2nd Parliament · 2nd Session
The President took the chair at 10.30 a.m., and read prayers.
– I desire, without notice, to ask the Minister of Defence - who, in reply to a question yesterday, said that the Commonwealth was represented at an International Congress held in Vienna, at which the question of workmen’s insurance was discussed - whether he will endeavour to expedite the production of a copy of the report, so that it may be considered by the Royal Commission on Old’-Age Pensions, when it is drawing up its report?
– I shall bring the matter before the Minister of External Affairs.
– I desire to ask theMinister of Defence, without notice, whether he has had his attention drawn to the report in yesterday’s Age of the complaintsmade by Sydney riflemen with regard tolax marking ; whether he has observed that Captain Lindsay stated that although he had had no experience like that which had’ been related, he was not altogether satisfied with the marking, that Captain Payne, the New South Wales representative on the Commonwealth Council, said’ it was wellknown that the markers could make anybody they pleased win, and that Lieutenant Stevens, another member of the New South Wales team, went on to say that although seven shots was the limit with the “running man,” one man was found to have got nine hits i and, if so, whether he will- have the matters inquired into, and a report furnished to the Senate?
– I did not see the report until a few minutes ago The Association meeting, to which Senator Higgs has referred, was held, not under the military authorities,- but under the New South Wales Rifle Association. I shall make inquiries into the matter.
– I desire to ask the Minister of Defence, without notice, whether, pursuant to his promise to bring before the Cabinet the question, of the withdrawal of the minute by which public servants are prohibited from holding offices in municipal and other local governing bodies, he has yet taken any step in that direction, and, if not, when does he propose to ask the Cabinet to deal with the subject?
– I have forwarded a memorandum on the subject, and it will be dealt with by the Cabinet at an early date. The Cabinet has met so frequently on Monday that it has been impossible for me to be present on every occasion. I shall take :are that the matter is brought before the Cabinet at the first opportunity.
– Before the end of the session ?
– I hope so.
– I desire to ask the Minister representing the Minister of External Affairs whether there is any probability of a report in reference to the suspension of Mr. Richmond, the head of the Lands Department in Papua, being tabled on Wednesday next?
– I do not know, but I shall make inquiries on the subject.
– I desire to ask the Minister representing the PostmasterGeneral, without notice, when it is the intention of the Government to pay the officers in the Post and Telegraph Department the arrears of increments, which were voted in the Appropriation Bill last week?
– I understood that the arrears were to be paid as soon asthe public service classification scheme was adopted. If the arrears have not yet been paid, I shall make inquiries as to when they will be paid, and inform the honorable senator.
– I desire to ask the Minister of Defence, without notice, if he can state the day which the Government have fixed for closing the session ?
– At the present moment I cannot give the honorable senator the information. The date of the prorogation will depend upon the quickness with which the business is despatched.
Motion (by Senator Higgs) agreed to -
That there be laid on the table of the Senate a copy of the proposed agreement between the Government and Messrs. Burns, Philp, and Co., having reference to Pacific Island Mail Services, and stated by the Honorary Minister (Senator Keating), in a speech on the 23rd November last, to have been “ completed, though not yet signed.”
In Committee (Consideration of House of
Representatives’ amendments resumed from 7th December, vide page 6423) :
Clauses 73 to 78 (Part VII., Trade Union Marks).
House of Representatives’ amendment. - Omit these clauses, and insert new clauses - 73A. - (1) No person shall -
Penalty : Fifty pounds, in addition to any liability to forfeiture provided by law. 74A. - (1) A worker or association may register a workers’ trade mark in the prescribed manner and shall thereupon be deemed the registered proprietor thereof, and be entitled to institute legal proceedings to prevent andrecover damages for any contravention of this Partin respect of that trade mark.
Upon which Senator Keating had moved -
That the amendment be agreed to.
For the present purpose, and with reference to such an expression as “Trade Marks,” the true rule seems to be that you have to see what is the essence of the expression, and impose only such limitations as are necessary to preserve such essence. For example, in dealing with “ Marriage “ it would probably be held that the Parliament could not affect the principle that “ Marriage is the voluntary union of one man and one woman,” though with regard to the forms and ceremonies of Marriage and the legal consequences of such union they would have practically unlimited discretion.
We can only legislate on the subject of “trade marks” according to the accepted meaning of the term, when it was placed in the Constitution. And we cannot limit or add to the meaning of “ trade mark,” and pretend that a union label, placarding goods as being made under fair conditions, is a trade mark within the meaning of the Constitution. The want of intelligence about this proposal, the absence of common sense, and the gross injustice which characterizes if, are simply appalling. Mr. Cussen’s opinion goes on -
We have, therefore, to inquire what is the essence of a trade mark. And here, fortunately, the authorities are clear. Kerly, at page 24 of the second edition of his work on trade marks, dennes a trade mark as “ a symbol which is applied or attached to goods offered for sale in the market so as to distinguish them from similar goods and to identify them with a particular trader or with his successors as the owners of a particular business as being made, worked upon, imported, selected, certified, or sold by him or them, or which has been properly registered under the Acts as the trade mark of a particular trader.”
I hope that honorable senators will bear in mind the definition of “ trade mark “ laid down in every authoritative book one can take up -
And at page 34 he says that it is the essence of a trade mark that it should have the distinguishing character referred to above as identifying the goods with a particular trader’. “ The essence of a trade mark is that it is some distinctive thing which points out that the goods are the goods of A.B.” Per Kay, J., in Richards v. Butcher, 1891, 2 Ch. 536 - and see re Hopkinson, 1S92, 2 Ch. 116; Sebastian on trade marks, and other authorities too numerous to mention.”
I do not accept the view that every Bill which a Government, for reasons best known to itself, may introduce, is bound to be accepted as in order by the Chairman presiding over the Committee, or by our officer presiding over the Senate. I do net think that it can be contended for a moment that any Bill which a Government can pitch-fork into this Chamber is to be passed by the Senate if it is unconstitutional. We ought not to leave it to the High Court to declare a measure to be ultra vires of the Constitution, or in conformity with it. We are bound by our Constitution, and I do not hold the opinion that our presiding officers ought to say that, no matter how illegal a proposal may be, they will pass it by, and leave the settlement of it to the
High Court. This Parliament is elected to do the business of the Commonwealth, and not to waste hours of time in discussing matters which are outside the Constitution. Mr. Cussen, in his opinion, goes on to say -
The distinguishing character above referred to indicating ownership or origin or trade source may be the result either of a direct statement or representation, or by association of a mark with the article ; but it must be present or there is no trade mark.
Such a mark has been aptly described as one’s commercial signature, and the authorities seem to show that a trade mark really means a trader’s mark.
Another marked feature of a trade mark, as we understand it, is that it cannot exist apart from a business or the good-will thereof ; but it may be that this characteristic is not of the essence.
Applying the above meaning it would seem to follow that a union label is not, and would not, be a trade mark, and therefore, that the Commonwealth Parliament has no power to deal with such a subject. I need hardly point out that the matter is not affected by the Bill using the expression “Union Trade Mark” instead of “ Trade Union Mark,” as it does not matter what the Parliament calls a thing if it has no power to deal with it.
A great many cases have been decided in the United States dealing with the question whether union labels are trade marks, and whether they are entitled to any protection. As these authorities may not be available, I have had extracts from them copied, and forwarded them as an appendix to this opinion. The result seems to be that union labels are not, and cannot be trade marks, but that just as a man’s good-will, trade name, or trade mark will be protected, so the Courts will protect organized labour from any interference with their proprietary or quasiproprietary right in their union label as affixed to goods. Such labels are held not to be trade marks for several reasons -
because they do not indicate by what persons the articles were made, but only membership of a certain association.
Their use is not enjoyed as incident to any business, and the right to use cannot be transferred with the transfer of a business.
There is no exclusive use, as many persons not connected in business and unknown to each other have the right to use, the right to use being acquired by becoming a member of an association, and being lost by ceasing to be a member.
I take it that the requirements mentioned in those paragraphs are not carried out by the union label clause now before the Committee. Every one of those paragraphs is taken from the decisions of Courts in America and England. Plain, authoritative decisions of that sort cannot be misunderstood, and the Senate ought to take notice of them.
It should be remembered in reading these American cases that they, perhaps, go further than the English and Australian authorities in attributing a proprietary character to the rights arising from trade marks and analogous rights; but whether this be so or not, all the above-mentioned cases seem to agree in holding that these labels are not, and cannot be, trade marks, and that being so it does not seem to me of importance that the expansion of their law has provided in an analogous manner for the protection of rights which do not arise from trade marks. It could not be argued That under the head of Trade Marks the Commonwealth Parliament was given power to deal with good-will or trade names, and yet these also are protected in a similar manner. Besides, in England and Australia there has been no such expansion, and in neither place (and it must be remembered this is an Imperial Act) would any one in 1900 have thought of calling such labels trade marks.
He goes on to point out that in many States of America Acts have been passed legalizing the union label ; and he says -
It is worth noting in this connexion that the Federal United States laws, though they do not provide for the registration of trade marks, do not in any way touch union labels, which are dealt with as above stated by the individual States.
My honorable friend Senator Keating last night tried to get round the fact that the Canadian Parliament has declined over and over again to legalize the union label. Two or three times the Canadian House of Commons has passed a Bill for the purpose, and on each occasion the Senate has thrown it out.
– Does the honorable senator think that that has anything to do with the point of order?
– The Parliament of the Dominion of Canada has left the matter to the States. A grosser wrong to the States of this Commonwealth will never be committed than by the passing of this Bill. It will probably be a dead letter when it is passed, because I can see certain directions in which it will be unworkable. But to pass it at all will be to perpetrate a gross wrong. A few sessions ago it was in the mouth of every member of the Labour Party that it would be a good thing to induce the States to hand over to the Federal Parliament the management of the industrial life of this country. Do honorable senators think it likely that the States would agree to that? Now the Government and the Labour Party are making use of the term “trade mark” to inflict upon the Stales an industrial law which the Federal Parliament has no right whatever to pass. It would be logical to insert trade union label provisions in such a law as the Victorian Factories Act. But it finds no proper place in a Trade Marks Bill. Nothing could be more improper than to include these clauses in a Federal Act having no reference whatever to the regulation of the industrial life, in its general aspects, of any State. Mr. Cussen goes on to point out -
In England, Australia, and America, statutes have been passed in which the expression “ trade mark “ occurs without any definition, and in these statutes the expression undoubtedly had the meaning I have given to it. There is not sufficient reason, to my mind, why it should not have the same meaning in the Constitution Act.
It is a matter of public knowledge that another place declined to inserta definition of “ trade marks “ in this Bill. Is it not plain that the other House declined to commit itself to a definition because there are parts of the Bill dealing with union labels that are not trade marks?
– Did another place refuse to do that because it was not in order ?
– It declined to insert a definition for reasons best known to itself.
– A great deal of what the honorable senator is now saying might be used as an argument for or against the introduction of these clauses in the Bill. What the honorable senator has asked me to decide is a matter affecting the Constitution, and a point of order affecting our rules of procedure. During his more recent remarks, he has not been keeping to that point. I should be glad if he would do so.
– I am dealing with the strongest part of my evidence, the internal evidence. I say that this Bill contains no definition of a trade mark. It could not do so, considering the illegal provisions it contains. Mr. Cussen winds up by saying -
I therefore answer the question asked by saying that, in my opinion, the Commonwealth Parliament has not power to legislate in respect of what I have called for shortness union labels.
I should like to read three or four of the authorities whom Mr. Cussen quotes in his opinion. Mr. Justice Gilfillan, in Cigarmakers’ Protective Union v. Conham, said -
The device is wanting in the essential characterization of a legal trade mark.
There is a splendid authority to show that these clauses are illegal and unconstitutional.
– It might save time if I were to give my ruling now.
– I should like you, sir, to hear what I have to say.
– I might remind the honorable senator that he raised this point of order before, and a ruling was given on the same matter.
– Not on these clauses.
– Will the honorable senator permit me to say with regard to the constitutional point I have already ruled, that it is not my duty to interpret the Constitution or any law, and, so far as I know, no President, Speaker, or Chairman has ever undertaken to do so. This matter was before the Committee on11th August, 1904, when Senator Dobson raised a point of order as to the interpretation of the Constitution. I gave a ruling which was challenged, and submitted to the President, who used these words -
As I have formerly stated, and as has been the practice of the Senate ever since it has been in existence, the President is not called upon to interpret the Constitution.
I find the following in Denison’ s and Brand’s Decisions, at page 295 : -
Mr. Speaker does not answer questions on matters which members are equally able to answer, e.g., the construction of Acts.
An honorable member asking Mr. Speaker a’ question relative to a proposed Bill, whether its introduction would not be “an abuse of the privileges of this House such as ought not to be permitted.”
Mr. Speaker replied that “ The honorable member, and, indeed, every other honorable member of the House, is equally competent with myself to construe such Acts; and I must leave it to the honorable member to form his own opinion on the matter.”
Senator Dobson has said1 that it is not right for the President or Chairman to say that these matters have nothing to do with the Senate or the Committee. 1’he President or Chairman does not say that. The question whether a law is or is not constitutional has everything to do with the members of the Senate or the Committee, but the opinion of the .Chairman on such a matter is merely his own opinion, and, as stated in Denison’ s and Brand’s Decisions. “ every honorable member of the House “ is equally competent to form his own opinion on such a matter. In regard to the other point, I shall “be glad to hear the honorable senator as to whether the amendments are relevant to the title of the Bill and within its scope.
– It is owing to the fact that the first point mentioned was decided before that I added the other point. It must be clear, on the face of them, that these clauses do not come within the scope of this Bill.
– That is supported by the best legal advice.
– It is supported by every authority one takes up. On that ground I ask you, sir, to consider the matter carefully; and, in the best exercise of your judgment, to say whether, in view of all the authorities, these union, label provisions come within the purview of a Trade Marks Bill ? I have brought under yournotice the fact that when it was suggested in another place that the definition of a trade mark should be included iri this Bill, it was found that that could not be done, because;,- if it had been done, it would have been impossible tq insert these provisions in the Bill. I desire to refer you to one or two more authorities. Mr. Justice Thayer, in the case Carson v. Ury, said -
The union label does not answer to the definition ordinarily given of a technical trade mark. . . . The- Court may not interfere in this instance as in ordinary trade mark cases.
Mr. Justice Devens, in the case Werner v. Brayton, said -
We are of opinion that the label alleged by. the Bill in the case at bar to have been counterfeited cannot be treated as a trade mark…..
It wants every essential element of such a- mark.
Mr. Justice Williams, in the case of M’Vey v. Brendel, said -
I conclude that the Cigarmakers’ International Union of America is neither a trader within the meaning of the common ‘law nor within the purview of the Act of Congress. Not being a trader in any sense it can have no distinctive trade mark. Registration under such circumstances is not authorized by the Act of Congress, and, if made, confers no title, and gives nostanding ground in a court of law or equity.
All these authorities are strictly to the point, and show that these clauses are not within the scope of the Bill. I come now to the internal evidence in the Bill itself. In Part VII. we have already altered the heading, “ Trade Union Marks “ to Workers’ Trade Marks “ - and I think that, perhaps, it would have been better to have taken this discussion then. But, as Mr. Cussen points out, it does not matter what we call these provisions. The question is, have we the power to pass them, and, if we have, should they be included in this Bill? A union label placed on goods to inform purchasers that they have been made by workers under fair conditions - Australian labour conditions - cannot possibly be a trade mark. I point out that there is no occasion whatever to discriminate between workers’ trade marks and any other trade mark. Every person in the Commonwealth is entitled to have a trade mark if he pleases, and the word “ worker “ is used here merely “to disguise the real object of this part of the Bill. I pass on to consider the word “association,” and the provision for associations working together.
– Why not deal with the question of individuals as well ?
– Because it is a piece of insufferable cant. When Senator Pearce calls a trade mark law class legislation does he not know that any man can be a manufacturer to-morrow, and register a trade mark? It is only the honorable senator’s prejudice in favour of this part of the Bill, which is his pet child, that induces him to brand a trade marks law as a class law.
– So it is. Who use it? Is it not used only by a class?
– Cannot every one use it? The honorable senator could start manufacturing to-morrow., and get a trade mirk.
– The law is used by a class - the employer.
– If my honorable friends opposite do not know the difference between right and wrong, it is of no use to argue with them. I was astounded to hear an intelligent man like Senator Pearce say that a trade marks law is a class law. The honorable senator might as well say that education is availed of only by the upper classes.
– Education is universal.
– A trade marks law is . universal in exactly the same way.
– We wish to make it so.
– I cannot quietly listen to such a statement.
– Has this any reference to the honorable senator’s point of order ?
– It has reference to the grossly inaccurate, unfair, and irrelevant interjections of honorable senators opposite. I cannot permit ‘honorable senators of the Labour Party to pose before the Commonwealth as the only persons who desire what is just and fair. It is proposed that associations working together shall have the right to use the workers’ trade mark. That, in itself, is quite sufficient to show that it is not a trade mark, and that these clauses do not come within the scope of the Bill. Then it is provided1 that a workers’ trade mark shall not be capable of assignment. That also, is sufficient to show that it is not a trade mark. People have held property in trade marks for hundreds of years, and they have been sold over and over again for thousands of pounds, and yet what is styled a trade mark in this Bill is not to be assigned. We are not sent here to restrict the privileges of the people. These provisions profess to give persons the right to a workers’ trade mark, and they then take away the right of assignment, which is an essential characteristic of a trade mark.
– If we can legislate to say that a man shall have a trade mark, we can also legislate to say that he shall not have a trade mark.
– Senator Pearce is a very vigorous part of the machine, but no one whose head was not filled with machine politics, could give utterance to such: fallacies.
– The honorable senator should not become abusive.
– The provisions forbidding the assignment of the workers’ trade mark proves absolutely that it is not a trade mark, and is merely a union label. We are told that Parts III., IV., V., and VI. are not to apply in relation to workers’ trade marks. This means that the provisions of all the clauses in this Bill, from clause 15 to clause 72’, inclusive, are not to apply in relation to these workers’ trade marks. I ask whether any person residing out of Australia, and taking up our Constitution and this Bill, could ever conceive that such clauses as these could find their way into a Trade Marks Bill. They are a series of contradictions of the essential character of a trade mark. They provide really for a union label, and not for a trade mark, with which alone we can deal in this measure. I should like to refer, for a moment, to Part VIIa., dealing with “ the Commonwealth Trade Mark.” This is a most extraordinarypiece of legislation. I ask honorable senators to imagine the merchants of Great Britain, the foremost men of their time, being told that there was to be “a Great Britain Trade Mark.” Imagine such a thing as a “ Great Britain Trade Mark “ ! That is the sort of legislation to which we are asked to consent, but which we ask you, sir, to decide does not come within the scope of the Bill. It is a gross interference with the industrial life of all the States.
– If it means anything it means an international trade mark, which seems a contradiction in terms.
– This ought to be part of the industrial law, the intention being to show that goods1 are made under fair conditions. The most extraordinary feature of the proposal is that the Commonwealth is to be made the owner of the trade mark, and that the permission of the Minister must be obtained before it can be used. How can such a mark be a trade mark within the meaning of the Constitution ?
– And when it is necessary to defend one’s rights, the Minister will have to be asked to sue on his behalf.
– Quite so. The Minister is to be the judge as to whether a person shall have the use of the trade mark, and resolutions have to be passed as to whether the remuneration of the labour is fair. If, for instance, the Tasmanian Government were to institute Wages Boards, and, not being a wealthy State, fixed wages a little lower than the rates that prevail elsewhere in the Commonwealth, the Labour Party on the mainland might object, and as to the use of the trade mark, Tasmania would be in the hands of Sir William Lyne, or some other noble democratic Minister. The Minister will only have to say that in his opinion the remuneration of the labour is not fair, and then he may refuse the use of the Commonwealth trade mark. Senator Playford must see the gross wrong that may be done.
– Terrible ! terrible !
– Does the question as to whose hands certain persons may be in under certain circumstances relate to the point of order?
– Good gracious, sir, what is a trade mark? I have taken some trouble to point out what a trade mark and its essentials are. Judge after Judge has said that a trade union label is wanting in those essentials; and while part 7 is bad enough, part7a is a perfect farce. It is provided that parts 3, 4, 5, and 6 shall not apply; but how could they apply, this not being a trade mark, but a kind of Commonwealth label? Internal evidence shows most distinctly that my point of order is a good one, and I think you will have some difficulty in saying that these provisions come within the scope of the Bill. There is a great deal more that I should have liked to say, but I shall not take up further time, knowing that it is the desire of honorable senators to complete the consideration of the Bill to-day.
– This matter was before the Senate, as I have already stated, on the11th August, 1904. Senator Dobson then raised the two points - whether it was constitutional to insert such clauses, and whether those clauses came within the scope of the Bill. I then said that I did not deem it my duty to give constitutional derisions, and that I thought the clauses were within the scope of the Bill.
That decision was challenged, but the President upheld the ruling of the Chair.
– With great respect, that ruling was not on these amendments.
– The ruling was on the Trade Marks Bill.
– That Bill did not contain these amendments.
– The present amendments are the previous amendments considerably modified.
– They are exactly the same in principle.
– The amendments before the Committee on that occasion were not in the same form as the amendments now under consideration.
– But in substance they were the same.
– On that occasion the heading of part 7 was, “ Trade Union Marks,” whereas now the heading is “Workers’ Trade Marks.” Senator Dobson’s point of order as to whether the amendments proposed come within the title of the Bill, are disposed of by standing order 199, which is as follows : -
If any amendment shall have been made in the Bill, not coming within the original title, such title shall be amended and the question put-“ That this be the title of the Bill,” and the amendment thereof shall be specially reported to the Senate.
Senator Dobson will see that if we make an amendment which does not come within the title, the title may be amended. The questionfor me to consider is not whether the amendments come within the title, but whether they are permissible under standing order 194, as follows: -
Any amendment may be made to any part of the Bill, provided the same be relevant to the subject-matter of the Bill, and be otherwise in conformity with the rules and orders of the Senate.
Having ruled that the union label clauses on the former occasion were within the scope of the Bill, and that ruling having been upheld by the President, I cannot see how it is possible for me to rule the proposed clauses out of order. Although there is no definition of “ trade mark “ in the interpretation clause, Senator Dobson will see that, according to clause 16 of the Bill: -
Theessential particulars of a registerable trade mark shall be one or more of the following particulars : -
A name of a person printed, impressed or woven in some particular and distinctive manner ; or
a written signature or copy of a written signature of the person applying for registration thereof, or his predecessor in business as a trade mark; or
a distinctive device, mark, brand, head ing, label, or ticket; ….
– That provision, of course, is eliminated from the very amendments I have been talking about, and the fact shows that the proposed mark is not a trade mark.
– These are the matters referred to in the Bill, and the present amendments are in substitution for the clauses previously proposed, and deal with the same matter. The President, in giving his decision on the11th August, 1904, as reported on page 4127 of Hansard, said -
The subject-matter of the Bill is the registration of trade marks. If these trade union marks are trade marks, the suggested amendments are undoubtedly relevant to the subject-matter of the Bill. That brings us back to the first point, which is : What is the meaning of the Constitution ; and what do the words “ trade marks “ mean as used in the Constitution? The two points raised, as I have said, resolve themselves into one, which is a point of constitutional law, and not a point of order. I agree with the ruling of the Chairman of Committees, and I am of opinion that if the Committee thinks fit these amendments may be inserted in the Bill.
On these grounds I have to rule that the amendments arein order.
– I respectfully object to your decision. Mr. Chairman, on the following grounds : -
Because you have not sufficiently considered the legal and well-understood meaning of “ trade marks “ mentioned in the Constitution, such meaning clearly excluding Parts VII. and VIIa., as amended by the House of Representatives, from the scope and title of the Bill ; because Parts VII. and VIIa, show, on their face, that they cannot, either under the Constitution or the practice of Parliament, be included in a Bill relating to trade marks; and because amending the title does not get over the difficulty.
– I should like to draw the honorable and learned senator’s attention to the wording of the disagreement he has handed in. The honorable and learned senator gives, as one ground, that I have not “ sufficiently considered the legal and well-understood meaning” of “trade marks” as mentioned in the Constitution. Does the honorable and learned senator think that that is fair to the Chairman ?
– Surely the wording is not disrespectful?
– I am sure I have no wish to make any reflection on the Chair.
– But it is a reflection on the Chair.
– Undoubtedly it is.
– I have given my decision, and I do not think it right for Senator Dobson to suggest that I have not sufficiently considered the question. Surely it is for me to determine whether I have sufficiently considered the matter.
– I have to give reasons for my disagreement.
– But the words objected to are not a reason, they are a reflection on the Chair.
– If the Chairman thinks the words convey any reflection, I shall be glad to alter them in some way.
– I shall be glad if the honorable and learned senator will do so. I am not considering myself personally, but my position as Chairman of Committees.
– I am glad that Senator Dobson, at your request, Mr. Chairman, is removing the words to which exception has been taken, but I say advisedly and deliberately, that I cannot see that any reflection is cast on you by the use of those words. Had that been my view, I should have urged Senator Dobson to remove the words. While I am glad that even on a suggestion that you regard the words as a reflection, they are being removed, I submit, in justification of Senator Dobson, that they contain no reference which ought to convey that impression.
– May I say thatI think I have fully considered the matter, but if it should appear that I have not, I suggest that honorable senators ought to give me due notice when they intend to submit points of order of the kind ?
– I am glad this matter is going to be smoothed over.
– I have altered the grounds of my disagreement by eliminating the words objected to.
In the Senate:
The Chairman of Committees. - I have to report that Senator Dobson has disagreed to my ruling, on the following grounds: -
I respectfully object to your decision because the legal and well-understood meaning of “ trade marks “ mentioned in the Constitution clearly excludes Parts VII. and VIIa., as amended by the House of Representatives, from the scope and title of the Bill ; because Parts VII. and VIIa, show, on their face, that they cannot, either under the Constitution or the practice of Parliament, be included in a Bill relating to trade marks ; and because amending the title does not get over the difficulty.
– What are the points of order?
The Chairman of Committees. - The points of order raised by Senator Dobson are, in the first place, that these amendments do not come within the title of the Bill; in the second place, that they do not come within the scope of the Bill ; and, in the third place, that they are a breach of the Constitution.
– Honorable senators will, no doubt, recollect that on the occasion when this question first arose–
– May I ask, Mr. President, whether you intend to deliver your ruling without debate?
– I assumed, of course, that you were prepared to hear argument.
– I am merely repeating a ruling which has already been given half-a-dozen times. From the very initiation of the Senate, I have always refused to interpret the Constitution except so far as is actually necessary to carry on the business of the Senate.Therefore, all argument as to whether Senator Dobson is right or wrong in his interpretation of the Constitution seems to me to have nothing to do with the issue.
– May I say that, if the President takes that attitude, he has nothing on which to rule, there having been no opportunity for honorable senators to speak. If you intend now to deliver a ruling, I consider that you would be abridging the rights of every senator if you were to insist upon delivering it without having heard reasons for or against it. If you take up the attitude that there is nothing upon which to rule, you will compel me to resume my seat. But if you admit the position that you are going to give a ruling I intend to insist upon my right to speak, subject, of course, toyour decision.
– I understand that there are substantially two points raised - first, as to whether or not the amendments made by the other House are in accordance with the Constitution, and, secondly, as to whether that House had, under their Standing Orders, the right to make them.
– Under our Standing Orders !
– Our Standing Orders have nothing to do with the matter.
– This is most instructive and interesting. I suppose that I, in common with every other senator, am to understand from your last remark, sir, that, no matter how much this Bill may violate our Standing Orders we have nothing whatever to do with that?
– I did not say that. I said that our Standing Orders have nothing to do with the matter.
– You are repeating the very statement to which I referred.
– The honorable senator had better continue if he wishes to speak.
– I think so, too; but I first wish you to intimate whether I am entirely within my rights - I do not wish to be allowed to speak as a favour from you - in debating the question which has been submitted to you for a ruling thereon?
– It is the practice of the Senate - I do not know whether it is a good one or not - when a ruling of the Chairman of Committees is dissented from, to permit senators to address themselves to the question before the President gives a decision, and therefore I never intended to stop the honorable senator. I did not try to stop him. I only wanted to call his attention to the points raised.
– I am very glad to hear you now intimate that you did not intend to stop me.
– I never intimated to the contrary.
– Subject to your ruling me out of order, I repeat that I am very glad that you now - and I deliberately emphasize the word “ now “ - intimate to me that I, in common with even’ other senator, have a perfect right to address myself to a point of order when you are asked to rule upon it.
– Very well.
– Further, I was absolutely justified in assuming that you wanted to prevent me from addressing myself to the point of order when you first rose.
– No ; the honorable senator has no right to assume such a thing.
– Well, I reserve to myself the right to make that assumption. I do not wish to speak at any length.I have only risen to as,k your attention to this fact, that in. giving his ruling the Chairman of Committees emphasized the point - and this is the salient point in issue - that the question of a workers’ trade mark, formerly known as a trade union label, was clearly comprised in paragraph c of clause 16. The Chairman took up Part III. of the Bill and read clause 16, which practically operates, as a definition of a trade mark. That is the root of the whole matter. If we had in the Bill a clear definition of a trade mark, and if a workers’ trade mark came under that definition, I admit at once that Senator Dobson ‘s contention would fall to the ground. But seeing that Part III., which does give a definition of a trade mark, is; expressly excluded from applying to the clauses which we are now discussing, it means that there is no definition which covers the question of a workers’ trade mark.
– -The.e is a definition from which it is excluded.
– It is to be assumed that we shall adopt the amendments.
– I can assure the honorable senator that so far I have only stated facts. It is absolutely a fact that in the Bill there is no definition which is applicable to a workers’ trade mark.
– We are going to make the definition applicable if honorable senators will allow us to proceed.
– But the Bill goes further. Having provided a definition for every other kind of trade mark, it expressly excludes therefrom a workers’ trade mark. That, sir, is, the point, and the only po’int, I wish to emphasize to you, and I submit with confidence that it is fatal to the ruling of the Chairman of Committees.
– I submit, sir, that what you have to consider is whether the ruling of the Chairman-of Committees was right or wrong,, and not whether the reasons which he assigned therefor were correct or incorrect. It is now suggested that there is no definition of trade mark which will coveT this particular division of the Bill. When the Bill was previously before the Senate, it contained no definition of the phrase “ trade marks,” and in relying upon any definition to support his argument, Senator Dobson must invariably fall back upon a definition which is not in itself absolute and unalterable. A statutory definition, as he knows, is one which is always made in and for the purposes of the Statute in which it appears. The common law definition of a trade mark, as he must know, has never been the same during a succession of years.
– I think it has.
– Undoubtedly not. If I were to take the honorable senator through the history of the development of the legal conception of a trade mark, he would find’ that it has varied from generation to generation.
– I was talking of the last half-century.
– I did not expect that the point of order would be raised, seeing that it was raised and determined last year, as, I supposed’, for all time. -The term “trade marks” occurs in the Constitution, and, in the absence of a definition, are we to be guided by a statutory definition? I submit not, because a statutorydefinition is one which is intended for a specific purpose, and is not intended to be absolute and unalterable in all circumstances. In the last English Act, the definition of “ trade mark “ is expressly stated to be one in and for the purposes of the Act.
– Have we got that in this Bill ?
– No, and we have never had a definition in the Bill.
– It is time that we had.
– I think not. Even before the amendment of Senator Pearce was introduced, before it was ever projected, the Bill contained no definition.
– That does not make this any better.
– It does not make it any worse. It was considered by those who were responsible for the drafting and introduction of the Bill that it was then better without a definition, and I think, that under- any circumstances, it is better without a definition, because it would not allow the measure to take cognizance, so to speak, of the varying conditions in the development of trade.
– That applies to the definition clauses in all. Bills.
– Not in all Bills, but particularly in connexion with a trade which is constantly developing. It is well known that the definition of “ trade mark “ is constantly being altered. I could cite a number of cases in which the conception of the term has varied according to the exigencies of the times.
– The honorable senator is passing over the point that there is a definition in clause 16,. and that does not apply to the union label.
– Last year, when we were dealing with this point of order, I gave reasons for my opinion that the proposed amendments came within the scope and purview of the Bill. I have heard no reason why I should alter that opinion ; in fact,,, what the honorable senator read this morning only goes to emphasize what I then urged. It will be remembered that I then pointed out that if it were to be limited to the conception of the term, as it might have existed in certain quarters when the Constitution was passed, we should necessarily require, from time to time, an amendment thereof.
– Not necessarily, because the custom of the country would give the meaning of the term,
– Exactly; that is the whole point of my argument. If the custom of the country does not give the meaning of -the term,’ if we have to be limited to the concept, which was entertained when the Constitution was passed, then, no matter what the custom of the country may be, no matter what development of trade may have taken place, we shall have to go to the people from time to time, and ask them to amend the Constitution.
– The country has decided against the Government now. Every one knows what a trade mark is.
– The same thing would apply to. the question of telegraphy. The Commonwealth is invested by the Constitution with supreme power with regard to telegraphy. When it was passed such a thing as wireless telegraphy was not known. Do we have to go to the people and ask them to amend the Constitution in order to give the Parliament power to deal with wireless telegraphy ?
– We have a right to deal with telegraphic services.
– There was no such thing as wireless telegraphy known in Great Britain when the Constitution was passed.
– I do not wish to interrupt Senator Keating, but surely, sir, his reference to wireless telegraphy is not relevant to the point of order.
– It seems to me that nearly all the arguments which have been advanced on both sides have had nothing to db with the point of order.
– If we are going to finish with the amendments in the Bill by 4 o’clock the Minister had’ better cut his remarks short.
– The honorable senator took a great deal of time in putting certain phases of the question before the Senate and the country. If honorable senators in reply were to ‘ be restricted to this point of order, and were not to be allowed to touch upon the other points upon which the President’s, ruling is required, it would not be quite fair. I have only one other argument to urge. It has been said, I think by Senator Clemons, that because this particular trade mark is dealt with differently from other trade marks-
– The argument is that there is no definition touching trade union marks ; the only definition in the Bill is expressly made inapplicable to them.
– The effect of the argument is that union marks are dealt wilh differently from other trade marks, and that that is a reason why union marks are not trade marks within the Bill. I wish to draw attention to one piece of legislation which we have passed lately. We have power under the Constitution to deal with copyright. When the Imperial Parliament passed our Constitution, there was no such’ thing known to the English law as copyright in news or cable messages.
– That is not quite an accurate statement.
– It is. It was never recognised by the Courts in England or byParliament.
– It was never disallowed by the’ Courts.
– It never came before them.
– Cannot the honorable senator confine himself to the point of order, and not deal with the main question ?
– I shall be brief. There was at that time no such thing as copyright in news, either at common law or by Statute. When we started to legislate on copyright, we made provision, for copyright in cable messages ; but we did not make that copyright similar to the general copyright given in literary productions and works of art. We made it apply for a definite limited period of twenty -four hours, and attached to it certain conditions and remedies that did not apply to any other system of copyright. Would any one contend that those provisions did not come within the scope of a Copyright Bill?
– With all due deference to honorable senators, I think that the point of order has rather been obscured by argument concerning other matters. I will direct the attention of the Senate to the fact that the first time in the history of the Senate, when a question arose concerning the construction of the Constitution, I gave the following ruling : -
It does not seem to me that I should, from the Chair, undertake the responsibility of interpreting all the provisions of the Constitution. The Constitution itself has provided for a tribunal, the High Court, which, after argument and consideration such as would be impossible and undesirable in this Senate, is empowered to finally determine its meaning in most of the cases which will arise. It is my duty to interpret and determine the Standing Orders, and to regulate the procedure of the Senate; and perhaps to interpret the Constitution so far as the conduct of the business of the Senate is concerned. But the difference is great between the two cases. The Senate is the final and sole judge of the meaning of its own Standing Orders, whilst a law made in derogation of the provisions of the Constitution may in some cases be declared invalid at the instance of any citizen.
That ruling has been adopted by the Senate, and has been in force ever since. As an illustration of the case mentioned in (hat ruling - where it is perhaps necessary that the President should give a .ruling interpreting a provision of the Constitution-
– Surely you should say under what paragraph of the 39 articles this Bill has been introduced?
– I have nothing to do with the 39 articles. I am not going to interpret the 39 articles, or to say under which of them this Bill has been introduced. As an instance showing where it was necessary to give a ruling affecting the Constitution, in order that the business of the _ Senate might be carried on, I may mention the case of a vote given by Mr. Saunders, whose right to sit as a senator for Western Australia was challenged. From the very necessity of that case a ruling had to be given interpreting the Constitution. But, excepting cases of that sort, I have always decided that it is not my business to interpret the provisions of the Constitution. That is the point here, and it seems to me to be the only point.
– It is not the only point.
– I ought not to be interrupted in giving a ruling.
– I think the thing ought: to be stated correctly.
– It seems to methat the only point here is whether this union label, or workers’ trade mark, is a trade mark within, the meaning of the Constitution and therefore can be properly provided for in this Bill.
– May I respectfully ask you to rule on standing order 179?
– I am asked to give a ruling on a constitutional point.
– And on a point of order.
– The honorable senator must permit me to rule on one thing at a time. I cannot rule on two things at once, and I do not think that I ought to be interrupted.
– I apologise if I interrupted you improperly ; but I thought it proper to direct your attention to the point of order.
– As I was saying when interrupted, this union trade mark, or workers’ label,»or whatever you like to call it - I do not think the name makes any difference - is either a trade mark within the meaning of the Constitution, or it is not. If it is a trade mark within the meaning of the Constitution, it is properly in the Bill. If it is not, it ought not to be in the Bill. But to say now whether it ought or ought not to be in the Bill involves an interpretation of the Constitution. That is not my duty,, and I decline to do it. I therefore agree with the ruling of the Chairman of Committees that it is not within his province to interpret the Constitution. Then I come to the other point. It is this : This is a Bill which was introduced in the Senate. We sent it down to the House of Representatives containing clauses concerning trade union marks. Those clauses have been struck out, and other clauses inserted dealing with the same subject-matter under a different name. Whether those new clauses have been properly inserted or not is a question which involves the interpretation of the Standing Orders of the other House. I do not know what the
Standing Orders of the House of Representatives on that question are ; and, if I did know, it would be altogether improper for me to try to interpret them. That House has its own Speaker, whose duty it is to interpret its Standing Orders ; and, if it were permitted for the President of the Senate, or the Speaker of the House of Representatives, to challenge proceedings in the other House, we should simply get into the most inextricable confusion, and quarrels would arise between the two Houses at once. I have been referred to standing order 179.
– That is my point.
– That standing order reads -
The title shall agree with the order of leave, and no clause shall be inserted in any such Bill foreign to its title.
We inserted certain clauses in. the Trade Marks Bill. The House of Representatives struck them out and inserted other clauses. I am not saying whether those clauses are, or are not, foreign to its title.
– You are not?
– No; and I ask the honorable senator not to make remarks of that nature. I do not think it is fair to ir.e.
– Very well ; I am perfectly willing to apologize.
– The honorable senator is continually making remarks of that nature, and I object. The question is this : We have now sent this Bill down to the other House. Presumably, it was in order when we sent it down, or we ought not to have passed it. That is to say, it was in order according to our Standing Orders. The other House has inserted some clauses in it in lieu of the clauses inserted by the Senate. It is asserted that those clauses are foreign to the title of the Bill. Am I authorized to say. that the other House was wrong to do that ?
– But if they were wrong-
– The honorable senator will please not interrupt. If the other House inserted, according to its standing orders, and1 to the interpretation put upon them by its Speaker, some clauses which are not in accordance with our Standing Orders, what are we to do? We can say that we think that the other House was wrong. But I do not think that that is a question that should be asked of the President or the
Chairman of Committees. It is not my duty, or that of the Chairman, to interpret the Standing Orders of the other branch of the Legislature, and to say whether certain clauses have been inserted by that other branch of the Legislature properly or otherwise. That is a matter for the Senate or the Committee of the Whole to decide. I therefore uphold in its entirety the ruling of the Chairman of Committees.
– We are asked to insert in the Bill clauses which are foreign to the title.
– We are not’; the clauses are in the Bill. They have been inserted by the House of Representatives. / 11 Committee :
– Now we come back to the discussion of the particular amendment under consideration. I am just as strongly opposed to the inclusion in, this Bill of the principle of trade union marks as honorable senators opposite are. When the question was first proposed in the Senate, I voted against the trade union mark clauses. I gave my reasons for so doing, and need not reiterate them. .1 simply mention the point now, because I take it that we are trespassing upon the region of disorder in discussing anything except the amendment actually before us. We are not really concerned at this stage with the principle of trade union marks introduced in the Bill and which the Senate has already affirmed by a majority. The question of the constitutional right of the Federal Parliament to pass these clauses is one upon which I thoroughly agree with those who are opposed to this part of the measure. I think we are trespassing upon State rights. We are inserting provisions which have no right to be in a Trade Marks Bill at all. We are adopting legislation of an industrial character, and are forcing it upon States which, in their wisdom. ha.ve not chosen to enact that particular kind of legislation.
– Is not the whole question of trade marks an industrial question ?
– It is a trade question, but not an industrial question.
– What is trade but industry ?
– When we were first dealing with this subject. I gave a definition of trade marks, which happens to be in accord with the authorities. But the’ situation in which we now are seems to be_ this : That the Senate has affirmed the principle of union marks.
– Does the honorable senator mean to say that the Senate adopted the principle, when only eighteen voted for it?
– The Senate, as a Senate, adopted a certain principle, which has received the concurrence of the other House. The House of Representatives, while accepting the principle, has amended the details. The position now is. therefore, that we either have to accept what has been sent back to us as an improvement upon the clauses passed by the Senate, or we have to go back to the provisions which we originally sent down.
– Does the honorable senator think that they are the only alternatives?
– There is the alternative of amending and improving the amendments of the House of Representatives, which I intend to try to do.
– Does the honorable senator mean to say that once a decision has been arrived at the Senate should never alter it?
– Certainly not. But if we strike out the clauses inserted by the House of Representatives, or decline to carry them, we must insist upon our own amendments, which are worse.
– That is practically the position.
– It is absolutely the position.
– Or drop the Bill.
– We cannot drop the Bill, if the majority of honorable senators are against us. The common-sense thing to do is to try to improve these provisions. I do not approve of the principle involved in these clauses, but they are an improvement on the union label provisions contained in the Bill when it left the Senate. I think it is a pity that we have not included in the measure a definition of what a trade mark is, because if we had done so. the work of the High Court, which will sooner or later be called upon to decide this constitutional question, would have been simplified. If by voting against these amendments the result must be a return to the union label provisions as they appeared in the Bill when it left the Senate, my course is clear.
– If we reject these amendments, we kill the Bill.
– I cannot see that that follows. If a majority of the Committee vote against these amendments, the effect will be that we shall send it back to another place exactly as it left us before in this respect.
– What will happen then ?
– Is the honorable senator a, prophet ?
– I know what would happen, and honorable senators opposite can inform Senator Mulcahy of what would happen.
– Honorable members, in another place might accept our proposals.
– If Senator Clemons claims to know what will happen, he must profess to be a prophet. We shall be simply wasting time if we discuss what might happen in another place when we know that there is no prospect of altering these provisions, in anY way. I think it would be better to deal with these amendments in groups. Senator Dobson made some reference to the Commonwealth trade mark, and I should like to have a word to say on that subject when we come to it. I wish to deal now particularly with clause “]6a, and to intimate that I intend to propose an amendment on it. The Bill has been returned to us with certain limitations and exemptions, certain industries being specifically excluded from the operation of this part of the measure. Clause 76a provides that - ‘
This Part shall not apply to any primary product of the agricultural, viticultural (including wine-making), horticultural, dairying (including butter-making and cheese-making), or pastoral industries.
I do not propose to say whether that is consistent with the other provisions of the Bill. I do not think there is very much consistency in tHis measure, since it is really made applicable not only to a section of the community, but to a small section of that section. If there are to be limitations on the operation of these provisions, and some industries are to be excluded, we are justified in suggesting thai other industries exactly similar to those mentioned should also be excluded, and I propose later on to move an amendment on clause 76a for the insertion after the word “horticultural “ of the words “ including fruit preserving and jam making.” I cannot see why these industries should not be included as well as the products of the butter-making and cheese-making industries. If the products, of the butter-making and cheese-making industries are to be excluded from the operation of this part of the Bill, we should hear on what grounds the proposal is made. There is certainly full justification for ex-» eluding the products of industries in which Tasmania is so largely interested.
– Are thev not excluded?
– No; they are not primary industries.
– Would not the horticultural industry include what the honorable senator desires to -have included’.
– I am afraid it would not be held to include preserved fruit and jam, which are the products of manufacturing industries. I hope that the Minister in charge of the Bill, apart from the fact that he is a representative of Tasmania, will admit that the amendment I have suggested is logical, and consistent with clause 76a, and will have no objection to the inclusion of the products of secondary industries as important to Tasmania, as the butter-making, cheese-making, and wine industries are to other States.
– The process of political asphyxiation has proceeded so far as to make one leng very much for freedom and the fresh air of a political atmosphere in which free men might feel that they can breathe. It strikes me that the most remarkable provision! in the amendments before the Committee is contained in clause 76a, providing for certain exemptions from the operation of this part of the Bill. I do not think that honorable senators can have any idea of the far-reaching effect of this clause. I have here a statement taken from Coghlan’s Seven Colonics as to the production in Australia, and I find that under agriculture the value of the production is set down as ,£26,800,000. All that will be excluded from the operation of this part of the Bill by clause 76a. The production of the pastoral industry is £25,600,000. All that is excluded. The dairying industry the production is £9,700,000.. and that also is excluded. The mining industry is not excluded under this clause, but every honorable senator is aware that gold and silver cannot be brought under these provisions, and cannot be affected’1 by this union label business. Then we have forestry and fishery, which represent about £3,000,000. We cannot bring these clauses into operation in regard to the timber we export, and therefore of the production !in this industry only ‘about £1,000,000 can be brought under the operation of this part of the Bill. Then the production of manufactures totals £28,000,000. This includes all sorts ot items, some of which cannot possibly be affected by these provisions. I do not think, for instance, that we can put union labels on gas or on electric light. Out of the £28,000,000, however, I take only £3,000,000, leaving a production valued at ;£25>000jo°° to come under the operation of the union label business. The result, when I reckon it up, is that out of a total production of goods in the Commonwealth stated bv Coghlan at £117,600,000, clause 760 will exempt no less than £85,000,000.
– Then it is not such a dreadful matter after all.
– I wish honorable senators to recognise that, if this clause is inserted in the Bill, out of every £too worth of goods produced in the Commonwealth we shall have 72 per cent, exempted’ from the operation of this part of the Bill,
– There is nothing about fisheries or mining in clause 76*7.
– I am quite aware of that. I said that mining was not included, but I gave the values according to Coghlan, and I pointed out that we cannot put labels on gold and silver. It does not matter bv what labour our gold is produced, because its price is fixed. It is important to note that,- of the whole of Australia’s production, only 28 per cent, can be brought under union label conditions.
– Has the honorable sen;ator never seen a trade mark on a gold watch-chain?
– The honorable senator is confusing things which differ. A gold watch-chain comes under the head of manufactures, and, therefore, may bear a trade mark, but the primary goldmining industry, which produces about £1:8,000,000 worth of gold each year, is debarred. Out of the -£117,000,000 worth of production in Australia, £85,000,000 worth at least is excluded from the operation of the union label. In other words, only 28 per cent, can be brought under the provisions, 72 per cent, remaining unaffected. That proves what has been stated over and over again, namely, that the great majority of the workers of Australia are outside the operation of the union label. That is a point which honorable senators should consider ; and it might be desirable to improve the Bill by extending the exemptions a little further. I observe that the exemption clause very largely follows on the lines of the Arbitration Act. In that Act, however, the pastoral industry is not excluded, whereas it is excluded by the clause now presented to us. This indicates that the process> of education of the public is going on. In my judgment it is quite clear that in another place the position was recognised as difficult and dangerous - it was recognised that the people do not approve of these proposals. In order to get a majority, the supporters of the Bill have had to exempt from its operation the main products of Australia. Could there be a more severe condemnation of the whole scheme? We have been told on various occasions that trade marks date from very ancient times. That, to a large extent, is true, but the trade mark of centuries ago - the trade marks of the ancient guilds of Great Britain - were used simply for the purpose of denoting quality and excellence of workmanship. This union label, however, may be used, and if agreed to undoubtedly will be used, in scores, hundreds, and thousands of cases to palm off rubbish, which the public would otherwise not purchase. I should like to emphasize the fact that “ trade marks “ are always associated with ownership of goods; and that in adopting these proposals we are acting beyond the ordinary and legal interpretation of the words. Further, we are, I believe, encroaching on States rights; and I, for one, hope that ultimately, if the clauses be passed, the High Court will put them in the waste-paper basket. We have heard a great deal of the approval which the union label is said to have received in the United States. It is a recognised fact, however, that the position of trade unions in America is nothing like so good, substantial, sound, and respectable, as it is in the United Kingdom, and that in the United Kingdom the union label, if existent, is only in its infancy.
– There has been a union label in America for a score of years.
– It is still in its infancy in regard to extent. Canada has been instanced several times; but there are several facts in this connexion which ought to be taken into consideration. It is true that legislation of this kind has several times been passed by one House of the Canadian Parliament; but it has never been taken up by the Government, always having been, introduced at the instance of private members. Experienced parliamentarians know very well that proposals carried on private members’ day carry far less weight than proposals which are accepted on other days. Election after election has taken place in Canada, and no mandate has ever been given to the Government to promote measures of the kind.
– Has there ever been an outcry for the repeal of legislation of the kind where it has been in existence?
– There have been repeated outcries - the newspapers in America teem with outcries. .
– These outcries cannot have much strength, seeing that the legislation remains.
– The only repeals have been in order to substitute stronger enactments.
– The outcries are pretty loud and continuous where they exist. These union label proposals are really an attack on non-unionists ; and I have shown how few people, relatively, are favorably affected by the measure. The great mass of the people of Australia stand to lose,, and not to gain, by these proposals. The people are open to have rubbish palmed on to them as goods of quality, and they may be thrown out of employment simply because they are non-unionists. In various ways, the position of citizens may be lowered under this measure. I recognise that what has taken place in the House of Representatives improves the position, from my point of view. The clauses that we passed here, unfortunately, with so little consideration, are rejected by another place, and the substituted provisions are less drastic than those originally agreed to, with the additional advantage that a great number of exemptions have been made. Senator Mulcahy seems to be under the impression that if we simply reject these amendments, our original clauses will stand ; but I point out that if we simply adopt that portion of the House of Representatives’ amendments, which omits clauses 73 to 78, we shall reject not only the amended clause, but the original clause. I do not suppose, however, that there rs common sense enough in the
Committee to take advantage of our opportunity. Our duty is to show the country the kind of legislation which has been passed, and to look to the country, on all future occasions, to strengthen the hands of those who believe in freedom of legislation.
– We are now discussing material alterations in a Bill which originated in this Chamber, but I may remind the Committee what real difference’, if any - I emphasize “ if any “ - there is between the Bill as now presented to us, and the Bill as passed last session. I suppose the Chairman will agree that it is quite relevant to touch for a few moments on the question of the alteration of title, although, from one point of view, that has already been passed. No one of us imagines that the business to be carried on under “ Workers’ Trade Marks “ will be different in any respect from the business proposed to be carried on under “ Trade Union Marks.”
– A considerable difference.
– I venture to say that the business is precisely the same; it is merely an alteration in words, and not an alteration in matter or spirit. I have no hesitation in saying that between workers’ trade marks and trade union marks there is not a scintilla of difference. When the distinguished imitator of American methods, who, fortunately, or unfortunately, is in this Senate, first introduced the provisions for a. trade union label, he made the meaning perfectly clear. Since then the matter has gone into what I think I may safely describe as more skilful hands. To use a humble analogy, there is no doubt under which thimble the pea was originally, and it will be agreed that in spite of the great dexterity of the operator retained in another place, there is not the slightest doubt that the pea is still under the same thimble. The verbiage of clause 73a means neither more nor less than the simple provision originally inserted under the name of a trade union label. It is involved in a tremendously long sentence. Every effort has been made, if possible, to mollify the public, to deceive the unwary, and make them imagine that this is a modified version of the original trade union label - that, if there was anything injurious, harmful, or unjust in the original crude proposal, it has been removed. Everything which, from my point of view, was bad in the original proposal is con tained in this proposal. If that were not so, I am quite certain that those who are going to support all these amendments would, if they thought that their value, or strength, or adaptability to the purposes intended, had been in any way impaired or weakened, refuse to accept them. But we know perfectly well that they are going to accept the amendments with absolute satisfaction. I wish to refer briefly to another matter which was introduced bv Senator Keating last night. In what I might almost call a furious storm of bombast, he referred to Canada and its Upper House. There was much bandying of the word “ Tory,” which I contend is generally meant to denote class legislation. If the comparison is to be limited in that way. I venture to Say deliberately that the nominee Senate of Canada, in that respect, differs very little from the elected Senate of Australia.
– One is elected bv the people, and the other is elected by a” very small section of me people.
– Precisely. I never expected the day to come when, in one very material respect, I could wish that I were in a nominee. House. It is a surprising thing to me that in this debate we should have been reminded that a nominee House, elected under conditions from which I dissent just as much as my honorable friends’ opposite, should be singled out as an instance of a House which had the courage of its convictions. For four years we have sat in a Senate elected on the widest possible franchise, and not once have I seen the Senate assert itself in the manner which the nominee Senate of Canada - with an accent of contempt on the word “ nominee “ - ventured to do in respect of measures relating to the trade union label.
– In Canada the senators are nominated for life.
– I am not dealing with the question of whether the senators of Canada are nominees for years or nominees for life, but with the fact that in a. nominee Senate, which, on most grounds, is as repugnant to me as to any one here, there should be found senators with sufficient strength to maintain their convictions.
– Would not the honorable senator rather have a nominee Council in his own State than the present elected Council ?
– No ; but I should like to find myself in a Senate which had the courage of its convictions.
– The honorable senator is sitting in that House now.
– I think that I am now sitting in an ordinary registry office. I consider that for years the function of the Senate has been to register the decisions of another place; and in that respect this session has been in no way different from the previous session. A very solid body of honorable senators opposite are absolutely determined to give effect to everything which is enforced below under present circumstances. They are reinforced here by a sufficient number of senators to command an absolute majority - senators, for instance, like Senator Keating, who, whether from shame, or from expediency, declines to join their party, but is absolutely afraid to vote against them.
– But he must do their bidding.
– That may be so, but I state, advisedly, that for one reason or another, which is his concern, and not mine, he is either ashamed of the party or considers it inexpedient, openly to join them, and yet always votes with them, and is afraid to vote against them. The difference between myself and many honorable senators isthat I am neither afraid to vote with the Labour Party, nor afraid to vote against them.
– Hear, hear.
– In that respect there is a distinction between the Minister and myself.
– If the honorable senator will look at the division lists he will find that his remarks are not justified by the votes.
– I know the division lists in the Senate for the last four years just as well as does my honorable friend. But, reverting to the question before the Committee, I suppose it is not denied that whatever may happen from the enactment of these amendments, they cannot in any way improve the conditions of labour. I have never heard it contended by any advocate of the union label that the measure with these provisions could produce that result. We know that in the majority of the States there is direct legislation for that purpose, and I have not heard it contended that the enactment of these amendments would in any way improve the conditions of labour. If that result will not be achieved, what is the object of these provisions? To that question half-a-dozen different answers have been given. We have had the admission that the direct object of the provisions is to bring more men into the trade unions.
– Does any one in the Chamber make that admission?
– I suppose that he has good reasons.
– A number of honorable senators, including myself, do not admit that that is the direct object of this legislation.
– I am glad to get that assurance from my honorable friend, but I know that a great many members of his party earnestly hope that it will have the effect of bringing more men into the trade unions.
– Incidentally, they may have that hope, but they do not say that that is the direct objectof the legislation.
– I attach great importance to the use of the word “ incidentally,” because it is just as important as the postscript to a woman’s letter. Men could only be brought into the trade unions by means of threats or unfair inducements, or pressure. To sum up my view of this legislation, the most that I have to hope is that it will be of no effect. That, I take it, is the minimum of my honorable friends opposite ; it is theworst which they hope to come from this legislation. It is quite possible that for a considerable time it will lie dormant to all intents and purposes, that there will be no one who will be able to trace its operation, and it was for that reason that I ventured incidentally to draw attention to the question that the Bill should not come into force for, at any rate, four months. This may not quite please my honorable friends opposite, but I recognise that if the measure can be so used as to produce no possible disturbance on the political horizon for twelve months, it will suit them excellently.
– The honorable senator’s party will take good care that it is not forgotten?
– I do not think that our party can do that; but I recognise what my honorable friends opposite want.
– We have no wish that it should be forgotten, nor will it be.
– I hope that the operation of these provisions in the coming vear will not differ from their operation after the next general election. I am inclined to hope that no effect will be produced, but I recognise that if my hope is going to be disappointed, the measure is calculated to produce a state of things which even my honorable friends on the other side will one day regret. If, however, it is going to be used as a weapon of intimidation, or boycotting, there will be great anxiety as to who will emerge triumphant from the trouble. We all know the number of unionists and nonunionists in Australia. I can quite imagine that when a struggle does arise the majority will rule, and that instead of these provisions being good for trade unionists they will be very bad.
– Would that trouble the honorable senator much?
– It would. Up to a certain point I am entirely with the trade unions. Let me remind the honorable senator that the fight for the liberty to have trade unions extended over forty years. But the fight for freedom to go into trade unions is quite different from that with which Australia is now threatened, and that is a fight for freedom to keep out of trade unions. There is an enormous difference between the position of forty years ago and the present position. What I wish to emphasize is that the coming fight will be a fight for freedom to keep out of trade unions.
– This Bill will not compel men to join trade unions.
– The Bill will not empel men to join trade unions, but I know that the honorable senator is honest enough to admit that that may be one of its results.
– The Bill may induce men to join trade unions, but it will not compel them to do so.
– Precisely. But Senator Givens knows as well as I do that one of the results from these clauses will be an inducement under pressure, either severe or modified in its character, to work men to enter trade unions.
– Will hot every worker be at liberty to join a union or keep out of it?
– No; the freedom of every man to join or keep out of unions will be endangered.
– The only inducement will be that it will probably be more profitable to enter a union.
– What is that but a kind of pressure? It is surely indirect pressure put upon every man in this community that he is going to gain a certain advantage from joining a union, or that he will be handicapped if he does. not. And that is, in my belief, the intention of many of those who support these clauses.
– The honorable senator has already said that they will neither do good nor harm.
– I have said that these clauses may have no effect upon the industrial life of Australia. I am inclined to think that the matter is one of very grave, doubt, but that is mv belief.
– Does, the honorable senator know how many men in this country belong to unions ?
– I should say that for every unionist there are ten workmen outside the unions.
– Surely the ten will be able “to look after themselves.
– If these clauses come into force, and operate in the direction of pressure upon non-unionists, they will produce a certain amount of strife Out of that strife one side or the other must emerge victorious.
– It must be the nonunionists, since they are the more numerous.
– It is by no means certain that when this struggle is over the unionists will come out victorious.
– Why all this, concern for the unionists on ‘the part of the honorable senator?
– Surely we can allagree that a state of industrial strife in Australia is a bad thing for the whole country ?
– I do not admit that the clauses will bring about industrial strife.
– They may not. I hope they will not.
– What applies to workers’ trade marks applies to other trade marks under this. Bill; it is all a matter of public preference.
– It will not do good to Australia if we have perpetual struggling over this matter.
– We have people struggling for trade now.
– Struggling for trade benefits the consumer, but struggling for a livelihood is not a good thing for the working man. I remind the Committee that Senator Keating, in dealing with this subject, referred’ us to clause 75a, and he endeavoured to make the Committee believe that that clause contained an absolue safeguard against boycotting. I venture to say that not one of us, no matter where he sits in this Chamber, could accept that statement as being one of actual fact.
– Will ‘the honorable senator define what boycotting means?
– I have not time to go into that.
– If I buy from one storekeeper, do I boycott all other storekeepers ?
– Clause 75a, which is intended to stop boycotting, can have no effect whatever upon it. It does not touch the question. First of all, the Federal Parliament has no power whatever to interfere with boycotting. That is left to the States entirely. If there is boycotting anywhere in the Commonwealth, the State in which it arises will have to suppress it. The Federal Parliament cannot. To insert this clause is merely a piece of hyprocrisy. It is more or less of a sop. Let me institute a comparison between the proviso applying to what are called workers’ trade marks, and the proviso with regard to Commonwealth trade marks. First of all, if I understand it rightly, any association which uses a workers’ trade mark may also use the Commonwealth trade mark. But only a limited number can use the workers’ trade mark. So that in this case, to put it broadly, the rule is “What is yours is mine, and what is mine is my own.” This thing, which is called a Commonwealth trade mark, and which an ingenious lawyer in the other House has introduced, is an attempt - wholly unsuccessful, I believe - to placate the workers outside the unions.
– No restriction is placed in the way of their becoming members of unions.
– That interjection indicates the pressure that is at the root of the whole matter. The intention is to bring ‘ the non-unionists into the unions ; but I want the non-unionist to have freedom to remain outside if he wishes.
– Very few workmen would keep out of the unions if they had real freedom. But they are victimized by employers if they join, and that keeps them out.
– I am pointing out the difference between the proviso attaching to the Commonwealth trade mark and that attaching to the workers’ trade mark. Suppose that there is an employer who is employing labour under absolutely fair conditions. This Bill does not accord to him, and. to the workmen employed by him, the same privileges as are accorded to trade unionists.
– His workmen can register a mark just as the unionists can.
– I admit at once that the men can form an. association, and register a trade mark. But when you come to the Commonwealth trade mark, the difference arises. A resolution has to be passed by both Houses of this Parliament that the conditions of labour are fair before the Commonwealth trade mark can be applied. In other words, the use of the Commonwealth mark can only be secured* by bringing forward evidence to show that the conditions under which the business is carried on are fair, and awaiting the approval of such evidence by both Houses of Parliament. See what it means. Suppose the case of a manufacturer employing 100 men. Suppose that each individual man of the hundred receives wages which are higher than those paid to trade unionists following the same occupation, that the hours of labour are less, and that the conditions of employment are all fair and reasonable. Even then the use of the Commonwealth label or mark cannot be secured.
– Such a good employer as “that would encourage his men to become members of a union.
– That interjection merely confirms me in the opinion that the object of these provisions is to drive men into the unions. How can a man who is employing fifty men, or the fifty men themselves, succeed in having a resolution passed through both Houses of this Parliament affirming that their conditions of labour are fair and reasonable? On the very face of it, the proposal is utterly hypocritical. It has for its object conditions which are onerous, unfair, and unjust, and which expose that element of preference which is an under-current to all this legislation. But look at another aspect, of it : Suppose these men have gone to the trouble and expense of having a resolution carried through both Houses of this Parliament, and have acquired the use of the Commonwealth label. What is going to happen then? If their rights are infringed, how are they to defend them in a Court of law ? I have never seen such a travesty of justice as an attempt in a serious piece of legislation to deny the rights of individuals as this proviso does. Under it, if their rights are ‘ infringed, they actually have to apply to the Minister to sue. I call attention to the state of the Committee. [Quorum formed.’] I cannot help saying that, in view of the promise given by honorable senators in Opposition to agree to take a division not later than 4 o’clock, it is an extraordinary thing that after the lunch adjournment there should have been great danger of the Senate being adjourned for want of a quorum. If we had not been able to obtain a quorum at the last moment, the whole thing would would have collapsed, and the fault would have rested with Ministers more than with any one else, because neither of them was present in the Chamber. As I have been partially responsible for the arrangement entered into with, the leader of the Senate to conclude the debate not later than 4 o’clock - an arrangement for which I am” personally grateful - it would be’ unfair for me to offer any more comment on these provisions. I shall close with the observation that I am perfectly confident that if we were to succeed in rejecting these clauses, we should kill this Bill, and the union label proposals for this session. In the circumstances, I think it is a very great pity if any honorable senator is under a misapprehension that he would not be justified in using this as an excuse for voting against the clauses, which a very important minority in the Senate believe to be repugnant to the best interests of Australia.
Senator MACFARLANE (Tasmania).I should like to say a few words on these provisions, and, as usual, I shall be very brief. A good deal has been said about the iniquity of these clauses. I feel that they, are entirely unnecessary, and if there were any prospect whatever that we should be able to reject them, I should gladly assist in doing so. I cannot understand why, when provision has been made in Part VII. a, for a Commonwealth Trade Mark covering Australian labour conditions, provision should also be made for workers’ trade marks. I should like to say with respect to clause 76A that I should prefer to see it amended by the omission of the word “ primary “ so that it would read -
This Part shall not apply to any product of the agricultural, viticultural (including winemaking), horticultural, dairying (including buttermaking and cheese-making), or pastoral industries.
If we are going to exclude from the operation of Part VII., what are called the household industries, such as wine, butter, and cheese-making, we should also be prepared to exclude jam-making. It is surely one of the household industries. I hope that the Minister will not object when the time comes to accept the amendment suggested by Senator Mulcahy, in order that the interests of the smaller States may be as fully protected, as are those of the larger States, under the provision to which I have alluded. If the amendment ‘suggested is not moved by Senator Mulcahy, I shall be very glad to move it myself.
Senator GRAY (New South Wales).Recognising, as I do, that the numbers are against us, I do not propose to occupy the attention of the Committee for more than a very few minutes. But I wish to enter my protest as strongly and as earnestly as I possibly can against the principles underlying these iniquitous provisions.
– It does not matter what the honorable senator calls them.
– I recognise fully the force of Senator Guthrie’s interjection. It matters little what honorable senators on this side think of the merits of these provisions. They have been considered by the caucus - it has been decided that such and such things shall be done, and pressure is brought to bear upon the Government to such an extent that it is well-known that they must accept these provisions, or retire into private life. Some of the members of the Ministry, to their disgrace be it said, have agreed to accept these provisions, in order to save their political skins.
– The imagination of the honorable senator puts that of Captain Marryatt in the shade.
– It is evidently too strong for the honorable senator.’ Senator
Guthrie must be particularly dense if he does not know what is known to every one else, that the members of the Ministry are divided on this subject, and certain Ministers have absolutely expressed their opposition to the principle underlying these provisions.
– And have voted for them.
– They have voted for them because they knew that if they did. not they would have to retire into private life. There really must be some great influence exerted by the “ Caucus Party “ to cause these members of the Ministry to be disloyal to their own consciences, and to force them to give their support to measures which they believe to be inimical to the best interests of the Commonwealth. I can conceive of no greater danger to the interests of Australia than the “engineering” exerted to secure the adoption of these provisions, because it has had the effect of materially deteriorating the standard of morality in the political life of the Commonwealth. It must be patent to everybody that the Government are prepared to carry into effect provisions which they believe to be against the best interests of Australia, simply in order to retain office.
– Does the honorable senator say that all the members of the Government are prepared to do that?
– What I mean is that the Government are not unanimous in supporting these provisions, and certain Ministers are as strongly opposed to them, as are honorable senators in opposition.
– Two Ministers out of eight have spoken against them.
– I think there is a third Minister who is absolutely opposed to them, though I admit that he has not publicly so expressed himself. Why do the Labour Party value these provisions so highly.
– Largie. - Because the capitalists oppose them so strongly.
– Because certain honorable senators are fighting them so bitterly.
– It is because they believe that the union label provisions can be used as a powerful organizing machine to bring into the union fold for the support of the party, all the non-unionist workers of the Commonwealth. I contend that these provisions are absolutely unfair. Trade marks have hitherto had attached to them a certain value which has been recognised as the personal property of the owners. They have had also, to some extent, a personal value, since a man’s trade mark is not merely a sign or symbol attached to his goods to identify them,, but it is his hall mark and credit mark, which indicates the quality of the goods he manufactures. These union label provisions involve a complete departure from the principle underlying trade marks’ legislation, because the essential characteristics of a trade mark do not attach to the proposed workers’ trade mark. Unionists may. under these provisions, register a mark which will show that the goods to which it is applied have 6een manufactured under union conditions, but it will in no way indicate that the goods are of a certain quality. These provisions will not prevent the application of a union label to inferior goods which will thus be put on the market, with any kudos to be gained from the intimation that they have been made under union conditions.
– One thing is certain, that they will not be made in sweating dens.
– I do not believe that sweating is confined to any one class of manufacturers. In my experience, working men who have risen to the position of employers sweat their employes quite as much as do those who have become employers under other conditions. I enter my protest against these provisions. I hope that they may do all the good which those who support them profess to believe they will do.
L give honorable senators opposite credit for being sincere in the belief that the Bill, if passed, will be in the best interests of the workers, and they must give me credit for my sincerity in the belief that the Bill will not prove equal” to their desires. No one would be better pleased than myself if the Bill did realize the anticipations formed by my honorable friends opposite; but I think they will ultimately be disappointed. In the protest I have uttered, I represent a large’ majority of the people of New South Wales, including the Chambers of Commerce, the Manufacturers’ Associations, and the Storekeepers’ Association, the latter of which consists of more than 900 members. On behalf of these people. I oppose this measure, although I know that no protest will be of any avail in changing the result.
– After the lengthy denunciations on the part of the press of Australia, one is surprised to hear from Senator Pulsford that, these provisions will affect only a small proportion of the trade of the Commonwealth. We were told that the whole of our industries would be ruined by these provisions, whereas now we are informed that 72 per cent, of the trade will not be affected.
– The honorable senator knows that these new clauses were inserted in the Bill only this week?
– The circumstances only show what a tremendous row the press is able to kick up about nothing, when such a procedure suits the purpose of the newspaper proprietors and their supporters. Senator Clemons contends that these clauses will not improve the conditions of labour. It is manifest that if these conditions are to be improved, it must be at the expense of some class now living on the workers. If the actual producers of a certain article are to get a greater share of the results of their labour, the capitalists, or the landowning class, must get a smaller share.
– May not a section of the labouring class gain an advantage at the expense of another section of the same class ?
– I am at present dealing with Senator Clemons’ arguments. If the provisions are not going to trench on the rights of capitalists or employer class, why all this storm and noise - why all this obstruction to the legislation?
– Who says that this legislation is not going to trench on. the rights of the employer class?
– The press and politicians of Australia have said that this legislation will trench on the rights of that class, and they have justified obstruction on the ground that the provisions will be used as weapons to enable workmen to obtain concessions to which they are not entitled. Senator Clemons also prophesied that these provisions of the Bill will be kept in the background - that the proclamation of their coming into operation will be deferred until after next election.
– I did not say that.
– If the Ministry wish to let the people know what lies have been circulated about these provisions, the best thing they can do is to bring the Bill into operation as soon as possible. If the
Bill be put into operation twelve months before the next election, the people will be inquiring as to where all the damage is of which they were told. The politicians who, I would almost say, have been abusing the privileges of Parliament, and justifying their action on the ground that the clauses must have evil results, will be left, so to speak, without a rag to cover them. The best thing that could happen for those who champion these clauses is that they should be put in. operation as soon as possible, so that the people may have experience of them before the next election. I admit that, after the lies which have been so sedulously spread, and, after the suppression of the truth regarding the clauses, there is in the country a mistaken idea as to what they are, and what they mean. Only recently” I heard a man, who is in the front rank of his profession in one of the States - I shall not give his name, because I am certain that to do so would damage him in his profession - say, in condemnation of the clauses, that they meant that every article sold in a shop would have to be branded either union or non-union.
– To what profession does he belong?
– He is a lawyer. That gentleman, previous to speaking, had not had time to study the Bill, and formed his impression on what had appeared in the press - and the Sydney press at that. The ideas this gentleman expressed were no doubt perfectly correct so far as his information went.
– The honorable senator knows that what the gentleman he refers to stated will be the effect of the clauses.
– The gentleman whom Senator Pearce criticises is not very far out in his prophecy.
– Here we find honorable senators, who ought to know better, still giving impetus to these misrepresentations. Certain honorable senators have been very solicitous for the employer who gives even fairer conditions than those desired by the unions, and have asked whether the trade union label will be denied to such philanthropists. We have no wish to refuse the label to such employers, and I am sure that both Houses would speedily pass the necessary resolution. I desire, however, to apply in another way the reasoning indulged in by Senator Clemons. There is Mr. Harper, who has made a name with
Silver Star starch, in .connexion with which there is a trade mark which actually sells that starch. To apply Senator Clemons’ reasoning, it might be asked why another manufacturer, who makes an equally good starch, should not be permitted to share Mr. Harper’s trade mark. Surely the arguments are analogous.
– No, no.
– The workers’ trade mark owes its value to the fact of there being unions, and a spirit of unionism, in Australia, Mr. Harper’s trade mark is valuable because-
– Because the quality of the starch is known.
– That is so; the quality is known. And the spirit and benefits of unionism are known; and the workers’ mark will be valuable because people will buy the goods on which it appears.
– But the goods mav be bad.
– The workers, in order to make their trade mark valuable, will do just as Mr. Harper does, namely, place a good article on the market.
– The article will not sell if the quality be bad.
– We have been told that these provisions will be used as a means of boycotting ; indeed, it has been said that the legislation is desired for that purpose. Strange to say, that opinion has been advanced as if trade unions were the only bodies guilty of boycotting.
– That does not justify the boycott.
– It does not; but I desire to show that the very class who are promoting the agitation against the union label are to-day actively using the boycott. Mr. Hoadley is the managing director of a firm, a vice-president of the Employers’ Association, and Mrs. Hoadley is a vice-president of the Women’s National League, of which Senator Dobson is such an ornament. Recently there was a strike amongst some of the girls in Mr. Hoadley’s factory.
– Is this the godly man ?
– this is the godly man, who posed before the Tariff Commission. The dispute was not with men with powerful affiliated unions at their back, able to send thousands of pounds for their assistance, but weale, unfortunate girls, with no union beyond a slender organization in a particular factory. In fighting these girls, Mr. Hoadley exercised, not only his individual influence, but the whole influence of the Employers’ Federation of Australia, and used the powerful weapon of the boycott to its fullest extent.
– Is the honorable senator justifying the boycott ?
– I am showing that those who oppose the workers’ mark provisions of the Bill use weapons which are certainly not at the disposal of the trade unionists.
– Even supposing that what the honorable senator says is correct, does it make the boycott right?
– When the girls were locked out, Mr. Hoadley reported the matter to the Employers’ Association, who issued a circular to every Melbourne manufacturer in the same line of business.
– Is that the same organization which issued protests against the proposed workers’ trade marks ?
– And: who as one of their strongest arguments, pointed out that the provisions might be used as an effective means of boycott.
– Mr. Cussen, who was quoted by Senator Dobson, and is the paid advocate of the Employers’ Organization, condemned the provisions in the Bill on that ground.
– That means that Mr. Cussen sells himself because he is paid.
– Yes; he sells his opinion. / Senator Millen. - Does the honorable senator mean that Mr. Cussen would give a different opinion if he were paid to do so?
– The honorable senator surely does not mean that?
– Is that unusual in the legal profession?
– It is most unusual for a legal practitioner to give an opinion contrary to what he believes to be the fact.
– The letter sent out by the Employers’ Federation was as follows : -
Melbourne, 9th September, 1904.
I am directed by the executive committee of this federation to notify you that at the last meeting of the executive a report was received from Messrs. Hoadley and Co., in connexion with the strike taking place in their factory.
Subsequent to this, I received a letter from Messrs. Hoadley, setting forth the -pros and cons of the whole case, in which he states - “ That having found it necessary, owing to the adjustment of the inside work of our factory, we considered it necessary to dispense with one of our employes. As we did not require him to work after notice, we gave him a cheque in lieu of same. On this being notified to the other men some left at once, and others who had commenced work left it partly finished. Mr. Hoadley took the trouble to fully explain the position to the men on Friday evening, when paying them off. While they agreed that we had treated them very well, they decided to stand by the trade union. On Monday, some of the men returned to work, also some yesterday, but the majority are still out. We should like to have the co-operation of other employers in our trade, as we consider the right we are seeking is a very vital one, viz., the power to put on or dispense with the services of any of our employes, and as we do not wish to take any men from the other firms we should like to have their sympathy and assistance in not employing any of those who have left us during the present strike.”
This explanation appears to me entirely satisfactory. The principle that a man should be allowed to be master in his own business is one which this federation keenly supports, and I am directed by my committee to ask you, as members of this federation, through the affiliation of the Manufacturing Confectioners’ Association, to assist Messrs. Hoadley and Co., both in the direction of not taking on those men who have struck, and in such other ways as may be possible, so as to render the inconvenience they are subject to as slight as possible. My committee feel that they have no hesitation In asking you to comply with this request, as any member may be in the same position to-morrow as Messrs. Hoadley and Co. are to-day.
I am, &c,
Mr. Walpole is the secretary to the Employers’ Federation, which sent in a petition to the Senate.
-* - That is the man who has announced that the banks will boycott manufacturers who use the union label.
– Yes. A great point was made about the misuse of the union label in America. It was urged that the trade unionists boycotted the manufacturers, and all that kind of thing. But the Meatcutters’ Journal, published in Syracuse, New York, on the 8th April, 1905, contains the following report : -
At a- meeting of the American Economic Association, held in February of this year, reference was made to Robbins Lumber Company, of Wilksbarre, Pa. This company has withdrawn from the Citizens Alliance, in order to do so they have forfeited $1,000. In the future union men, with their “ buttons,” will take the place of non-unionists. They say “we withdraw from the Alliance, because we believe it to be unlaw ful, unjust, and against the best interest of the community, because it believes in a systematic boycott against employes, who are to be at the will of the employer, black-listed, boycotted, and starved into submission; that a member of the association may brand an employ^ as unworthy; and that he will not be given employment by any other member.
– What has that to do with trade marks ?
– The honorable senator does not like tq hear this information associated with trade marks, but he has no objection to associate boycotting with trade marks, when he desires to make a charge against trade unions. I wish to draw the attention of Senator Mulcahy to the fact that the firm of Hoadley and Company are engaged in the manufacture of jams and preserves, and that he proposes to exempt a firm who have used the boycott to starve their employes into submission, to save them from the much less unfair boycott of an appeal to the public not to buy their goods unless their operatives are worked under fair conditions.
– But Hoadley and Company do that.
– Yes. The firm could get the Commonwealth trade mark, because they now work their employes under the Wages Boards.
– What is the ‘force of the honorable senator’s argument?
– When the firm were not under the Wages Board they used to employ the boycott, in order to starve their employes into submission.
– What were the conditions of their operatives then?
– The conditions of their operatives are not very good, even now.
– The firm are operating under the Wages Board.
– I can quote the wages paid bv the firm if required.
– If the honorable senator is in favour of making any exceptions, I shall give him a chance to make some.
– I am in .favour of making exceptions to this extent, that in an industry such as the jam industry, in which the operatives are generally girls and youths, with very little unionism amongst them, unless, they be given an opportunity to appeal to the public to support only those factories which are worked under fair conditions, they will be sweated as they have been. I was very much interested in Senator Millen’s explanation, but when the logic of events compelled those of us who pressed this proposal in the first instance to accept a modification in the direction asked for by that honorable senator, we had a right to expect that he would meet us, at any rate, half way. Apparently he has no spirit of compromise in his composition. He wants the whole loaf or none; he demands the whole pound of flesh ; and no matter what concessions we may make to him, he is against us, lock, stock, and barrel. Although he did not say so in an uncompromising way at the time, still he led us to believe that if it had not been for that particular provision he would have had very little opposition to offer.
– The honorable senator cannot have read what I said.
– I heard what the honorable senator said, and also read the report of his speech. Senator Best, who is not present, and who, I understand, is paired, said, on page 3657 of Hansard -
It should be understood that those honorable senators who discuss this matter from a strictly legal point of view are not in any way adverse to the suggestion of Senator Pearce. The proposal is novel, so far as Victoria- is concerned, and I believe so far as Australia is concerned. I think that the matter ought to be dealt with in a separate part of the Bill, which could embody some of the provisions of the label law in the American Acts, to which reference has been made.
Surely, after that clear statement, Senator Best should be satisfied when we have adopted exactly the proposal which he laid down. Senator Drake moved an amendment similar to that which was adopted in the other House, although I must say that he was our opponent right through.
– But that was his amend mert t.
– Senator Drake said that in his opinion the proposal was unconstitutional, and he was opposed to us right through. When Senator Best was speaking, he was asked by Senator Dobson whether he thought that the proposal was unconstitutional, and he replied. “ Yes, it is.” He also said that his point of view was not adverse, but that in his opinion the provision should be framed on the lines of the American law, and should be contained in a separate part of the Bill. On page 4102 of Hansard, Senator Drake said -
The object which Senator Pearce has in view is a- praiseworthy one.
I take it that his opposition was merely based on the constitutional ground.
– No; on the same page the honorable senator will see what I said about branding Chinese furniture.
– I have not the volume of Hansard here, but. only a quotation from the honorable senator’s speech. I do not intend to speak later on to the amendment which has been foreshadowed bv Senator Mulcahy. I see no reason why we should make any further exemptions, because, in my opinion, they are wide enough.
– Can the honorable senator give a reason why we should make any exemptions?
– As regards the industries which are exempted by new clause 76A the union label would npt affect the employes if they were brought under the Bill. I cannot imagine that we shall be so successful, at any rate, for many years to come, as to get a trade union established amongst agricultural labourers.
– Not in butter making, for instance?
– I am not very hopeful, in that regard, because the nomadic character of the employment is against the establishment of a trade union. I do not believe that in twenty-five years, if the industries exempted by new clause 7 6a were placed under the Bill, there would be a trade union mark registered to affect anyone of them. The question whether those industries are under the Bill or not does not matter very much. But the jam-making and fruit industries would be affected. In these industries, factory conditions are of no avail unless there is a strong trade union to see that they are policed. Trade unions are the police of the factories and the Arbitration Acts. Senator Mulcahy ought to know that trade unionists can see that the law is carried out without the danger of being boycotted. If an individual worker were to call attention to insanitary conditions in his ‘factory, he would be sacked “ quick and lively “ ; therefore, the only men who could make a report without risk of incurring a penalty are trade unionists.
– I do not think the honorable senator ought to make a. general statement.
– The honorable senator need not be surprised at my statement, because the greater number of the Labour Party in the Senate, including myself, have had the experience of being boycotted. The Melbourne Herald of the 8th March, 1904, contains a report of the prosecution of the OK Jam Factory, of Chapel-street, Prahran, for keeping their factory in an insanitary condition.
Not a single operative dared to give evidence in that case.
– Under this Bill would not that factory be entitled to use the Commonwealth mark?
– Yes; but as I pointed out, the factory would also be encouraged to use the trade union mark, because their ‘jams are used in the homes, of working men. If we could get a trade union established in this factory, the Factories Acts would be carried out. But while we have to depend upon the inspector alone, the law will never be carried out. What happened in the case which I have just cited ? The managing director, who, I suppose, enters the factory occasionally, and the director, who enters it seldom, went into the witness-box and swore that the factory was not dirty, thus contradicting the statements of the two officials, and the Bench, composed of honorary justices, with one stipendiary magistrate, dismissed the complaint. This case is not isolated. Those who have had any experience of factory life are aware that no operative dare call attention to the insanitary conditions of his factory for fear of the boycott. The only protection the workers can have is a strong trade union. I intend to support the Bill as it has been returned to us. and I trust that no further amendments will be carried that will have the effect of weakening it.
– In common withother honorable senators, I rise to state my objection to this proposed legislation. I do not intend to enter into the matter at length, because pretty, well all that can be said has been said, except in regard to one or two minor points. I was rather surprised to read new clause 76A, under which wine-making is excluded from the operation of the workers’ label clause. I am still more surprised that brewing is included. Surely brewing, just as much as wine-making, is entitled to exemption. However, the figures quoted by Senator Pulsford are rather reassuring, from my point of view, as they show that only about 28 per cent, of the production of Australia will be affected by the union label. I trust that even though the Bill be passed, boycotting in Australia will be conspicuous by its absence.
– It may be until after the next election.
– Unfortunately, there is a good deal of truth in what Senator Pearce says, that boycotting has not been confined to one particular class. As to America, I propose to read a short extract from a labour journal, called the American Federationist. It published the following lines : -
An organizer in Arkansas wrote - “ No strikes or locks-out to report. There has been some improvement in working conditions. Good work is being done for the union labels, and all boycotts published by the American Federationist are observed.”
Then, again, under the head-line, “ We don’t patronize” -
The American Federationist gives a list of employers, which includes firms dealing in bread, beer, cigars, flour and meal, meats, oysters, tobacco, whisky, cottons, hats, shirts, shoes, and other commodities. And it introduces this “black-list” with the statement that “union working men and working women and sympathizers with labourhave refused to purchase articles produced by the following.”
– Is there anything wrong about that ?
– It shows that boycotting exists.
– It is merely preferential trade; people prefer to deal with tradesmen who recognise fair conditions.
– Another objection which I have to these clauses is that they afford no guarantee of quality in respect of the goods to which the union label is applied. Surely it will be admitted that non-unionists are often as good trade people as are those who belong to unions. I believe in the policy of the old trade unionists, because they had no objection to working side by side with those who did not belong to unions.
– There is no guarantee of quality in respect of a manufacturers’ trade mark.
– When people buy goods to which a certain mark is affixed they take it as a guarantee of the quality of the goods. I am glad, however, that it is not the policy of this Bill to countenance boycotting. Senator Keating informs me that manufacturers who employ both union and non-union labour may register a trade mark, showing, if they please, that they do not distinguish between one class of men and another; but simply desire to employ good tradesmen. I trust that such manufacturers will, in time, secure a fair share of support. I do not know whether honorable members have seen this week’s Punch. It contains a rather humorous, though somewhat exaggerated, description of what will happen under the union label.
– It is a most unusual thing for. that paper to be humorous.
– Only a Scotchman could appreciate its humour.
– I dare say that if the honorable senator will look at it he will either laugh or cry at what he sees. It shows what the tendency will be. If no boycotting occurs under the union label between now and the end of next year, I shall be one of those who are uncharitable enough to think that it has not taken place for fear of the consequences at the next general election.
– I should like tq say briefly that my opinion on this subject has not changed since I voted against the trade union label clauses last July twelve months. They have undergone a good deal of change since then, and some matter has been added which may have a beneficial effect. I remind the Committee that when, I spoke on this subject before I expressed the opinion that Senator Pearce, to whom I gave credit for good intentions, had endeavoured to make sure that goods should be marked in such a way as to indicate the conditions under which they were made. I referred to the marking of Chinese-made furniture, a matter in regard to which I took action as far back as seventeen or eighteen years ago. I have always held the opinion that they should be marked, and shall be glad to co-operate with any one in an endeavour to insure that goods placed on the market have been manufactured under fair conditions. It is intended that that object shall be attained by means of what is called the union label or mark; that is to say, that there shall be power given to some recognised official to mark goods, so as to indicate the conditions under which they have been made. But the thing that I objected to in connexion with Senator Pearce’s original proposal is still present in these clauses. Though I emphasized the constitutional objection on the last occasion, I should like it to be clearly understood that my opposition, to the provisions were not solely that they were unconstitutional. My objections went further. I pointed out, first of all, that they were unconstitutional; but I also said that, whether constitutional or not, they were likely to lead to bad results, and therefore ought not to be passed by Parliament. The particular thing that I objected ro was that the clause recognised proprietorship in a trade mark, which might be given, or withheld, in respect of the goods of some other person. That, I think, constitutes the great difference between the union label and a true trade mark, within the meaning of the British Trade Marks Acf. My contention was, and still is, that the only power which we have of dealing with this matter is derived from that paragraph of section 51 of the Constitution which mentions trade marks. And when we inquire what the term “ trade mark” means, we must turn, not to any legislation passed in Australia, but to what a trade mark meant under British law at the time our Constitution was assented to. If we do that, we must go back to the interpretation of “trade mark” in the British Trade Marks Act; and we find that under that interpretation the particular thing that I am objecting to now would clearly be excluded. I think, therefore, that under the Constitution we have not the powder to recognise the proprietorship in a mark which may be affixed to other people’s goods or may be withheld from them. But, apart from the constitutional point, I think that such a provision is likely to lead to ill, because it gives an opportunity., at all events, for a boycott. There will be a mark which will belong to certain individuals or to an association. They will have the power, at their caprice, of either giving or withholding their mark. They will be in a position, therefore, if the members of the association are sufficiently numerous, to compel a tradesman to sell certain goods, or not to sell them. I think that is wrong in principle.
– Has not a trader power to force from a union which has registered a trade mark the right to use it ?
– I do not think he has. The amendment drafted by Senator Walker when the Bill was previously before the Senate had that object in view, and it was strongly opposed by honorable senators who support the union label clauses. The proposal was that any manufacturer employing labour at fair rates, and under fair conditions, should be entitled to the use of the union mark.
– We pointed out that it was a union label, and should not be placed on non-union goods.
– That brings us back to what I have said. It was stated also, when I raised the question with regard to quality that has been referred to to-day, that a trader who was using bad material in his goods, but wanted to place them upon the market, and wished to avoid putting his own name upon them, could, by employing union labour, go to the proprietors of the union label, and say, “ My goods are being made by union labour, and I wish to place the union brand upon them.”
– As a rule, the man who employs union labour recognises that it is the best labour, and he turns out the best goods.
– That does not follow at all.
– It does not follow, but in nine cases out of ten it is the case.
– I am supposing a case where a manufacturer has a trade mark of his own, under which his goods have acquired a certain reputation for quality, but wishes to place some inferior goods upon the market. By employing union labour he will be entitled to put the union mark on his goods, and so will be at an advantage in selling them. When I made that statement in the Senate previously, I was met with the reply that the union would not allow such a man to use its mark. If that be so, it is perfectly clear that the mark is one that the proprietors of it claim they can give or withhold at their caprice.
– That is not so under this Bill as amended.
– It is not correct.
– I know that under the Bill as amended a manufacturer can come to Parliament.
– The Attorney-General did not deny what Senator Drake says when the question was put to him.
– If the manufacturer employs union labour he can use the union tra’de mark.
– He can force it from the union, but they cannot force it on him.
– I fail to see how the union label is going to secure the object desired of it if the proprietor of the label has not the power of withholding “its use from a particular manufacturer. And, if that is so, the unions will certainly have an enormous power over local tradesmen, especially in country districts like the far west of Queensland. They can say to them, “ Unless you buy and sell goods with certain brands on them, or refrain from, buying and selling goods which are otherwise branded, we will not deal with you.” If that takes place, certainly the Bill will have very undesirable results. It will have the effect of setting class against class, and will lead to a condition of affairs in parts of the country such as that of which I am speaking that I am sure many honorable senators would regret. It may have the result of increasing the sale of goods made by union labour, but it will correspondingly depress the sale of goods which are not made by union labour. Honorable senators may be animated by the best intentions, but I think that this is not a fair and legitimate way of obtaining their end. I do not believe that good ever follows the use of indirect means of attaining legislative ends. If we are going to act in a democratic manner - and most of us claim to be democrats - we should consider how the whole people will be affected bv the Bill.
– Non-unionists, are considerably advantaged by the existence of unions.
– They may be. I recognise that every effort which is made to increase the wages and improve the conditions of labour for the man who is not a member of a union, and must work for his living, is praiseworthy; but he would not thank unionists for depriving him of his work altogether in the process.
– Who proposes to do that ?
– I think that will be the natural consequence if the workers’ trade mark is used in the way in which it seems to me it is likely to be used. Persons will be required to sell goods made exclusively by union labour, and not to sell goods made by non-union labour, and the natural consequence must be that the non-unionist will be compelled to lose his means of living, or else join a union.
– Thousands of nonunionists in Australia to-day would very quickly join unions if they did not fear that they would be sacked by their employers.
– Is it not a fact that the consequence of the operation of the workers’ trade mark in the way I have described must be to compel men to lose their means of living or become members of unions, and subject themselves to conditions which they may be disinclined to accept? Even though the intention should be to improve the position of those who are not unionists, I do not think that the method1 proposed is a legitimate way of attaining the object. Whatever good unions may have clone in the past, or may do in the future. I do not think that it is legitimate by such means to compel workmen to joint them.
– Does not the factories legislation of Victoria and the labour legislation generally of New Zealand force men to become trade unionists?
– I do not know that it does.
– lt does absolutely, because they can receive no recognition unless they do.
– Is a workman not protected under the Victorian Factories Act unless he is a unionist ?
– Workmen cannot get (their grievances, listened to unless they form organizations. They are not dealt with individually.
– If that be so, the Factories Act in force in Victoria is very different from those in force in other States of the Commonwealth. The factories laws in most countries were passed for the benefit, not of trade unionists alone, but of all classes of workers, in factories. All the regulations made under them with regard to the conditions in which the work is done are intended to benefit all- employed in the factories, whether they are trade unionists or not.
– The honorable senator should not forget that we have Wages Boards under the Victorian Factories Act.
– The honorable senator’s interjections bring me to another point, and that is that the Factories Acts are purely matters within the jurisdiction of the States. If these evils exist, and I know that they do exist to a very great extent, they should be dealt with by the States. I think that some honorable senators, anticipating difficulty in securing State legislation of this kind, believe that it is better that they should secure direct Commonwealth legislation of the character now proposed. There is nothing to prevent the States, undertaking legislation to provide for union labels, and if that be so, I say that honorable senators in endeavouring to carry these provisions are trying to do a right thing in a wrong way.
– Is the honorable senator’s opposition to the label, or to the unconstitutional aspect of the matter?
– I told the honorable senator that I hold that these provisions are unconstitutional. Apart from whether they are constitutional or unconstitutional, the object is to ‘force upon the Commonwealth Parliament legislation to take the place of legislation that can constitutionally be passed by the States, and not by the Commonwealth. In the circumstances, I repeat that those who are supporting these provisions are endeavouring to do what may be a right thing, but certainly in an entirely wrong way. . I believe we shall get better results eventually if the Commonwealth Parliament recognises the exact line of demarcation between its own duties and powers, .and the duties and powers of the States, than we shall by any effort to use the legislation of the Commonwealth to do what should be done by the States, and what is within the constitutional powers of the States, and not of the Commonwealth.
– Before we go to a vote, I have a word to say in support of the amendments now before the Committee. We have listened to many speeches from honorable senators opposite against these provisions, and it is only fair that a word or two should be said by honorable senators on this side in favour of them. I support these provisions as I supported provisions to give manufacturers and employers the right to register, and have the exclusive use of trade marks. When the Bill was before the Senate last year not a single word was said by those supporting these provisions against giving employers and manufacturers the fullest possible right to the exclusive use of trade marks. We were in favour of giving them the fullest possible measure of justice and protection, but what is the attitude of honorable senators opposite when we claim the same fair deal for the workers of the Commonwealth? They are all up in arms against the proposal. They are all the time, and to the fullest possible extent, the advocates of the employers and of the manufacturers, who are prepared to rob and fleece their employes and the public.
– That is all imagination.
– It is not imagination. Why are honorable senators so loud-mouthed in their opposition to this legislation if it is not because they are afraid that it may trench upon the employers’ and manufacturers’ profit?
– No, because it is class legislation.
– It is not class legislation. We are willing to give the fullest possible measure of justice and protection to manufacturers and employers. Honorable senators will not find a single word in Hansard to show that any honorable senator supporting these provisions ever offered the slightest objection to manufacturers and employers being accorded the fullest possible right to register a trade mark and to obtain all the protection of the law for it.
– In justice to the honorable senator, I must admit that I have never known honorable senators opposite to offer the slightest objection ; but I have known them to offer the strongest objection to anything in the way of fairness to manufacturers.
Senator GIVENS (Queensland). - Let Senator Millen turn up Hansard, and I will forfeit£5 to any institution he likes to name, if he can show me a single word said by myself or any other honorable senator on this side against giving manufacturers, employers, and merchants generally the right to register a trade mark, and the fullest protection for it. We are asking the same right for the worker.
– He has it now.
-The worker has not the right. It is not proposed that unions shall have the right to affix a workers’ trade mark to any goods without the consent of the owner of those goods. We were told by Senator Drake that a union might refuse to give an employer who employed men under union conditions the right to use the union trade mark.
– That was so, as the Bill left the Senate last year.
– And it is so now.
– Nothing of the kind. Provision is made in sub-section 2 of the proposed clause 73a that -
The workers’ trade mark is falsely applied, unless in truth -
the goods to which it is applied are exclusively the production of the worker or of members of the association.
That clearly implies that if the goods are exclusively the production of the worker or members of the association, then the workers’ trade mark applied to those goods is not falsely applied.
– The honorable senator overlooks the clause which makes the union registering it the proprietor of the workers’ trade mark.
– Provision is made for the application of the trade mark, and against infringements of the right to use it.
– What the honorable senator has just read does not give every employer employing labour only under union conditions the right to use the mark.
– As I have shown, the clause provides that the mark will be falsely applied unless certain conditions are complied with, and where those conditions are complied with the mark is not falsely applied.
– But it does not follow that it will be applied in every case in which the conditions are complied with.
– I emphasize the point that we are willing to give the utmost protection to manufacturers, merchants, and employers generally, and we have a right to ask honorable senators opposite to give the workers who are the great mass of the people, the same protection. They are poor and struggling, and honorable senators opposite should not refuse to reach out a hand to help struggling people when they are always so ready to grease the fat pig. We are asking for a fair deal for the workers, which we are willing to concede to every one else.
– That is not so; the right to the union label is proposed to be given to some, and refused to others.
– There is “nothing in these provisions to prevent any worker registering a trade mark.
– It is an absolute fact that any worker can register a workers’ trade mark under these provisions.
– The honorable senator must be aware that a trade mark would be valueless to an individual worker.
– -I am replying to the definite statement made by Senator Fraser, that an individual worker cannot register a tradd mark, and I say that under this Bill he can do so.
– He could do so before this Bill was introduced.
– Honorable senators opposite, in opposing these provisions, are opposing clauses which make only for common honest)’. Unions, in the present state of the law in the Commonwealth and in the States, can adopt a trade mark at any time they choose, and use’ it ; but there is nothing to prevent any unscrupulous individual coming along and pirating their trade mark. If under the present state of the law they adopted a trade mark, and it became popular bv reason of the fact that the goods to which it was applied were in demand from one end of the Commonwealth to the other, a real value would be given to it, and yet any unscrupulous individual might come along and pirate it.
– He could not do so.
– Senator Fraser contradicted me a minute ago, and “ fell in the soup “ over it and f therefore ask him to be careful not to contradict again.
– There is a bic action going on now in the Courts in this State over that very thing.
– That action has no reference to a -workers’ trade mark, and the honorable senator does not know what he is talking about. T say that any workers’ association in Australia can now adopt a trade mark, and with the consent of the owner apply it to any goods. It may become! a very valuable mark indeed, but there is nothing in the present law, either of the Commonwealth or of the States, to prevent any unscrupulous individual pirating that trade mark and robbing the real owners of the benefit which they might derive from it. I know that some trade unions as a matter of fact have adopted union marks. A firm of co-operative bootmakers in Brisbane have adopted a design of clasped hands as a trade mark which they apply to their goods, but there is nothing to prevent any bootmaker in Brisbane putting the same mark on boots of his own manufacture.
– Why do they not register their mark?
– The honorable senator is seeking to prevent them from registering, it. That is just what we are asking the Committee to agree to - to give the unions power to register trade marks, and to protect them from piracy. This is only a provision to provide for common honesty, and it should have the support of all who favour fair dealing. This part of the Bill will be exceedingly valuable in the fostering of Australian industries. The trade mark can be applied only to goods made in Australia under fair conditions ; and, in my opinion, the result will be to popularize locally-manufactured good’s, and thus render great assistance to those engaged in our industrial life. I should like to read the following cable message, which appears in the Melbourne Herald of this day : -
London, Thursday night.
The Daily Chronicle comments in a leading article to-day on the Trade Marks Bill, which was passed by the Commonwealth House of Representative’s on Wednesday.
Referring to the inclusion of the union label clauses, the Chronicle remarks that the logical corollary of the legislation should be a warranty of equality of the goods, as well as a guarantee that fair wages were paid in their manufacture.
– The Daily Chronicle says that’ that “should “ be the corollary, not that it will be.
– The trade mark will be a guarantee to the people of Australia that goods are manufactured under fair conditions. It-is well known that unionists usually demand, and are paid, the highest wages, and no manufacturer would employsuch labour in order to work up rubbish. On the contrary, a manufacturer will be careful to use the best article, in order that he may demand a price which will recompense him for his outlay. In addition to fair wages, and so forth, this trade mark will insure good sanitary conditions, which are most important from a health point of view, in the manufacture of food products, so that, from every aspect, these provisions will have beneficial effects. We have been told that the main object of the provisions is to for;e men into trade unions. There is not a single word or clause in this part of the Bill to justify any such allegation. I might as well say that, if a. limited liability company, with a registered trade mark, achieved such success as to drive out all their competitors, the shareholders in the other companies would be compelled to buy shares in the successful enterprise. As a matter of fact, there is no such compulsion. If I am a miner, and get the idea that harvesting is more profitable, I simply go harvesting ; .and people “will join unions, or remain outside, at their own sweet will, just as before.
– If the honorable senator thought that would be the result, he would not be so keen on the measure.
– I am only asking for fair conditions, and protection for both sides. The very people who charge us with desiring to devise a means to boycott have been the chief sinners in that respect themselves. The records of the law Courts, and evidence taken before Royal Commissions in every State, prove the truth of that allegation. Employers have been callous to the sufferings of innocent women and children,; they have deprived men of work knowing that these men could not resist the cries of those dependent upon them for support. After the election of 1893, in Queensland, 800 men were so victimized and boycotted at Char,ters Towers that they could not get a day’s work simply because they had dared to vote in accordance with their political convictions. Of course, the employers always maintain that, in such cases, men are discharged for other reasons in the ordinary course of business, and there is no difficulty in finding tlie other reasons. In one case, however, the employers were “bowled over,” and had themselves to recite the facts on oath’ in a Court of justice. In this case a certain individual owned about 800 shares in a mine, and had worked in it for some time without one angry word between himself and the manager or anybody connected with the place. After the election, however, one of the directors happened to see Ellis man’s name on the paysheet, and directed the manager to discharge him on the ground that he was a political agitator, who was mixed up with the Labour Party. To his eternal credit, the manager refused to obey* the order, whereupon the directors took the bull by the horns, and, by resolution, discharged the man themselves.
– Who was the man victimized ?
– I was the man.
– Did the honorable senator not horsewhip the lot?
– I took my own course To “even things up.” I quote this as an illustration, the facts of which can be easily proved. The same sort of thing is going on ever. day around us, but it is hard to prove a case ,,because employers wait until they find some plausible subterfuge on which to discharge a man.
– Neither side should be coerced.
– -We do not want a lecture on boycotting at 4 o’clock on Friday afternoon.
– This morning Senator Dobson wasted two hours over a technical point that was thrashed out two years ago. What I wish to point out is that only the general public can make this part of the Bill operative. If the public desire to exercise a preference, they will purchase” goods bearing the workers’ trade mark. If they are not in sympathy with unions, but desire to see sweating carried on in all its naked and hideou’s forms, they Wil 1 discard the goods manufactured under fair conditions. There is no justification for denying the public the right to exercise a preference of the kind. If trade unions are_ unpopular, then a union trade mark would be the worst possible thing from our point of view. Will honorable senators maintain, as has been maintained here and in another place, that trade unions are unpopular throughout Australia, and, at the same time ,,object to permitting a workers’ trade mark? I hope that the Committee will extend to the workers the same justice and protection that have been extended to the manufacturer and employer.
– I move -
That the amendment be amended by leaving out all the words after the word “clauses,” where first occurring.
This amendment will give the Committee a unique opportunity for carrying out with simplicity and ease a very valuable reform. I have already pointed out that these clauses, which I propose to omit, practically exclude 72 per cent, of the producers of the community from any benefit which may be conferred by a workers’ trade union, and the amendment will simply exclude the other 28 per cent. At the same time, the Committee will be enabled to rescind the clauses which were adopted last year.
– I am sure that Senator Pulsford, in submitting this amendment, has no other object in view than to provide a simple way of taking a test vote.
– Hear, hear.
– I think, however, that the better way would be to move the omission of one word only on the understanding that honorable senators for or against will be voting for or against the principle of the clauses. This course would not prevent any honorable senator from submitting a subsequent amendment.
– I ask leave to amend my proposal so that it shall read -
That the House of Representatives’ amendment be amended by leaving out the word “ insert,” line 1.
Amendment of the House of Representatives’ amendment amended accordingly.
– I desire Senator Keating to tell me what is the meaning of the words, “ are the exclusive production of the worker or of members of the association,” in the clause before the Committee. Am I to understand that if, out of 200 workers in a boot factory, 190 are unionists and ten do not belong to the association claiming the mark, the product of the factory will not be the exclusive work of the association?
– Undoubtedly ; but a man may have fifty unionists and fifty non-unionists.
– A highly improbable position.
– I wish to ask the Minister to explain whether it will not be quite sufficient to adopt Part VIIa. If the presence of one non-unionist in a factory will prevent the goods from being the exclusive production of the unionists, what is the use of Part VII. at all ? Sometimes it might be of use, but very often it could not be. This appears to me to be one of those cases in which every effort will be made by unionists to insist upon the other men entering the union. Under the clause the employer would not be able to use the union label unless every single employe belonged to the union. That is the most effective way of boycotting which could be conceived of. As the Labour Party have stated that their object is only to secure a fair chance for the employe to have his label, I ask Senator Keating to state with what arguments he can justify the retention of Part VII.
– It is too late for arguments now.
– I think I gave them vesterday.
Senator DRAKE (Queensland). - I shall be glad if the Minister will state whether, under the provisions as they stand now, a manufacturer employing union labour only could compel the proprietor of a workers’ trade mark to grant the use of it.
– In paragraph c of subclause 2 of new clause 73a, it is provided that a mark is properly applied to goods-
– I beg pardon, it says “ falsely applied.”
– Yes, in the governing words. The workers’ trade mark is falsely applied unless one or other of certain sets of circumstances arise, the implication being that when they do arise it is not falsely applied.
– Does the Minister say that that application is sufficient to compel the proprietor to allow the use of the mark ?
– If the proprietor employs labour conforming to the conditions indicated by the mark in the production of a certain class of goods he may apply it to them.
– Suppose that a manufacturer were employing union labour entirely, and did not wish to use the workers’ trade mark, could the workers in his employ compel the use of that label ?
– The Minister is quite sure on that point ?
– Yes. I know it has been argued on the other side. I think by Senator Millen, that he could, but that is not so.
– I only stated that the reply given by the Minister in charge of the Bill in the other House was very vague.
Question - That the word “insert” proposed to be left out of the amendment be left out - put. The Committee divided.
Majority … … 4
Question so resolved in the negative.
Amendment of the amendment negatived.
Amendment of the amendment (by Senator Pulsford) put -
That after the word “ primary,” in proposed new clause 76A, line 1, the words “ secondary or other “ be inserted.
The Committee divided.
Majority … … 4
Question so resolved in the negative.
Amendment of the amendment negatived;.
– I move -
That the amendment be amended by inserting after the word “ horticultural,” in proposed new clause 76A, the words “(including fruit-preserving and jam-making)”.
We are, by this legislation, practically endeavouring to compel Tasmania to enact industrial legislation.
– It is about time she did.
– I am not arguing whether she should or should not do so. Probably if industrial legislation had been proposed while I was a member of the Tasmanian Parliament it would have had my assistance. But Tasmania is a sovereign State, and has not given the right to this Commonwealth to force her into the position of either enacting, industrial legislation, or submitting to having her products boycotted. In Victoria there is legislation of an industrial character for the purpose of fixing wages in certain trades. I think that the general effect of that legislation has been beneficial. But Tasmania has not seen fit to adopt it. It applies, amongst other trades, to jam-making. The jammaker in Victoria has to pay certain prescribed wages. Under the latter portion of the new clause under consideration, the jam-maker of Tasmania, who will be debarred from using the Commonwealth label, may practically be forced to use a union label, or have his goods boycotted.
– Tasmanian jammakers can adopt a non-union mark if they like.
– I know that ; but Tasmania must be the best judge of what suits her interests in that respect. We have no right, directly or indirectly to coerce any State to make laws of which the majority of her people do not approve. If my amendment is not accepted - and I see no reason why it should not be - I shall subsequently propose that this new clause be eliminated.
Senator MILLEN (New South Wales). - I wish to suggest that further divisions will be of no service. We know that an arrangement was made to terminate this business to-day. The division on Senator Pulsford’s amendment was regarded as a test. If there were any reasonable prospect of securing an amendment of the clause, I should support it, but the last two divisions have made it abundantly clear that the Committee is of opinion that these clauses should be adopted as they stand. For that reason, I suggest to Senator Mulcahy that it is useless for him to presshis amendment.
– I point out to Senator Mulcahy that if his amendment is not carried, he cannot go back to the word “ horticultural “ and move that it be struck out. The honorable senator might, therefore, desire to withdraw his present amendment?
Senator CLEMONS (Tasmania). - I would ask whether, if the amendment is not carried, it will still be competent for Senator Mulcahy, if he wishes to do so, to ask the Committee to negative clause76a? I hope that no obstacle will be placed in the way of honorable senators voting to negative clause 76A, even though the amendment should not be carried.
– As amendment No. 74 contains a number of clauses, I am prepared to treat the motion as a complicated one, and divide it, if that is the wish of honorable senators.
Question - That the words proposed to be inserted in proposed new clause 76A be inserted - put. The Committee divided -
Ayes … … … 12
Noes … … … 16
Majority … … … 4
Question so resolved in the negative.
Amendment of the amendment negatived.
Motion agreed to.
House of Representatives’ amendment. -
After Part VII. insert new head-line, “ Part VII a. “ The Commonwealth Trade Mark,” and clauses 78I to 78P.
Motion (by Senator Keating) proposed -
That the amendment be agreed to.
-I am aware that there is no chance of defeating this part of the Bill, but it will do gross injustice to Tasmania, and nothing shows more clearly that the whole thing is illegal and unconstitutional. We have no Arbitration Act, and no Wages Boards in Tasmania.
– We have heard all this before, and the time of the compact is up.
– I am determined that the honorable senator shall hear it again, in order that the position in which he proposes to place Tasmania shall be brought home to his mind. If this amendment becomes law, every State in the Commonwealth, with the exception of Tasmania, wil be able to apply for a Commonwealth Trade Mark. That is discriminating against the State, and it will be inflicting a gross wrong and injustice.
– There is hardly any clause in the Bill to which I object so strongly as I do to this, but I recognise the futility of dividing the Committee upon it, and therefore content myself with recording this protest against it.
Motion agreed to.
Amendment, inserting new head-line, “ Part VIIb, Protection of Trade Marks,” and clauses 78Q to 78X agreed to.
Postponed amendments in clause 3 agreed to. .
Resolutions reported; report adopted.
Bill received from the House of Representatives, and (on motion by Senator Playford) read a first time.
Senate adjourned at 4.2 p.m.
Cite as: Australia, Senate, Debates, 8 December 1905, viewed 22 October 2017, <http://historichansard.net/senate/1905/19051208_senate_2_30/>.