With regard to the regulations to be made under the Bill, it has been suggested by several honorable senators that the Parliament will not be in session before the 1st of July. Have they a single reason for making that suggestion? Senator Millen attempted to justify the suggestion by stating that there was an inclination on the part of Ministers to keep in recess as long as possible. Probably he has formed that impression from the fact that the Government which he supported last year delayed calling the Parliament together longer than any previous Ministry had done. Honorable senators know that of necessity it must be called together early next year, because there must be an early dissolution.
– What does the honorable senator call early?
– I should think that the Parliament will meet not later than the ist June - perhaps before.
– Has the honorable senator decided that there shall be an early dissolution next year?
– I have decided nothing. The honorable and learned senator knows that he will be very anxious to be released from his duties very early next vear, for the purpose of canvassing his State.
– Oh, no ; the electors will return me at the head of the. poll.
– There will be a big necessity for the honorable and learned senator to canvass the State, and therefore he will be glad to have an early dissolution. He has brought before the Committee a statement which was made by the
Prime Minister. and in which he generally concurred, and that is that the House may sit for another five weeks this year.
– I did not concur in that. I said that that statement was made when the new programme was outlined.
– Apparently the honorable and learned senator thought that, in view of the new programme, there was some reason to sit for another five weeks. Will he be prepared next vear to sit for five weeks after the 10th November?
– I am just as anxious as any honorable senator on> the other side to see that a proper opportunity is secured to the Senate for considering the regulations to be made under the Bill. I think that it already provides for ample opportunity in that regard, even if the Parliament should not meet until the ist July. The provision is that we shall have fifteen sitting days in which to disallow any regulation.
– That may be after the regulations have been brought into operation.
– Thev could not be in operation for any length of time.
– The honorable senator forgets that they may be in operation for thirty days before they are laid before the Parliament.
– If the Parliament should not meet until the ist July,, and the Government should retain in their hands the regulations until the ist August, and we could not deal with them until they were tabled, they would come into operation before they could be dealt with in either House.
– The regulations may be tabled before thev come into operation.
– That may or may not be ; but I have never known a Government table regulations before they came into operation. I do not think that any Government would have regulations sent back to them in; the absence of any test of their efficiency, and I hope honorable senators opposite will give way on this matter, which, after all, is not vital. When the Arbitration Bill was before us, amendment after amendment, moved by the supporters of the present Government, was rejected by the Opposition, who were the supporters of the Government then in office, and who declared that they would adhere to the measure as presented. But when that Bill was sent to another place, it was returned with an amendment almost identical with one which had been moved by senators who now sit on this side of the Chamber, and was immediately accepted by honorable senators opposite. In a matter of detail it is a good principle to allow the draftsman to word a provision, as he is best able, and then have it revised by the Minister and discussed by the Executive; and under such circumstances this clause may very well be accepted.
– I have been asked whether I intend to ask the Senate to sit after four o’clock, and I reply that that is undoubtedly my intention, unless fair progress is made. I have a right to expect that a certain amount of progress shall be made with the Bill, and I remind honorable senators that we are sent here, not to talk, but to do business. True, we must express our views in order to do that business ; but there is no necessity to speak at length on subjects which really have no connexion with the measure, and only serve to waste time. I may reasonably be asked what I should consider to be fair progress. It has been suggested to me by some of my friends that it is not wise to express an opinion on such a matter until progress has been made; but I think it is only courteous to senators an both sides of the Chamber to answer the question. The Bill on its second reading was discussed at considerable length.
– It was discussed only one day and one evening.
-All the more important features were discussed at length, though I admit that we did not discuss this particular clause, which I regard as of little or no importance. The Bill naturally divides itself into three parts, and I think a fair proposal would be to devote a sitting day to considering each part in Committee. That would give honorable senators ample opportunity to express their views, which, of course, they ought to do, as concisely as is consistent with clearness. If at four o’clock we have dealt with the first four clauses, I think I could regard that as fair progress. The next part of the Bill deals with the inspection of imports and exports, and the third part relates to the prohibition of exports and imports. The whole of Tuesday might be devoted to “ the second part of the Bill, and the consideration of the measure concluded on Wednesday. 1 cannot myself make progress, because the Bill is in the hands of the Committee; but I can rightly ask honorable senators to remain until a fair number of the provisions have been dealt with.
Senator Sir JOSIAH SYMON (South Australia). - I am exceedingly glad that we have reached the point at which I was striving when Senator O’ Keefe raised the point of order, and that we have received from the Minister an intimation, courteously given, as to the course he intends to take. I think Senator Playford has put the matter very fairly. As the honorable senator says, the Bill divides itself into three parts, and the clauses to clause 4 inclusive are as important and essential as any other part of the measure. I am afraid that, in those first four clauses, there are a great number of matters of a very controversial character, and, without arguing them further at this stage, I should like to say, in reference to Senator Playford’s very moderate, proper, and business-like statement, that under the heading of “ trade description “ there are many departures from the language of the Merchandise Marks Act, involving serious and grave questions. Under the heading of “ false trade description “ also there are departures, especially in the phrase “ likely to mislead,” to which I intend to call attention. Anything I have to say shall be characterized by brevity ; and, while I frankly welcome Senator Playford’s statement, I point out to him that it is possible, before we reach clause 4, for him to be satisfied, on hearing the amendments which honorable senators may desire to move, that the business done justifies him in asking the Chairman to report progress. In the meantime I shall ask honorable senators who sit with me on this side to assist the Minister, not overlooking amendments, or withholding or refraining from repeating, if necessary, arguments again and again, while confining their remarks within reasonable limits.
Senator Lt.-Col. GOULD (New South Wales). - The point- of order which was raised has had the effect of eliciting a statement from the Minister as to what he considers fair progress, and has afforded Senator Guthrie an opportunity to express his opinion on the amendment, so that altogether Senator O’Keefe’s intervention has proved useful. Senator Playford has very courteously intimated to us what he desires, but I point out to him that very often four clauses of a Bill contain more debatable matter than another fourteen. It is not always possible to gauge the progress made bv the number of clauses passed.
– I do not think that argument applies in this case.
– Will honorable senators pardon me ? In accordance with what I understood to be the wish of the Senate, I allowed Senator Symon to ask for information, which has now been supplied by the Minister, but I do not think I should be justified in permitting a debate on the Minister’s statement. The Minister has informed the Committee what he desires and what he proposes, and after Senator Symon’s few observations, I think the Committee might very well deal with the amendment, to which I hope they will confine themselves.
.- I do not desire to debate the matter in the way the Chairman apparently suggests. My object is to impress the Minister with the important character of the particular clauses with which he desires to deal this afternoon.
– But other honorable senators might want to impress some one else, and that would lead to prolonged debate. I trust the honorable and learned senator will fall in with .my wishes.
.- Possibly it may assist matters if I do so; but it may not, because if a man feels that an attempt is being made to suppress him there is always the possibility that he may assert his right to speak at later stages to the detriment of the Committee generally.
– It is not my desire to interfere with the honorable and learned senator in that way.
.- I do not assume that that is the desire of the Chairman. Every one of the clauses’ to which reference has been made contains material for debate. I have said what I have to say in support of Senator Pulsford’s amendment, and I am prepared, if it be the desire of the Committee, to divide at once. But a full discussion of a clause like this insures expedition, because there may be further debate on an attempt to recommit, and, failing that, on the third reading ; and very often it is desirable to get over the trouble in the first instance.
– I need scarcely say that I support Senator Pulsford’s amendment, for the reason that the regulations may be put in force some time before we have an opportunity to consider them, and we may find that they have been regarded from a party point of view by the Government who have drafted them, and that that Government will be supported through thick and thin by their followers. There is an old adage that “ prevention is better than cure,” and I would rather see this question settled forthwith. I am aware that some honorable senators on the other side may think that this so-called amendment comes under the classical definition of Senator Givens, as expressed ‘ last night, of a “ deleterious adulteration “ of the Bill. That strikes me as not at all a bad expression, although it is one that is somewhat Givenish.. As I say, it is my intention to vote for the amendment, and I hope honorable senators on this side will strengthen the hands of Senator Symon in his support of the efforts of the leader of the Senate to get through the Bill as quickly as possible.
Senator PULSFORD (New South Wales). - I cannot understand the attitude assumed by Ministers towards the amendments I have moved to-day. I think that there is some misunderstanding as to the duties and privileges of private senators. I take it to be the duty of all honorable senators to. study Bills in detail, as far as they can, and naturally there are some who understand certain classes of Bills better than do others. I am very seldom found proposing amendments in Bills relating to matters which I do not thoroughly understand ; but I do claim to know ‘something about trade and commerce. I have repeatedly drawn attention to the continuous proposals for government by regulation. Measure after measure is laid before us in which we are committed to that policy. The Committee cannot wonder, therefore, that when I found that this Commerce Bill was to be administered almost absolutely by regulations, I realized the probability of its coming into force some time before Parliament had had an opportunity to discuss the regulations. Can honorable senators wonder that I seek to prevent that possibility? Had Senator O’Connor, now justice O’Connor, been in charge of the business to-day, and had seen that the simple amendments proposed did not in any way conflict with the principle of the Bill, he would have accepted them straight away, and we should have made a great deal more progress. With these few words, I am prepared to leave my amendment with the Committee.
Question - That the words proposed to be left out be left out - put. The Committee divided.
Majority … … 6
Question so resolved in the negative.
Clause, as amended, agreed to.
Clause 2 -
This Act shall be incorporated and read as one with the Customs Act1901.
– I ask honorable senators to negative this clause. They will take note of the fact that, by virtue of it, this Bill is to become a portion of the Customs Act of 1901 .
– That is done purposely.
– I am aware of that, and I desire to show the object for which it is done, and the danger involved. By having the two measures” read together in the way proposed the whole of the provisions of this Bill will be brought within the penal sections of the Customs Act. Section 243 of the Customs Act provides. -
The minimum pecuniary penalty for any offence against this Act shall be one-twentieth of the maximum which is prescribed in pounds.
That means that in this Bill where the maximum penalty prescribed is£100 for any offence, however much a magistrate hearing a case may desire to let the defendant off with a nominal fine of, perhaps,1s., the clause now under consideration will prevent the imposition of a less fine than£5, and if the defendant is unable to pay the£5 he can be sent to gaol for fourteen days. Section 258 of the Customs Act provides -
Where any pecuniary penalty is adjudged to be paid by any convicted person the Court -
Here, again, we have a very severe penal section applied to this Bill by the operation of this clause. Section 260 of the Customs Act provides that -
The gaoler of any gaol to which any person has been committed for non-payment of any penalty shall discharge such person - (i.) on payment to him of the penalty adjudged; (ii.) on a certificate by the Collector that the penalty has been paid or realized ; (iii.) if the penalty adjudged to be paid is not paid or realized according to the following table.
Then follows a table showing the length of time during which the defendant may be imprisoned according to the amount of penalty unpaid, and it will be found that the time ranges from seven days to one year. I need not tell honorable senators that the sections of the Customs Act are very severe, nor need I remind them that various cases of most severe hardship and of undoubted injustice have occurred in connexion with the administration of that Act. I have in mind a case in which the cook of a foreign ship sold a cask of ship’s waste fat, generally known as “ slush,” which was bought for the purpose of being used in the manufacture of soap. Both buyer and seller were brought before a magistrate in Newcastle, and fined. The cook was. fined £5, which the captain ofhis vessel paid, and he was able to return to his ship, but the man who bought the “ slush,” being a poor huckster,’ was unable to pay his fine of £5, and went to gaol, and he was kept there for one month.
– Shameful !
-“ Shameful “ is a weak term to apply to it. Under this clause a man guilty of some merely technical offence against the provisions of this so-called Commerce Bill may be sent to gaol. It willbe admitted that I have urged exceedingly strong reasons why the Committee should negative this clause. There is anotherreason to which attention might be directed. . There is a possibility that the passing of this clause in the Bill will render it invalid. Honorable senators will be aware that the Customs Act is incorporated with the Tariff Act. By the incorporation of this Bill with the Customs Act, which is also incorporated with the Tariff Act, we may bring about a state of things which might justify the High Court in deciding that this Commerce Bill does not comply with the provision of the Constitution, which requires that a measure of taxation shall include no other matter. If we tack this Bill on to the Tariff Act, as the result of its incorporation with the Customs Act, we shall probably have done thatwhich, according to the Constitution, will invalidate the measure. Ministers might do well to consider that point. It is not one which greatly concerns me, because if this Bill were declared by the High Court to be invalid, I should not feel disposed to weep very much over it. I am, however, inclined to grieve over the prospect of the authorities having the power to bring the severe penal sections of the Customs Act into operation for the punishment of people who may make some slight technical error in the marking or shipping of goods. I have every confidence in asking every honorable senator who is prepared to consider the just claims of the people to assist me in negativing this clause.
– I think that what Senator Pulsford has said justifies some reply from the Minister. I do not propose to address myself to the point raised that the incorporation of this Bill with the Customs Act, and through if with the Tariff Act, may render it invalid. The provisions of the Customs Act are of such a character that it is not safe to allow any body of people to be subject to additional legislation of the kind.
Question - That the clause stand part of the Bill - put. The Committee divided.
Majority … … 8
Question so resolved in the affirmative.
Clause agreed to.
Clause 3. -
In this Act, unless the contrary intention appears - “ Officer “ means an officer of Customs. “ Trade description,” in relation to any goods, means any description, statement, indication, or suggestion, direct or indirect -
as to the nature, number, quantity, quality, purity, class, grade, measure, gauge, size, or weight of the goods; or
as to the country or place in or at which the goods were made or produced ; or
as to the manufacturer or producer of the goods or the person by whom they were selected, packed, or in any way prepared for the market ; or
as to the mode of manufacturing, producing, selecting, packing, or otherwise preparing the goods ; or
as to the material or ingredients of which the goods are composed, or from which they are derived ; or
as to the goods being the subject of an existing patent, privilege, or copyright, and includes a Customs entry relating to goods and any mark which according to the custom of the trade or common repute is commonly taken to be an indication of any of the above matters shall be deemed to be a trade description within the meaning of this Act. “ False trade description “ means a trade description which, by reason of anything contained therein or omitted therefrom, is false or likely to mislead in a material respect as regards the goods to which it is applied, and includes every alteration of a trade description, whether by way of addition, effacement, . or otherwise, which makes the description false or likely to mislead in a material respect.
– I suggest that it is advisable to strike out the word “ suggestion “ in the first paragraph of the definition of “trade description,” because of its dangerous vagueness. The words preceding it are “ description, statement, indication.” Those words are sufficient to make clear what a “trade description” is. The word “suggestion,” however, seems to offer the possibility of complications arising, if a magistrate were called upon to give a judicial decision on that point. All that can possibly be covered by it is set out in the previous words, and “ suggestion “ is so exceedingly vague that it ought not to be retained. I therefore move -
That the word “suggestion,” line 6, be left out.
Senator MILLEN (New South Wales). - I move -
That paragraph c be left out.
When I drew attention to these words yesterday, the Minister told me that they were practically the same as appeared in the English Act. When I subsequently quoted the English Act, it was made clear that its words are those which appear in paragraph d, which has relation to the mode of manufacture. The two things are totally different. The paragraph which is taken from the English Act deals with the operations themselves; the other deals with the persons who perform the various operations. It appears to me to be obvious that the only purpose for which paragraph c can be required is to place it in the power of the Government to demand something equivalent to the union label. I do not know whether that is intended.
– : No; it relates only to the manufacturer or producer.
– But what about the man who selects, packs, or’ prepares the goods for market? While those processes may be minor operations, still they may form a part of the preparation ; and to ask that all the people who in any way prepare or pack shall be mentioned seems to me to be going beyond what is necessary.
– It was thought to be necessary by the Customs officers, who know something about the matter-
– We know that Customs officers have suggested many things which it has been the duty of Parliament to dissent from. The Minister’s only answer appears to be that he does not see any value in the provision himself.
– I think it is more important than the provision as to the mode of manufacture which is in the English’ Act.
– Any quantity of goods are imported which bear a brand, but not a manufacturer’s name. A well-known brand of iron, “White Cross,” does not bear a manufacturer’s name, but it bears a brand. The Minister might give us some more substantial reason than the statement that the Customs officers say that this is a necessary provision. If it is intended that the Minister shall have power to insist on particulars which are in no way concerned with the manufacture of the goods, that ought to be set out in definite terms. Unless further reasons are given, I shall have to divide the Committee.
– I will point out what the effect of this amendment would be. We have provided in this Bill in clause 12 that no person - shall knowingly apply any false description to any goods entered or intended for export, or put on any ship or boat for export, or brought to any wharf or placed for the purpose of export.
The penalty provided for the commission of the offence amounts in the maximum to £100. If Senator Millen’s amendment to eliminate paragraph c were carried, the effect would be that if a person did apply the name of a manufacturer to goods intended for export, which goods were not manufactured by that manufacturer, or were not produced by the particular producer whose name appeared upon them, or if he indicated that they were selected or packed or prepared by any one when, as a matter of fact, they were packed or prepared by some other person, whose name was not such a guarantee of quality as the name which appeared upon them, the person committing that offence would not be liable to any penalty under clause 12.
– He would be liable as having put a false mark upon them.
– Certainly not. It would be taking away from the effect of the definition of “ false trade description “ an indication as to the manufacturer, or selector, or packer, or preparer of the goods. I think the words are essential, and ought to be retained, because they insure a guarantee of the quality of goods.
Senator MACFARLANE (Tasmania).The object of this provision is largely provided for in the Customs Act. But of what advantage is it to know who is the selector or packer of goods such as apples? What advantage is it either to a buyer or the Customs officers to have that information ? What does any one care who selects apples, or packs them, or picks them off the tree? They are sold according to their good or badquality. This provision goes too far altogether. In many cases it would be impossible to comply with it.
Senator MILLEN (New South Wales). - Senator Keating laid stress on clause 12, under which he said a man would not be penalized if the words to which I take exception were omitted. But I draw attention to the fact that, in the latter part of this clause, there is a definition of “ false trade. description,” which applies to - a trade description which by reason of anything contained therein or omitted therefrom is false or likely to mislead in a material respect as regards the goods to which it is applied.
I say that if a man puts on goods a name that is not his own, it is a false trade description.
– It would not be if we limited the definition of “ trade description.”
– We have a definition of trade description, as well as a definition of false trade description. Those definitions stand each by itself.
– Certainly not.
– Then does Senator Keating say that every paragraph in the definition clause must be read with every other paragraph ? Is not the word “ Officer “ complete in itself ? Must it be read in conjunction with “trade description”?
– Wherever the word “Officer” appears in the Bill, the definition has to be referred to.
– Senator Keating is shifting his ground. He has said that the definition of false trade description has to be read in conjunction with the definition of trade description. That is to say, that two paragraphs dealing with different things in the interpretation clause must be read together. If that be so, then1 I contend that any two paragraphs in the clause must be read together. Does the Minister mean to tell me that the paragraph interpreting what is meant by “ Officer “ cannot be considered by itself, but has to be read in conjunction with another paragraph ? It is obvious that each para graph stands by itself. If I were asked to pick out one portion of the Bill as being clear and free from ambiguity, it is the portion which says - “ False trade description “ means a trade description which, by reason of anything contained therein or omitted therefrom, is false or likely to mislead in a material respect.
When a man puts on goods a name other than his own. there can he no clearer proof of an attempt to commit a fraud than that. Therefore, although the Government may say that he is not liable to punishment under clause 10-
– Or under clause 12 either.
– “ False trade description “ is defined, and the putting of a wrong name on goods would constitute an offence under the Act. The Minister is given ample power to punish any such offender. For that reason I shall press my amendment.
– I do not follow the Minister in his contention that if paragraph c of this clause were omitted, and a person were to put a false name on a case, there would be no means of prosecuting him under clause 12. The interpretation clause tells us what “false trade description” in relation- to any goods means. It is perfectly clear that if we were to strike out paragraph c of the definition of “trade description,” and a person were to omit to do any act required to be done by the regulations, he would be liable to punishment. But if he were not required to put on the goods the name of the manufacturer or producer or person by whom they were selected, and he saw fit to put on a case a name which was not correct, and was likely to mislead, surely that act on his part would come within the offence of making a false trade description. I cannot see that “ false trade description “ hangs on “trade description.” It is to me perfectly clear that if a person, although he was not required to put on his goods the name of the manufacturer or packer, were to put on a. false name, that would be regarded by the Court as a false trade description if it tended to mislead. If, for instance, a man were to incorrectly use the name of Jones, and it was well known that goods branded with that name would sell at an enhanced price, he would be misleading the public and rendering himself liable to the penalty provided in -the Bill. If no stronger reason can be advanced for the retention of paragraph c than we have heard, I do not see why it should be retained. In their circular letter, Messrs. Jones and Company, of Hobart, point out that they are doing a considerable trade with merchants in South Africa on the condition that the label shall not disclose by whom or where the goods were manufactured or packed. The firm simply receive an order to supply a certain quantity of goods, and the consignee has the right to put on any brand he may see fit in South Africa.
– A good deal of our tinned meat is sent out in the same way.
– The ComptrollerGeneral of Customs gave his opinion that under the Bill the consignor would not be touched.I have a copy of the opinion and of Jones’ labels here.
– But suppose that the regulations provided that Messrs. Jones and Company must put their name on the label, what then?
– They would not be required under the regulation to do that.
– The labels which were produced by Senator Playford yesterday did not state by whom the article was manufactured, although I think that one of them indicated the place of manufacture. It is unnecessarily hampering trade to retain paragraph c.
Question - That paragraph c be left out - put. The Committee divided.
Majority … … 7
Question so resolved in the negative.
– The amendment I am about to propose is the last on my list prior to the end of clause 4. I draw attention to the fact that under the interpretation clause a trade description includes “ a Customs entry relating to goods,” and, in my opinion, a fair reading of the provision is that a Customs entry may be made to include not merely the terms of the Customs. Act, but. also the terms prescribed by the regulations under this Bill. Mr. Higgins, who is a supporter of the Government and a well-known legal authority, has not the slightest doubt that the provision could be so used, and the ComptrollerGeneral, while not agreeing with that opinion, has, with a view to meeting objections, suggested -certain words, the insertion of which I now intend to move. It is desirable that under the circumstances , we should take precautionsagainst any possible danger, and therefore I move -
That after the word “ goods,” line 25, the following words be inserted : - “ but in any Customs entry no further description of any goods shall be necessary other than such as may be required under any Customs Act in force.”
If the Minister prefers that the words should appear in the Bill as a separate clause amongst themiscellaneous provisions, I shall be quite willing to withdraw the amendment for the present.
-i think that course would be preferable, but I do notsay that the Government will be willing to accept the amendment.
– Is Senator Keating conversant with what has occurred in another place, and the opinions which have been expressed there?
– I am, and I have listened to everything the honorable senator has said.
– Will the Minister consent to these words being inserted as a new clause ?
– Certainly not.
– There can be no danger in the amendment, because it only provides for what Ministers say is already law. There is good ground for the opinion that more than appears on the face of the provision might be required - that all the matters under the head of trade description might be required to be set out in a Customs entry - and, backed by high legal authority, as it is, the amendment is a most reasonable one. I have spent much time in endeavouring to improve the provision, and I do not think there ought to be much hesitation on the part of the Committee in accepting my proposal.
Senator KEATING. (Tasmania- Honorary Minister). - If the principle enunciated in the proposed amendment has to find a place in the Bill, it certainly should be in the form of a separate clause.
– Or as a proviso at the end of the sub-clause under consideration.
– I think a separate clause would be better. Honorable senators will see that a reference is made in the clause to a Customs entry. That entry is brought within the definition of a “trade description,” which in its terms is purely inclusive. It includes all those matters dealt with in the lettered paragraphs, and also “ a Customs entry relating to goods.” A. Customs entry is something definite and known. Because the provisions of the Customs Act prescribe the details which it shall set forth. That being so, we cannot, by virtue of the fact that a Customs entry becomes, by an inclusive definition, a trade description, so amend the Customs Act as to provide that a Customs entry shall contain anything further than the law now prescribes it shall. We do not, by this, alter the present well-known meaning of a Customs entry relating to goods. We are not defining a Customs entry in ‘this Bill, hut are using a known term to help us, by way of definition, to explain something else. We could only alter the meaning of a Customs entry by an amendment of the Customs Act..
Senator Lt.-Col. GOULD (New South Wales). - Senator Keating’s argument is that the mere fact that the words, “ a Customs entry relating to goods,” are used here, will not in any way alter the law with respect to what it will be necessary to insert in a Customs entry under the Customs Act.
– That is so.
– The contention pf the Minister is that there is no necessity for the amendment, and that it can do no possible good; but I did not understand him to contend that it could do any harm. Senator Pulsford has pointed out that a well-known lawyer, whose opinion is entitled to considerable weight, has expressed very strong views on this question in another place. I submit that the Government might accept the amendment, .retaining the right to have the matter considered later on, when, if it became obvious that it was unnecessary, it could be struck out on reconsideration If they are not prepared to do that, the Government might consent to the insertion of a proviso, or a new clause embodying the amendment, in which case, I have no doubt, Senator Pulsford would be willing to withdraw the amendment at the present stage. If no promise is given in connexion with the matter, I presume it is because Ministers know that the numbers are up. _ The amendment’ will then” be defeated at this stage, and it will be left to Senator Puls us]-* ford to see whether he cannot have the matter reconsidered, when there will be a further discussion upon it, which might be avoided by the adoption of the course I have suggested.
Senator PULSFORD (New South Wales). - I think Senator Keating might have been a little more generous. I am asking the Government to permit me to insert in this Bill :in amendment which will make clear the view which they say is their own, and which they believe is certain to be recognised. As I have already said, a well-known legal authority, Mr. Higgins, has stated that he has not the slightest doubt that the clause as it now stands can be held to render it necessary to include in a Customs entry any or all of the, matters that come under the head of a trade description in this Sill. It would, of course, make the possibilities in connexion with the Customs entries of a frightful character. I therefore feel that I am fully justified in asking Ministers to consent to the amendment, or to promise that they will accept it in the form of a new clause at the end of the Bill.
– I am very anxious that any amendment likely to improve this Bill shall be introduced, but I do not quite follow what Senator Pulsford desires in this matter, lt is provided in this clause that a Customs entry relating to goods shall be a trade description within the meaning of the Bill, and, as .1 understand the amendment, Senator Pulsford’ proposes to define what a Customs entry is, In the absence of any further explanation of the honorable senator’s intention, I scarcely think that necessary, because a Customs entry is a Customs entry. I am quite sure that Senator Pulsford knows more of the practical or business aspect of these matters than I do, but if his intention is merely to define a Customs entry, I would ask him to consider whether his amendment is really necessary. We are aware that in England a Customs entry relating to goods has, by an amendment of the Merchandise Marks Act. been included as a trade description. A. Customs entry relating fo goods is a well-understood term, and if I am right as to the honorable senator’s intention, I would ask him whether he thinks it worth while to press the amendment.
Senator PULSFORD (New South Wales). - I think that the addition of the words proposed would carry the matter further.
I may repeat that the words in question have been drawn up by the ComptrollerGeneral of Customs, who, while expressing the opinion that they, are not needed, has suggested that if the opinion prevails that something of the kind is necessary, they might be accepted in the form of a new clause. I have submitted them as an addition to the clause before the Committee. It appears to me that the possibilities of this very wide term are so great that it would be wise to limit them to the actual terms required.
– I suggest that Senator Pulsford might withdraw his amendment for the present, ‘ and deal with it under the heading of “ miscellaneous.”
– I am willing to accept the suggestion.
Clause agreed to.
Clause 4 agreed to.
Senate adjourned at 4.3 p.m.
Cite as: Australia, Senate, Debates, 10 November 1905, viewed 22 October 2017, <http://historichansard.net/senate/1905/19051110_senate_2_28/>.