2nd Parliament · 3rd Session
The President took the chair at 2.30 p.m., and read prayers.
– I desire to ask the Minister of Defence, without notice, whether he will endeavour to obtain from the Premier of New South Wales a copy of the recent memorandum by Mr. Coghlan, its Agent-General, on the subject of the proposed transfer of States debts, and lay it upon the table of the Senate?
– I shall be very pleased to do so.
MINISTERS laid upon the table the following papers: -
Report by Senator Staniforth Smith on the systems of government, methods of administration, and economic development of the Malay States and Java.
Ordered to be printed.
Papers concerning the promotion of P. J. De Cruchy, Postmaster-General’s Department.
Report of Old-age Pensions Commission.
Military Forces regulations, addition to paragraph 57, and amendment of paragraphs 130 and 216, Statutory Rules, 1906, No. 44.
The Clerk laid upon the table the following paper : -
Return to an Order of the Senate of 15th June, giving the resolutions of a conference of officials and fruit exporters, in Sydney, on the 30th . April, and from the 1st to the 5th May.
Ordered to be printed.
asked the Minister of Defence, upon notice -
– The answers to the honorable senator’s questions are as follow : -
It will therefore be seen that no noncommissioned officer was entitled to promotion, nor was any right to same conferred.
In the case of the non-commissioned officer of the Instructional Staff, the application was refused because it was received when the classification of the Instructional Staff was under consideration, and his position was subsequently graded below that of a Warrant Officer.
With regard to the Military Clerk, his application was refused because the position he occupies does not carry with it the rank of Warrant Officer.
He is also very junior of his class, and, if promoted, he would supersede in rank a number of Military Clerks who are his senior. The Standing Order referred to, moreover, was cancelled on the 1st March,1904 (nearly two years prior to his application), when the Regulations under the Commonwealth Defence Act came into force.
So far as he was concerned, the application could noli be dealt with under the Victorian order, because it was superseded by our own regulation.
– It was a transferred right !
– There was no transferred right in his case.
asked the Minister of Defence, upon notice -
– The answers to the honorable senator’s questions are as follow : -
Motion (by Senator Keating) agreed to-
That leave be given to introduce a Bill for an Act relating to the acquisition by the Commonwealth of land required for public purposes, and for dealing with land so acquired, and for other purposes connected therewith.
Motion (by Senator Col. Neild) agreed to-
That copies of all official publications of the Commonwealth, particularly regulations, actual or proposed, issued or proposed to be issued under or by virtue of any Statute, should, upon publication, be forwarded to Senators and Members of the House of Representatives.
– I move -
That the Bill be now read a second time.
Since our last meeting, honorable senators have had an opportunity of considering the provisions of this Bill. I think they will have recognised that, though comparatively small in size, it is of considerable importance. It proposes to place a class of industrial property, namely, designs, which are extensively used in the arts and manufactures, upon the same plane as, in one sense, patents of inventions or other works which may be the product of the brain, and which may be protected to the benefit of the author by means of our copyright legislation. But, apart altogether from those circumstances, the matters dealt with in the measure have another relation to such subjects as patents of inventions, trade marks and copyrights. Our authority for legislating on this subject is conferred by section 51 of the Constitution Act in these terms -
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to : -
Copyrights, patents of inventions and designs, and trade marks.
Then, again, the subject-matter of the Bill is related to those other allied matters in yet another way. As honorable senators are aware, various countries have from time to time entered into conventions by which they mutually bind themselves each to protect, within its own sphere, rights enjoyed by residents in the; other countries, parties to the conventions in, as far as possible, practically the same way as it protects corresponding rights for its own subjects. When we were dealing with the subjects of copyright and patents, that particular aspect of international arrangement came before us. With regard to designs, we find that’ Great Britain is a party to a convention, which has been entered into by most of the leading countries in Europe, by which mutual protection is assured to residents in each of such countries in respect of patents of inventions and designs and trade marks. Although this subject has not engaged much political controversy, either in Great Britain or in any of its dependencies, still it will be interesting to outline the manner in which it has been dealt with by the legislation of Great Britain. The first English legislation on the subject-matter of designs was enacted in 1787, and it was followed in the same reign - only two years afterwards - by an Act known as 29 George II., chapter 19 - which also was supplemented five years afterwards by an Act known as 34 George II., chapter 23. All three Acts had for their object the protection to the author of an industrial design of the right to exclusively use the design, and apply it in connexion withthe manufacture of articles. At that particular stage, however, the application of these Acts was confined to Great Britain. It did not extend to Ireland, nor did the Acts bring within their scope other fabrics than linen and cotton. The Act extended only to the application of designs to materials or articles manufactured of linen or cotton, but as other articles were being extensively used, and continued to increase in use, it was found necessary early in the reign of Queen Victoria, namely, in 1839, to deal legislatively with articles manufactured from substances other than linen or cotton. Consequently in that year legislation was passed - the Statute, 2 Vic, Ch. 13 - by which the provisions of the Acts passed in the reign of George III. were extended to Ireland, which had since come into the union, and were also extended generally in the direction of covering articles which might be manufactured out of any animal or vegetable substance or a combination of both. That was the position of the law with regard to designs in Great Britain in the early part of the reign of Queen Victoria. But although its legislation with regard to these matters went back as far as 1787, Great Britain had lagged behind to some extent. Half a century before, France had applied itself to the consideration of the question of exclusive property in designs that might be originated by any individual. As early as 1737 - or half a century before Great Britain first gave attention to these matters - France proceeded to deal with them. By a series of enactments in 1737, 1744, and 3.787 the author of a design in France was placed in a well -protected position so far as regards the application of that design to any article relating to any branch of arts, crafts, or manufactures. So beneficial was this law that persons who are competent to judge have asserted, on more than one occasion and in more than one place, that France may largely attribute its pre-eminence in regard to many articlesof excellence or virtu to the fact that those who applied themselves considerably to the origination of artistic designs in relation to arts and manufacture received such a sufficient protection against their unauthorized use that a great stimulus was given to this branch of thought, study, and investigation. The learned author of the Law of Copyright, Mr. Coppinger, in the fourth edition of his work, diverges - although, as honorable senators well know, text writers on a branch of the law very rarely do - to comment upon this significant fact.’ At page 406 of the fourth edition of Coppinger on the Law of Copyright it is pointed out that -
In the early part of the last century the French entertained more correct notions of the rights of property in design than the British, and so convinced were they, that great benefits would flow from rejecting the claim of the copyist to reap the original designer’s profits, that, in 1737 and 1744, laws established a property in designs for the manufacturers of Lyons, and in 1787 the benefits of legal protection were fully established.
He then goes on to say -
The basis of the pre-eminence of the French, and the means by which they have attained their unrivalled position in taste, is efficientprotection, and it is certainly singular that this fundamental element and primary cause of superiority should have been so long overlooked in this country.
I have indicated, in tracing the development of legislation on this subject, that in the early years of the reign of Queen Victoria an Act was passed which considerably extended in two ways the, three Statutes of the reign of George III. It extended the application of those Acts territorially, by including Ireland, and substantially by including within them articles which had not been previously covered. Since that Act was passed legislation relating to designs has assumed definite shape. Early in the reign of Queen Victoria designs were separated into two classes for the purposes of legislative enactment. One class consisted of designs, the object of which was purely ornamental, whilst the other consisted of designs, the object of which was their application to articles of practical utility. I do not know exactly what was the reason underlying this division, but the fact remains that it was made. Copyright in designs which were primarily or purely for ornamental purposes were regulated by the Act 5 and 6 Vic, ch. 100, while other designs with regard to the shape or configuration of articles of practical utility were dealt with in the Act 6 and 7 Vic, ch. 55. These last-named Statutes were amended in many details by an Act passed in 1883. In that year the comprehensive enactment known as the Patents, Designs, and Trade Marks Act of Great Britain was passed, by which the whole of the law with regard to designs was placed on a uniform basis, and the statutory law of designs in Great Britain clearly set out. This Act, which made no distinction ‘between designs intended for purely ornamental purposes and those to be applied to articles of practical utility, has since been amended by several enactments, but not in any very important particulars. The law in England to-day with regard to designs is contained in what may be described as the Patents Designs and Trade Marks Acts of from 1883 to 1888. Coming now to the position in the Australian States, we findthat in the seventies, New South Wales passed its Copyright Act, and that its statutory law with regard to designs is’ embodied in that measure. That Act, as honorable senators will see, was passed before the British Parliament dealt with the comprehensive measure to which I have referred, and which, so to speak, codified the statutory law relating to designs. Victoria passed its Copyright Act in 1890, and included in it its statutory law with regard to designs. That law in the main was based on the provisions of the English Acts running from 1883 to 1888. Queensland adopted legislation covering the registration of designs and their protection in 1884, 1886, and 1890, following, in each instance, the legislation that had been adopted in Great Britain between 1883 and 1888. The South Australian Copyright Act of 1878 deals, amongst other things, with the registration and protection of designs, but it differs from the Imperial legislation and that of the other States, in that it omits the provision for separate classes in respect of which designs may be applied. It also omits certain provisions enabling a registration to be amended. The Parliament of Tasmania, in 1893, passed an Act - -which I think, came into force in January, 1894 - dealing with patents, designs, and trade marks, and it practically adopted the English Statute of ten years previously. With this brief sketch of the legislation of Great Britain and the various States upon this subject, honorable senators will be prepared, no doubt, to enter upon a consideration of the provisions of the Bill now before us. It is in one sense what may be called a machinery measure. We have passed legislation relating to patents and trade marks, and it is open to us, on fulfilling certain conditions, to obtain in the United Kingdom and in other countries with which the United Kingdom is in convention, reciprocal advantages in respect to our patents and trade marks, by according to the people of the United Kingdom and the other countries referred to corresponding advantages and benefits in the Commonwealth. Before we can secure these, however, it is essential that the legislation we have passed on this subject shall be perfected by our providing adequate laws to cover the protection not only of patents and trade marks, but also of designs.
– What is the advantage of dealing separately with the .several subjects? Is it considered that several Acts are more advantageous than one comprehensive measure ?
– So far as I am concerned the time for the consideration of that point has passed. Possibly previous Governments considered ‘that it was better to deal with all these extensive matters independently - that there would be a greater chance of getting the necessary legislation step by step than there would be if one comprehensive measure dealing with the whole of these subjects were introduced. At any rate, correspondence between the Governments of the Commonwealth and of the United Kingdom has revealed that we are not entitled to the measure of international protection which Great Britain obtained for herself and her Colonies by the Convention of 1894 unless our legislation covers the whole field of patents, designs, and trade marks. I would draw the attention of honorable senators to the circumstance that in every respect possible this Bill is frame!d orr lines similar to those of our Patents Act and our Trade Marks Act. Provision ismade in it for the appointment of a Registrar of Industrial Designs. I hope honorable senators will not assume that that necessarily means the creation of an office to be filled by some person not now in the service of the Commonwealth. Provision is also made for the establishment of a central Designs Office, which shall have its seal just as have the Patents and the Trade Marks Office. As honorable senators are aware, the administration of both the Patents Act and the Trade Marks Act is at present centred in one officer, Mr. Townsend. The Bill makes provision for the transfer of the administration of the several Designs Acts of the States to the Commonwealth. The transfer will be effected by proclamation by the Governor-General. The Bill goes on to provide that the effect of the proclamation shall be the cessation of the administration of the Designs Acts by the several States Governments, the transfer immediately and the vesting in the Commonwealth’ of the obligations in respect of that administration in the States, and the saving of existing or accruing rights. That provision corresponds with what is to be found in similar measures dealing with matters of this kind. The Bill may be said to be a legislative expression of the English law as it exists at present. The English statutory law is found in the Patents Designs and Trade Marks Act of 1883, subsequently amended by Statutes up to as far as 1888. That legislation, together with what has been the interpretation of it bv the Judiciary in Great Britain, may be said to be the substance of this Bill. There are provisions in the Bill entitling the author of a design to obtain registration at the Registry fon Designs in the Commonwealth, and on registration, to obtain a copyright, with the exclusive right of applying the design to articles of manufacture for a period of five years. The copyright, of course, applies only to the design itself ; it does not apply to any particular article, as an article, which) may have the form of th’at particular design. There are different classes of goods in respect of which the design may be applied. Under the Eng- lish Act there are, I think, twelve or fourteen classes, and provision is made in the Bill that the registration may prescribe different classes. Of course, if a person applies for the registration of a design, and desires to have the exclusive right to apply it to any particular class of goods, he must, in respect of each particular class, make a separate application. According to the rules under the English Patents Designs and Trades Marks Act of 1883, the articles of manufacture and substance are by rule classified as follows: -
According to the terms of section 47 of the Act of1883, to entitle a design to be registered it must be -
– Although the copyright is in the design, and not in the article, still there has to be a separate application when it is desired to apply the design to a different article.
– If that article comes in a different class. It is obvious that some designs might be applicable to paperhangings under class 7 under the English Act, and also applicable to carpets and rugs under class 8, while not possibly applicable to articles, chiefly of glass, earthenware, or porcelain.
– If a class or two be omitted under the regulations, any man may pirate a design ?
– Such a man would have the opportunity to apply the design to that particular class of goods; there would be no exclusive right in regard to that class.
– Then there is not much benefit from the Act ?
– That is the provision everywhere.
– Not under the English Act, which is differently framed in that respect.
– I think the honorable senator will see that we are following the English practice. We have not adopted the classification formed by the rules under the English Act, but we have followed an analogous procedure to that adopted in Great Britain for classifying the goods by regulation.
– If there is’ a regulation setting forth the classification, the hardship will not be so great.
– That is the position. We might, for instance, adopt the English classification, or depart from it in some respects.
– Will the Minister mention which clause gives power to make regulations classifying the articles ?
– The clause giving the general power in regard to regulations. However, at this stage I am pointing out the general principles on which the Act in the old country and’ the Acts in our own States have been administered, and showing that the copyright secured is copyright in the design itself. It entitles the holder of a copyright to the exclusive right to apply or use that design, so to speak, in regard to articles of manufacture in the particular classification in respect of which he may apply.
– Why not provide that copyright in a design shall apply to all articles, and so save any risk?
– If that is done, the applications are treated as applications in respect to each class.
– I see that a design has to toe used within twelve months, or otherwise it is void.
– Suppose the regulations leave out a class, can the design be pirated ?
– I do not’ see how the regulations could very well do that, if they are framed with any regard to the circumstances. We shall be bound, I think, to have one regulation comprising all other classes not specifically described.
– That would be a very loose regulation.
– If there were fourteen or fifteen classifications of goods, nobody would be in a position to say that these classifications exhausted all possible goods j and it would be necessary and desirable, I think, to have an additional provision to cover all classes not specifically enumerated.
– But that appears to be inconsistent with the Minister’s dictum that the copyright is in the design itself.
– I shall be able to give the honorable senator many instances to support my view. The books teem with instances in which the distinction is shown. In the case of Walker, Hunter, and Co. v. The Falkirk Co., which went through several of the Courts, it is stated in Coppinger
A design may be the subject of copyright, though it depict an article ‘incomplete in itself, but which is intended to be used in combination with and as part of another article of manufacture, e.g., a door of a kitchen range.
Although I have not the particular references in the text-book under notice just, now, the Judges drew the distinction between the design itself, as Che subject of copyright, and the particular article to which it was applied’. If I remember rightly, it was pointed out in another case, by way of illustration, that a particular article might be the subject of ai patent, and yet that the design which appeared on the article might also be the subject of exclusive right or copyright. I think that a lamp was given by way of illustration ; and it was shown that there might be a particular method or means of bringing the air into the flame, and a particular method or means ofl drawing the oil up from the reservoir, each of which might be the subject of patent rights. And yet design might be used in respect of such a lamp which was the exclusive property of somebody, else altogether. It is not the article, but the design - the shape or configuration - that ‘forms the subject of the copyright.
-Col. Gould. - In other words, three different people might have rights in an article.
– That is so.
– But the copyright in design would apply to all lamps, I presume?
– Quite so; whether these were in other respects patent or not.
– There would not be a class within a class?
– No. The Bill contains further provisions with regard to applications for the registration of designs. It is the author of a design who is empowered to make application, and provision is made as to what particulars in general he shall supply to the Registrar, and what copies of the design he shall furnish. Of course, the Bill contains provisions for such contingencies as the death of the applicant before the granting of the application, or for amendments of the application if he should think it necessary. The Registrar is empowered to consider applications that may be made, and to grant them by registering, the design and issuing to the applicant a certificate of registration, or to refuse toregister, on the ground that the design isnot new or novel, or does not come within the conditions laid down as the basis of registration. If the Registrar in any instance refuses an application, the applicant has the right to appeal to the Law Officein the same way as under the Patents Act. There is an additional condition imposed on the successful applicant for registration. He must within twelve months after he has obtained registration, substantially use the design or cause it to be used in the case of goods or articles manufactured or produced in Australia. That, I think, is a very desirable and necessary provision, which corresponds to some extent with the English Act, being in similar, though not exactly the same, words.
-Col. Gould. - What is the difference ?
– The English Act provides that if a design’ is used in a foreign country, and it is not used in the United Kingdom within six months of its registration the copyright shall cease.
-Col. Gould. - That doesnot apply to the case of a design in the old country itself? In the case of a copyright obtained in Great Britain, it would not be compulsory on the owner of it to manufacture.
– I think not. If a design is registered in Great Britain and is used in a foreign country-
-Col. Gould. - A design in Great Britain would be protected all through the period for which the right had been given.
– I think not.
– What is the section in the English Act to which the Minister has referred?
– Section 54.
-Col. Gould. - That is so far as a foreign design is concerned.
– I think the copyright ceases entirely in Great Britain, and that it is open for anybody in England to use the design, which has become public property.
-Col. Gould. - But if a man in Great Britain obtains protection under the Act he is not bound to use the design at any time during the period of protection, though under the Bill before us he is so bound.
– The provision is that the owner of a registered design shall substantially use, or cause to be substantially used, in Australia, the design, and on his failing to do so, the copyright shall cease.
-Col. Gould. - That applies to every one irrespective of the origin?
– That is so.
– And, therefore, the Bill in that respect differs from the English Act.
– Yes ; the English sections1 is as I havce read it. Another obligation thrown on the owner of a registered design is that all goods manufactured in accordance with it, and put out for sale to the public, must be marked to indicate that the design is registered. That is a precaution he must take for his own protection. In Great Britain the rules provide two methods by which the mark shall indicate that the design has been registered. In regard to one class of goods it is necessary to have the letters “Regd” somewhere conspicuously shown, and in another class of goods it is necessary to have the letters “ Rd “ as an intimation that the design, is registered, and that it must not be used without the authorization of the registered owner. There is a provision in this Bill that the owner shall be bound to mark, in the manner prescribed, articles that are manufactured according to the design of which he is the registered owner, so that the public may not be misled into the belief or assumption that the design is public property, and use it to his prejudice. Provision is made in Part V. for dealing with infringements of copyright. The remedies for infringement are the usual remedies that apply in similar cases. They are penalty remedies - remedies for actual damage sustained, and injunction to prevent the continuance of the infringement. We insert a provision that damages shall not be recoverable, nor shall a penalty be awarded, against any person for infringement, unless the Court is satisfied that the infringement was committed by the defendant “ knowingly, or after notice that the copyright in the design subsisted.” With regard to’ “ knowing “ infringements, there is a drastic provision in clause 32, that a person who knowingly infringes copyright in a registered design shall be liable to a penalty of £,50, and that the owner may sue for the recovery of such penalty.
– Is there provision for punishing a man for professing that a design is registered when it is not registered ?
– Yes, there is, later on.
– But the penalty in that case is only ^5.
– It is a small penalty. We have the usual provisions with regard to registration. My honorable friends opposite will recognise some of the provisions in these clauses. One is that trusts shall not be noticed upon the register, and that registrations- of assignments may be made. There is a provision in clause 47 for correcting the register. That is intended to deal with a class of cases where the ordinary procedure in connexion with the rectification of the register need not apply. We have the usual provisions for the rectification of the register, but, as honorable senators are well aware, proceedings foil the rectification of the register are generally costly and are sometimes attended with considerable delay. We, therefore, provide that, in cases of obvious error, the Registrar may, in the prescribed manner, amend or alter the register by correcting any error in the name or address of the registered owner of a design, or by altering the name or address of a registered owner, who has changed fa’s name and address. Where the Registrar does that the second part of the clause applies - that the Registrar shall cancel the certificate of registration, and issue a new one, and shall make such amendments or alterations as may be necessary in consequence of the amendment or alteration. That is to cover a class of cases where the proceedings by way of rectification would be in expense and delay altogether disproportionate to the mischief - if I may so call it - that would result from the continuation of the error. In case of obvious errors, this provision will usefully apply. Of course, no Registrar would take upon himself the responsibility of altering the register or correcting it in any case where the circumstances did not, to the fullest possible extent, warrant it. On the other hand, where, perhaps, a man’s name had been wrongly entered - where, we may say, his name had been put in as Walter John instead Of Walter James - it would obviously be unfair to insist that in every case the jurisdiction of the Court should be invoked. When the rectification of the register takes place, in cases where conflicting interests are involved, the usual provision is made in clause 39 ; and in clause 40 provision is made for the Registrar to give effect to any order which may be made by the Court that the register shall be rectified. Other provisions of the Bill deal with the powers of the GovernorGeneral to make regulations; and provision is also made to meet the class of cases referred to just now by Senator Gould by way of interjection. In clause 42 it is provided that -
A person shall not wilfully make any false statement or representation to deceive the Registrar or any officer in the execution of this Act, or to procure or influence the doing or omission of anything in relation to this Act or any mattei thereunder.
The penalty for a breach of that provision is three years’ imprisonment. Clause 45 deals with false representation to the public, just as clause 42 deals with false representation to the Registrar. Where a person makes a false representation that a design, in accordance with which a particular article is made, is a registered design, and so might prevent the public from using what is practically public property, he is deemed guilty of an offence, and the penalty is £5. Of course, the adequacy or inadequacy of that punishment may be considered in Committee. Other provisions are made in the miscellaneous portions of the Bill, to enable agents to act for persons under this measure. The Registrar is to recognise agents as properly authorized persons to act on behalf of their principals. We also have in this portion of the Bill the usual provisions bringing aiders, and abettors in offences under the same penalties as apply to the principals whom they aid and abet. There is another provision of some import- ance contained in clause 47 - that the ex–> hibition of designs at international exhibitions shall not, in certain circumstances, prejudice an application for registration. The law, as it stands in Great Britain, is that if the author of a design reveals that design to anybody he is not entitled, successfully, to apply for its registration as a new and original design; as, by revealing it to any one, he, by that act, publishes it for public use. Some interesting cases have been brought before “the Courts to determine whether or not the author of a design had forfeited his right to obtain registration of it by merely showing the design, or indicating its nature, to somebody, even to a person to some extent interested, though not financially, with him in the matter, or to a person to whom, from motives of friendship, he had shown it. The revelation of a design to one person might prejudice the author of it from obtaining registration, ‘because, by the publication of it, or the revelation of it, to one person, it might be held that it ceased to be new and original. An exception is here made in the case of an exhibition, provided it be an official or international exhibition, and also provided that application is made for registration within six months after the opening of the exhibition. This provision has been taken from the English Act of 1888. I am not in a position to say that it has been taken verbatim, but the marginal note indicates the s’ource of the clause, namely, 46-7, Vic. c. 57, s. - 58. I mention these matters in some detail, in order to invite the attention of honorable senators to them before we get to the Committee stage. I feel certain that consideration will be given to them with the object of making the Bill as complete and perfect as possible. The only other provisions to which I need refer are contained in clauses 48 and 49, the former of which deals with international arrangements for the protection of designs; and the latter clause, 49, with intercolonial arrangements. With regard to the provision for international protection, I would point out that in the year 1883, on the 20th March, there was held at Paris an International Convention, at which the Governments of Belgium, Brazil, Spain, France, Guatemala, Italy, the Netherlands, Portugal, Salvador, and Switzerland were represented for the protection of industrial property. A number of the articles agreed to by that Convention deal with the ques- tion of granting reciprocal protection in each of those countries, to the patents, trade marks, and designs that had been registered in all the countries which were parties to the Convention. It will be observed that Great Britain was not a party to the Convention at the time when it was signed in Paris on the 20th March, 1883. But in the following year, Great Britain acceded to the Convention, and obtained for herself and her dependencies the benefit of its provisions. One of the conditions upon which those mutual benefits are acquired in any country is that that country shall afford to its own people, and shall also be able to afford to the natives of other countries, protection with regard to all these different matters. Negotiations and communications that have passed between previous Commonwealth Governments and the British Government in this matter, as indicated in my opening remarks, have revealed the necessity for the Commonwealth completing its legislation upon these subjects by dealing with designs in order that we may obtain the advantages of the reciprocal arrangement agreed to by the Convention in 1883, and since acceded to by Great Britain. I need say nothing further. I feel confident that I can commend the Bill to the very kindest and most sympathetic consideration of honorable senators all round the Chamber.
Senator Sir JOSIAH SYMON (South Australia) [3.28]. - This is not a Bill the second reading of which invites much debate. It is allied to the legislation which has already been passed by the Commonwealth Parliament relating to cognate matters - the Trade Marks Act and the Copyright Act of last session. This Bill is really complementary to those pieces of legislation. In that sense it is more or less a machinery Bill, particularly because upon the principles applicable to these matters of copyright there can be at this time of day very little divergence between the existing legislation in every English speaking country - in the mother country, for instance, and other portions of the Empire - and that which is sought to be placed upon our statute-book. I rather regret that this legislation should be of such a piecemeal character. I myself greatly prefer that we should get legislation dealing with a series of cognate subjects all allied in principle, all resting upon the same broad basis of protection for the fruits of a man’s intellect, as far as possible within the four corners of one measure. In these times codification for the purpose of legislation is very strongly, and very properly believed in ; and I think that when we are legislating upon such subjects as this it is well to give effect to that principle whenever we can. No doubt at this particular time in consequence, as has been pointed out, of our having legislated for trade marks by means of one measure and for copyright by means of another–
– Why did not the honorable senator associate this subject with trade marks ?
– I did not introduce the Trade Marks Act.
– The honorable senator carried it, I think.
– I did not carry it. My honorable friend needs to read up his political history. Before he makes charges of dereliction against me he will do well to make himself acquainted with the facts. No doubt my honorable friend, Senator Keating, is quite right in saying that at this stage it is difficult to do what I have suggested. For many obvious reasons it would have been very much better if that course had been pursued. One cannot look at this Bill without seeing that that criticism is very well founded, because a large . number of the early clauses are really machinery provisions, which are an adaptation of those contained in certain measures upon the Statute Book. I am not advancing this as any ground, shall I say, of want of confidence in the Government 01? of want of appreciation of the particular point which I am putting, because attention has already been called to the matter. But it is obvious that it is desirable that where we have different subjects of legislation, which are parts of one system, and where we have a machinery which is naturally applicable to each, we should, as far as possible, have that machinery in one measure. The Minister said, deprecating! y_, that when we find in the Bill a provision for the appointment of a Registrar in connexion with the registration of these particular designs, it does not mean that there is to be a duplication of offices. Of course, no one would expect that. We have a duplication or triplication of the legislative machinery, but not of the practical
Machinery, because, naturally, the duties will be intrusted to those holding the offices in connexion with other matters. In England the provisions relating to trade marks, copyrights, and designs were embodied in one measure in 1883. I do not propose to refer to the details of this Bill, which will be discussed, if need be, in Committee. So far as its operative and necessary part is concerned, it is not altogether, but largely, a copy of the provisions of that
Act. I hope that in Committee the Minister will be prepared, clause by clause, to indicate whether it is identical with the provisions in the English Act, or the later amendments of that Act, or whether any clause is a modification of the corresponding provision, and if so, in what respect. That will assist us very much, because, no doubt, he has at his fingers1 end the whole body of legislation on the subject. Honorable senators, perhaps, are not so fortunately situated. I have no doubt that he will assist us as far as he can in that direction. I shall be glad if he will take that course, as it will enable us to push the measure through Committee as quickly as possible. I wish to direct my honorable friend’s attention to three matters. One is the provision with regard to the fine of £5, which is sought to be imposed upon any person who wrongfully describes the design applied to any article which he is selling as a registered design. There was an interjection from this side on the subject, but that penalty is really ample when one comes to think of what the offence is. The offence consists, not in representing that the article which is sold as the production, it may be, of A tears the design of B ; but merely in saying that that article bears a design which is registered, when it is not. There is another provision which I notice deals with the other and snore serious thing. But this is left to the person who complains of the offence. The offence as to which the penalty of £5 applies is merely that where there is a design, the person selling an article bearing the design says, “ Oh, yes, that is registered.” So long as it contains a design, and not a misrepresentation ; so long as it is not a case of the seller representing the design as has own, when it is really that of somebody else - which, of course, is a very serious and improper thing to do - there is no element of serious injury to that which is protected, and rightly protected. Of course, a man should not say that a thing is registered if it is not, even though it may be his own design. The same thing applies, although the remedy is different, in connexion with, trade marks. For instance, people may use trade marks which are not registered. A man may disentitle himself to the benefit of a particular common law trade mark if he represents that it is registered when in reality it is not, although it is his property, and that by which his goods may have been sold for many years The next of the matters to which I wish to invite attention is contained in clause 28, which reads as follows : -
The owner of a registered design shall, within twelve months after registration, substantially use the design, or cause it to be substantially used in Australia, in the manufacture of articles, and if he fails to do so, the copyright in the design shall cease.
That is quite different from the English provision, which Senator Keating read, and which has a very salutary object. This Bill omits the English provision which I think is a salutary one, and inserts a provision which is restrictive, and of no earthlybenefit as against the foreigner. I think that that is where the benefit is intended to come in under the English provision. I shall be very glad if the Government will consider the desirability of inserting the English provision, and eliminating this clause. The former says that where a design is used in a foreign country, and it is not applied within six months to manufactures in England, the right to registra-tion shall cease. That is a very proper thing. The provision is aimed at preventing a foreign manufacturer, in order to shut out an English manufacturer from using a particular design and applying it to goods made in England, registering the design in England, but leaving it inoperative and manufacturing all his goods’ in a foreign place, where labour may be cheaper, or for some other reason. Or, to put it in another way, it is intended to prevent a foreigner, or it may be an English importer, or an English manufacturer, from registering a design, and securing a monopoly in England, whilst he has his goods manufactured on the Continent. Any one can see that that is a very desirable thing te do/ Unless we have the English provision, we might have a similar process of bogus registration taking place freely in Australia, subject merely to the provision which requires the design to be used in the manufacture of articles within twelve months. But the provision in clause 28, it seems to me, is directed practically to user in Australia. There is no provision as to user outside Australia. I think that if the English provision! were inserted, with or without modification- as to that I say nothing - it would certainly be more beneficial to Australians and to the articles to which any particular design is to be applied, that is to say, to articles which are intended, so far as the design is concerned, to be protected for the benefit of the Australian community. The second point I wish to call attention to is the definition of design, because the Minister used the expression, “article of manufacture,” that is to say, that designs which were susceptible of”, and entitled to, registration were designs to be applied to articles of manufacture. That is not so under the Bill as it stands, and I do not think it ought to be, nor .is it so in the English Act. It is not intended to be limited to articles of manufacture. The intention of the Bill, according to the definition, is even to give it a wider scope - I do not know that it does - than the English, Act, because - “Design” means an industrial design applicable, in any way or by any means, to the purpose of the ornamentation, or pattern, or shape, or configuration, of an article, or to one or more of those purposes.
There is no limitation in that respect to manufactured articles, and the definition of “article” is “any article or substance.” The draftsman, if it was intended to limit it to articles of manufacture, has omitted to do so, or left it to some kind of construction which is always dangerous, and which always* leads to that . most .objectionable state of things, extensive litigation. If, on the other hand, he intended to make it applicable to “any article or substance,” then I suggest for consideration whether it would not be better really to retain the English definition, which is wide and sufficient, and so get the benefit of authorities and decisions in England, where, of course, questions crop up much more frequently than they do amongst a smaller population. The English definition is expressly in terms not limited to articles of manufacture. The definition is - “ Design “ means any design applicable to any article of manufacture, or to any substance artificial or natural,
We may have things sold to which a design is applied, but which, in the Strict sense of the term, are not manufactured articles. or partly artificial and partly natural,
Then it describes the design’ with a little more detail, but in effect it is the same as the one in this Bill - and by whatever means it is applied, whether by printing, painting, embroidering, weaving, sewing . . . not being a design ,for a sculpture.
I would suggest, for the further consideration of Senator Keating, especially as we are practically adopting the English Act of [883, that it might be well to reconsider the desirability of retaining, as far as possible, the English definitions, unless there is some very sound reason for changing them. There is another point to which I invite the attention of ray honorable friend. Why should we have in the title of this Bill the word “industrial,” used for example thus : “in industrial designs “ ? When we refer to the definition of design, we find that it means “ an industrial design.” Why should we use the prefix “industrial “ when the articles to which designs are applied may consist of artificial or natural substances?” It seems to me that this matter has only to be pointed out to receive attention, and, I fancy, to secure amendment. No such term is used in. the English Act. A design is not “ industrial “ in any sense of the term.’ The adjective is not applicable. A design might relate to an article the fruit of industry, but to use the word “ industrial “ before the word “ design “ is merely to erect an unnecessary placard. I rather deprecate the use of these picturesque titles, to which, I am afraid, my honorable friends in the present Government have become greatly addicted. Last year we had before us a measure bearing the wide and high sounding title of “ The Commerce Bill.” That title was keenly criticised. The result was that Senator Playford consented, very wisely I think, to a limited definition, the words “trade descriptions” being added to the title. This was done so that it should not appear to the world that we were to a certain extent misrepresenting the kind of legislation we were passing. The Government seem to have an inclination to use these high-sounding titles. We had in the Governor-General’s speech at the opening of the present session a reference to a measure now on the notice-paper of another place - the Australian Industries Preservation Bill. The use of such titles suggests a jackdaw posturing in borrowed plumage. The people see through this sort of thing. Let us call a spade a spade. Let us apply to each Bill a name which will define exactly what it means, rather than attempt to use titles that suggest that we are living in an atmosphere of pretence. The use of the word “industrial” suggests that this Bill has some bearing on the relations of employer or employ^, or that we are legislating for the benefit of the unemployed. The thing is absurd. It is very undesirable that we should use in connexion with a measure of this kind a word that has a well-understood application, so far as the statute-book of the Commonwealth is concerned, to legislation of a different character. We regard the use of the word “ industrial “ as referring to matters affecting the relations between employer and employed That is the sense in which it is used in the Conciliation and Arbitration Act.
– Can a design affect anything that is not the result of some form of industry?
– But it is not the design that is industrial. The short title of this measure is to be “ The Designs Act.” Why should we not keep to that effective and excellent title? Is it our object to use the word “ industrial “ in this case in order that we may pose before the people at the next’ general election as-
– I think the word appears in the English Act.
– I think not, but .if it does, that does not disarm my criticism.
– The Tasmanian Act is really a transcript of the English Act, and1 in Part III. of it we have the words “industrial designs.”
– I do not think that in that regard the Tasmanian Statute is a transcript of the English Act. We have had so much of this sort of thing lately that I was inclined to think that we were perhaps getting into a groove, and that it was time a stop, was put to the practice.
– The Tasmanian Act of 1893 is a good precedent.
– It is not a good precedent for a wrong step. I have not been able to find the word “industrial “ in the English Act, and, although it may appear in, the noble legislation of Tasmania, there is no reason why we should adopt it if its use in this case would be wrong. I make this suggestion just as I suggested an alteration in the title of the Commerce Bill. I do not like to see these artificial, unnecessary, and misleading ex pressions in the titles of Bills. It maybe said that this is a piece of industrial’ legislation. It is nothing of the kind. It is a piece of legislation dealing with the right kind of monopoly ; it is to give to those who, on every consideration of justice, are entitled to it, the monopoly of a proprietary^ right in a design which is the fruit of their ingenuity, talent, and skill.
– Would the honorable and learned senator nationalize that sort of thing?
– I leave that matter to my honorable friend,, who appears to want to nationalize everything. I should be very happy to be able to say on the platform when my time comes to go before the electors that I had joined1 with my friend Senator McGregor in passing a very valuable piece of industrial legislation. But such a claim, so far as this measure is concerned, would be absurd. Donot let us commit these little absurdities. It is important that we should so frame our titles that people may see, at alt events, that we have been guided by a desire to secure simplicity and clearnessrather than ornamentation.
– We should keep out the poetry.
– We should certainly shut out picturesqueness. I hope Senator Keating will take these observations in the spirit in which they are offered. This Bill is in no sense a controversial one. It is complementary to our existing legislation, and I hold that we should avoid unnecessary adjectives. When we employ adjectives we generally give cause for additional criticism ; every unnecessary adjective in an Act of Parliament is liable’ to give rise to litigation and dispute. The balder the phraseology we use, so long as it is precise and expresses our object, the better - for our legislation. I have only to say, in conclusion, that I shall be extremely glad toassist in passing this Bill as early as possible, in order that the subject to whichit relates - which is really part of the system of protecting the fruits of a man’s intelligence and talent in connexion with commodities or articles that are offered for sale - mav be covered by our legislation.
– I intend to make only a few observations, for so much has been said by the Minister incharge of the Bill and the leader of the Opposition as to the value of the measure, that little more is necessary. It is satis- factory to know that the whole of the law relating to patents, designs, and trade marks will now be taken over by the Government of the Commonwealth, and that, although these subjects are dealt with in three different measures, there will be an opportunity later on, if necessary, to consolidate and convert them into one workable Act. I am in agreement with some of the criticism that has been offered by Senator Symon, and more particularly with’ his remarks as to the effect of clause 28, under which a man would lose the value of the registration of his design unless he utilized that design within twelve months” of its registration. I should like to point out that there is a way of dealing with the matter that should meet with the approval of honorable senators. In the Patents Act we have provided that if a patent obtained in the Commonwealth is not utilized within a limited period it shall be open to any person to apply to the Court for the right to utilize it, on payment of reasonable compensation to the owner, or that in the alternative it shall be voided. In the same way we might deal with a design invented in the Commonwealth, but not utilized. It is open to us to provide that if, in such circumstances, another person in the Commonwealth desires to utilize that design, he shall be allowed to do so, if the owner is not going to use it himself. In that way, we should avoid the possibility of inflicting hardship upon an Australian designer. Senator Symon has clearly pointed out the reason for the section in the Imperial Act on which this clause is based, and the reason is one that must commend itself to honorable senators. The difference between the verbiage of this measure and that of the Imperial Act has also been criticised. I agree that it is most undesirable, without good reason, to depart from the language used in the British Act. If we adhere to the terms of that Statute, we shall have the advantage of decisions given in the old world, which will enable us more readily to administer our own law, and at the same time will facilitate the efforts of those who are not lawyers, in learning exactly how far they can go. We shall avoid the disadvantages that must clearly follow the use of words that are not in the English Act. Take, for instance, the word “ industrial,” to which reference has already been made. Some question might arise as to the meaning of the word.
– As to whether a design should be registered as an industrial one?
.- Quite so. If the matter came before the Court, it would be urged that when a certain word is used in an Act of Parliament, there must be some reason for it, and that that reason must be discovered. It might be said that the use of the word “industrial “ was intended to limit the class of designs that could be registered, although, as a matter of fact, this Parliament had never contemplated anything of the kind. By the use of unnecessary words we thus super-add to the difficulties of inventors and designers. I trust that the Minister in charge of the Bill, unless there are strong reasons for adopting a different course, will agree to adhere as closely as possible to the verbiage of the Imperial Act. We want these provisions to be read, as far as possible, concurrently with that Act, more particularly as our desire is to protect Australian inventors in foreign countries, as well as in the Commonwealth. I trust that these matters will be taken into consideration, and that amendments in the direction I have indicated will be made.
Question resolved in the affirmative.
Bill read a second time.
In Committee :
Clauses 1 to 3 agreed to.
Clause 4 (Definitions).
– I suggest that, as was done on previous similar occasions, the consideration of the definitionclause be postponed until after the remainder of the Bill has been dealt with. That is a procedure which has been followed to the great convenience of all honorable senators.
Senator Sir JOSIAH SYMON (South Australia) [4.2]. - I think that is quite a reasonable request on the part of the Minister, and I only ask him to consider the suggestions which were submitted in the course of the second-reading debate.
– I have a note of those suggestions.
Clause 5 -
A design shall be deemed to be applied to an article when -
the article is made from or in accordance with the design ; or
the design is applied, in any way or by any means, to the purpose of the ornamentation or pattern or shape, or configuration of the article,or to any two or more of those purposes.
– This clause is drawn in consequence of the definitions given in regard to a design, and how a design is made applicable. The section of the English Act dealing with the definition of “ design “ provides in much more extensive language than we do what shall be deemed to be a design. The definition in the English Act goes, I think, beyond the necessities of the case. It not only defines what a design is, but how it may be used, in the following words: - “Design” means any design applicable to any article of manufacture, or to any substance, artificial or natural, or partly artificial and partly natural, whether the design is applicable for the pattern, or for the shape or configuration, or for the ornament thereof, or for any two or more of such purposes, and by whatever means it is applicable, whether by printing, painting, embroidering, weaving, sewing, modelling, casting, embossing, engraving, staining, or any other means whatever, manual, mechanical, or chemical, separate or combined, not being a design for a sculpture, or other thing within the protection of the Sculpture Copyright Act of the year1814-
We provide a definition of what “ design “ shall mean, and as to the application of the design. Paragraph b contains words which are taken from the English Act, and which are not necessary to the definition, though they explicate the definition by indicating the way in which the design may be used. We separate the two provisions, and, without enumerating all the means, such as painting, embroidery, weaving, &c, use the words - to the purpose of the ornamentation of pattern or shape or configuration, of the article, or to any two or more of those purposes.
These are the words, as I say, which are not absolutely necessary to the definition of “ design,-“ although they indicate the method in which a design may be used or applied. We have taken the English definition in that sense, but we have severed it ; we use all the words necessary and essential to the definition for definition, and we use other words which are not so essential, but which merely indicate the way in which it can be applied - to express what, under our law, shall be meant by the application of the design.
Senator Sir JOSIAH SYMON (South
Clause postponed. ‘
Clauses 6 and 7 agreed to.
Clause 8 -
Senator Sir JOSIAH SYMON (South Australia) [4.8]. - I take it that it is not intended to duplicate these offices, and I think it a pity that the second paragraph of the clause should have been inserted. I do not think that it is contemplated to have Deputy Registrars other than the Deputy Registrars of Patents. There has beensome excitement lately as to suboffices under the Trades Marks Act in other States besides Victoria, and I suggest that this clause should provide that, the Governor-General may appoint one or more Deputy Registrars of Patents to be Deputy Registrars of Designs, so as to prevent the possibility of an assumption that any new offices are to be created.
– I see no necessity for any alteration of the clause.When the Minister introduced the Bill he clearly pointed out that there was not to be any duplication of offices, where! there was an officer, whether in the Patents Office, orany other office, available to do the work. There is. certainly, a difficulty in Adelaide at the present time in regard to the establishment of a sub-office under the Patents Act ; and I think it will be understood that the Deputy Registrar under that Act- is more likely to be appointed under the Bill before us, seeing that there is not enough work under one of the Acts to keep him fully occupied. If such an officer carried out the duties of Deputy Registrar under the Trades Marks Act, the Copyright Act, the Patents Act, and this Bill, that would be sufficient to justify the establishment of a sub-office; and I think that that is the idea underlying this clause.
– To re-assure Senator Symon, I may point out that the clause as it stands is taken bodily from the Copyright Act we passed last year. When the Copyright Bill was introduced in the Senate, some criticism was levelled at the provision contained in the original clause, which provided that the Governor-General might appoint “ a Deputy Registrar “ of copyright, who should be subject to the control of the Registrar, and exercise all the powers conferred on the Registrar. In order to meet certain criticism, the clause was altered to provide that the Governor-General might appoint “ one or more Deputy Registrars “ of copyright. I think it was Senator Millen who drew attention to the fact that the original clause made provision for the appointment of only one Deputy Registrar, while it might be advantageous to have Deputy Registrars in one or more States. In the drafting of the Bill before us, a similar difficulty presented itself, and the first consideration was the provision for appointing a Deputy Registrar at the central office in case of the absence of the Registrar on leave, or owing to sickness or any other cause. If we limit the power to the appointment of one Deputy Registrar, it is questionable whether it would be possible to . appoint Deputy Registrars, who should occupy, in relation to the Registrar, a corresponding position to that under the Copyright Act. I do not think there need be any fear that persons other than those occupying similar positions in the States will foe appointed under this clause. If we were to restrict the appointment of Deputy Registrars to persons who occupy the position of Deputy Registrar under the Copyright Act and similar Acts, we might be confronted with a difficulty. The Registrar of Designs might be away on six months’ leave of absence, or unable to attend business in consequence of illness, and we should be limited in the selection of a deputy at the central office to the States deputies. I think that Senator Symon will accept my assurance that the object of the clause is simply to enable the existing deputies in those other branches mentioned to be appointed in anyState, and to empower the GovernorGeneral, in the absence of the Registrar, to appoint a deputy who is not necessarily a State officer, but perhaps the next man in the central office. ‘
Clause agreed to.
Clauses 9 to 12 agreed1 to.
Clause 13 -
The copyright in a design shall begin on the date on which the registration of the design takes effect, and shall continue so long as the registration of the design remains in force.
Senator Sir JOSIAH SYMON (South Australia) [4.15]. - Perhaps the Minister will explain why it is that there are two clauses to carry out an object when one would be sufficient This clause appears to be taken from section 50 of the Imperial Act, but it altogether differs from that section, which is a very good one. In clause 13 we provide that the copyright shall begin on the date on which the registration of the design takes effect, and shall continue so long as the registration of the design remains in force. Then we have to turn to clause 26 to find out how long the design is to remain in force. We are there told that the registration is to remain in force for a period of five years from the date of lodging it. Clause 26, as my honorable friend’. Senator Keating, will see, creates a new departure in the law altogether. It makes the right begin from the time of the application for registration, which is a very wrong thing to do. The Imperial Act provides in section 50 that -
When the design is registered, the registered proprietor of the design shall, subject to the provisions of this Act, have copyright in the design during five years from the date of registration.
If we desire to antedate the lodging of the application it will be very dangerous, but it ought to be done in one claude. I suggest that clause 13 be omitted, and the English section substituted for it to make the two pieces of legislation homogeneous.
– As Senator Symon has pointed out, section 50 of the English Patents, Designs, and Trade Marks Act provides that when a design is registered the registered proprietor shall have copyright in it during five years from the date of registration. No provision is made as to copyright in a design prior to the period of registration. This Bill is separated into different parts. The part under consideration, Part III., deals with what is meant by copyright in a design, the term of copyright, and who shall be entitled to apply for and obtain copyright. It also describes copyright as personal property. In clause 13 we provide that copyright in a design shall begin on the date on which the registration takes effect, and shall continue as long as the registration remains in force. If we were to accept Senator Symon’s suggested amendment we should be taking out of Part IV. a provision which properly belongs to that part.
– We are dealing with the period, and instead of stating five years, the Bill says that the copyright shall continue “ so long as the registration of the design remains in force.” One has to turn to another portion of the measure to find out what that period is.
– Part IV. deals with the registration of designs, and the effect of registration, and clause 26 provides that the registration shall take effect as from the date of the lodging of the application. That is to say, it relates back to the application.
– A most unbusinesslike method.
– A very usual method. When the application is granted, a period of five years, counting from the date of the lodging of the application for registration, elapses before the copyright expires. The difference between that and the English section is simply that under the English Act the term dates from the time of registration.
Senator Sir JOSIAH SYMON (South Australia) [4.20]. - There are two points about this clause. The first is that the object of clause 13 is to name the period of protection. Why not do that in direct terms, and say that the period shall be five years, instead of saying that the . term ‘ shall be “ such time as the registration shall remain in force,”_ which necessitates turning to another portion of the measure? This Bill is to be used by commercial men, and by people employing designs or ingeniously contriving them. Why .refer them to another portion of the measure when we can say in this clause exactly how long the copyright shall remain in force ? Why not tell a man in one clause what the term is. The object of the clause under consideration is to define the term of copyright ; why not do it as the English Act does? The second point about the clause is one which Senator Keating has not met. It is that the Bill makes a very grave departure from ‘ the English law. Of course, if there is some very good reason for that, let it be done. But unless that is so it is very unwise in a Bill of this description to depart from the English Act; because we want to have the benefit of the authorities and decisions in England on similar legislation, and also the benefit of any arrangements made internationally with regard to equivalent systems of copyright. In England the law is that copyright shall take effect from the date of registration. That is as it should be. In this Bill it is provided that it shall take effect from the date of lodging the application, when the designer may have no right at all. As the clause is framed, during the time when the application is being considered - it may be for twelve months - the applicant might be deriving benefits from his design. When the twelve months were up, his application might be refused. Look at the complications which might ensue. Even if the registration took place quickly, there might be delays and objections. The English section is admirably expressed. Under it a man who wants to deal with such a matter as this sees stated in one section exactly what is the term of his right. I urge upon the Committee the advisableness of considering whether the copyright should not be made to take effect from the date of registration, instead of from the date of application; and, secondly, whether the term of copyright should not be exactly defined in this clause.
Senator MILLEN (New South Wales [4.28]. - I urge the desirableness of making the period of copyright date from the day of registration. Senator Symon has instanced the case of an applicant for a design proceeding to use it on the strength of the Bill as it stands, and having his application refused later on. Take the reverse case. Assume that a man makes an application for a design. Although his time is running away, he dare not use it. He will hesitate to provide any machinery for taking advantage of his design until he knows whether his application is successful. He may be tied up for twelve months before he can do anything. If the copyright is to date from when the application is made, the period during which it is considered will be taken out of the time during which the owner will have protection. Surely, the better way is to give him copyright from the time when the application is granted, not from the time when he applies. Otherwise one man may get his application dealt with in a month, and another man in six months, and so there will be different periods of protection for different men.
Senator Sir JOSIAH SYMON (South Australia) [4.29]. - I much prefer the English section, and the simplest course for the Committee to take would foe to adopt it in place of the clause under consideration.
– If the clause be negatived then the honorable and learned senator can move the insertion of that provision.
– That will be the better course to take. The Minister will understand that I only wish this clause to be negatived, with a view to substituting the English provision.
Question - That clause 13 stand part of the Bill - put. The Committee divided -
Ayes … … … 10
Noes … … … 8
Majority … … 2
Question so resolved in the affirmative.
– In view of what was said before the division was taken, I wish to intimate to my honorable friends opposite that before the Bill is finally dealt with I shall have consideration given to what has, been urged, and, if possible, meet their wishes. For the moment, I am influenced by the fact that in the Patents Act we have a provisionby which the term of the patent relates back to the date of original application. Since the discussion has begun I must confess that I do not feel quite as stronglyas I did in re gar.d to both these provisions. I shall certainly go into the matter at the earliest opportunity, and see what force my honorable friends arguments have.
Senator Sir JOSIAH SYMON (South Australia) [4.36]. - I congratulate the Minister upon the candid expression of opinion which he has given. We are dealing with the Bill, as I think he appreciates, from the point of view of the completion of a scheme of legislation, and not, from the stand-point of party. I am not going to complain of a number of my honorable friends opposite, but when we are discussing an important matter on which the Minister, after consideration, so very candidly says he does not feel so strongly after hearing the arguments of this side as he did before, I think it is only fair that they should hear our reasons before they in a solid block vote us down.
– It was just the same on the other side.
– We were all here.
– My honorable friendsthoroughly understood the question.
– I was here, too.
– I am sure that my honorable friends opposite who were not here have an intuitive sense which enables them, without hearing arguments, to arrive at a right conclusion, that is to do what the Government desire. I think that the Minister has adopted a perfectly wise course. There is no doubt whatever that the registration, when made, ought to have effect from the date of the application. If that is the case, the Bill will follow the lines of the Imperial Act, and clauses 13 and 26 can be put into one provision. The English provision is couched in language which is precise to a degree. I do not suggest that we ought to slavishly follow the verbiage of an English Act simply because it is an English Act, because I believe that very often our Acts are better worded. But where there is a body of legislation of the same sort which involves a good deal of controversy and, perhaps, much litigation, we should adhere as far as possible to the language of the legislation in other parts of the British Empire, particularly in England. It is from that point of view that I welcome what the Minister has said. We desire to assist as far as we can, but it is not much encouragement to us to assist when we get voted down whenever we make a suggestion which the Minister frankly says is of some value.
– Yes, but I could not see my way to accept it.
Clause agreed to.
Clauses 14 to25 agreed to.
Clause 26 postponed.
Clause 27 agreed to.
Clause 28 -
The owner of a registered design shall, within twelve months after registration, substantially use the design or cause it to be substantially used in Australia in the manufacture of articles, and if he fails to do so the copyright in the design shall cease.
Senator Sir JOSIAH SYMON (South Australia) [4.42]. - I do not wish to move an amendment, but again call attention to the fact that this Bill, unlike the English Act, does not contain a clause protecting the local manufacturer who uses a design against a foreigner manufacturing therefrom. The provision in the English Act is of great value, because, as I, pointed out in my second -reading speech, it is very important that either an importer or a foreign manufacturer sending his goods here should not be at liberty to register a design in Australia and continue to get his goods manufactured outside its borders. The object of the English provision is to prevent that state of things from happening.
– The honorable and learned senator’s contention is that a design registered here should be used only on goods made here?
– Yes, and that the man should not be allowed, in order to secure a monopoly here and prevent other manufacturers from using the design, to simply put it on the register, and even for one month, much less than for twelve months, which is the period fixed, have the right to stop any one here from manufacturing according to the design, whilst he is bringing in goods manufactured in foreign parts either before his application for registration or during that period of twelve months. The English provision reads as follows: -
If a registered design is used in manufacture in any foreign country, and is not used in this country within six months of the registration in this country, the copyright in the design shall cease.
That is a very proper provision. Under this Bill a person who registers a design here would get a monopoly of the design for at least twelve months, and in that interval he might bring in goods to which the design was to be applied, but which might hot be consumed here for a period of five years.
– If the term were altered from twelve months to six months, would not the honorable senator’s object be achieved ?
– No. Why should we subject Australians to a penalty ? The owner of the design is to use it in Australia in the manufacture of articles, but there is no provision as to the manufacture of goods elsewhere. Let us substitute for this the English section, which will make our object clear and again bring our legislation on the same plane. If Senator Keating wishes to postpone the consideration of the clause, I shall not press this matter upon him, and perhaps it would be well to afford an opportunity for its further consideration.
– I think it would be advisable for us to pass the clause as it stands, or else to reduce the period within which use must be made of the design from twelve months to six months after registration. At the same time, it appears to me that twelve months is not too long to allow any one who may register a design to proceed to use it or cause it to be used in Australia. A design might be brought out and registered in Australia, and it might be impossible for the person registering it to use it here within less than twelve months. In the meantime, if it were registered no one but the owner of the design could import an article bearing such a device. If the individual registering the design manufactured abroad, and proposed to introduce from beyond the Commonwealth articles bearing that design, he could do so foronly twelve months. That would be a much less heinous sin against the individual than it would be to compel a man who had registered a design, and found it impossible to use it in the manufacture of articles in Australia within six months, to forfeit his registration. Having taken all these points into consideration, I think it would be preferable to pass the clause as it stands.
Senator Sir JOSIAH SYMON (South Australia) [4.50]. - Senator McGregor has entirely missed the point. There are two evils in this clause. We want to prevent a manufacturer in foreign parts registering a design and enjoying for twelve months, or three months, or any period whatever, a monopoly of that design in Australia when he has no intention whatever of causing it to be substantially used here. This clause is intended really for the benefit of Australians. If a man is using a design in some other country, he may register here just as he may do in England, but the English law says to such a man, “ At the end of six months your registration shall cease unless the articles to which it relates, are manufactured, according to the pattern or design, in England.” That is only just and fair. Honorable senators talk about protecting the local manufacturer, and this is an illustration of how his interests may be affected. The second evil of this clause is that it imposes a restriction upon a man who designs something in Australia, but may not be able to manufacture it. Why should we limit the fruits of his inventive genius to six or twelve months? He might not be in a position to get a manufacturer to take up his design, and in that event his registration at the end of twelve months would cease. That would be a monstrous injustice. One man might be engaged by a manufacturer to prepare designs from day to day, whilst on the other hand a poor man, having great skill in designing, might be told by a manufacturer whom he approached that he was not prepared to touch it for a year or two. The manufacturer might say that he would allow the matter to stand over for five years, at the end of which time the design would become common property. Why penalize an Australian designer in that way? Let the Australian designer have his registration, not for twelve months, but, if honorable senators like, for five years, without being called upon to use it in the manufacture of articles. There would be no harm in that. The harm lies in allowing a man who has been manufacturing goods outside, according to a certain pattern, to come into Australia and to obtain a monopoly to sell here as freely as he pleases. These are the two points that have impressed themselves upon me. They may be explainable; my view may be a mistaken one, but I do not think it is. We have no greater protection against the man who manufactures abroad and sends his goods here than we have against a local Australian designer - not a manufacturer - who invents a design and is unable to get any one to take it up, with the result that in twelve months he loses the fruits of his work. A manufacturer abroad could’ apply his registered design to articles made outside, and for twelve months - or twice as long as is allowed under the English Act - enjoy a monopoly of registration here.
– He must comply with the clause within twelve months.
– But the local man is to be subject to the same disability, although he may be totally unable to apply his design or pattern to an article of manufacture. I would1 strongly urge the Minister to consider these points.
– There certainly appears to be something very important in the contention raised by Senator Symon that we might have persons from abroad registering a trade mark and using it here, for at least twelve months, to the exclusion and detriment of local producers. If the term could be shortened without doing injury to any one, I think it should. I do not agree with Senator Symon’s view as to the period over which protection to the registered owner of a trade mark or design should extend. I do not think that any person should have the right to register a design, and to ask an unreasonable price for the use of something that is extremely desirable, for an extended period, to the detriment of the common weal. The period fixed in the clause seems to be long enough. I think, however, that there is a great deal of force in Senator Symon’s contention that some person abroad might secure a monopoly of our markets without producing here, as designed by our legislation. I have in mind a case in point. I have had my attention called to a proprietary right in a descriptive word applied to aru article of very common use which is largely imported. People here are manufacturing the same kind of thing, but are not permitted to apply that word to it. The proprietary right in that word would not continue for any length of time if the provision which Senator Symon has suggested was inserted in the Bill, “and I would strongly urge upon the Minister the consideration of these points.
4-S7]. - Senator Symon has pointed out the difficulty which might occur to a man who registered a design and was unable to utilize it. A similar position arose during the consideration of the Patents Bill, which originally contained a clause somewhat similar to that now before us. That clause was so altered, however, as to provide that, if the owner of a registered patent did not proceed to manufacture it within two years after the granting of the patent to him it should be open to any person to apply to the Court for an order permitting him to use that patent on fair terms, or, failing that, to declare the patent void. If we had a similar provision with regard to registered designs the position would be met. Under Senator Symon’s proposal, the foreign designer would be granted protection for only six months, whilst an Australian designer would be protected for five years, subject, of course, 10 the right of any individual to apply to the Court to use the design on the ground that the registered owner was not making use of it. If the Minister in charge of the Bill agreed to the adoption of a clause similar to that to which I have referred, the difficulties with which we are now confronted would be swept away. We should first of all follow the language of the English Act, and then add a provision similar to that in the Commonwealth Patents Act.
Senator McGREGOR (South Australia) £4.59]. - I trust that the Government will stand by the clause. I recollect the arguments which took place on the proposal to amend the clause in the Patents Bill to which Senator Gould has referred. I entirely agree with the attitude he takes up with respect to patents, but I would remind him that the position in regard to designs is altogether different. Inventions might be patented which could not possibly be manufactured within five years, but this clause deals with designers in a reasonable way. As soon as a design has been registered no one else will be permitted to introduce that design attached to an article in a manufactured state into Australia ‘Unless within twelve months the owner Kas failed to apply it to something manufactured here.
-Col. Gould. - The thing to which it is applied need not be manufactured here.
– It must either be manufactured here or used within twelve months. The difficulty pointed out by Senator Symon is that a foreign manufacturer or producer of goods of any description might register a design here, and, producing those goods abroad, send them into this country for twelve months. In such a case I agree that a period of six months would be better; but there is a difficulty. We are applying this measure to both the Australian- and the foreigner - we are rightly applying the measure generally. An Australian registering a design may not be in a position to’ have it attached to any article he manufactures or produces within twelve months. If, for instance, the design were applicable to calico or cotton fabrics, these are not manufactured here, and, before an order could be sent to England and the fabric received in order to attach the design, the twelve months would be gone. Senator Symon says that he does not want to apply this condition to the Australian designer, but to give the latter the full benefit of the work of his brains for five years or any number of years.
– The period is five years in the Bill.
– There is nothing magic about the period of five years, and we may amend that provision. Let us suppose a case in which an Australian registers a design consisting, for instance, of two butterflies and a black beetle, to serve as a design for wall paper, calico, butter, or anything else. There may be a foreign manufacturer who, as a design, has two butterflies and a grasshopper. There would be such a similarity between the designs that it would pay the Australian designer to register, and enter into an arrangement with the gentleman who owned the design of two butterflies and a grasshopper. The design would then have the run of the whole Commonwealth for five years, simply through the neglect on the part of Parliament to be firm, and make the provision definite.
– Does the honorable senator think that the Registrar would register such a. similar design?
– The other would be a foreign design.
– It does not matter ; it is a good registration.
– But it would not be registered. Cannot the honorable senator see that I do not mean that the twobutterflies and the grasshopper were to be registered here at all? The goods bearing that design would be manufactured somewhere else, and come in here ; but the Australian would register his two’ butterflies and a cockroach. The other design would be so similar that it would take the market, and the gentleman with the two butterflies and the cockroach would make an arrangement with the foreigner to block anything else of that description coming into Australia. That is the reason I am so strong in supporting the Government in their endeavour to prevent any trickery of the kind after twelve months.
Senator Sir JOSIAH SYMON (South Australia) [5.5]. - I shall not enter on the entomological discussion which Senator McGregor has introduced, and which has confused the subject a good deal ; like the plague of flies in Egypt, it has thickened the atmosphere. I think there is’ great force in the suggestion made by Senator Trenwith that there should be discrimination, and I commend the idea to the Committee. Senator Gould made a suggestion as to how the difficulty might be overcome, but I think that Senator Trenwith’s proposal is the better. I suggest that clause 28 should be enlarged in favour of the local designer, who ought to be protected, because the object of all this class of legislation is to encourage the inventive faculty. My suggestion is that in clause 28 the term of twelve months should be enlarged to two years, but that the foreigner should not have the same benefits as the Australian designer in that respect. I further suggest that we should embody, in the form of a proviso, the substance of the Imperial enactment, as follows : -
Provided that if such design is used in an manufacture outside Australia, the period aforesaid shall be limited to six months.
That seems to me a perfectly fair suggestion. A period of twelve months is too short for a designer, seeing that the purpose of the measure is to encourage designing, and, on the other hand, twelve months or two years is altogether too long for the man who has already used the design in manufacture outside Australia. I quite understand Senator McGregor’s remarks about bringing in goods, and so forth ; but six months is plenty of time for the purpose, because a person can register immediately, and he has six months in which either to manufacture or to allow Australians to get the benefit of his design. I move -
That the words “ twelve months “ be left out, with a view to insert in lieu thereof the words “ two years.”
– I am very glad, as the Minister in charge of the Bill, to have had the benefit of the discussion on this clause. The Government were confronted with considerable difficulty in making provision to meet the class of cases contemplated here - where a man has registered a design, and thereby obtained protection for five years, and the exclusive right during, that period to apply it to certain articlesIt is quite possible that, in some instances,, a person may obtain this right by registration in a purely speculative way. It is quite possible, on the other hand, that a person may take advantage of registration without having in his mind any intention at the time to apply the design in> the manufacture of articles in Australia. The difficulty we were confronted with was to ascertain what provision we should have in order to forfeit a copyright in a design, should a designer fail to comply with the spirit of this measure. The term before us was that provided in the English Act, and this provision may be looked on asone which regulates the terms and conditions on which copyright in designs is enjoyed. The Legislature says, “ You acquire a copyright in design by registration, but there are certain conditions attached to your continued enjoyment of that copyright.” In the English Act referred toby Senator Symon it is provided that if a design is used abroad in the manufacture of articles, and for six months after registration is not used in Great Britain for that purpose, the copyright shall cease. We have provided in the clause, as it stands,, that the owner, having obtained a copyright for five years, shall forfeit, if within twelve months he does not substantially use or cause to be substantially used1 the design in the manufacture of articles in Australia. I may say that, personally, the view urged by Senator Symon is one which, to some extent, commended itself to my mind. It is quite possible that a man without any capital may originate a design which should insure to him some reward for his skill and labour in connexion with its origination. Whenwe say to such a man that if he, having acquired a copyright for five years, doesnot use it or cause it to be used within twelve months, he shall forfeit, he is placed in a position which may prejudice him. Somebody who otherwise would beperfectly willing to use the design and to pay reasonably for the privilege, might under such circumstances say, “ There are only one or two others besides myself who are ever likely to be in a position to apply such a design to articles of manufacture in Australia, and, therefore, we shall let the term of twelve months run out, when we can have the benefit of the design, which, by that time, will have fallen into the public domain.” The object of the legislation is to encourage designing in Australia, and also not to put the designer from abroad, or the person, whether foreign or Australian, who uses the designs abroad, in, at any rate, any better position than our own people. As to the amendment, I have to say that on consideration I shall offer no opposition to it. It will more amply secure persons who have originated designs, but who have not the means to give practical effect to them - persons who have to depend largely on our own people to buy the result of their work.
– Can we differentiate between the foreigner and the Australian without clashing with Great Britain and the Convention ?
– Undoubtedly we can make special ‘provisions of our own to apply to all. The English Act of 1883 makes it a ground of forfeiture if a design is used in a foreign country, and is not used in England for six months ; and that would indicate that some differentiation was contemplated.
– I notice that the Minister backs down very easily, but I should like to point out that the difficulty he sees could be got over in another way. We ought not to run the risk of a person registering some design here, and then conniving with some other manufacturer not to do anything with that design for two years, while a class of goods to which that design might be attached, is imported from abroad. It would be easier if the Minister saw any difficulty in an Australian designer being able to comply with the provisions of this measure in twelve months, to provide for some Court to decide whetherthe registration should be renewed. We have a right to protect the Australian people from foreign designers of any description.
Amendment agreed to.
Amendment (by Senator Sir Josiah Symon) agreed to -
That the following words be added - “ Provided that if such design is used in any manufacture abroad, the period aforesaid shall be limited to six months.”
Clause, as amended, agreed to.
Clauses 29 and 30 agreed to.
Clause 31 (Remedies for infringement of designs).
.- It is just as well that the Committee should understand the vital difference between this Bill and the Copyright Act, which we passed last session. In that Act we went to the full length of protecting copyright in printed books and artistic “works. We even prohibited the introduction of pirated works, and protected the owner of a copyright to the extent of permitting the seizure of any goods which are an infringement of copyright. There is a whole series of sections in the Copyright Act extending from section 49 up to, and including, section 61, which give the owner of a copyright in either a printed book or an artistic design the right to set the law in motion and have books or artistic designs seized and forfeited to him if they infringe his copyright. In section 61 we prohibit the importation of pirated books in whichcopyright is subsisting in Australia. I hold that those are very good provisions; and if they were good for the Copyright Act, as applied to printed books and artistic designs, they are equally good for the designs with which this Bill deals. Why should not a man who uses histalents for the purpose of bringing out a design, which may be exceedingly valuable, enjoy the same protection as this Parliament gave to the man who writes a book, paints a picture, or produces some other work of art? I should like, before moving any amendment, to hear the Minister’s views. Personally, I think we should go to the full length of prohibiting the importation of goods which infringe the copyright of the owner of a valuable design ; and he should be able to get an injunction against people who pirate his design. If the provisions of the Copyright Act in this respect were good and necessary, as Parliament decided that they were, they are equally necessary in this Bill. I hope that the Minister will consent to include similar provisions in it, or will give us good reasons why they should not be included.
.- Provision is made, in the clauses which we have just passed, for securing damages and an injunction against any person who infringes the copyright of the owner of a design. With re gard to the forfeiture of goods to which a design may be applied, I would point out that the question is not exactly on all-fours with pirated literary or artistic works that are the subject of copyright under the Act passed last session. I laid some stress, in moving the second reading of this Bill, upon the distinction which has to be drawn between an article itself and the design. All that the law gives is copyright in the design.
– How can they be separated after a design is applied, say, to cotton goods?
– They can easily be separated for the purposes of the law and for the purposes of the rights of the holder of the copyright. The design is treated as an entirely distinct subject-matter from the article to, which it is applied. But, although that is the case, there are certain circumstances in which the design may be more closely related to particular articles than it is in other instances’. In this case it is quite possible that the Courts, even without express statutory provisions similar to those alluded to by Senator Givens, as contained in the Copyright Act, might give redress in the nature of an order for the delivery up of the piracies. There have been some cases in which that procedure has been followed. As I have already pointed out, we have in this Bill largely followed English legislation, which extends from the Patents Designs and Trades Marks Act of 1883 down to amending legislation passed in 1888 ; and, as has been said in the course of the debate, we have thereby secured the full advantage of interpretations which may from time to time be put upon the English legislation by the highest Courts in the United Kingdom. So far as concerns legislation upon this subject, there is no express statutory power given to the Courts to award or order the delivery of piracies to the owner of a design; nor is there any express provision entitling the person aggrieved to obtain the piracies. But in cases which have arisen, the Courts have, nevertheless, acted upon that principle.
– Why not embody it in Statute law?
– Because there will then be a danger of limiting the power of the Court. Let me draw attention to some of these cases. I have not the full text of them here, but they have been commented upon by Coppinger in his Law of Copyright. On page 451 reference is made to this very point. The author says -
There was no provision in the Designs Acts, nor is there in the present Act, analogous to that of the 23rd section of the Literary Copyright Act 1842, as to the delivery up of unsold copies of a pirated Hook to the proprietor of the copyright without his making any compensation for the cost of production and publication ; but in the case of McCrae v. Holdsworth, Lord Justice Knight Bruce made an order under the Designs Act for the delivery up to the plaintiff, “ for the purpose of being destroyed, the drawing or drawings, point paper, and the several cards used in applying his design, and also of the articles manufactured by the defendants to which the plaintiff’s design had been applied.”
In a subsequent case, similar proceedings were authorized by the Court; and Coppinger goes on to say -
An order for the delivery of pirated designs now usually follows an injunction, but of course such an order cannot be made against a person who is not a party to the action.
Having in view the fact that we are not, as we were in the case of the Copyright Act, originating a large number of provisions, but are following as closely as we can the English legislation upon this subject; having regard to the further fact that there is no express provision for the delivery up of piracies in the case of designs as there is in the case of literary and artistic copyright: and to the still further fact that, notwithstanding such omissions from the English Act, the Courts, uniformly in the case of an application for an injunction, order the delivery up of piracies - I submit that we are on the safest possible ground in adhering to the Bill as it stands. By so doing, we shall have the benefit of the interpretation given to these provisions, and of the procedure that has been adopted by the highest courts in the old country, in enforcing the law. I feel sure that that is all that Senator Givens wants. He wants the persons who have designs to be fully and amply protected ; and, so far as the law stands, he may rest assured that they will be as amply protected in that regard as they are being protected under the provisions of the Australian Copyright Act.
Clause agreed to.
.- The Minister’s explanation does not quite satisfy me. The gist of his remarks is that the Judges in England, acting under the English law, have done what I contend should be ordered to be done by the Act itself. I fail to see why we should be satisfied with Judge-made law. when we have power toembody the will of the Legislature in the statute-book. It is wise that we should state the law plainly and straightforwardly when we are passing a Bill of this kind. Every reason which the Minister adduced against putting such a provision as
I advocate in this Bill may be adduced with equal force against the Copyright Act.
– No, because the judicial interpretation of the Copyright Act is entirely different.
– Let us put an interpretation on the Act ourselves, so that the Judges cannot go behind it. Courts of law often differ. Frequently suitors have to appeal from court to court to find out what the law is. No person, unless he possesses great wealth will dare to seek the protection of the Court. Is a poor man who has a clear case to be put to a most expensive course of litigation in order to find out what the Judge-made law is? I fail to see why the intention of Parliament should not be expressed in the Bill. To this Parliament, which is the High Court of the land, is intrusted the duty of framing the laws, and that obligation ought not to be shirked. Section 49 of the Copyright Act of last year reads as follows : -
All pirated books and all pirated artistic works shall be deemed to be the property of the owner of the copyright in the book or work, and may, together with the plates, blocks, stone, matrix, negative, or thing, if any, from which they are printed or made, be recovered by him by action or other lawful method.
Why should not the author of a valuable design have a similar remedy ? Why should not a man who holds a design for the printing of calico or cotton goods have the right to invoke the law and get the blocks and plates from which the design was being pirated handed over to him? Suppose, for instance, that an Australian design is put upon cotton goods abroad, and they are imported ? Why should not we protect the Australian designer by saying, “ So long as you can show that it is a piracy of your design the goods will become your property, to deal with as you may please.” It is only by providing a drastic remedy which could be easily enforced that we shall give efficient protection to Australian designers. I move -
That the following new clause be inserted : - “ 31A. All goods bearing any pirated design shall be deemed to be the property of the owner of the copyright in the design, and may, together with the plates, blocks, stone, matrix, negative, or thing, if any, from which they are printed or made, be recovered by him by action or other lawful method.”
– I think I can illustrate to Senator Givens how dangerous it would be to introduce such a provision into the Bill. Designs are not confined simply to such as can be printed by the means set out in his amendment. If he sets out that these particular articles which may. be used for certain classes of designs become forfeitable if they are wrongly applied the question arises, what will be the law with regard to cases where, other kinds of designs, not specifically adverted to in the amendment, have been wrongly applied ? For instance, in this text book Coppinger’ s Law of Copyright, I find a number of cases in which a distinction has been drawn between the design itself and the article to which it is applied. Here is one, on page 410 -
Thus, where M. registered as a design a picture of a basket, stating that his claim was for the pattern of a basket consisting in the osiers being worked in singly, and all the butt ends being outside, it was held that what the plaintiff had registered was in reality a process or mode of manufacture, and was not a design within the meaning of the Patents Designs and Trade Marks Act.
That illustrates how the design itself may be severed altogether from the article as a legal concept and as a subject of legislation. What he was registering was not the design of a particular kind of basket that he wanted to make. A person might register a design for a water decanter, and the design might be used either in that article of utility or in an article of adornment. A man might design a certain form of chair, and the design might be applied in respect of an article of the value of a few shillings or of as many pounds ; it might be used in respect of an article of pure ornament, and not an article of utility. But this amendement, it appears to me, only extends to the means of applying designs to fabric, and in so far as Senator Givens provides that the Court may forfeit those means of applying the designs, when they are piratically or authorizedly applied to articles, he leaves other classes of designs out of consideration.
– No, I have plenty of other amendments to deal with them.
– In his amendment the honorable senator does not deal with any other class of design. What we are protecting here and what we are assuring to the person who registers his design is the exclusive right to apply it. We are protecting to him not any article at all, but merely a right to apply his design. Thereis no express provision in this Bill for the forfeiture of articles used in connexion with piracies, nor is there in the English legislation. The law, as it exists in England, and as it has been given effect to by English Judges, is stated on page 451 of Coppinger’ s Law of Copyright, as follows -
There was no provision in the Designs Acts, nor is there in the present Act, analogous to that of the 23rd section of the Literary Copyright Act 1842, as to the delivery up of unsold copies of a pirated book to the proprietor of the copyright, without his making any compensation for the cost of production and publication ; but in the case of McCrae v. Holdsworth - which was decided in 1848 under the Copyright Act -
Lord Justice Knight Bruce made an order under the Designs Act for the delivery up to the plaintiff, “ for the purpose of being destroyed, the drawing or drawings, point paper, and the several cards used in applying his design, and also of the articles manufactured by the defendants, to which the plaintiff’s design had been applied.”
Then the author goes on to say -
An order for delivery of pirated designs now usually accompanies an injunction.
In a previous part of the Bill we have made a provision that a party aggrieved may apply for an injunction. The provisions of this Bill are analogous to’ the English provisions. The procedure which will be adopted here for the enforcement of these provisions and the rules which will govern the action of the Courts will be the same as those which prevail in Great Britain, and an order for the delivery of pirated designs will usually accompany an injunction. Because, as I said before, the circumstances’ are dissimilar in that regard from the cases of literary piracies. A man may have a design which may be applied to different articles of the same class.
– Hear, hear ! But it will notbe applied if a man knows that the articles will be liable to forfeiture.
– It is not the article to which a design is applied, but the design itself that the Bill has in contemplation. I would ask the honorable senator not to press his amendment. It would complicate considerably our law. It would do what is worse than that. By making express provision which could only cover a certain number of cases, it would probably exclude a large number of cases from the benefits which are now enjoyed in England by the action of the Courts in enforcing the forfeiture of pirated designs. Evidently the honorable senator does not realize that he proposes to forfeit, not only the blocks, plates, negatives, and matrices, but also everything by means of which the pirated articles’ are made.
– I copied almost word for word the provision in the Copyright Act dealing with a firm which pirated artistic works.
– This amendment is going right beyond the scope of the Bill, which is introduced to protect copyright in designs, and not to protect the right in articles, which may be made in accordance with designs. How far would the amendment go ? Take the case of a manufacturer of lamps. Does the honorable senator propose to forfeit all the machinery which the manufacturer had employed in the production of his wares for sale to the public? It seems to me that he does.
.- By his recent remarks, the Minister has shown that he is an adept by clouding the issue by a mere mass of irrelevant verbiage. Every one of the evils which he says will follow from the adoption of this amendment would also follow from the adoption of an exactly similar provision in the Copyright Bill of last year. But we did not hear a word of this kind from the Minister when the provision was under consideration.
– That dealt with- copyright in a different subject, and if the honorable senator had been here he might have heard my remarks on that point.
– I have been here during most of the time. If under my amendment everything employed or used in the manufacture of a pirated design can be forfeited, then under section 49 of the Copyright Act everything employed or used in theproduction of a pirated book, from a steam engine or press down to the smallest particle of type which was used, can also be forfeited. In his previous speech the Minister adopted the extraordinary argument that, because in England the Judges had laid down certain law, there is no reason’ for its embodiment in our Statute on the subject. I think it is just as well to embody our law in black and white upon the statute-book, rather than have something which is dependent upon the varying opinions of Judges such as most of our common law is. Many attempts have been made in different countries to consolidate the common law, and that huge task, I believe, has been successfully performed in only a few cases. That all comes of ‘saving it to the Judges to say what is right in equity.
This Parliament has been intrusted by the people of Australia with the duty of prescribing what is right, and we should not shirk that responsibility. We ought not to leave to any Judge the interpretation of the wishes of the people of Australia in this regard- Senator Keating has quoted a case cited by Coppinger, who is an accepted authority, wherein, a Judge held, before it was the law of copyright, that pirated goods were liable to forfeiture.
– The decision had nothing to do with the question of copyright; it related to designs in respect of which there was no express provision.
– The Judge held that the Court had power to order the forfeiture of the goods, and he gave his decision accordingly. If that be good few, why .not give it a place on our statutebook ? The objection raised by Senator Keating that, under the proposed new clause, valuable goods might be forfeited because thev bore a certain design, is no argument against its adoption. The possibility of such an occurrence would deter unscrupulous people from pirating a design and placing it on valuable goods. We know, for instance, that designs on carpets are exceedingly valuable. A man who pirates a design and applies it, say. to a valuable piece of carpet deserves to lose that carpet, just as the publisher of a pirated work deserves to lose the paper on which he has printed the pirated matter.
– The honorable senator would not enumerate all the offences to which this should apply.
– I have copied- from the Copyright Act the phraseology adopted by the Government when that measure was before us last” year, making only the verbal alterations necessary to cause the provision to apply to designs instead of pirated books or pirated artistic works. If such a provision is desirable in the one case it is equally desirable in. the other. Why should not the inventor of a valuable design have the same protection as is afforded the author of a book? In the Copyright Act we go much further than I propose. We actually prohibit the importation of any pirated goods. The Copyright Act provides that in the case of a pirated artistic work the authorities shall seize, not only the actual painting, but the canvas on. which it appears. The principle is the same, whether it be applied to a canvas worth only is. or a carpet worth jos. a yard. If a manufacturer applies a pirated design to a carpet, that carpet should be seized in the same way as we seize the paper or canvas, on which a pirated artistic work has been painted.
Senator Sir JOSIAH SYMON (South Australia) [5.50]. - I think that my honorable friend would do well to consider the terms of his amendment. They do not appear to me to carry out his own intention, and they will undoubtedly introduce into the administration of this Bill’ an element that will render it difficult to carry out. In the first part of his amendment he proposes that all goods to which any pirated design has been applied - there is no definition of “ pirated design “ in this Bill, but we know what is meant - shall become the property of the owner of the design. There is a great difference between a shipment of books and a shipment of carpets. It would be a novelty if in these circumstances a shipment of carpets were handed over without an order.
– There would be an order of the Court.
– No; the amendment provides that the goods are to be deemed the property of the owner of the design.
– But the owner of the design would have to prove his claim by action or other lawful method.
– He would have only to prove that he was the owner of the copyright in the design. That having been done, the whole shipment would be absolutely handed over to him.
– And under the Copyright Act a shipment of books would be dealt with in the same way.
– That is a verv different thing. The honorable senator does not say that the carpet and the work of weaving the design on the carpet belongs to the owner of the design ?
– Nor does the paper, and the making of the paper, and the binding of pirated books belong to the author.
– Quite so; but the author’s brains are. so to speak, in the book. The desire of the honorable senator is to increase the remedy that the owner of a copyright design shall have against any attempt to pirate it. I suggest to him, however, that he should not press his amendment. In its present form it does not carry out his intention,. If it has any effect it will have the serious one of causing goods to which the owner of the copyright in the design has no claim to be handed over to him.
– And the author of a book that has been pirated has no claim to the paper on which the pirated edition has been printed.
– Then how is this provision to be enforced? If the honorable senator considers the matter, he will find that a person whose copyright in a design is infringed may seek damages and an injunction. In a matter of that kind the usual remedy is that the Court grants an injunction, and gives all the consequential relief necessary.
– The honorable and learned senator would give the Court a great deal of latitude.
– That of which I speak is done every day. If application be made for an injunction to restrain an infringement of copyright, the Court immediately gives the fullest relief that justice demands. In a case such as that to which Senator Givens has referred, the relief would be not to hand over a whole shipment of carpets to the owner of the design, but to destroy the design or order the goods to be re-exported. It would be an easy matter for a man to set up in business for himself if we decided that all goods to which was applied a design of which he was the owner should belong to him.
– The great point is that a man might innocently acquire carpets, and so forth, to which a design had been wrongfully applied.
– That is another point. A man might quite innocently import carpets to which a pirated design had been applied. It is provided that there shall be no infringement, for the purposes of a civil or a criminal remedy, unless the offence is knowingly committed.
– But the amendment goes further. It does not take such knowledge into consideration.
– “ Knowingly “ ought to be part of the essence of the offence. The obvious remedy in the case of a book which has been pirated is 1 that it should be handed over to the author, and that the man. who has infringed the copyright of another man’s brains should have inflicted upon him the penalty of losing the paper on which the book is printed, and so forth. The position in re- gard to designs is,” however, entirely different, the design being only pari of that which constitutes the complete production.
– I have very great sympathy with the object which Senator Givens desires to achieve, but 1 think he has hardly a senseof proportion. There is a great differencebetween the piracy of books and the piracy of designs. Piracy of a book means in-, every instance the piracy of the whole valueof the production. The paper and binding are merely the material by means of whichthe original crude value is presented to thepublic. The whole value lies in the brains of the author. There ought to be a severe penalty for stealing a man’s entire property in a certain thing. There can be no objection to following the same course with a view to achieve a like result in connexion with a design. A design may be, and probably will be, very different from a book in the proportion’ of its value. For instance, a design may be worth £1, and the complete article of which the design forms part may be worth £20 or .£100.
– The design may give it its value.
– And it may not. My view is that the owner should haveample protection. The question is whether we are not going beyond what is necessary to achieve that end. I realize, and to this, extent I sympathize with Senator Givens, that there can be no offence, and no recovery, under this proposal unless a man has knowingly pirated a design.
– That is not so. The amendment is in the form of a new clause.
– Then that is an additional reason why, notwithstanding the strong points made by Senator Givens, we should not adopt his proposal. It lacks proportion. Designs may be, and will be, applied to a. thousand and one manufactured articles, and before the discovery is made that there has been a piracy many of those articles may have gone into private use and become the property of innocent persons.
– All these arguments might well have been applied to the Copyright Bill.
– Not to the same extent. Under this amendment we should give to the proprietor of a registered design that had been pirated a right to goods that had cost any one of us any sum from, say> £l t0 £I0°- That would be an extreme step to take to secure what we desire.
– The difference is that the carpet in the one case is the property, and the design may be merely ornamentation ; in the other case it is the book that is the property.
– I have pointed out already that in the case of a book the whole property is in the letterpress, as the product of the brains of the man who wrote it, the paper and binding being merely the material in which it is presented. A design may be, as I have said, only onetwentieth, or, it may be, one-hundredth, or even one-thousandth part of the value of the completed article. The design may be valuable and important as an adjunct to the completed article, but not necessarily anything like the entire value, and, therefore, the cases are not parallel. If the remedy were made so terribly stringent as Senator Givens desires, the result might, and probably would, in some instances be that the penalty would fall on entirely innocent persons.
– So it might under the Copyright Act.
– I do not see it in the same sense. While I sympathize heartily with the desire of Senator Givens, I think he is attempting to achieve the protection of a creator of a design by means that, are unnecessarily stringent. I think he can insure protection under the Bill as at present drawn. If a design has been pirated, the owner can proceed by injunction to prevent its further use, and a penalty is provided apart from any damage that may be recovered for piracy.
– Much as we appreciate the anxiety of Senator Givens to give every protection to the proprietor of a design, we must realize the full effect of the amendment he suggests. Clause 31 gives a_ certain degree of protection.
– “A certain degree of protection.” Hear, hear.
– The clause provides certain remedies for the infringement of a design, and specifically says that damages’ are not to be awarded unless an infringement is knowingly committed. That is all very well so far as it goes, and it is a very proper clause. But the honorable senator wants to go further, and he, in a new clause, seeks to provide that all goods bearing a pirated design shall be deemed to be the property of the owner of the copyright in the design, and may, together with the blocks and so forth, be recovered by action. Under such a clause it is not a question of a man having such goods knowingly in his possession ; the mere fact of his having them enables the proprietor at any time to recover the goods, no matter how innocent the offending party may be.
– Why did the honorable and learned senator not oppose a similar provision in the Copyright Act?
– Because there* is no analogy whatever between the two cases. Copyright in a book is really copyright of the letterpress that is contained in the book; the value given to the copyright is by reason of the originality of the letter press.
– So it may be in the case of the design.
– So it may not be in the case of a design.
– Then why is a design used ?
– A particular design on a carpet or any other article of furniture may be the most insignificant feature of that article. As Senator Trenwith very properly said 99 per cent, of the value of a book attaches to the copyright in that book, while 1 per cent., we may say, by way of illustration, may represent the value of the printing, and so forth. In the case of a design, however, it is perfectly compatible with the conditions that it may be of comparatively insignificant value.
– Then, why should it be stolen?
– It is most improper that a design should be stolen, and a remedy is provided in clause 31. For years there may have been large importations of particular goods which we have been accustomed to consume in the ordinary way. Senator Givens himself might purchase a carpet bearing a pirated design, and he would be amazed if a man were to come into his house one fine day and say, “ That is not your carpet that is on your parlour floor.”
– What about a book? Just the same applies.
– By way of illustration, let us reduce this to almost an absurdity. Senator Givens may have honestly purchased a carpet bearing a design, and have used it for a considerable time, and, as I say, he would be amazed if a man were to walk into his house and insist on his giving it up because it bore a pirated design. It would be of no use for Senator Givens to say that he had bought it for 25s. or 35s., at a particular shop, or on a particular day. That would be no answer, and Senator Givens would have to give the carpet up ; I mean that technically Senator Givens would have to give the carpet up, but really, I do not think he would. There would probably be trouble, and Senator Givens would be “ in it.”
– Every argument the honorable senator is using would apply to a book I had bought. Why did the honorable senator support a similar clause in the Copyright Act?
– Because we may have done wrong last session, it is not right that we should perpetuate the wrong.
– Then the honorable senator thinks that we did wrong last session ?
– I do not admit that we did wrong last session; what I say is that there is no analogy between the cases. But even supposing Senator Givens is correct, his argument does not help him forward. If the facts and arguments I have used are correct, I appeal toSenator Givens himself to say whether it is desirable to perpetuate such a state of affairs. I say that it is not, and I suggest that the honorable senator should withdraw his amendment.
.- There seems to be a remarkable confusion of intellect, or, at any rate, a desire to confuse the intellect of other people on the part of some honorable senators who are opposed to the new clause. Senator Best has pointed out that goods bearing a pirated design might get into my possession, or the possession of any one else, and that if the proposed clause became law, the goods might be taken, away from the person who had innocently acquired them. I say that) that is so, and rightly so. It is a well known principle in law that no matter how often a stolen article is sold, it remains the property of the original owner.
– Subject to many exceptions.
– It apparently remains for a layman to teach a lawyer exactly what the law is. Both Commonwealth and States laws have suffered in the past, and are likely to suffer in She future, because we have taken the legal element in Parliament much too seriously, and placed too much reliance on the words and acts of legal members:
– We shall rely on the laymen in the future !
– I think that would be much better, because then we should have plain laws. Lawyer-made law and Judge-made law is so full of subtleties and technicalities that even the Judges do not understand it.
– Still, it is a great protection to the average layman.
– Laymen want some protection from the law and lawyers. Just as we have given the author of a book, or the author of an artistic work, absolute right and property in his registered copyright, so we should give the author of a design sole right and property in that design.
– Yes, in the design.
– We not only give an author and an artist absolute property in the work of their brains, but we give them also property in the paper and binding of a book, or in the canvas or other material on which the work is pirated. We have a perfect right to give the originator of a design, property in that design, if it be pirated and placed on even an expensive carpet. If a man in selling a carpet sells a design which is not his property, he is an absolute thief.
– If that is knowingly done.
– I copied the proposed new clause word for word, with,only the necessary alterations to make it suitable for this Bill, from the Copyright Act. of last year. When the clause of the Copyright Bill was before the Senate, it was accepted as just and necessary, and I now claim the support of those honorable members who voted for that provision. There is one particular article on which the most artistic designers are continually engaged, namely, wall-paper.
– Would the honorable senator take paper off a wall if it bore a pirated design?
– Certainly, I would, just as I would tear away the canvas bearing a pirated picture.
– Damages are provided for such cases.
– If the procedure I advocate is just in the one case, it is just in the other. Wall-paper is given almost all its value by reason of the design, and that design is the property of the registered owner. Honorable senators may laugh and try to ridicule the whole position as Senator Symon did, by saving that the proposed clause would allow the seizure of a whole shipment of goods ; but the Copyright Act allows an author or artist to seize a whole shipment of pirated books or pirated artistic works. If it is ridiculous in the one case, it is equally ridiculous in the other. I contend that the designer ought to have an absolute property in his design, and that no one should have the right to steal his brains. If any one puts the protected design inseparably upon his goods, the whole should be the property of the owner of the design. Otherwise, how is his design to be protected? Are goods to be allowed to be manufactured wholesale bearing upon them a protected design ?If so, the property of the designer would be useless, because there would be no adequate remedy for the owner after the goods are scattered broadcast. It is true that under this Bill the designer can ask for an injunction. But the processes of the law are slow, and an injunction may not be obtained until the mischief has been done.. The Bill provides for a small money penalty, but there is no adequate punishment. I hope that the Committee will be consistent, and will give to the author of the design the same protection as we gave last year to the author of a book or a picture. That is all I am asking for. It is an eminently reasonable request. It may be said that the goods will go into innocent possession. But the only effect will be to make people desiring unlawfully to use designs upon their goods understand the risk they run. If they improperly use copyright designs in the face of this measure, the goods will not go into innocent possession. Honorable senators who use that argument are simply begging the question.
Senator Lt.-Col. GOULD (New South Wales) [6.16]. - If the good sense of honorable senators is brought to bear upon this question,they will see that Senator Givens is entirely mistaken. He is endeavouring to do a just thing by means that will result in acts of injustice. There is a great difference between a design and a book. Senator Givens says that a man who has taken out a copyright for a design is entitled to the benefit derivable from it. I agree with him. But if a man chooses to put that design upon an article that goes into ordinary consumption, is it expected that every individual, before he buys the article, whether it be acarpet or anything else, will inquire whether the design has been pirated.
– It may be a shirt or an article of apparel.
– A lady’s corset, for instance. Such goods are the subject of designs.
.- If we could be assured that the article upon which the pirated design was placed would remain in the hands of the man who used the design, and who was thus attempting to commit a theft, the proposal would be perfectly right and just. But, seeing that the design may be put upon a valuable article which may be purchased by an innocent man, the clause is too far reaching, and would be utterly unjust in its operation. Suppose a man imprints a certain design upon the cover of a book, which is purchased by a perfectly innocent person. Surely we are not going to allow that book to be forfeited because the design, without the knowledge of the purchaser, was pirated. To do so would be to commit a monstrous injustice.
– I will give an illustration to show how far Senator Givens’ proposal would reach. A comparison has been instituted between the forfeiture of pirated literary productions, and of articles to which pirated designs are applied. In the case of a book or literary production the author who is enjoying the copyright has remedies againstanybody who unauthorizedly publishes that book in any form. The book represents the whole work of the author. The material on which the work is presented to the public is immaterial, so far as the author is concerned. It does not matter whether the book is printed in the simplest and cheapest form or in the most elaborate and expensive style. Its value lies in the literary matter contained in it. If literary copyright is of any value whatever, the value of a book consists in the literary work which it contains, and not in the material in which the book is presented to the public.
– If you take away the writer’s own genius from a book it is worthless; but if you take away a design from a carpet you still have the carpet.
– It is only the literary matter that gives the book its value. Buta design may be applied to an article which is valuable in itself. It is important to remember that this measure does not apply only to fabrics and to designs figured upon them. A man may, for instance, design a new inkstand. It may effect no improvement whatever in the way of utility upon inkstands already in use, but it may be novel in form, and the designer may wish to have the exclusive right in it for five years. Therefore he registers it. Somebody makes an inkstand in accordance with that design of very cheap metal; or a person may make quite a number of inkstands according to the same design without any intent to injure the proprietor of the design. He may make them from silver or gold. What relation in that case can the design bear to the actual material that is used in giving expression to it? Recollect that this amendment of Senator Givens’ is not confined to cases where a design is knowingly applied. Where a person knowingly infringes a patented design penalties are provided. But in this case the very fact that a man might apply a patented design, which may for all practical purposes be of no value whatever, to thousands of articles, each one of which might have a value utterly disproportionate to the value of the design, would make the proposal work most unjustly. There may be cases in which the design constitutes the principal value of the article. But my honorable friend’s amendment does not go that far. If the intention were to give legislative effect to the existing law in England there might be no objection to it.
– I am not concerned with the English law ; I am legislating for Australia.
– So am I, and so are we all. Senator Givens should recollect that he is not the only man in the Senate who is assisting in passing legislation for Australia.
– I do not want to have English law continually “ chucked” at me.
– Whether Senator Givens likes it or not, a law is none the worse for being the law of England. If the amendment provided that, on an application for an injunctions, the Court might in every instance where it thought fit order a forfeiture of goods to which a protected design was applied, and the Court was left to say how far the design gave value to the article, there might be something to be said for it.
– In some cases the Court goes so far as to order the forfeiture of a certain portion of an article bearing a design.
– The Court in England, when it deals with an application for an injunction under English designs legislation - which corresponds with ours in this regard - in nearly every instance orders the forfeiture of the articles in question. If, therefore, Senator Givens proposed that, on an application for an injunction, the Court might order the forfeiture of the particular articles, or of the means by which the design was applied to the articles, or of, either, or both, I should see no objection to it.But to set down in specific terms that in every instance, no matter what relation the design may have to the article to which it is applied, the goods are to be forfeited, is going too far altogether. The amendment would not simply apply to the application of some form or outline to fabrics, but also to the configuration and shape of articles of manufacture in respect of which a design would be applicable. To put in a provision of this character would, in my opinion, be to adopt means that would not merely be cumbersome for the protection of persons owning designs, but would in most instances work the greatest possible hardship, not only to the persons committing the offence, but to perfectly innocent persons.
Question - That clause 31 a proposed to be inserted be inserted - put. The Committee divided.
Majority … … 8
Question so resolved in the negative.
Clauses 32 to 40 agreed to.
Clause 41 (Governor-General may make regulations).
.- Until Senator Keating made his very clear and interesting statement this afternoon’ I did not know how important the question of classification was. It appears to me that this clause might very well give to the Governor-General precise power to make classifications applicable to the Bill as well as to prescribe the fees to be paid.
– I do not think that it is necessary.
Clause agreed to.
Clauses 42 to 44 agreed to.
Clause 45 -
Penalty, Five pounds.
– This afternoon I interjected that in my opinion£5 was a very small penalty to impose. Senator Symon pointed out that it was only to be inflicted upon a man for stating that a design was registered when it was not, but I observe that the words “ knowingly falsely represent “ are used in the clause. It appears to me that for a miximum a fine of£5 is a very small punishment to inflict upon , any one who has falsely done anything. It ought to be increased to£20.
– The penalty is provided to meet the case of a man for falsely applying a design to an article which would be sold to the public. So far as the amount of the penalty is concerned, I am entirely in the hands of the Committee. If my honorable friend wishes to increase. the amount he had better move in that direction.
Amendment (by Senator Dobson) agreed to-
That the word “Five “be left out, with a view to insert in lieu thereof the word “Twenty.”
Clause, as amended, agreed to.
Clauses 46 to 49 agreed to. ‘
– I move -
That the Bill be now read a second time. Perhaps it will be advisable for me to make some reference to what has been done since 1901 in the direction of enabling this Par liament to exercise its powers with regard to the subject of meteorology. By paragraph viii. of section 51 of the Constitution Act it is empowered to -
To make laws for the peace, order, and good government of the Commonwealth with respect to-
Astronomical and meteorological observations.
When the Commonwealth came into existence there was in this matter, as in many others which are referred to in that section, provisions of varying degrees of efficiency made in each State. In some States the meteorological work was conducted jointly with the astronomical work in the same premises and to some extent by the same officers. In New South Wales both classes of work were carried out at the Observatory in Sydney. ‘
– The Minister is not quite correct in saying that both classes of work were carried out by the same officers, because two staffs were maintained.
– To some extent the same officers were employed in doing much of the work there. In some States there are officers who do only astronomical work, and others who do only meteorological work. In Victoria both meteorological and astronomical work was carried out at the Observatory in Melbourne. In Queensland, on the other hand, the meteorological work was carried out under the super intendence of Mr. Wragge, who was conducting a weather bureau which, in its effects,and so far as its forecasts went, extended! beyond the limits of that State. The astronomical work was not being carried out at an Observatory. On the contrary it was, and still is, associated with the Survey Department. In South Australia the astronomical and meteorological work was being carried outby Sir Charles Todd, who for some time after the establishment of the Commonwealth was the Deputy Postmaster-General of that State. For some years in Western Australia the work in connexion with both meteorological and astronomical observations has been carried out at the Observatory in Perth by Mr. Cooke, who, I believe, is a very able and very efficient officer, and who for some time had a good deal of practical astronomical experience in South Australia under Sir Charles Todd. In Tasmania the work was being carried out at what was known as the Observatory in the Barracks Reserve in Hobart. There was really very little work of an astronomical character carried out there when compared with the work done at Sydney or Melbourne or Perth. Certain meteorological work was carried out in Hobart, as it still is, by Mr. Kingsmill in a manner which, considering all the means at his disposal, I think my fellow senators from Tasmania will agree with me, reflects great credit upon him. These institutions did not all come into being simultaneously. For some years the larger States were carrying out astronomical or meteorological work. From time to time there have been Intercolonial Conferences, having for their object the consideration of the desirableness of securing co-operative or joint action in these matters, and also the best means to be adopted for carrying out united action throughout the States. The first of these Conferences was held at Sydney in 1879. Two Conferences have since been held at Melbourne, namely, one in 1881,. and the other in 1888. More recently a Conference of meteorologists, in the light of their knowledge of recent political developments, was assembled at Adelaide. I do not propose to enter into a consideration of the work which was done at each Conference, but to- briefly sketch, the development of what I may term the Australasian method of dealing with matters of meteorology as compared with the single State method. At a Conference held in Sydney in 1879, New South Wales, Victoria, South Australia, and New Zealand were represented, the missing Colonies being Western- Australia, Queensland, and Tasmania. It was considered by that Conference that it was desirable to secure the co-operation of New Zealand and Tasmania in a system of supplying weather telegrams then in existence as between South Australia, Victoria, New South Wales, and Queensland, the only Colonies that were not taking part in the system being Western Australia, Tasmania, and New Zealand. It was felt that New Zealand and Tasmania should supply, in conjunction with the other Colonies, the weather telegrams, on the basis on which they were being supplied as between the four eastern Colonies, and it was also recommended that a meteorological station should be established at Mount Wellington. I do not suppose it to be necessary for me to inform any honorable senator of the situation of that mountain. Two years later another Conference took place in Melbourne, and the organization outlined in 1879, vague and imperfect as it was, was then furthered.
As an outcome of that, the Governments of Tasmania, Queensland, and Western Australia appointed meteorologists to cooperate with those of the other Colonies in carrying out the bare scheme of organization that had been evolved from the two conferences of 1879 and 1881. Nothing further in the way of an intercolonial discussion of this matter took place until 1888. In that year another Conference was held in Melbourne. All the States were represented, Western Australia being represented bv Sir John Forrest, Queensland bv Mr. Wragge, and Tasmania by its then Government Meteorologist, Captain Short. Steps were taken at that Conference to perfect the then existing intercolonial system of supplying weather news in order that reliable State forecasts might be made ; but one of the principles insisted upon was that each State Meteorological Department should confine itself to the providing of forecasts for its own State. A resolution having that for its object was moved by Sir John Forrest, and if my memory of the report of the proceedings serves me correctly, was seconded by the representative of New Zealand, and carried. Notwithstanding the passing of that resolution, the representative of Queensland at that Conference, Mr. Wragge - who, I suppose, dissented from it - subsequently showed hiss practical dissent by proceeding’ in the light of the information supplied to him from the other Colonies, to issue forecasts of the weather, not only in respect of the Colony of Queensland, in which he was located, but for the whole of the Australian Colonies. Another Conference took place at Adelaide, in 1905, but I shall not refer at this stage to what was done at it, since it would interrupt the ordinary course in which we should consider the development of this study in Australia, as an Australian, as opposed to a State or separate Colony matter. As I have said, Mr. Wragge, ignoring or disregarding the resolution passed at the Melbourne Conference in r888, issued forecasts, not only for his own State, but for the whole of Australia. In 1902. in view of the fact that the Post and Telegraph Rates Bill was before this Parliament, and that it made no special provision for the transmission of meteorological1 telegrams free of charge, or at a reduced rate, Mr. Wragge’ s position, as one who was forecasting the weather for the whole of Australia, was considerably affected. The Queensland Government recognised at once that the additional cost that was to be imposed upon the administration of that Department bv reason of the operation of the Post and Telegraph Rates Act, would render it impossible for Mr. Wragge to continue his work as efficiently as- he had done previously, unless the Commonwealth Government assumed the responsibility of carrying on his work, or the remaining States of the Commonwealth contributed something towards the cost of the maintenance of his Chief Weather Bureau. Negotiations were entered into between the Queensland Government and the Government of the Commonwealth, but. for a variety of reasons, it was impossible for ‘the Commonwealth Government to take over the Queensland Meteorological Department, and to leave the others. One very strong reason was that the assumption of the control of the Meteorological Departments of the States is not, under the Constitution, similar to the assumption by the Commonwealth of the control of either the Post and1 Telegraph, the Customs, or the Defence, Department. Under the Constitution, the Customs Department went over to the Commonwealth, immediately upon it’s establishment on ist January, 1901, whilst provision was made for taking over the Defence Department, and the Post and Telegraph Department, on dates to be fixed by proclamation. But with regard to the Meterological Department, and many others in respect of which the Commonwealth has powers, the exercise of these powers must be preceded by legislation. Section 51 of the Constitution provides that the Parliament of tha Commonwealth may make laws for the peace, order, and good government of the Commonwealth with respect to various matters. That means legislation is a condition - unless the Constitution otherwise provides - antecedent to the acquisition or assumption of the obligations of important States Departments affecting any of these subjects. Considerable correspondence passed between the Queensland Government and that of the Commonwealth - a much greater volume than that to which I should like to invite the attention of honorable senators. I think I have waded through the whole of it;, and, although I may know a good deal about it, I dare say I have forgotten a. great deal more, notwithstanding that I read it only recently. In addition to the correspondence which passed between the Government of Queensland and that of the Commonwealth, a number qf representations were made to the latter from outside bodies’. Chambers of Commerce throughout the whole of Queensland represented in the very strongest and most emphatic terms, the desirableness of the maintenance, at all costs, of Mr. Wragge’s Chief Weather Bureau. Not only did these representations come from Queensland ; New South Wales also furnished its quota. I think that the Chamber of Commerce in Sydney, and other organizations that had derived’ much benefit and value from the daily forecasts published by Mr. Wragge-
– Agricultural societies.
– And also agricultural and pastoral societies in New South Wales and Queensland, made strong and emphatic representations in respect of the request of the Queensland Government, that Mr. Wragge’s services1 be not lost to Australia. In the case of Tasmania, where Mr. Wragge’s daily forecasts were also published, no official representations were made by the State Government, nor, so far as I recollect, by any local’ organization ; but there were representations from private individuals who were entitled to speak with, a certain measure of authority. I can say, from my own knowledge, that in that State much advantage was derived from these forecasts by persons following avocations connected with the soil. Perhaps still yet greater advantage was reaped by those following seafaring pursuits. As an illustration of some of the advantages that were derived by persons in that State alone, I propose to quote a very succinct letter that appeared in the Hobart Mercury, about the time that Mr. Wragge’s services were likely to be lost:. I quote this letter, because the writer appended his name, and because I am acquainted with his name, and know that he is very well known iin the southern part of Tasmania.
– Does the honorable and learned senator know the paper?
– The writer chose the medium for the expression of his views. The gentleman iin question is Mr. Harold S. R. Wright. I think Senator Dobson knows him; he is, indeed, well known throughout Southern Tasmania, and his letter is an eloquent tribute to the value of Mr. Wragge’s work. It reads as follows: -
Sit, - I noticed some days, ago that Mr.
Wragge had notified that unless and until payment was arranged for, no further forecasts of the weather would be forthcoming.
On making inquiries, I find that the sum required is£200 -
I presume that that would have been Tasmania’s contribution - which I trust will be at once granted, and the forecasts resumed. Apart from their undoubted value to sailors and ships, I have much pleasure intestifying to their great value to me as a tiller of the soil, as I have been able to so arrange my work, and escape the effects of the approaching tempest of wind or rain.
I trust that if others, with like experience in other localities, were also to give their testimony without delay, the hands, of the Minister would be so strengthened that he would authorize the expenditure,and so retain to us the great benefits that accrue from the publication of Wragge’s forecasts.
This is the experience of a man expert in his calling, and who has occupied responsible local government positions in the south of Tasmania. The letter is short and pithy, and is a very eloquent tribute to the work that was done by Mr. Wragge, and which might be done by the Commonwealth Meteorological Department for the benefit of people connected with the soil. A few days later - on the 30th August - there appeared in the same newspaper a letter signed “ W. McS.” As the address “Black Brush,” is. given, I think that I, andprobably Senator Dobson, can locate the writer. The letter was as follows : -
To the Editor of the Mercury.
Sir. - I read with pleasure Mr. Wragge’s letter in Saturday’s Mercury under the above heading, and can fully bear him out in what he says. To place the whole thing in a nutshell, I will give just one instance of my experience in reference thereto. Last season I was preparing to cut my crop of English barley, when The Mercury arrived containing a forecast that a storm was approaching, and would affect Tasmania in about four days. Through this I decided to wait, although at the time the weather was seasonable, and no sign of any break to the casual observer. A little after the time stated in the forecast the storm made its appearance, and lasted a considerable time, for in waiting for it to come and pass away it was fourteen days beforeI cut the barley; but I am pleased to say I then harvested it without a shower, consequently I was enabled to submit a bright sample, and obtain a satisfactory price. I am of opinion that these forecasts should be continued, and if it must be done by private subscriptions, I will willingly give my share.
These are only instances of individual tributes to the value of the work done in connexionwith what we may call a, national system of meteorology.
– And they could be multiplied a hundred times over.
– That is so. I have, in addition, ample material to indi cate tributes paid to a national system by organized investigation, if I may so term it - investigation by people who, as societies and other bodies have considered, carefully weighed, and analyzed the work done and the results obtained. Of course, one may look, in. some instances, for exaggeration in matters of this kind. But I have here an extract from an article by Mr. F. H. Bigelow, Professor of Meteorology, published in the Y ear-Book of Agriculture of the United States, for 1899. I may say the Meteorological Department is allied in the United States with the Department of Agriculture. In that article Mr. Bigelow says: - .
For some years the view prevailed that a local observer could forecast better for his immediate district than the national official at the central office, but after an extensive trial, it was found that the Washington City forecasts verified 4 or 5 per cent. better than the local forecasts, and the local system was therefore abandoned. It is difficult to obtain any very exact account of the actual saving of property to the public as ‘he result of these storm warnings, but it is everywhere agreed that it amounts annually to a very large sum. The direct cost of the weather service to the people has for several years been less than $1,000,000 annually, and those in the best position to judge believe that the salvagesalone would cover the expense of the work. This is quite independent of the many advantages accruing to our civilization, from the agencies above described for serving the public in an agricultural, commercial, and educationalway The Committees of Congress, whichare charged, with inspecting the money value of the estimates, are in many instances ready to recommend the appropriation of more money than even the chief of the Bureau or the Secretary of Agri culture asks for. Another fact is that therehas been a steady natural growth in the operations, and in satisfying the legitimate needs ofthe public, so that the people see for themselves the practical advantages of this great scientific work.
That is an article from a man occupying a responsible position. Here I may pause to say that the work done in the United States is on a very huge scale, altogether out of proportion to that which we can expect to do in Australia. Professor Bigelow says thatthe work has so demonstrated its value to the public that theCommittee of Congress charged with the examination of accounts have constantly recommended that, more money be provided than was asked for by the heads of the Agricultural Department. The magazine called The Century, of January, 1905, contains an article headed “ Our heralds of Storm and Flood,” by Gilbert H. Grosvener. A portion of the article is headed, “ A Dividend of Two
Thousand per cent.,’1 and that naturally attracts the attention of even the casual reader. On perusing the article, we find how the dividend is accounted for, as follows : -
Probably nii-er.y-n.me men in one hundred judge the weather bureau by the weather forecasts which they read at the breakfast table in the ‘morning paper. They execrate and ridicule the .service when they are caught at .heir office ot at the theatre unprepared for an unheralded shower, and, as likely as not, unhesitatingly assume to themselves the credit when the forecast is right. Will it be fair or will it be rain? How hot or how cold has it been to-day? They believe the weather bureau was created to answer these questions correctly, and always correctly for their personal gratification. They do not know that Mie local weather forecasts are only a fraction of the work, and a very small and unimportant fraction at that.
Some time ago a sceptical insurance company determined to investigate the amount of property saved in one year by the warnings of the weather bureau. It was a company of conservative men, whose estimate would be under rather than above the truth, but it found that on an average the people of the United States saved every year $30,000,000 because of their weather service. As the people contributed $1,500,000 every year to its support, this means that they get annually a dividend of two thousand per cent, on the investment. An investment in which the original ca.pita.1 is paid back twenty times over in twelve months is extraordinarily profitable, and well worth investigation. How does the Weather Bureau do it?
The writer goes on to ‘illustrate his article by giving single instances of the work done year by year. I have here one of Che reports of the United States Department of Agriculture - the report of the Chief Weather Bureau for 1902-3 - and I might give some illustrations of the general way in which, the work of that Department has been appreciated. This matter is of great importance in a -country like Australia, which is so largely dependent for its prosperity on a foreknowledge of probable seasons, and some of the greatest resources of which lie in its pastoral and agricultural possibilities.
The following comment was made by the New Orleans .Times Democrat of 28th November, 1902, on the warnings issued for the Gulf district, the only section east of the Pacific coast States in which agricultural products were endangered by frost.
This is the comment -
The warnings sent out on Wednesday morning were timely for all parts of this extensive district. Freezing weather occurred over Arkansas, Oklahoma, and northwest Texas. Heavy frosts occurred over the interior of Texas, and frost occurred generally over Southern Texas, and all of Louisiana. Frost was in evidence in New Orleans, and on the outskirts was quite heavy.
The warnings of these severe conditions were issued by the weather bureau well in advance) and all business interests were prepared for the frosts and freezing.
I have also extracted from the Galveston Herald, of 4th December, 1902, this statement in regard to a cold wave warning .: -
Last winter the weather bureau saved manythousand dollars to the farmers and truck growers of South Texas by timely warnings of heavy freezes, and yesterday morning, when the warnings were telegraphed and telephoned1 to points of interest, no time was lost in getting the tender vegetation under cover. The weather bureau’s notice was practically two days in advance, because the coldest period is expected tonight and early Friday morning. When Sugarland was communicated with, the sugar mills were shut down at once, and all hands took to the “ tall canefields,” to use a common saying. It was reported that several hundred men were in the field cutting sugar cane and wind-rowing in an hour after the weather bulletin was received. The army of cutters was being rapidly reinforced, and it is expected that several hundred acres of cane will have been cut and stretched on the ground by to-night. A heavy freeze with the cane standing would play havoc, and would mean the loss of perhaps thousands of dollars.
There are equally complimentary references, to the work of the Weather Bureau in the Sugar Planters’ Journal, of New Orleans, for 20th December, 1902, and in the Tampa Herald, of Florida, of 37th December of the same year. In the latter newspaper the following short reference appears: - . “ Heaving and damaging frosts to-night,” was. the .brief warning sent out over this section of the State yesterday by the local weather observer, but the warning, despite its brevity, was. effective, and doubtless saved thousands of dollars to the planters, especially those who own large “ pineries,” as the cold wave that struck the State was sufficient to greatly injure the “ pines.”
Apart from the newspapers, many extracts from which I could quote as to the value to farmers, agriculturists, and pastoralists generally, of weather forecasts, a very eloquent tribute is paid by the manager or president of the United Telephone Company, Bellefontaines, Ohio, in a letter under date of 26th December, 1902, addressed to Mr. C. L. Lane, Weather Bureau displayman at Bellefontaine : -
Our telephone company desires to express in writing its appreciation of the cold wave warning given by you to our Superintendent on Wednesday last. We have 5° stations in our system, which extends throughout this’ and adjoining counties, and this news was immediately telephoned to each station, with instructions to circulate the information there. In our system are a great many .farmer subscribers, and this news was given” to each farmer. We take pleasure in telling you that it was appreciated a great deal more than can be expressed here. We shall be pleased indeed to communicate to our patrons throughout our system any like information that comes to you in your position as voluntary observer of the United States Weather Bureau in. our city, and weshall always be glad to render you any assistance at any time within our power.
At the beginning of the report of the Weather Bureau there appear quite a number of instances in which appreciation is shown of the work done. A short appreciation appears in the Boston Globe of 18th February, as follows: -
The biggest storm that Boston has seen for at least five years ceased yesterday, although its effects will be felt for several days yet. The storm was heralded by the Weather Bureau Sunday night. This gave sea captains more than eighteen hours’ notice, and doubtless saved many vessels and lives.
In connexion with meteorology as a national subject in Australia - if I may use the term to distinguish Commonwealth administration from States administration - since the Queensland Government communicated with the Commonwealth Government in the manner I have just stated, there has been correspondence with the several States with the object of ascertaining their views and wishes with regard to the assumption of the Astronomical and Meteorological Departments, or either of them, by the Commonwealth. In the endeavour to ascertain the wishes and views of the States, the Commonwealth has met with some difficulty - not, I was going to say, a common, but an unusual difficulty. In the first place, we had the views expressed by the States Governments varying. The Government of -Tasmania, under Sir Elliott Lewis, approved of the proposed transfer, but, subsequently, that Government, under the present Premier; disapproved of the establishment of any Federal Meteorological Department. In other cases we have a State Government approving of a transfer, while their officers hold divergent views.
– Does the Minister object to state the attitude of the various States ?
– I have no objection ; I think it only fair that honorable senators should have that information. In some cases the States Governments ask that both Departments should be transferred, while their officers say that that is not the correct procedure to follow. The communications, so far, have had the following results: - From the New South Wales Government a communication was received on the 7th October,1905.
– Tell us what communication was sent to the States Governments.
– Does the honor- . able senator desire me toread the whole of the correspondence ? The States Governments were simply asked their views in regard to the Commonwealth assuming control of the Astronomical and Meteorological Departments. On the 22nd August that communication, which was a circular letter, was acknowledged, and a reply was pro mised. On the 7th of the following October the New South Wales Government indicated that it would convey its views as early as possible. Since then there has been no direct official communication of the views of the New South Wales Government. But subsequently to that the Premiers’ Conference was held, and a resolution was passed to which I will refer directly. From Victoria replies were received on the 20th September, 1905, and on the 30th March, 1906, to the effect that the Government of Victoria did not see its way to transfer any part of its astronomical and meteorological institutions. From Queensland, on the 19th October, 1905, an intimation was received that there would be no objection on the part of that Government to the transfer of the State Meteorological Department to the Commonwealth, provided the land, buildings, &c, were also taken over by the Commonwealth. South Australia, on the 22nd March, 1906, simply indicated that its Government was opposed to the establishment of a Federal Meteorological Department. Western Australia, on the 20th March, 1905,. stated that its Government was of opinion that both the Astronomical and Meteorological Departments should be under the control of the Commonwealth. Tasmania, on the 25th August, 1905, acknowledged the letter, and on the 22nd March of this year a further reply was received intimating that the Government of that State was opposed to the establishment of a Federal Meteorological Department.
– Did it give any reasons ?
– No.. As I said before, these communications all have to be read in conjunction with the resolutions arrived at by the last Conference of meteorologists in 1905, and with the attitude displayed at other times, eitherby the Premiers, the officers of the departments, or by previous Governments of the States. So far as Tasmania is concerned, when Sir
Elliott Lewis was Premier, his Government approved of the transfer of the department to the Commonwealth. Not only did it approve, but the correspondence indicates that it thought that in connexion with the Tasmanian portion, the expenditure should be annually about?707 10s., instead of something like?200 odd, as at present. The existing Tasmanian Government, as 1 have said, on the 22nd March, 1906, expressed its opposition to the establishment of a Federal Meteorological Department. Since then the Premiers’ Conference was held. The Premier of Tasmania attended. The Conference passed a resolution approving of the transfer of both the Meteorological and Astronomical Departments to the Commonwealth. I am not prepared to say whether that resolution was unanimously carried. We may take it, I think, that New South Wales” is content to rest upon the resolution passed by the Premier’s Conference.
-When the Premiers’ Conference passed the resolution in favour of taking over both departments, did that mean both or neither? The Bill only provides for one.
– This Bill only provides for a Meteorological Department. Perhaps I may here introduce a quotation from the report of the Premiers’ Conference, page 150. The President is reported -
– The Federal Government wish to take over the Meteorological Department and leave the Astronomical Department behind. I do not want that. The Federal Government say that some of the other States are in favour of retaining the Astronomical Branch.
Mr. Price. The two things are so near to each other that if they were separated there would be a duplication of departments. I think the Commonwealth ought to take both.
– Whoever has meteorology ought to have astronomy - the two things go together.
Mr. Bent. Yes, that is carried.
Resolved. - “ That the Astronomical and Meteorological Departments be transferred to the Commonwealth together-“
– That answers my question.
– That is so.
– Was there no dissent?
– No dissent is reported.
– Why confine the Bill to the Meteorological, Department? There is no harm in taking full powers.
– I am dealing with these matters in chronological order as far as I can. I have deviated only in order that honorable senators may appreciate thoroughly what has taken place. This is an enabling Bill, and it is a very small one, but honorable senators should be put in possession of all the facts. I propose not to omit a reference to the matter to which Senator Best has just referred, but I will deal with it when I have finished! with the views of the different States. Tasmania apparently has registered no dissent from the resolution of the Premiers’ Conference. Her communication, the effect of which ‘[ have indicated, is dated the 22nd March, 1906, and the Conference was held in April.
– Has the Tasmanian Parliament been sitting since then?
– It is sitting this week, I think. The communication of the Western Australian Government is in conformity with the resolution of the Premiers’ Conference ; and although the communication of the Government of South Australia is opposed to the suggestion for the establishment of a Commonwealth Meteorological Department, apparently since then South Australia has agreed with the other States that the two departments should be taken over. In Queensland the objection was not to the transfer of the Meteorological Department, provided the land and buildings were taken over; but the Queensland people are opposed to the transfer to the Commonwealth of their Astronomical Department, which isnot worked in conjunction with their Meteorological Department. It is attached to and associated with the Survey Department of the State, and the Survevor-General of Queensland is the responsible officer for dealing with astronomical matters. Victoria, according to the statement of Mr. Bent, is willing that both departments shall be transferred, and New South Wales has not given anyexpress direct reply to the communications of the Commonwealth, but has apparentlyjoined in with the opinions of the Premiers’ Conference that the two departments or none should be transferred. In Victoria, successive Governments have been in ‘power when this question has been considered. Since the communications were enteredupon with the Federal Government, Sir Alexander Peacock was in power at onetime: later on Mr. Irvine succeeded him; and still later Mr Bent has been Premier. While these communications were proceed- ing, the Federal Government asked that the Government of Victoria should call for a report upon the transfer of the Astronomical and Meteorological Departments to the Commonwealth. A report was obtained from the visitors to the Melbourne Observatory, who consist of a number of representative and scientific men, all of whom are men of attainments. They have gone very carefully into this matter, and have submitted a report which has been published as a parliamentary paper in the State of Victoria.
– Are they a special set of visitors ?
– They are. They consist of Professor Lyle, Mr, R. J. Ellery, Professor Kernot, Mr. Theodore Fink, Sir Alexander Peacock, Mr. .T. M. Reid, Captain F. Tickell, and Sir Henry Wrixon. That report is a very important document as bearing upon this matter, because it is signed by men who are quite capable of dealing with it in the best interests of the administration of both departments. They reported to the Chief Secretary of Victoria on the 28th January, 1902, as follows: -
The Melbourne Observatory has, in addition to its legitimate work of astronomical observations and research, time service, chronometer rating, tidal registration, and other public requirements allied to astronomy, carried on many other branches of scientific investigation, the principal of which are terrestrial magnetism, seismography, gravitation, and meteorology. No serious objections can be urged against any of these additional undertakings, excepting’ meteorology. Meteorology, which consists mainly in the weather service, is no part of the legitimate function of an Astronomical Observatory, and its association with astronomy interferes with the advancement of the latter. This fact is fully recognised in Europe, America, and in other countries where national weather services are conducted by separate organizations, which are in no way connected with Astronomical Observatories. In them one central bureau receives the reports from all stations, classifies and tabulates the observations, give out weather forecasts for the whole country, and otherwise has complete control of the national meteorological work. Hitherto the conti 01 of the Victorian weather service has been unavoidably enforced on the Melbourne Observatory by State reasons of expediency and economy. But, as the weather services of the various States could be carried on in a much more efficient manner if placed under the control of a Central Weather Bureau, devoted entirely to the meteorological interests of the whole Commonwealth, the opportunity now offered of separating meteorology from astronomy should not be lost. We therefore recommend. - 1st. That all meteorological work at present conducted by the Astronomical Observatories of Australia be placed under a Federal Bureau, which should preferably be located in the Federal city, and controlled by a meteorologist of high standing. On the other hand, when we consider the Observatories as purely astronomical institutions, devoted solely to astronomical observations and research, and those demands of the State Government or the public that are germane to astronomy, we think that nothing would be gained either in efficiency or in economy by bringing them under one Federal control. The standing in the astronomical world of the men who at present direct the leadingObservatories of Australia is such, and that of their successors should be such, that they should have a perfectly free hand to conduct whatever investigation or research they may consider appropriate to their individual resources andability in advancing astronomical knowledge. We know of no observatory of which the director has not complete control of the astronomical work. Local considerations also impel us to strongly favour the continuance of the independence of the Melbourne Observatory. It has gained a high reputation by means of the valuable work that has been carried on in it. It has been liberally supported by the Government of Victoria, and has grown into an institution peculiarly creditable to the State. Its equipment is very valuable, and compares well with that of many European Observatories. Its position in the Southern Hemisphere is unique, it being the most southern observatory in the world. In it have been kept for 40 years continuous records day and night of terrestrial magnetism, which are of immense scientific value. Considering these things, we think it would be a matter of deep regret if our Melbourne Observatory were to be deprived of its individuality, and have the high reputation, it has gained over a long period of years merged in some large organization or department comprising all the observatories of Australia. We therefore recommend - and. That the Astronomical Observatories of Australia, relieved of all their present meteorological duties, remain independent State institutions.
That is a calm, cool, dispassionate opinion from men who are capable of appreciating the value and importance of the work doneby these two branches, astronomical and. meteorological. The report was furnished,, we may be quite sure, after’ the most careful consideration, and we mav rely upon it that it was not affected by any questions of political or party expediency.
– And it was disregarded by the Premiers.
– It may not have been read bv them.
– If disregarded by them it is affirmed by every competent man throughout the civilized world.
– The report affirms that it is desirable that the meteorological work should be severed from the astronomical work, and .that the former should bc placed under one Federal control, and recommends that the astronomical work should remain with the States as heretofore. There may be a division of opinion as to whether that latter work should be federalized or not.
– It is most difficult to understand why it should affect its efficiency.
– A certain amount of State or personal pride may be taken in the work which has been done heretofore, and there may be an indisposition on the part of many persons to forego for the States the peculiar advantages enjoyed from being in advance in this particular department of science and investigation. It may be felt that loss would result if federalized with less up-to-date observatories. There can be no question, however, that it is in the interests of meteorology in Australia, and of the great number of persons in every walk of life to whom an up-to-date meteorological service is of value, that the Meteorological Department of Australia should be a Federal Department. There may be a considerable diversity of view amongst persons who are competent to form opinions as to what particular system of organization should be adopted for working a Federal Meteorological Department. There may be many different opinions held as to the nature and classification of the particular branches of work which should be allotted to different parts of that organization. But I think that cold and calm investigation will reveal the fact that if we are to have in Australia an effective and up-to-date system of meteorology we must adopt asystem something akin to that which exists in the United States, although not on such a large scale, in Canada, and in India. The State views we have on these matters are of course the views of the States Governments. Some of the views I have referred to have been communicated by correspondence. One Government, as in the case of Tasmania, has gone directly counter to the opinion expressed by a previous Government. Again, we have the conflict of opinion between the States Governments on the one hand and the permanent officers on the other. Then we have the conflict of opinion between the Government of Victoria and the Board of Visitors to the Melbourne Obseivatory. I think it will be interesting to honorable senators to know what was done at the Adelaide Conference of 1905. The recommendations were dissented from in some paticulars by Mr. Baracchi, the Government Astronomer of Victoria, and he in his dissent emphasized the views which are put forward by the Board of Visitors to the Melbourne Observatory as regards the necessity for an absolute divorcement of meteorology from astronomy in the interests of both departments of science and investigation. But when I read the report, it will be seen by honorable senators that, although the result of the conference was to disapprove of the establishment of a Meteorological Bureau for the Commonwealth, there was no doubt in the minds of all present that something like Federal or organized action throughout the Commonwealth was essential to the success of the Meteorological Department in each State. The Conference . sat in May, 1905. In their reportthey deal first of all with matters astronomical. They say -
The work at present undertaken by the Australian Observatories is that which is most required, and represents a minimum programme. It may be conveniently considered under two aspects.
I do not know that there is anything under the head of “ Astronomical “ with which I need deal. It relates largely to instruments, observations, manuscripts, and records, and, amongst other things, it recommends -
That absolute and self-recording magnetic instruments be provided for the Sydney, Perth, and Hobart Observatories, and that a Milne seismograph be mounted at Adelaide, Port Darwin, and Hobart.
Under the head of “ Meteorological “ the report says -
The establishment of one central meteorological bureau to supplant existing institutions, and to singlycarry out the Australian weather services, is, in our opinion, impracticable, for the following reasons : -
Three essentials of an efficient weather service are -
Rapid distribution of daily reports and forecasts.
Reliable weather forecasts.
Under existing conditions, this is provided for by expert criticism immediately the observations are reported at the central State institution. In cases of suspected error, the observer is at once instructed by telegraph to repeat his reading. At present this is done promptly, and the reading is checked and amended. If, however, the control were removed to a central bureau at a great distancefrom the observing stations, this check would be often rendered useless by delay. Moreover, at present, each State Observatory is provided with a complete set of standard instruments, exposed under favorable conditions. It is, therefore, in a far better position than a central bureau to standardize the instruments at out-stations.
The very earliest information as to present and probable future weather is necessary in the interests of the public, especially those connected with the shipping industries. This is considered so important that recommendations are made by this conference whereby this branch of the service may be improved. If, however, the present methods were discontinued, and the work undertaken by a central bureau, it would lead to an increase in the number of telegrams, and a decrease in efficiency so serious as to deprive the forecasts of most of their value at places remote from the distributing centre.
At the Intercolonial Meteorological Conference, held in Melbourne in1888, the following resolution was carried : - “ No meteorological forecast or prediction made in one colony, and having reference to any other colony, shall be communicated by telegram to any other person or destination than the meteorologist of the colony to which such prediction refers.”
Mr. Wragge dissented, and, ignoring this decision, the Queensland Meteorological Department continued its practice of issuing forecasts not only for its own colony, but for ail the colonies now forming the Commonwealth.
In order to see how far these forecasts were fulfilled, a strict record was kept at the Adelaide Observatory for a period of over twelve years (1891-1902), of the local forecasts, and those issued by Brisbane. These were compared with the actual weather conditions during the ensuing twenty-four hours, or the period covered by the respective predictions, with the following results : -
I do not propose to read the results in detail. It is sufficient for my purpose to mention that it is stated that of the forecasts issued from the Adelaide Observatory in that period 83 per cent. were correct, and 17 per cent. were either partially or wholly wrong, while of Mr. Wragge’s forecasts for South Australia 62 per cent, were correct, and 38 per cent. were either partially or wholly wrong.
– How could they judge fairly, seeing that his forecasts would be of a more general character?
– Was that return checked by Mr. Wragge?
– No; it was prepared by the man at Adelaide.
– I presume that the figures would be fairly correct.
– I do not think that the officer would be unfair.
– Taking the figures as fair, it is not an argument either one way or the other.
– No, but in any case, I think it is better that honorable senators should have the views of the Adelaide Conference laid before them.
– It is an argument against the establishment of one central bureau.
– It may be an argument against the particular official who issued the forecast, and not against the system itself.
– That is the very point I referred to just now. With regard to the question of one administration of the matter, I think there is practical unanimity ; but with regard to organization and details of administration there may be room for great difference of opinion. The report proceeds -
It is, however, highly desirable that a central institution should be established for theoretical and scientific meteorology, where the observations for the whole of Australia should be collected, discussed, and published, and where all the higher problems of meteorological science may be investigated, but such institution should have nothing to do with the daily weather service and issue of forecasts.
There is an affirmation of my statement that there is practical unanimity on the part of those who are competent to judge, that the matter of meteorology should be federalized, but that the details’ of administration and the particular methods of organization are matters which form a very wide field for speculation and controversy.
– And which this Bill by no means settles.
– No, and desirably so, I think, as I shall point out presently. The report continues -
The above reasons, and others arising from a consideration of the requirements of the Australian weather service, lead us to make the following recommendations : -
To that paragraph” there is a note stating that Mr. Baracchi dissented, and referring the reader to Appendix A. He did not dissent from a proposal that he should not be the Meteorologist in Victoria, but be dissented from the recommendation that the Government astronomers in the other States should do this work. He was of opinion that it was a matter which should be separately dealt with.
– That the Government Astronomer should be relieved from that work?
– Who represented New South Wales at the Conference?
- Mr. H. E. Lenehan, Acting Government Astronomer.
– The officer in charge of astronomical work, and not the officer in charge of meteorological work.
Queensland’s position now is very different from what it was some years ago. In Tasmania very little provision is made upon the Estimates’ for carrying out this work, which, nevertheless, has been carried out there excellently by Mr. Kingsmill.
No matter how desirable they might be, these are proposals which would be difficult to carry out as long as the departments remained under separate State control -
From that recommendation Mr. Baracchi dissented, and gave his reasons.
– Because the work was not to be done in Melbourne.
– I do not think that was the reason. He was. of opinion that the work should not be done. Mr. Baracchi’s views on these questions are to be found in an appendix to the report. They are as follow: -
On the question of Federalizing the Australian Observatories now being discussed at this Conference, the Board of Visitors of the Melbourne Observatory has, for reasons set forth in its thirty-seventh report, recommended -
Then come the two recommendations I have read. He continues : -
I fully concur in the above recommendations as the course which, in my opinion, is most suitable to serve the best interests of both meteorology and astronomy.
But as a great diversity exists in the character and administration of the institutions concerned, it becomes necessary to fully consider the practicabilityof the above recommendations. In the following remarks I propose to point out how these recommendations could be carried out : -
The Federal Government is empowered, but not necessarily bound, to take over those Departments which carry on -
This involves three probable cases, namely : -
As tothe first case - that the State weather services be taken over, and that the astronomical service be left to the States, Mr. Baracchi says -
Under this regime the main difficulties arise in regard to the Observatories at Perth and at Adelaide, where local conditions, interests, and opinions are against the divorcement of meteorology and astronomy ; but an adjustment can bo made to permit the weather services alone to be transferred to the Commonwealth, leaving the astronomical under State control, as at present. For this purpose I recommend -
That a Central Weather Bureau should be created, and eventually located in the Federal Capital, with a new and specially qualified man at its head.
In each State capitalthere should be a weather office, with a chief, to be styled the “ State Meteorologist,” subject to the control of the Central Weather Bureau.
The duties of the Central Weather Bureau should be the general administration of the whole weather service of the Commonwealth, the preparation and publication of all meteorological statistics and results, the investigation of all problems connected with the meteorology of the Commonwealth as a whole, and with the progress of meteorology as a science.
In the weather office of each State capital the State Meteorologist should issue the daily forecast for his own State, and that State only, deal with all local questions, distribute timely information, and serve local interests under the regulation of the Central Bureau.
He then sets out what he thinks should be the work undertaken in each State, but as these are matters of detail, the consideration of which is not involved in the question of the control of the Meteorological Department, I shall not read them all. He mentions, incidentally, that -
The Weather Office of the State of New South Wales should be located at Sydney, but quite apart from the Astronomical Observatory, and the director of the latter should be entirely relieved of any control whatever over the former.
The Victorian Weather Office should be at Melbourne, but separated from, and independent of, the Melbourne Observatory, which should have no duties whatever in connexion with the weather service.
The South Australian Weather Office could, on account of the reasons given earlier, remain, as at present, at the Adelaide Observatory, in charge of the Government Astronomer.
The Western Australian Weather Office could, for the same reasons, also remain, as at present, at the Perth Observatory, under the direction and control of the Government Astronomer. In both cases, however, the above arrangement is, in my opinion, and in that of my Board, against the best interest of astronomy and meteorology.
Under this proposal, the Government Astronomer of South Australia would act in two capacities. In the one case, as Astronomer, he would be a State servant.
– Not now.
– But under Mr. Baracchi’s proposal he would occupy two positions. As Astronomer he would be a State servant, and as the Chief Weather Officer he would be a Federal servant. The same remark would apply to the Government Astronomer of Western Australia. With regard to Queensland and Tasmania, the officers would be purely Federal. In Queensland the Astronomical Department is administered by the Survey Department, whilst in Tasmania the astronomical work may practically be put down at nil. Mr. Baracchi continues : -
Under the above arrangement the Astronomical Observatories at Sydney and Melbourne would remain purely astronomical institutions, maintained by their respective States.
The Hobart and the Queensland Weather Offices would be entirely Federal institutions, dependent on the Central Weather Bureau.
The Brisbane Astronomical Observatory would remain an independent establishment of the Queensland Survey office, under the sole control of the Chief Surveyor.
The Astronomical Observatories at Adelaide and Perth would still be State institutions, but their directors would also take charge of the weather offices of their respective States, and in the latter capacity would come under the control of the Federal Weather Bureau. The adjustment of this apparent anomaly could be arranged by the directors remaining State officers, and the Federal Government paying a proportionate part of their salaries, the salaries of the meteorological assistants, and a proportionate part of the cost of the maintenance, &c, of the office.
That is in the case of the taking over, of the Meteorological Department alone. Mr. Baracchi deals much more briefly with the second case - the proposal to take over both departments. He writes with regard to these -
In this case the Observatories of Sydney, Melbourne, Adelaide, and Perth would come under the Commonwealth in their total capacity, and the time service of Brisbane and Hobart would also become Federal work.
Should this course be decided upon by the Government, I recommend -
That the astronomical work of Sydney, Melbourne, Adelaide, and Perth be controlled, so far as may be necessary or desirable, as reagards co-ordination and distribution, by a Board of Visitors for each of the four Observatories, should be nominated by the Federal authorities, and consisting, as in the case of the present Board for the Melbourne Observatory, of University professors, high officials possessing expert knowledge, and other leading men.
These Boards should meet annually at their respective Observatories, and report to the Federal Government as to any steps required in the general interests of astronomical work.
With regard to the third case, that neither of the departments be taken over, he says -
In this case it is only necessary to point out that, -were the astronomical observatory and weather services to remain under the control of the States, as at present, the recommendations embodied in the report of the Conference -
Under certain conditions would still be applicable. He says, in conclusion -
I wish to explain, in conclusion, my reasons for dissenting, from my colleagues at the Conference on the two vital question in clauses 3 and S. In regard to clause 3, I am of opinion that, if any method of ruling is to be laid down as to the character of the astronomical work to be undertaken by the Observatories, the ruling body should not be the Astronomers themselves, but a Board in each State similar to that in connexion with the Melbourne Observatory.
In regard to clause 8, bearing in mind the recommendations of the Board of Visitors, in which I fully concur, that the absolute separation of astronomical from meteorological work is desirable in the interests of both these branches of science, it follows, as a consequence, that the weather services at Sydney, Melbourne, Adelaide, and Perth should be in charge of persons other than the Government Astronomers. If, in my recommendations, set forth in this appendix, I have suggested that the weather services at Perth and Adelaide continue to be conducted by the Government Astronomers of those States, it was only in order to avoid difficulties of a local nature in the transference of the Observatories to the Commonwealth.
My objection to the last clause (22) is that it would be inexpedient and undesirable, at present, to assign any part of the functions of the Central Weather Bureau to any one State institution, until we know definitely what action will be taken by the Federal Government with regard to the future of the existing Observatories.
Having regard to the disposition on the part of Queensland to transfer its Meteorological Department, with the condition that its equipment and land iba taken over, and also to the further fact that the opposition of the Tasmanian Government to the establishment of a Commonwealth Meteorological Department must be considered in conjunction with the contrary opinions held bv its predecessor, and that the present Premier gave his adherence to the resolution passed at the Conference of Premiers - having regard to all these facts and’ to the views expressed by such a competent body as the “Board of “Visitors to the Melbourne Observatory, we may take it that there is in official circles a general preference for the federalization of the Departments of Meteorology. So far as the disposition of South Australia to oppose the establishment of the Meteorological Bureau is concerned, I think we may ‘read it, in the light of this report of the Conference of Meteorologists, which unmistakably approved of some uniform action throughout the whole of the States. It seems to me that they are opposed, not so much to the principle of federalization itself, as to a particular system. What the particular system should or should not be if the Department is federalized is a matter for the most careful consideration. Some of these gentlemen oppose anything in the nature of national forecasts as distinguished from local forecasts, and the illustration given in the report, of the contrast between the local forecasts of South Australia, supplied from the Adelaide Observatory, and those supplied by Mr. Wragge, is used as an argument in favour of local forecasts! as against those issued from a central office. A good deal may be said on both sides of that question.
– We have conclusive’ evidence from the United States in favour of central forecasts.
– America affords some excellent illustrations as to that, and I think that Canada also furnishes instances of a most efficient service being provided at a comparatively small cost. In Canada: A Memorial, edited and published by E. B. Biggar, of Montreal, in 1889, there is a reference to this matter under the heading of “ Marine.” At page 167 the author writes -
There have been thirty-four new stations added during the year to the meteorological service. During nine months of 1S81 there were issued 404 warnings of approaching storms, of which 331 were verified.
Honorable senators should not lose sight of the fact that this was seventeen years ago, and that meteorology as a science has since made considerable advances -
This service, which is increasing in value each year, was organized in i87r with forty-six stations in all, and at an expense of $5,000. In 1876 the daily forecasts of weather, known as “ probabilities,” were first issued. In that .year roi stations in Canada and six in Newfoundland reported by telegraph, of which fourteen sent reports three times a day. On these reports, and on a collection of reports from the United Slates, the daily forecasts were issued. In 1884, a system of train signals was organized -
That system is used extensively in the United States - by means of which those in sight of railway trains could know the weather from discs shown on the cars indicating “ rain,” “ fair,” &c. There are now 354 stations reporting to the central office at Toronto, the whole cost of the service being only $55,000. The director of the service is Charles Carpmael, F.R.A.S.
That is an indication of the work done in Canada so long ago as the date mentioned. Honorable senators would doubtless like to have some idea as to the character and quality of the work that could be done in Australia, and what it would cost. About the time Mr. Wragge’s services were being lost to Queensland and to Australia he published a scheme for proper meteorological observations as affecting Australia; and, I think, considered it would be necessary to provide something like £10,000 a year.
– Would that cover all the States?
– That would cover the whole of the States. Mr. Wragge is, at any rate, a man competent to estimate the cost likely to be involved in a scheme to provide Australia with a suitable, efficient, and up-to-date meteorological service, and I should like to take the opportunity to read what he has said.
– Has the Minister any other estimate but that of Mr. Wragge ?
– No; but I think it my duty to inform the Senate what Mr. Wragge’s estimate is.
– According to one estimate, telegrams would cost about ^10,000 per annum.
– Of course that would be a matter for administration.
– Is Mr. Wragge in Australia at present?
– I believe Mr. Wragge is in London. The scheme is set forth in an article originally published in the Pastoralists’ Review on the 15th May, 1901. Mr. Wragge says : -
The establishment of a first-class meteorological service, thoroughly practical, and for the benefit of every section of the community, for the entire Commonwealth of Australasia, embracing also New Zealand, New Caledonia, and surrounding areas of ocean, is of immense, nay, paramount importance.
The following, then, are our suggestions : -
The Federal Meteorological Service of the Commonwealth should have a most sure and stable foundation, following the example set by the famous chief Weather Bureau at Washington.
The whole should be managed from one great central office, which, preferably, should be situated near the east coast of Australia, by reason of facilities afforded for aggregating telegraphic reports. Brisbane and Sydney form excellent examples.
The central office, on which meteorological researches for all the stations would depend, should be concerned in meteorology only, following the example set by Great Britain, Canada, India, the United States of America, France, Germany, Austria, Belgium, Roumania, and other civilized countries, and should not be hampered by astronomical work or other branches of science, which, professionally, have no direct bearing on the work of the weather bureau.
The work of the central bureau should be divided into two main points, the one embracing climatological research, and the other forecasting the weather. A sub-branch should deal with ocean meteorology and the study of ocean currents. Data should be collected from all incoming ships, and pilot or track charts prepared, in the interests of maritime commerce and the seafaring community, for all the waters of the Southern Hemisphere. The charts should be similar to those published by the Meteorological Office, London, and the Weather Bureau, Washington, for the North Atlantic and North Pacific. Moreover, masters of vessels should be supplied with proper entry forms, and their meteorological instruments tested and examined by official standards whenever possible, and every encouragement should be given to them, embracing, say, certificates of merit for such meteorological logs as are worthy of them. With regard to climatology, it is well known that every physiographical feature, scientifically considered in accordance with latitude, has its own peculiarities of . local climate, different climates on the hill top, slope, in the scrub track, in valleys, on plains, and by the sea coast, as example. All these peculiarities should be studied by the most rigid system, embracing punctuality of observation, and the most perfect method, by the best observers, possessed of the best instruments, in pastoral, agricultural, horticultural, sugar planting, and especially hygienic interests and others.
I read this in detail, not as a scheme to be necessarily approved, but in order that honorable senators may appreciate the work Mr. Wragge had in view when he made his estimate.
If we take agriculture as an example, various plants and seeds require different climatic conditions in which to thrive and germinate, and herein we include a study of the climate of the very ground itself, on which geological factors have a bearing. Moreover, stock can be better raised in certain types of local climate than in others. From the statistics aggregated in the great central bureau, doctors and patients should be enabled to obtain knowledge of those climatic conditions that would be likely to restore an invalid to health. Many other matters should be discussed in connexion with climatology, including evaporation, and solar and terrestrial radiation, also the actinism of the sun’s rays, &c, for this branch of research has numerous ramifications, and is of the most practical moment. Household meteorology and the preservation and regulation of a healthy atmosphere in the very dwellings of the people come under this branch, and the public should be encouraged to study the subject by popular brochures issued for their benefit by the central weather bureau. By no means less practical should be the forecasting branch of the work. Forecasts of coming weather, accurate to about 95 per cent., should be promulgated by short telegraphic code words, within, say, three hours from the time of their issue from the central office, throughout Australasia, in which chambers of commerce, pastoral and agricultural clubs, and large business centres, as in the United States, should be included. Forecast signal flags should be hoisted at the principal post and telegraphic offices throughout the Commonwealth, indicating by different colours and designs every coming change of weather, such as hot winds, cold spells, rain, times of drought and floods, directions and forces of wind, cyclonic blows, dews, frosts, electric disturbances, snow storms, and all other meteorological phenomena, and, as has been done in America, special forecast signals should be attached to the guard’s van. of mail trains, and also to mail coaches, so that they that travel may read, and such signals would also be availed of by people living near railway lines and general coach tracks. Not only so, but the storm signal service at present in use on the Queensland coast should be improved and extended to the entire Australian seaboard for the great benefit of shipping and passengers by sea. Of so eminently practical a nature are reliable weather forecasts that every interest and vocation in life, from the wealthy squatter and the great shipping companies, down to the humble housewife, are touched by them, and, speaking of shipping, we have no hesitation in saying that by an extension of the forecast signals as proposed, loss of life, wreckage, and commercial damage on the Australasian coasts would be reduced by, say, 50 per cent, if they were heeded.
Then he goes on to other matters about the practical inspection of the different stations.
– I suppose Mr. Wragge gives no statement as to how he makes up the £1 0,000?
– No, he gives no details. Mr. Wragge goes on to deal with the subjects’ of a branch bureau in charge of an assistant meteorologist in ea:h State, directly responsible to the central office ; providing observatories or stations, and dividing them into three classes ; details of rainfall ; the nature of the instruments to be used in each ; the standardization of the instruments ; a uniform system as the basis of the service ; the hours of observation ; an international system of exchange of publications, and so forth. Then, after dealing in great detail with the system, he says, in paragraph 17 -
As to the annual vote for such a service as that suggested, we may mention that, although the sum granted annually to the Meteorological Office, London, is ^15,300 (the American vote exceeding this amount), we consider that the service proposed could be well initiated for a sum, shall we say, not exceeding ^10.000. This would be a first-class investment in the interests of Australasia, and would yield sound interest in the well-being of the people.
As I said just now, I do not read Mr. Wragge’s scheme for the purpose of influencing honorable senators to believe that, by passing this Bill, it is proposed to establish in detail a similar system ; nor do I ask honorable senators to believe that the actual cost set down there is the cost the Commonwealth might be involved in by the establishment of a bureau. But Mr. Wragge is an experienced man, and he indicates in that article a system which might be adopted with great advantage, as he says, to all classes of the community throughout Australia. By this means information could be supplied which would be reliable and of great value, because, as pointed out, it touches the interests of everybody, from the wealthy squatter to the humble housewife; and in consequence of the information supplied”, much damage to property, and danger to life and to person, which otherwise would be incurred, could be avoided. Mr. Wragge points out that such a system would be an excellent investment for Australia, and in the light of his knowledge and experience, he is prepared to say that it could be initiated’ at an expense of ^10,000. I have quoted Mr. Wragge’s words simply that honorable senators may understand what class of work might be effectively clone by a Meteorological Department under the control of the Commonwealth, and that honorable senators may learn what, in the opinion of an expert, who has had very recent experience in Australia, is likely to be the cost. I have only now to refer to something said by Senator Millen by way of interjection. In the Y ear-Book of the Department of Agriculture of the United States for 1899, there appears a report on the work of the, meteorologist, for the benefit of agriculture, commerce, and navigation. This is a most interesting report, but I do not intend to do anything more than refer honorable senators to it. The report appears on page 71 of the volume, and is by Mr. F. H. Bigelow, Professor of Meteorology in the Weather Bureau, to whom I have already referred. There are two passages to which I should like to draw particular attention. On page 84 Mr. Bigelow says : -
The magnificent result of receiving at Washington D.C., and at all the larger cities of the country at the same time, the complete records from one hundred and fifty stations within an hour after the observations are made, is testimony to the skill and experience of the electricians of the weather bureau and the telegraph companies.
A paragraph appears on page 85 which commences with this significant announcement : -
The discovery of the laws affecting the seasonal changes would certainly be of such benefit to mankind in the complex civilization upon which modern life is entering, as to justify the expense and the patient labour involved in such a contribution from each generation to its successor. The crude method of tilling the soil common in these days will certainly give way to an exact economical procedure, based largely upon the result of meteorological research, increasing in precision with the lapse of time. There already exists in the archives of the weather bureau an immense quantity of valuable material calculated to serve these purposes.
When we read that and think of the possibilities of the future, one must see the importance of meteorological work being carried out as efficiently as possible in all the countries of the world. There are some competent to judge who entertain the very strong belief that the work done by meteorologists to-day is but a fraction, and an insignificant and unimportant fraction of the work which, perhaps, will be done by such Departments throughout the world within a short distance of time. If meteorology will be able in, the near future, not only to forecast for us the nature of the weather within a certain area during, say, twenty-four or forty-eight hours, but to predict with something like certainty the character and nature of the season before that season has been entered upon, one can readily understand what an immense influence such a science wil 1 have in the economic production of the world’s requirements in the future. The United States has taken action in this direction, and has done good work. I have referred to the fact that Canada has done good work also. The record of her work as far as 1889 is set down in the extract which I have quoted’. More recently India also has been carrying on extensive work within its territories, and has communicated with Australia to ask the co-operation of the Commonwealth in carrying on what, after all, is not the work of one country only, but the work of all the countries of the world. A letter which appeared in a Sydney newspaper, written by Mr. Robert Binnie, .some time ago, contains the following paragraph. He says : -
I note by your issue of the 18th inst. that Mr. H. A. Hunt, meteorologist, of this State, “ who has frequently urged the desirability of receiving telegraphic data from as wide an area as possible for weather forecast purposes, has received a communication from the DirectorGeneral of Indian Observatories requesting cablegrams showing periodic changes in the distribution of atmospheric pressure over Australia, in order to assist in the construction of their monsoon or seasonal forecasts; further, that” the cost of such cablegrams is to be borne by the Government of India.”
So important does the Government and Director of Observatories of India consider the information which can be supplied from Australia for the purpose of seasonal forecasts, that they are prepared to pay the whole cost for transmitting the information from Australia to India by means of the cable. The letter concludes as follows: -
If Australian data is necessary for the DirectorGeneral of the Indian Observatories, how much more must it be necessary for the local meteorologist, when our rain comes from the tropical zone, and as the India Meteorologist Office is likely to be so much more fully equipped than our own, reciprocity with it is likely to be all in our favour.
What I have said goes to show that the different countries of the world are alive to their responsibilities in this matter, and are fully sensible of the great possibilities opened out bv the scientific pursuit of the science of meteorology.
– Has the Minister any figures to show the correct forecasts as against the incorrect ones in different countries? Has he, for instance, Mr. Wragge’s percentage of accurate forecasts?
– The Minister has mentioned the accurate forecasts for one country - Canada.
– Yes ; they were for the year 1888, when there were 404 warnings, 341 of which were verified.
– If the information were based upon a wider area the forecasts would be more accurate.
– And since then,, of course, there have been greater opportunities for observation. ‘ The science has been brought more up-to-date, and we may assume that the percentage of accurate results would be very much higher. Mr. Wragge estimates in the report which I have quoted that an Australian meteorologist should be able to issue forecasts that would be verified up to 95 per cent. We may expect in the near future that meteorologists will be able to attain something like accuracy in seasonal forecasts. The 0 immense advantage of this in a country like Australia must be apparent to everyone, as the seasons here vary more than they do in some other countries. This is a country which, according to experts, lends itself most readily to the study of meteorology, and, not only for its own sake, but for the benefit of other countries, meteorological research can be conducted in Australia with very great advantage. I feel perfectly certain that if we establish a Meteorological Department, working on efficient and uniform lines, we shall1 be able to repay ourselves, if not directly, at any Tate indirectly, many times over. For these reasons, and at this juncture, in framing legislation to enable us to assume control of the Meteorological Department, it is desirable that the terms of our Act should be distinctly wide and elastic. We must legislate before we can assume. We cannot take over the Departments of the States by proclamation, nor do they come to us by the direct operation of the Constitution. We are empowered to legislate with regard to astronomical and meteorological observations. This is, in fact, an enabling Bill to empower the Government to acquire from the States their responsibilities and their duties in regard to meteorological observa-tions. We want as far as* possible to advantage ourselves of the existing institutions. Honorable senators - who, I must acknowledge, have paid me the very courteous compliment of following very closely, even when I was reading from some of these very dry reports - have recognised the diversity of conditions existing in the different States. Mr. Baracchi, for instance, makes the recommendation that the States of Western Australia and South Australia should be differently treated, and again differentiates in the cases of Queensland and Tasmania. All these different local conditions must necessarily be considered by the Administration in exercising the powers that I trust will be reposed in it by the passage of this Bill. It is for that reason, as well as for many others, that it is absolutely necessary that the Bill should be as wide as possible in its terms, so that the Government of the day may be enabled to assume the control of these departments, either simultaneously, or as near as possible simultaneously, and may have due regard to the varying conditions of the different States, the varying degrees of equipment and efficiency of their departments, and the cost attendant upon the assumption of them. I have here in some detail an account of the equipment attached to each department in each State. Some of the equipment is for meteorological purposes almost solely. Some of it, on the other hand, is for astronomical purposes mainly. But I speak of that which is used for meteorological purposes, including the land and the buildings, as well as particular instruments. If any honorable senator wishes to have this information I can supply it to him before we finally deal with the Bill. The measure provides that the GovernorGeneral may establish observatories, which, are defined in the Bill as meaning places for “ the purpose of meteorological observations.” In empowering him to establish observatories, we are not therefore granting power to establish astronomical stations, but places purely for meteorological observation. The Governor-General is empowered to appoint an officer, to be called the Commonwealth Meteorologist, who is to be charged with the following duties : -
The taking and recording of meteorological observations ; the forecasting of weather ; the issue of storm warnings; the display of weather and flood signals; the display of frost and cold waves signals; the distribution of meteorological information ; and such other duties as are prescribed to give effect to the provisions of this Act.
In addition to those provisions, there are others, enabling the Commonwealth to arrange with the States Governments for the transfer of the Meteorological Departments of the States, and for securing the services of State officers wherever necessary for taking the records which would be essential for the Meteorological Department of the Commonwealth; and the Government is also empowered to make arrangements with the States for the interchange of information between the Commonwealth and the States. Further than that, provision is made for the Governor-General to enter into arrangements for other matters which may be incidental to the execution of the purpose of the measure.
– What is the present arrangement with regard to the interchange of information?
– The Commonwealth is receiving none whatever. There is, however, a certain amount of interchange between the States.
– Are the telegrams being sent free now?
– The cost of them is debited to the respective States. Though it may be said to be only a bookkeeping matter, still they are paid for. If ^100 worth of telegrams are lodged in New South Wales they are debited against that State ; but of course the State also gets the credit of some of that revenue in the adjustment between Commonwealth and State.
– Does the payment come out of the 73 per cent, of Customs revenue?
– No, because the Post and Telegraph Department’s accounts are kept separately from the Customs accounts. The cost of the telegrams is debited in the first instance to the State which sends them. There is no provision in the Constitution, it will be remembered, with regard to the payment of only a certain proportion of the revenue of the Post and Telegraph Department to the States. I have gone more fully into this matter than might at first sight appear to be necessary, as this is such a small Bill. But the object I had in view was that honorable senators might see that we have to legislate before we can, assume control of these departments, and that in legislating we must have regard to a variety of conditions and circumstances, onlY a small portion of which X could possibly deal with in the time I had allotted to myself, but which are all revealed by the reports and by the correspondence before me.
Debate (on motion by Senator Lt.-Col. Gould) adjourned.
Senate adjourned at 9.45 p.m.
Cite as: Australia, Senate, Debates, 20 June 1906, viewed 22 October 2017, <http://historichansard.net/senate/1906/19060620_senate_2_31/>.