6th Parliament · 1st Session
The President took the chair at 11 a.m., and read prayers.
asked the Minister representing the Minister of Home Affairs, upon notice -
– The answer to the questionsis -
I have been advised by the law authorities that the information desired is not yet available. I may add that the amount claimed was £20,481, and the verdict of the Court was given for £1,431.
asked the Minister representing the Minister of Home Affairs, upon notice -
Is it the intention of the Government, before the Bill dealing with the resolutions regarding the Murray River Waters is brought before Parliament, to have a map or maps prepared and exhibited, showing the localities affected by the proposed scheme, together with the adjacent areas?
– The answer isThe matter will receive consideration.
asked the Minister representing the Prime Minister, upon notice -
Has his attention been called to the remarks of Mr. Archibald, Minister for Home Affairs, reported as being uttered on 28th October last, viz. : -
Does the Minister for Home Affairs in the foregoing statements express the policy of the Government on the question of preference to unionists?
– The answers are-
asked the Minister of Defence, upon notice -
– The answers are-
– I move -
That this Bill be now read a second time.
The Bill, although it contains some important provisions, does not import any new principle into the Defence Act with one exception, and that is withregard to the question of registration, with which I will deal first. At the present time the Act requires all youths in Australia over a certain age to register. The conditions of employment make it impossible that they will all be trained, and, consequently, a portion of Australia has been divided into training areas, and all the territory outside the training areas has been declared exempt areas. Honorable senators, if they will turn up the figures, will see that, as to the senior cadets there were 145,785 registrations, 11,625 exemptions for medical unfitness, and no less than 43,673 other exemptions, that is, exemptions of youths who were outside the five-miles radius. These 43,673 lads are called upon each year to register. This obviously puts them to a considerable amount of trouble; it throws a great deal of clerical work on the Department, and it serves no useful purpose.
– It is largely a dead letter.
– Yes, because it is obvious that in the exempt areas we have no machinery for seeing that the provisions of the Defence Act are observed.
– Yes, but a district might become an area at any time.
– Whenever it is proclaimed an area, then automatically the provision for registration will come into force. By the amendments proposed we are making an important alteration of the principle in the Act, but in practice it is simply legalizing what is being done. Some of the alterations made by the Bill are rendered necessary by the circumstances brought about by the war. As honorable senators know very well, we have had a very serious drain upon our instructional staffs and our senior officers. It is laid down in the Defence Act that promotion shall be by competitive examinations up to a certain stage, and that then the senior promotions shall be made from those who have attended a school of instruction conducted by the General Staff, the object of which is to test their fitness to command. Under present circumstances it is simply impossible to conduct the examinations. Our staff of instructors and of senior officers is already sadly depleted, and, of course, decreases whenever we send an Expeditionary Force away.It is regrettable that we cannot carry out the provision, but that is no reason why those who are qualified should be debarred from getting the opportunity for promotion. So this Bill provides for promotions being granted during the time of war without compliance with the sections of the Act which render examination necessary.
– Is that to apply to non-commissioned officers who are members of the instructional staff?
– Noncommissioned officers are not required to attend the schools of instruction. The provision in this Bill does not apply to noncommissioned officers, but only to commissioned officers.
– Are non-commissioned officers to be eligible for this temporary promotion ?
– The honorable senator mistakes me. He is dealing with another question. The Bill does not deal with the question of temporary promotion, but with that of permanent promotion. Where a lieutenant or a captain wishes to go up to the next step in rank, the Act provides that he shall attend a school of instruction, but we are not able to give the instruction. Suppose a major desires to qualify for a lieutenantcolonelcy, he has to go before a school of officers deputed by the General Staff, who have to test in the field his fitness to command; but, inasmuch as we cannot carry out the provision now, we ask authority to make the promotions without putting the officers through the schools of instruction or testing their fitness to command.
– Are they not to be subjected to examination later?
– The officers will be subjected to tests now, but not’ to the tests laid down in the Defence Act.
-Colonel O’loghlin. - Those tests will remain in abeyance during the war.
– That particular provision of the Act will remain in abeyance during the war. That was not the only qualification; it was a sort of additional qualification imposed upon the officers. They will still have to qualify in the ordinary way, but not in that particular way which, as I said, is to be suspended during the war.
– Is this an opportune time for the Minister to explain in what way they will be called upon to qualify ?
– The officers will be called upon to qualify by passing the theoretical and practical examinations in the duties attached to the rank to which they aspire.
-Colonel O’loghlin. - In everything but attendance at the schools of instruction ?
– Yes. The commissioned and non-commissioned officers who have been sent with the Expeditionary Forces hold positions in the various units of the Commonwealth Forces, but they have been seconded from those positions. During their absence the officers who have been in many cases quite willing to go, but who have been prevented from going, are moved up over the officers who have gone away. Obviously, it would be an injustice to the latter that they should miss their places in the seniority list. Therefore, the Bill gives to the Minister and the Military Board the opportunity of protecting the rights of commissioned and non-commissioned officers who are away with Expeditionary Forces. Another provision of the Bill tends to clear up a difficulty which was created by the Defence Act of 1912. When we brought the defence scheme into operation, it was obvious that we should have to increase very largely our staff of instructors. The process was adopted of putting a large number of instructors through schools of instruction, but that was found to be too slow to provide for the needs of the Forces. So it was decided, as there was a number of time-expired non-commissioned officers of the British Army in the Commonwealth, to open the positions to those officers without calling upon them to go through a school of instruction, provided that they were able to satisfy the commandant of the State in which they were resident, by a practical examination, that they were fitted to act as instructors. A great number of these officers have been taken in, and in the majority of cases they have proved to be satisfactory. But, whilst doing . that, we unwittingly did an injustice to men in our own Forces, because, by putting in the words “ British Army,” we made these positions open. We might have a man in the Commonwealth who was quite fitted to be an instructor, but if he wished to act in that capacity he would first have to pass through the school of instruction. We wish, therefore, to put our own Forces on the same footing as that occupied by the British Army. Then, if persons are fitted to act as instructors, they may be permitted to do so without having to pass through the school of instruction. Another provision in the Bill is one about which there may be some misgiving. At the present time we cannot initiate a prosecution under the Act after six months have elapsed from the time the offence was committed. Considerable discussion took place in this Chamber when the Bill was before Parliament, because it was then proposed to limit the period to twelve months after the commission of an offence,. and an amendment was moved to substitute six months. The alteration which is now proposed is the result of experience. We have had some pretty bad cases of offences which have not been discovered within the prescribed period of six months. It frequently happens that they are not detected until nine months - and in some instances twelve months - have elapsed from the time when they were committed. I ask the Senate, therefore, not to hamper the cause of justice by adhering to six months. If no offence has been committed, there can be no prosecution. But where an offence has been committed, but is not disclosed until nine months later, we ought not to be debarred from instituting a prosecution under the Act.
– Six months is the limitation now, is it not?
– Yes. A case in Queensland, with which Senator Millen is familiar, was only discovered nine months after it had been committed.
– Some weeks must elapse before the Minister can get an inkling of it.
– Exactly . Under the law as it stands at present, it is necessary to discover the offence about three months after its commission. The Bill also contains a proposal similar to that which was brought forward by Senator Millen with a view to closing up a loophole which exists in the Act of 1912. Honorable senators will recollect that in that Act we thought we had made provision by which, under no possible circumstances, could cadets be sent to gaol. That was the intention of the measure, but it has not achieved its purpose. There seems to have been some laxity in its drafting, and after its enactment it was discovered that cadets could be sent to gaol for certain offences. In this Bill several provisions of the existing law have been re-cast, so that now we believe it is proof against any future action of that kind. We hope that when the measure becomes law there will be no possibility of any cadet being sent to gaol for any offences against the Act. I now wish to say a few words on the question of solitary confinement. I have looked carefully into it with a view to seeing how we can deal with cadets who, having been sentenced to military detention, refuse to obey order’s and to undergo military drill.
This is one of the most difficult matters with which we have to deal. In previous cases, lads who have been committed to military detention have been sent to fortresses, where they came under fortress regulations, and not under our cadet regulations. Under fortress regulations an officer has power to punish offences by committing an offender to cells. In the case of Roberts, at Queenscliff, the offender was committed to a cell by himself, and this was termed solitary confinement. This action was taken under the fortress regulations. I have no desire to resurrect that case. On the contrary, I wish to allow the dead past to bury its dead. What we propose to do in the future is to see that the Defence Act is enforced, and, at the same time, that no hardship is inflicted on the cadets. In this connexion we have arrived at the conclusion that no amendment of the Defence Act is necessary. Instead, we propose to provide in the regulations that when a lad commits an offence after he has been sent to a place of military detention, he shall be dealt with, not by the military officers, but by a civil Court.
– Is that going to help the Government?
– I think so.
– If the Civil Court says that the lad must do his drill, and the offender refuses to obey, it does not seem to me that the position will be improved.
– We shall deal with that later on. The Court having said what other punishment shall be inflicted upon an offender, we intend to provide that he shall be subject, not to fortress regulations, but to regulations which will be drafted, and which will control and govern all who are placed under military detention. In regard to the objection urged by Senator Millen, I can only say that it will be faced when we come to draft the regulations which will govern cadets committed to detention places. It is a thorny subject, and one with which it is not easy to deal. I can only ask the Leader of the Opposition to wait in patience until we see whether a lad who refuses to drill cannot be punished for disobeying the law of the land. Another provision in this measure recognises certain branches of the Permanent Force, which are not now recognised - the aviation corps, for example. Further, our Defence Act provides that all appointments to commission shall be from the ranks. Nov/ there are certain corps, such as the medical and veterinary corps, in which the commissioned officers must be legally qualified men, and these do not serve in the ranks.
– Why should not they ?
– We cannot compel them to serve.
– In time it will be possible to carry out the Act as it stands.
– That is so. In the veterinary corps it is not possible to do that. There are not a great number of veterinary surgeons in the Commonwealth.
– There are plenty of doctors.
– There are not many doctors in the Defence Forces, and we shall not increase the number if we compel them to serve in the ranks.
-Colonel O’loghlin. - They will serve in the cadets while they are going through their medical course.
– Exactly. As the Leader of the Opposition has pointed out, the position will in time cure itself. I wish now to say a few words about some matters which are not in the Bill, but which are cognate to it. In the declaration of Ministerial policy by Mr. Fisher it was announced that the Government intended to deal with the matter of the drilling of cadets. He declared that we were in favour of a proportion of the drills which are now carried out by cadets at night time, or on Saturday afternoon, being undertaken in the day time, and during working hours. It was pointed out that that would mean - in the absence of some provision of the law to prevent it - that these lads would lose their pay. I am glad to say that some employers pay them whilst they are engaged in drill, but there are others who do not. The Government propose that the Commonwealth shall be clothed with greater industrial powers than it at present possesses. If we were to enact that the employer should not deduct the pay of these youths whilst they were engaged at drill, the provision would be inoperative in view of the judgment of the High Court in the Excise harvester case. But the Government propose to amend the Constitution with a view to securing greater industrial powers. If those greater powers are conferred upon us, we shall be able to enact that on employer shall not deduct the pay of these lads for the time that they are engaged in military drill. Consequently we propose to defer action in this matter for the present. I need scarcely add that this is not the time to make drastic changes in our Defence Act. To do so would certainly be to swop horses whilst we are crossing the stream. I say, therefore, that the changes which we make in the law should be limited as far as possible, and I trust that those honorable senators who are not satisfied with the Act in its present form will realize that we are passing through a crucial period in our history, and will not press amendments of a very drastic character.
Debate (on motion by Senator Millen) adjourned.
– In moving -
That this Bill be now read a second time,
I wish to say that the measure contemplates no serious departure from the Act passed by the House of Commons. The Bill is intended to be merely of a temporary character. It is to be limited in its operation to a period of six months after the termination of the war. It is intended to provide that regulations may be framed under which licences may be issued to persons to manufacture goods which are now manufactured and protected by patents owned by subjects of the enemy, or by persons who reside in the enemy’s country. The Bill does not involve any new or experimental principle. We have no desire to pass it in order to take possession of the private property of the subjects of the nations with which we are at war.
– What earthly use will the Bill be if we do not, seeing that every patent is the property of some individual or other?
– The Bill will be substantially useful, although it is not desired to take advantage of it to secure property belonging to individuals who are subjects of the nations with which we are at war. It will enable us, by the issue of licences, to properly regulate and control the manufacture and supply of patented articles during the continuance of the war which could not be manufactured and supplied by subjects of the enemy, since that would be an infringement of the existing law. It is necessary to pass the measure in order that our community may continue to be supplied with many of the articles protected by patent rights held by subjects of the enemy, and which we could not otherwise secure because we are prevented from trading with the enemy.
-Colonel Sir ALBERT Gould. - Is it the object of the Bill to protect the interests of subjects of the enemy, and secure to them compensation after the war ?
– Certainly not; though I venture to think that Senator Gould would agree that, if we did any injustice to a subject of the enemy entitling him to compensation, there should be no objection to giving the compensation. The Bill is intended to permit regulations to be made to operate patents held by subjects of the enemy, and to operate them in such a way, under licence, that the profits arising from the licences may provide a fund from which compensation might be paid to the alien owners of the patents if it were determined at the conclusion of the war to be a just and reasonable thing to pay such compensation. .
– Surely that is one of the possible objects contemplated ?
– It is one of the objects contemplated, but the Bill is not introduced for that purpose.
– That is the only purpose it will effect.
– The purpose of the Bill is that, during the progress of the war, we may have control for the benefit of the community over the manufacture of articles covered by patents held by subjects of the enemy. If every one had the right to manufacture such patented articles, inferior articles might be manufactured, and it is necessary that we should control their manufacture in some way. There are some of these patented articles from the manufacture of which huge profits are made. The Commonwealth is justified in such cases in claiming to decide that these profits shall, if need be-
– Be handed over to the enemies of the country?
– No ; held to compensate the Commonwealth for any inconvenience and trouble to which we may be put in connexion with matters of this kind. The measure has come to us from another place, and I do not ask honorable senators to consider it hurriedly. It is a small Bill.
– What I complain of is that it is so exceedingly small.
– I wish it to be clearly understood that, so far as the Government are concerned, they have no intention of accepting amendments which might give opportunities for plundering the enemy.
– The honorable senator should not anticipate.
– I am afraid that I was anticipating something of the kind in view of the strong objections made by Senator de Largie. We have to recognise that we are always on thin ice when dealing with measures that give drastic powers. I hope that when dealing even with an enemy we shall be guided by the principles of International law.
-Colonel Sir Albert Gould. - As the enemy are dealing with us at the present moment.
– It is true that the enemy are guilty of many things that are very objectionable, but because they set a bad example that is a good reason why we should not follow it. As British people we should set a higher standard in all such matters than the enemy are setting at the present time. I do not think any clause will be found in the Bill which is not necessary to safeguard our interests. The measure deals in a reasonable way with a matter which has been forced upon our attention by the war. It received, in another place, very favourable criticism from leading members of the legal profession, whose speeches I am prevented by the Standing Orders from quoting. It is closely modelled upon a measure passed by the Imperial Parliament, and I confidently submit it to the Senate.
– It is not my intention to say anything in opposition to the passage of this measure, but it does appear to me, both from the attitude taken up by the Vice-President of the Executive Council and certain utterances made elsewhere, that this Bill is put forward, and is designed to secure the interests of the enemy rather than the interests of our own people. As I understand our patent laws, I can at the present moment use any one of these patents secured by subjects of the enemy, subject to the liability that I may be proceeded against in the law Courts. At the present time a subject of an enemy cannot proceed against me in the law Courts, and therefore without this Bill I could enter upon the manufacture of any of the articles covered by these patents.
– How would the honorable senator stand at the restoration of peace ?
– I should have to take my chance about that, but I could not be proceeded against for what I did during the time the war was in progress.
– It might be necessary to secure protection after the termination of tho war.
– It has to be remembered that at the present time the enemy’s subjects, having possession of these patent rights, are not supplying our need of the patented articles, which is the very thing we looked to them to do when granting them the patent cover. We come along with the generosity which is one of the most amazing stupidities of the British race and say to these people, “ In case you suffer as a result of this war, which you have forced upon us, we shall pass special legislation to protect your banking accounts.” That seems to me to be the purpose of this measure. It is submitted, apparently, because a similar Bill was passed in the Imperial Parliament, and because we have these high ideals always before us and are too much inclined to consider the sensibilities, rights, and interests of our opponents rather than those of our own people. I do not feel disposed to take any action hostile to the Bill, but I direct attention to what appears to me to be the lamentable weakness of the measure. The AttorneyGeneral, in another place, made the statement that it is intended to enable us to compensate the owners of these patent rights after the war, and we have the Vice-President of the Executive Council suggesting to-day the extent to which this compensation might go. He has told us that the manufacture of some of the articles covered by these patents is a source of enormous profits. What does that mean ? Apparently it means that at the close of the war, because we have made use of patents that are responsible for enormous profits, we shall have to give enormous compensation.
– The Bill does not provide that.
– The Minister^ statement certainly suggested that it does.
– Then I could not have made myself clear.
– The AttorneyGeneral distinctly said that that would be done. I could understand a policy of reciprocity in a matter of this kind. We might say to Germany, “After the war, if you pay compensation in respect of the use in your country of patent rights of our people suspended during the war, we shall do the same in respect of the patent rights of your people.” That would not be unfair, but here, without any regard to what Germany is doing, we come forward with a proposal to make use of the legislative machinery of the country for the purpose of protecting not our own< people, but the subjects of the enemy. I think that that is carrying national generosity to a very foolish extent. There is; one other matter kindred to this to which I should like to refer. I noticed, that, as recently as the 24th September, a company was registered in Sydney, and is therefore, I presume, an Australian concern, of 200 shares, three of which are held in Australia, whilst the rest are held in Hamburg. It seems to me that it is quite time we saw where we stand.
– The honorable senator cannot deal with that matter on the second reading of the Bill now before the Senate.
– It is very interesting, though.
– It is more than interesting; it is sinister. I was going to connect the matter to which I referred with the Bill by pointing out that in that case the attempt is evidently made to establish what is really a German company as an Australian trading concern, and it occurs to me that if that kind of thing may be done, some of these patent rights held by subjects of the enemy may be transferred to companies that have all the appearance of Australian companies, but which nevertheless are German companies.
– We could overcome that difficulty by the Government taking over the operation of these patents.
– That would be only to escape one danger in order to walk into another, and would not evade the question of compensation. If the Government contemplated taking over the operation of these patent rights, it would still, under the strong moral influence now moving it, feel called upon to pay just the same compensation as private individuals operating the patents may possibly be called upon to pay.
– The Trading with the Enemy Bill includes a definition of an “ enemy company,” and provides that a certain proportion of the shares must be held by subjects of the Commonwealth.
– The company to which I have referred was formed quite recently. I rose not to obstruct the passage of the measure, but to sound the note that, in my opinion, we should look a little more zealously after the interests of our own people, and not be so ready to make sacrifices to preserve the interests of our enemies.
– I am certainly not going to do anything to impede the passage of this Bill through the Senate. I agree with the Vice-President of the Executive Council as to its necessity. I do not go to the length to which Senator Millen has gone in criticising it. While I realize that one of the objects contemplated by the Bill is to put the Government in a position to make, if iti think fit, at the termination of the war, refunds to persons who are now our enemies of monies which they would have become possessed of had there been no war, I do not say that the Bill is to be condemned on that account. The position is that a state of war has arisen between Great Britain and Germany. Had that state of war not arisen, certain holders of patent rights, licences, and rights in respect of trade marks or designs in this country would have had benefits constantly accruing to them by virtue of their possession. Owing to the state of war they happen to be now alien enemies, and during the war their rights are not protected. The Bill asks us to endow the Governor-General with powers over and above those which he now enjoys under the various Acts dealt with by this Bill, the additional powers to be exercised only during the period of the state of war, and only by reason of the fact that there is a state of war. They are set out in clause 3. They will enable the Government, by regulation, to avoid or suspend any patent or licence belonging to an enemy; the registration, or consequence of registration, of any trade mark or design; or any application made by an enemy. They will also enable the Minister to grant to other persons the rights which alien enemies would otherwise have enjoyed. It may happen, when peace is declared, that individuals now alien enemy subjects who have been in no way responsible, directly or indirectly, for bringing about the state of war, ‘ and the Government, with the full knowledge of the circumstances, may consider that a great deal of hardship has been inflicted on them by the fact that they were subjects of an enemy. In such a case the Government, if they thought it was perfectly correct that those people should not be victimized-
– Victimized !
– Yes, made the victims of circumstances.
– We cannot differentiate between the subjects of a nation.
– It may not be necessary to differentiate, but if the Government think it desirable to compensate them to some extent, the Government will be in a position to do so out of the profits that will have arisen from the use of the patents under the regulations proposed. If we allowed anybody to take advantage of the state of war, and carry on as if those patent rights did not exist, the Government and the public of Australia would be in no better position during or after the war, and if iti was thought necessary in the adjustments between the Powers after the war, for our Government to pay out something in respect of those rights, they would have no fund out of which to pay it. The Government say, “ The community will not suffer if these regulations are passed, and we shall be in a position to exercise our own discretion at the termination of the war to do what we think fair in the circumstances.” They will also have a fund which has not been illegitimately acquired, and in the acquisition of which no individual member of the community will have been penalized. In fact, we shall stand exactly as if the war had not occurred. If these patent rights are availed of under licence from the Government, no right at present possessed by any individual in Australia will be taken away, nor will any individual be hardly pressed upon. In other words, the Government will carry on the patent rights, the trade mark rights, and the rights of licensees.
– The Government or individuals?
– I do not say the Government will do it aB a body or directly, but they will assume the responsibility of either cancelling them in toto or giving other individuals the right to exercise them.
– Only for a definite period?
– Yes, only during a state of war.
– I am afraid that, in those circumstances, nobody will take them up.
– Then we shall be in no worse position.
-If other people cannot take up the rights, they will hardly feel justified in incurring expense in regard to them.
– At any rate, that is a much better position for the Government to take up than to let anybody come in and suddenly, on the conclusion of peace, tell those who have acquired certain vested rights, ‘ ‘ Your rights cease now.” This would be a much greater hardship to individuals.
– They might just have got their factory in working order.
– Yes, under the belief that their rights would be” indefeasible.
– If that is so, those who got the licences would also want compensation.
– No, because they would be granted licences only on such terms as the regulations prescribed, and consideration could be had to the circumstances of each case. If, on the other hand, we leave the matter to be dealt with in any manner that any individual may please, we’ shall have chaos and sow a crop of possible hardships. If regulations are framed under the Bill as indicated, the com munity will be in no different position, and on the settlement of the terms of peace the Government, as representing: one of the component parts of the Empire, will be able to do what is fair in the eyes, not only of their own people, but of other nations. Although Senator Millen seems to think, and many of us share his opinion, that Great Britain has a habit when dealing with foreigners, especially in relation to war, of showing a generosity that amounts almost to stupidity, I think it is not a matter of generosity that we are providing for in this case. We should endeavour to put the Government in a position to be able at the termination of the war to take up an attitude which cannot but be considered not generous, but just, by our enemies, or by our most adverse critics. For that reason they are to be commended for introducing the measure, but the Minister mght have informed us, if he had the information, not merely what Great Britain, but also Germany is doing in this regard. Is Germany making provision to be able to deal with British subjects at the end of the war in the same way as we are making provision with Germans in Australia?
– I think we can say “No “ to that question.
– Even if the Minister were able to tell the Senate definitely that Germany is not, I do npt think that would be a justification for Australia or Great Britain following her evil example. We have not to set ourselves right in the eyes of the German people, or according to German standards, but have to set an example as British people to Germany. We have to take up an attitude that .will not merely commend itself to ourselves, but that will show that the British people stand by the highest and best principles in dealing with these matters. Our action will be judged, not merely by ourselves, but by international opinion. That is why Great Britain has so often taken up positions that are regarded as stupid and absurdly generous. By them, however, she has established a high level of international conduct, and standards on which other countries will endeavour, or are endeavouring, to model their proceedings. We are following a well-established principle in this matter, and shall be glad afterwards to reflect that hot only has our conduct been of a high standard, but that it will not involve us in any disadvantage. I hope the measure will pass, and that the public will realize, when it is passed, its significance and importance. I trust they will understand that we are not aiming at doing anything generous to our foes, but are simply providing that the Government may be able when tilings are being adjusted to deal justly even with our enemies.
– The Bill seems to me a perfect riddle, and I cannot understand its object. If under it we are unable to make use of any patents that the enemy may have taken out here or elsewhere, especially a patent which our manufacturers require to use, what on earth has it been introduced for?
– Paragraph d of clause 3 explains the position.
– Yes, it gives the Minister certain power, but if at the same time we are told that he is not going to exercise the power, what is the use of the Bill ? The Minister has told us he is not going in for the confiscation of these patents. Is it a fact that we are not going to make use of German patents for fear of international complications later on? Will the Bill give us power to make here, if we so desire, such valuable and profitable articles as lysol or thermite, or other chemical products usually made in Germany, or are we to be deterred by fear of having to pay high compensation from giving our own citizens the right to use these patents? We should put all possibility of having to pay afterwards beyond question. The Government should take the responsibility of saying whether our citizens are to have these patent rights, or else they should declare for the nationalization of these German patents.
– It is desirable that they should be.
– What is the use of our apologizing for doing the work if it is desirable? We should not go about this matter in a kid-gloved fashion, and apologize for what we intend to do. We should give to people in Australia who are anxious to make these articles the necessary power. In a former amendment of the Patent Law we enacted that if a foreigner obtained a patent right to make an article, and it was not made in
Australia or Great Britain within a certain time, it could be made here. That is a well-recognised principle which we put into practice in time of peace, but now that we are at war, it is proposed not to go even that far. I can see no earthly good that is likely to come out of the Bill. Unless we are determined to take advantage of this opportunity to secure the manufacture of the articles in Australia, the Bill seems to me to be so much waste paper.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [12.2].- It is just as well, I think, that the Senate should inquire as to what really is the position in regard to patents. A patent is a monopoly that is granted by the authority of the Crown to some individual or company for the purpose of carrying on an industry which will be of advantage to the community generally. An invention must have the advantage of novelty as well. In recognition of the inventive genius of a person who discovers a novel process or piece of machinery which becomes the subject of a patent, the individual, or his representatives, receives from the Crown a monopoly of the industry for a fixed period. That clearly shows that a patent at any rate is a monopoly in the first instance. It shows, too, that the power to grant a patent is vested in the Crown, and the Crown has also the right to revoke a patent at any time it thinks fit.
– But has the Crown the right to sell the patent to somebody else?
– Our law provides at the present time that if a patent is not made use of in the Commonwealth within a certain time, the patent may be revoked, or the right may be given to individuals who are prepared to carry on the manufacture of the patented article in the Commonwealth. Clearly, the Crown has the control in its own hands. Let us come to the next position. Patents have been granted to aliens who at present are our enemies, and therefore have no rights in the law Courts. If any person in Australia sees fit to trade with an alien enemy under our recent legislation, he is liable to criminal prosecution and to punishment. To-day an enemy has no rights in the Courts of law, nor will he have any such rights until after the conclusion of peace. For any act which may be done during the continuance of the war, an enemy will have no right to complain afterwards in the Courts of law. He will have no right to bring a cause of action in respect of any matter which arose during the progress of the war. Now, what do the Government propose to do in this Bill? They say, “ We will give to any individual or individuals in the community an opportunity to work these patents under certain restrictions and regulations to be laid down.” That may be a very good provision, because where a large amount of machinery has to be provided, or a considerable expense has to be incurred, it will be a guarantee to any individuals who embark on that particular line of work that nobody can interfere with them, because the Government will insure to them the sole right to manufacture the article. It will become a profitable undertaking to some persons, and the Commonwealth itself will derive benefits from the article being manufactured here of which otherwise it would be deprived. Having got so far, I want to know why we should attempt to say by our legislation, “We will give to a company the right to carry on a particular work during the existence of the war, and for a period of six months after its conclusion, but reserve to ourselves the option of saying to our alien enemy after the war is over, “ You shall be compensated for what took place during the progress of the war between the two nations, as our people used your patent, and made a good deal of money by virtue of its use.”
– And the Government may equally say, “ You shall not be compensated.”
– Yes; but we should give no powers to the Government beyond those which we think may be reasonably exercised, taking all the circumstances into consideration.
– Would the licence to the person who had started the works be void at the end of the time?
– According to the terms of the Bill the licence might be made absolutely void or it might not. The Government might say to the licensee, “ We will allow you to continue the manufacture of the article, but you must account for a certain percentage of the profits by way of a royalty to those who originally obtained the patent in Australia. Is that a fair or just thing? When we are at war with an alien enemy, particularly when we remember the virulence with which the war is being carried out, we have no right to say to enemy subjects who hold Australian patents, “ When the war ceases we will do to you what you may consider an act of justice.” Senator Keating asked the Government if they knew what was going to be the policy of Germany. Having regard to the barbarous way in which the war is being conducted by Germany, we may depend upon it that the Germans will not give to an enemy subject any advantage over a patent which was utilized during the period of the war between the two nations. We should not look at this measure in a namby-pamby sort of way, and say to enemy subjects who hold patent rights in Australia, “As soon as the war is over we will enable you to say, Great Britain has been just and generous to us throughout the whole of the war. She has restored to us all that we would otherwise have lost.’ “ I say with Senator Millen that the British nation’s generosity has in many cases amounted to sheer stupidity and injustice to its own people in endeavouring to placate an enemy that has been fighting hip and thigh with a determination to destroy the British nation if possible, in fact, all the nations with which it is at war. Now, is this a time to turn round and say to enemy subjects, “Notwithstanding all these facts, we are prepared to hold sacred all your patent rights which you have acquired in this country, and which have enabled you for many years to derive benefits from the sale and manufacture of the articles.” If it is proposed to conduct war in that way it is about time that a new race of people arose to stiffen the back of the authorities a little, and make them realize that when we are at war we are not engaged in a game or at a play, but are fighting in serious, sober earnest. Who is going to compensate private individuals in Great Britain for the lives which have been taken, and for the property which has been destroyed during the war? The only State which will be able to get any compensation will be the State which obtains the victory in the end. It will obtain compensation by virtue of the money which will have to be paid by the defeated nations to cover, to a certain extent, the losses it sustained. When an honorable senator says, “ A private individual is not at war with the enemy; it is his nation which is at war, and why should we take this property from him?” I would point out that when a nation is at war every citizen of that nation is at war, too. I do not believe that there is one man in a thousand in any of the countries now at war who does not hope that his nation will be victorious in the end. In that way he becomes a partisan, and takes all the risks and liabilities which are necessarily incurred when two nations or more go to war. Why are the ships of an enemy destroyed 1 Quiet merchant ships which are doing no harm, but which are merely carrying goods or passengers from port to port are destroyed by the enemy, and it is regarded as a legitimate act of war. When a nation goes to war, individuals of that nation who own ships are at war too, and they have to suffer the penalties of war, whatever they may be. A war is con-, ducted by the ruling power. Whether Kaiser or King, there is a ruling power which predominates over the whole nation. It can only retain that authority while it has the support of the nation. When a war is declared between two nations, the destruction of an enemy’s property and commerce in every direction becomes perfectly legitimate. Now, can we put the patent rights of an enemy subject on a higher scale or position than the ordinary property of an enemy ? Patent rights have been obtained here by aliens for the purpose of putting money into their pockets. Why do we say to our people, “ You should not trade with an enemy ‘ ‘ ? Simply to prevent our people from putting money into the pockets of an enemy. The sinews of war arise from the taxation of the people, and the taxation of the people is regulated by their ability to pay the taxes. If a German patentee is deriving a revenue from the manufacture of an article in Great Britain, every penny of that revenue is subject to the control of the Government of Germany, and can be utilized for the purpose of destroying the very country from which that money is derived in virtue of patent right. In dealing with legislation of this kind, it should be remembered that we are dealing with an enemy, and that an enemy will not think any better of us if we adopt any kid-gloved method, to use an expression of Senator de Largie. My honorable friend, the Leader of the Opposition, says he is not prepared to stand in the way of the passage of this Bill. I am prepared to vote against the motion for the second reading, because the Bill goes too far. If, however, the Government would introduce a measure that would enable them to grant licences to individuals to work these patents under proper regulations, that is, regulations which would protect the interests of our own people, I should offer no objection. But I will not vote for any Bill which will enable the subjects of a nation which is at war with the British nation to ask after peace is declared for the restoration of rights which were forfeited by the act of war. They are forfeit to the nation, just as an enemy’s ship captured in time of war is forfeit to the nation. Unless we have a Bill submitted of a different character, I will not support it. If the Government were to introduce a measure which would enable them to grant to our own people, under .proper conditions, the rights which already exist under patents held by alien enemies, I would be willing to support it. It would be to the interests of the community that many German inventions should remain in the hands of individual firms, particularly in cases where those firms have incurred considerable expense in taking up such inventions. I would give the Government the fullest power of dealing with matters in that way, but the moment they say to the enemy, “ We think you have been harshly treated, and, therefore, out of the pockets of the people of the Commonwealth we propose to grant you compensation,” I enter my emphatic protest. If the Bill will confer on the Government a scintilla of power to do that, it will not suit me. I am not prepared to give to our enemies rights which they are denying to our own people, and particularly am I averse to granting such rights to nations which are conducting war upon lines of the greatest treachery and cruelty imaginable - upon lines worse than any which have been followed in the world’s history.
– Does the honorable senator believe that all the horrors of which he reads have been committed ?
– No; but I believe that the stories of a great many of them are correct. We know that war nowadays is not conducted on the battlefield upon kidgloved lines; but there are certain rules which ought to be observed by all nations who claim to be regarded as more than barbarians. As a matter of abstract justice to our own people, we have no right to sanction a Bill of this character. What man will take up a German invention in the Commonwealth, if eighteen months hence he may discover that all his expenditure upon it has been for nought?
– That is just what the Bill will prevent.
– I cannot forget the statement which was made by a member of the Government that this Bill empowers the GovernorGeneral, by regulation, to grant compensation to German patentees for any loss they may have sustained-
– It does not say that the Governor-General “ shall “ do that.
– Senator Gould will not trust the Governor-General to exercise that power. We will.
– Let me remind honorable senators of the utterance of a Minister
– He is just as good a Britisher as is the honorable senator, and is just as loyal.
– I am not raising the question of whether these gentlemen are good Britishers.
– But the honorable senator is insinuating it.
– I can assure the Minister that I am not.
– The honorable senator has been doing it during the whole of his remarks.
– I have all along been prepared to credit the gentlemen who are now in office with being actuated by the highest patriotic motives.
– Then why all this talk about granting compensation to German patentees?
– I will not trust any Government with the exercise of powers which I believe ought not to be exercised. Of course, the position comes home to one more strongly now than it would do after the close of the war.
– Is it not a fact that the Imperial Parliament has passed a similar measure?
.- I believe that it has.
– Is the honorable senator questioning its loyalty?
– No; I am questioning its wisdom. It is notorious that Great Britain has always been too generous in the hour of victory. She has ever been prepared to give away what she ought not to have dreamed of giving away. I venture to say that, if we were in close proximity to the fields where battles are now being waged, we should entertain a very different feeling towards our alien enemy. Holding these views, I cannot support the second reading of this Bill. We shall commit a fatal mistake if we pass a measure of this kind under the circumstances that exist to-day.
– Does the honorable senator think that these foreign patents should be at once sequestrated?
– I think that our own people should be afforded an opportunity of having those patents vested in them at once. The Bill proposes to vest these patent) rights in certain individuals.
– Why not let everybody enjoy them ?
– I would let anybody make an application for the enjoyment of those rights.
– When a patent expires, what happens? Anybody can take it up. These patents have practically expired.
– Then no Bill of thiB character is necessary. I appeal to honorable senators to recollect that we are waging a war which involves the destruction of those nations which are not victorious. Consequently, it would be foolish on our part to tinker with measures in such a kidgloved way as is proposed.
– What does the honorable senator suggest as his remedy for the present position?
-Colonel Sir ALBERT GOULD. - I am willing to support a Bill which will empower the Government to grant these rights to any individual or individuals. Until that is done, it will be competent for any person to take up these foreign patents.
– I certainly resent the tone of the remarks of the last speaker, who seemed to cast a doubt upon whether, in the administration of this Bill, the Attorney-General will pay proper regard to the rights of citizens of this country, and whether he will not pay an undue regard to the rights of the enemy. His remarks were tinged with that spirit, and seemed to imply that the Government are not to be trusted.
-Colonel Sir Albert Gould. - I said that no Government should have these powers.
– But during the progress of the present war, only one Government will be in power in the Commonwealth. There is no chance of honorable senators opposite occupying the Treasury bench during the next two years. The present position is that there are a number of German patents in existence - valuable patents. It is necessary that those patents should be worked. We require the articles over which they are held. Now, will anybody in the Commonwealth erect a valuable factory for the purpose of manufacturing any patented article if he can be deprived of his rights should the war terminate six months hence, and if he is then liable to an action which might mulct Kim in heavy damages? Of course, any person has a right to manufacture articles over which there are German patents in the Commonwealth during the continuance of the war. But who would gamble by putting up a factory to manufacture those articles if he would be prevented from continuing their manufacture the moment that the war terminated ? This Bill will confer a guarantee upon such persons as to where they will stand after the war has closed. We all know that an alien cannot sue in any Court during the continuance of the war.
– Does the Minister think that a man would invest much money in exploiting a patent if there were a prospect that he would be deprived of it six months after the termination of the war?
– Of course he would not. The honorable senator has been misled by Senator Gould, who endeavoured to make it appear that this Bill would give our subjects nothing, when, as a matter of fact, in a legal sense, it will give them everything. It will give them the right to continue working a patent on such terms as the Government may think fit. That is the whole bugbear of Senator Gould - that the Government have to determine the conditions under which these rights shall be granted. These are valuable rights, and therefore he thinks that the power is a dangerous one to place in the hands of a Labour Government.
– That is not fair.
– It is. I am im pelled to make this statement by the tone of Senator Gould’s remarks regarding the kid-gloved manner in which he declares we will administer this Bill. I ask honorable senators upon this side of the chamber whether they are afraid to trust the Government to safeguard the interests of the community in determining the conditions under which these patents shall be worked after the conclusion of the war?
– Does not the war end the protection of the patentees?
– No ; it does not.
– It only suspends it?
– The honorable senator is wrong. This Bill will empower us to grant the right to exploit any patent upon such terms and conditions, and for such a period, as we may think fit.
– Does not the war end the protection to the foreign patentee ?
– When the war is over our laws will stand as they were before it started. Our laws grant protection to foreign patents. This Bill is intended to protect persons who take up German patents during the continuance of the war, after the war has terminated. The whole point is whether honorable’ senators are prepared to trust the Government. Are the Government going to give unduekid-glove consideration to our German enemies, or can the public trust them: to see that Australian citizens, and British people generally, who may invest their money for the purpose of manufacturing patented articles, shall be justly treated?
– The question is, Should we adopt as a legislative principle the paying of compensation to these people ?
– There is no compensation payable to these people under this Bill. The Minister may make it a condition that compensation may be payable. I say that I am prepared to trust the Minister to do the right thing. I would just as soon trust him in this matter as I would trust Senator Gould or any other honorable senator on the other side. I say it is a reasonable power to place in the hands of the Minister under this Bill, if at any time it should appear to be right and just- that it should be exercised.
– Has the Minister received any information which would guide us as to the way in which British holders of patents operated in Germany are being treated in that country?
– How could we receive such information? Does the honorable senator think that the censor is dead in Germany? As a matter of fact, the censor is very much alive in that country, and it is impossible for us to find out what is going on there. I am prepared to say that I believe that it is probable that the Germans have confiscated all patents in Germany. I say that this Bill is the equivalent of the confiscation of all German patents, but it reserves to the Government the right to say to private individuals, “ These patents are confiscated. If you wish to manufacture the patented article, you must come to the Government for the terms and conditions under which you will be allowed to operate the patent.”
– What is the suggestion of compensation?
– It is that there may be a case in which compensation would be justifiable, and if there be such a case, the Government will have the power under this Bill to make it. The Attorney-General is to be the judge.
– He has said that it is intended to pay compensation.
– Honorable senators opposite are not prepared to trust theAttorneyGeneral in the matter.
– There was no “ if “ about the Attorney-General’s statement. He said that it is intended to pay compensation.
– He said ‘that the Bill would give him power to pay compensation.
– No. He said that it is intended to pay compensation.
– In certain caseswhere justification is shown, compensation will no doubt be paid, but the AttorneyGeneral did not say that it will be paid in all cases. I trust that the Bill will be allowed to go through in its present form.
.- The Minister of Defence has cleared up some doubts which I had as to the utility of this measure. It is of little use if the patents can only be operated here during the progress of the war. Those who embark their capital in plant for the manufacture of patented articles must expect to be able to manufacture for the future. It appears that this measure is prompted by a panicky feeling in favor of retaliation. When war was declared by Germany, we felt ourselves aggrieved, and as it has progressed we have had reason to feel more aggrieved. We have been in the habit of using articles of many kinds produced in Germany, and the feeling has naturally arisen that it is wrong, by continuing the use of these articles, to afford a means of sustaining the enemy with whom we are at war. I am sorry that Senator Gould has left the chamber, because I was particularly delighted by his fulminations and the horror he expressed at our having anything to do with Germans or with goods produced in Germany. The honorable senator gave us to understand that the nearest approach he is prepared to make to a German is at the bayonet’s point. I wish now to remind the Senate that when on many occasions we have endeavoured to make provision for the manufacture in this country of most of the articles which have hitherto been sent to us from Germany, Senator Gould, and his leader, Senator Millen, have resolutely refused to give us any assistance. I am pleased to think that, though it is a puny effect, at least one of the effects of the greatest war in human history has been to bring Senators Gould and Millen to their senses in this matter. The articles and commodities, the manufacture of which is controlled by patents, are but very few in number, when compared with the vast volume of products of German industries imported into Australia, the manufacture of which is not covered by any patents at all. “When we were endeavouring in the past to reduce the volume of these imported goods, and the flow of good Australian cash to Germany in return for them, we got no assistance whatever from men like Senators Gould and Millen. They exercised whatever power and influence they possessed in this community to nullify the efforts we made to secure the manufacture in Australia of the articles and goods we have been in the habit of importing from Germany.
– Who voted against 5 per cent, on German mining machinery ?
– We had nothing then to expect from these gentlemen who to-day are fulminating against Germany. They were not prepared to listen to the voice of wisdom from honorable senators on this side. Now Senator Gould would not touch a German except at the point of the bayonet, but when it was a question some years ago of checking him he was not prepared to lend any assistance at all. The honorable senator was then a pro- Germ an.
– And Senator Lynch voted for free German machinery.
– I repeat that I am pleased to notice a change in the views of honorable senators opposite as one of the lesser results of the European war. I congratulate these two leading lights of the party opposite upon their acknowledgment to-day of the far-seeing wisdom of the policy which they have so strenuously opposed in the past. I was going to say that I offer my congratulations to these pro-Germans, and I will say that they were pro-Germans in the past.
– The honorable senator is using an expression which he knows to be untrue.
– I desire to ask that the statement which Senator Lynch has just made shall be withdrawn. The honorable senator has said that I am a proGerman. I particularly resent such a statement from a man who fought here all night for the free admission of German machinery into this country.
– Order ! The honorable senator, is entitled to demand the withdrawal of a statement which he regards as offensive, but is not entitled to make a speech in doing so. I call upon Senator Lynch to withdraw the statement which Senator Millen regards as offensive. I also remind the honorable senator that I think he transgressed the rule of relevance, since the Bill does not in any way raise the question of Free Trade and Protection.
– I regard the honorable senator’s statement as personally offensive to me, and as absolutely untrue so far as I am concerned. I ask that Senator Lynch should withdraw the statement.
– It is a scoundrelly thing to say.
– I ask Senator Lynch to withdraw the statement.
– I withdraw the statement.
– I now ask Senator Millen to withdraw his statement that it was a scoundrelly thing to say.
– I must withdraw the remark, and I do.
– That is a qualified withdrawal, and I ask that Senator Millen should make an unqualified withdrawal.
– It was not a qualified withdrawal. Senator Millen said that he must do it, and he has done it.
– Why all this anger and heat!
– Senator Gould got very heated over this matter, and while he was fulminating against Germany I could not avoid a retrospective glance at the past.
– I hope the honorable senator will not return to the matter.
– Very well, sir. I am glad that these gentlemen have been converted at last. The Minister of Defence, while removing some doubts, has left one in my mind in connexion with this Bill. If under it the right to operate a German patent is given to a German firm, and that right is to be transferred to an Australian manufacturer after the termination of the war, how can the right bo said to be again extended to the German owner of a patent after the conclusion of the war?
– The German owner of a patent would have lost the patent by reason of the fact that we had given it to an Australian.
– I understood the Minister to say that in certain circumstances the right to enjoy a patent might be restored to German subjects after the termination of the war. If it could be operated to the fullest extent by an Australian firm in competition with the German owner of the patent, what protection would be afforded to the latter?
– The terms upon which the patent might be operated by an Australian might provide for a percentage of the profits of its operations being paid to the original patentee.
– That, of course, might be provided for. I agree with much that Senator Gould said to the effect that the measure is brought forward at a time when events justify its quality of severity, because we have been involved in a war as cruel in its execution as it was unprovoked in its origin. I say that the time has come when we should adopt stern measures to teach those opposed to us that, if we can prevent it, we are determined not to be trodden upon in the ruthless and brutal fashion in which they have attempted to tread upon us. In the Old Country, under the law there is power to call upon foreign firms registering patents to establish works there for the manufacture of their patents.
– We have the same right under our Patents Act.
– Then, unfortunately, we have not so far enforced it. In the Old Country the authorities have adopted sterner measures than have been adopted here. I cannot accept the view expressed here that these patents registered by subjects of the enemy are to be suspended only, and may be revived at the conclusion of the war. If we are to do anything effective in this matter, we must be in a position to give some guarantee to those who contemplate the investment of their capital in the operation of German patents that they will not in the future be disturbed under any conditions whatever. The Bill leaves a great deal of latitude to the Minister to decide what action shall be taken in this matter, but I feel that it is necessary that Par liament should lay it down that if an Australian individual or company embarks capital in the operation of a German patent they shall be permitted to enjoy the right to operate the patent during the full term of its currency. I welcome the Bill, and hope that in its progress through Committee the few little doubts I have had of its efficacy will be removed. The present circumstances have been entirely abnormal in the history of nations, and have fully warranted the action taken, both in the Imperial Parliament and here. We are justified in endeavouring to pass a measure for the relief of our own people, and to instil into them the feeling, which should long since have been created in them, that we should be a more self-sustained and self-supporting nation than we have been in the past. Had that spirit, instead of the foolish idea that we should get commodities from other parts of the world, been fostered, there would be much less need for this Bill today; but I am glad to find in this measure, at least, an instalment of the very necessary effort to make this country more self-sustained and self-supporting than it has been in the past.
– I should like to know exactly where we stand with regard to these patent rights. An attempt has been made to explain the matter, but I am still as much in doubt as I was before. Are the patent rights of foreigners ended by the present condition of war ?
– They are not ended ; they are suspended.
– At the end of the war the patent rights are to be restored, but during the war the Government take power to “ avoid them,” which, I understand, means to extinguish them. Have they the power to end the patent rights held by an enemy ?
– Yes; they are asking in this Bill for power to end or suspend them.
– That is what I wanted to know.
– A legal gentleman in the other House said the law is that when war breaks out, patents are not cancelled, but there is a suspension of the right of action for infringement.
– The patentee can sue for damages for the infringement of the patent immediately the war is over.
– Is the purpose of the Bill to give certain individuals licences that will secure them against any claim on the part of the patentee?
– Then I am satisfied.
– I understand that the object of the Bill is to give protection to those using machinery over which patent rights are held by the enemy, and that that measure of protection is to remain in force during the currency of the war, and for six months thereafter.
– But the licences issued during that period by the Government can continue during the whole period of the patent.
– Then, supposing that that measure of protection was granted to a manufacturer in Australia, with the assurance that he would have it so long as the war continued, it might be taken away from him six months after the end of the war.
– Clause 3 gives the right to issue licences which are good during the whole term of the patent.
– Then what is the object of clause 2, which says, “ During the currency of the war, and for six months afterwards “ ? Why is the matter left in doubt at all? If a man instate machinery and establishes a successful business by securing an enemy’s patent right during the currency of the war, why should there be any lingering doubt that the protection may be taken away from him afterwards?
– There is no doubt about it. The licence may be issued at any time during the currency of the war and for six months afterwards, but it may hold good for the whole term of the patent.
– The Bill says it “ may “ continue. Why not enact that it “shall” continue? Why does the Bill contain two clauses seemingly at variance?
– Read paragraph d of clause 3.
– Under it power is vested in the Minister. He may or may not six months after the war give further protection to a manufacturer or he may give it to one and not to another.
– He will give it in the licences that will be issued.
– The licences will have to be issued during the currency of the Bill.
– During the currency of the war or during six months after it, and no longer. Discretionary power is given to the Minister as to the period for which the licence shall be granted. To me that seems unsatisfactory. I hope the Minister will make it clear.
– Underneath this question there seems to be a still larger one - the recognition of international law. So far two contradictory statements have been made. One is, that the event of war determines the patent, the other is that it merely suspends it. I should like to see the Government take power to declare that all patent and trade mark rights owned by enemy subjects are absolutely determined, but apparently they are approaching the measure in a timorous, fearful, and apologetic frame of mind. I regret that the Minister of Defence should appear to feel that criticism of the Bill is criticism directed against the Government. It is directed not against the Government, but against the provisions of the measure. I notice, in reading the AttorneyGeneral’s speech, that the question of compensation is brought in, and I think we should safeguard ourselves from the possibility of an action for compensation by the previous owner of the patent after the termination of the war. The AttorneyGeneral is reported to have said, “ We are at war with Germany and Austria, but do not propose to violate the principles of international law. It is proposed to compensate at the end of the war the patentee for the use of his patent during the interregnum.” The Government appear to be taking in the Bill power to compensate a person who has been at war with us for the use of the rights which he has, in a measure, violated during the time of war, and that, in my opinion, is not the spirit in which we should approach this question. We should approach it with the clear understanding that the very act of war terminates all rights held by enemy subjects. The Government should take those rights to themselves and either work them themselves - a course which I should strongly favour - or hand them over to new patentees who are subjects of our own Empire, with power to use them without any doubt or fear of ultimate actions for damages; but I see that the Government are bringing in the question of those persons being required to pay compensation. Apparently a person whose right has been terminated by the war may come in at the conclusion of peace and claim compensation either from the Government or from the individual who has been using his patent.
– From the Government, not from the individual.
– Clause 3 makes provision for avoiding those rights.
– But clause 2 covers only the period of the war and six months afterwards. The VicePresident of the Executive Council has explained that point by interjection, but will he explain why the Government still have at the back of their minds the idea of giving compensation to the patentee for the use of his patent rights?
– There may be a case where compensation should justly be given, and then it should be in the power of the Government to give it.
Sitting suspended from 1 to 2.30 p.m.
– I wish to elicit from the Government if I can, and I think that I can, a clear statement with regard to the principle underlying the Bill. I reserve other remarks I wish to make for the Committee stage. On turning up the principal Act I find that in section 86 power is reserved to the AttorneyGeneral to revoke a patent. On that principle, I think that he would he empowered by the section to revoke a patent held by a subject of a nation with which the British nation is now at war. I think that we should not commit ourselves, by inference or by implication during the passage of the Bill, to the idea that it is our intention to pay at any time compensation to an enemy holder of patent or trade mark rights in the Commonwealth. If, by the passing of any clause we do that we shall commit ourselves to compensation of a character which at present we really cannot foresee; otherwise we shall land the Commonwealth in a law suit which, perhaps, after all, might prove to be more costly than the compensation claimed. I want to make the ground perfectly clear that, in the passing of this Bill, the Government should take all the rights they possess to deal with patents held by subjects of our foes oversea as though they did not exist, and by that means to protect the Commonwealth and its people. I hope that the Minister, in his reply, will be able to give me the assurance I desire to get.
– Perhaps most of the comments which have been made on the Bill were due to myself for introducing it so hastily to the Senate. I introduced the Bill hurriedly in the expectation that it would be accepted here, as it had been accepted in the British Parliament and in another place, without much comment. I recognise how fairly honorable senators have treated the measure. In fact, I, to some extent, sympathize with the warmth displayed by Senator Gould, although I was rather astonished at his statement that individual subjects of an enemy of the British nation have no rights in the Commonwealth. That is an axiom which I cannot accept. I believe that if I, or any one else, attempted to give effect to an idea of that kind the honorable senator, on more mature consideration, would be the first to say that ah enemy’s subject had rights, and was certainly entitled to the protection of our laws.
– I say that individuals are at war just as much as the nation is.
– And that, being at war with the British nation, an enemy’s subjects had no rights. That statement was made by the honorable senator, not once, but quite a number of times during his address, which, I admit, was delivered with some warmth. He said that when a nation was at war an individual subject of the nation had no rights in the country of the enemy.
– During the period of the war.
– Suppose that a prisoner on parole was walking the streets of Melbourne, with an excellent gold watch and chain, and that I, following the principle laid down by the honorable senator, that an enemy has no rights here, took a fancy to the articles. [ wonder if the honorable senator would consider that I was right in taking possession of them.
– That is a different thing altogether.
– I recognise that it is different, but the watch and chain are the property of an individual member of a nation with which we are at war.
-But he is within our boundaries.
– In many cases patent rights are the property of individual subjects of an enemy in exactly the same way as is the watch and chain of a prisoner on parole. What happens when war takes place? The holder of patent rights has no standing in the Courts to prosecute any person or to recover damages for any infringement of his rights. At the same time, his rights continue to exist. Now, if this legislation were not persevered with, immediately the war ended - and let us hope that we will soon be at peace - alien owners of patent rights would take up the rights they had received from the Commonwealth, and proceed to prosecute for any infringement of them.
– I think that you are wrong.
– That is the opinion of a very distinguished lawyer, who come3 from the State which the honorable senator represents. What are the provisions of the Bill? Clause 2 reads -
This A’ct and the regulations made thereunder shall continue in force during the continuance of the present state of war in Europe, and for a period of six months thereafter, and no longer, but nothing in this section shall affect the duration of any licence granted by the Minister in pursuance of this Act.
– If that is valid you have abrogated his rights, otherwise yon could not grant an indemnity.
– The Bill is introduced for the purpose of annulling the patent, and that is a position which the honorable senator seems to have overlooked, and which I would like to make clear. Clause 3 provides for an extension of power to make temporary rules for the purpose of giving effect to the law. It includes the power to make regulations - for avoiding or suspending in whole Or in part any patent or licence the person entitled to the benefit of which is the subject of any State at war with the King.
The very purpose of this measure is to annul the patent rights of subjects of a State at war with our own nation.
– You can do that under the Patents Act as it is.
– I do not intend to debate that point. Evidently the law authorities of Great Britain thought that a measure of this kind was necessary. Let me refer to another portion of the clause which will make more clear the point to which my honorable friend called attention. Clause 3 includes the power to make regulations - for enabling the Minister to grant, in favour of persons other than such persons as aforesaid, on such terms and conditions, and either for the whole term of the patent or registration, or for such less period as the Minister thinks lit, licences to make, use, exercise, or vend patented inventions and registered designs so liable to avoidance or suspension as aforesaid.
Suppose that some person wanted a licence to produce an article which would involve the erection of a large quantity of machinery or the expenditure of a considerable sum of money before he could produce what an enemy’s subject holds patent rights to produce. Under the Bill the Attorney-General can frame regulations which will permit him to give a licence for the whole term of the patent rights or for two, or three, or five years. If the war ended next day the licence would continue in existence, and the original holder - a subject of a nation which is now at war with our nation - would have no claim, because the licence was granted under this measure while it was in force. The licence could be continued for whatever period the patent rights were issued in the first place. Honorable senators took exception to the Bill on the ground that it would not have this effect, but that is the very purpose for which it was introduced. There is another matter on which some honorable senators are not very clear, and that is the question of compensation. The Bill provides .that in certain cases compensation may be granted.
– In what clause?
– It provides for the framing of regulations.
-Colonel Sir Albert Gould. - According to the Argus, the AttorneyGeneral has said that it is intended to compensate the patentees after the close of the war.
– The report in the newspaper is rather condensed, and I have had the advantage of reading a full report of what my colleague said. In the other House he pointed out very clearly that in the Bill there is no provision putting an obligation on the Commonwealth to grant any royalties or compensation to persons whose patents are voided by the measure. But there may arise a case, and I think it is quite reasonable to ‘expect that there will arise a case, in which the whole of the circumstances point to the justice of giving some compensation, and then the royalties which had been obtained under the Bill could be used very properly to meet the obligation. I do not propose to occupy much more time, because I understand that some honorable senators desire to leave for their States shortly. I hope that I have made it clear that, as far as the Commonwealth is concerned, we are taking power to do very much what Senator de Largie suggested we should do. We are taking power to nationalize - if I may use the term in rather a loose manner - these patents. We propose to take control of them.
– For the time being.
– We propose to exercise that control in such a way that any licensees under the Bill will be able to manufacture articles which they would not attempt to make under the existing conditions. Further than that, we intend to regulate the industries in such a way that they will be a benefit to the whole of the community. The regulations under which this policy will be carried out will be laid before both Houses of Parliament, in the same way as other regulations are presented, and honorable senators will thus have an opportunity to deal with them. As far as I have been able to acquaint myself with what the Attorney-General has said concerning this measure, I can assure honorable senators that the community will be protected, and that any persons who invest money in the manufacture of patented articles will be protected. As regards any cases where huge profits are being made without the expenditure of large sums of money, I think we can fairly claim that the Commonwealth will be entitled to reasonably large royalties or licence fees from the users of the patent rights, so that, to some extent, we may recoup ourselves the large expenditure to which we have been put by the war. I hope that honorable senators, if they have no strong objections to offer, will permit the Bill to pass after receiving due consideration.
Question resolved in the affirmative.
Bill read a second time.
Clauses 1 and 2 agreed to.
Clause 3 (Extension of power to make temporary rules).
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [2.47].- Will the rules made under this clause be laid on the table of either House of the Parliament, so that honorable senators can take exception to any of them if they see fit, or will the rules be made, as some rules have been made, at the discretion of the Government, without reference to Parliament ?
– The rules will be governed by the provisions of the Rules Publication Act, and, of course, will be subject to the same conditions as the rules made under any other Act.
Clause agreed to.
Title agreed to.
Bill reported without amendment; report adopted.
Motion (by Senator Pearce) proposed -
That so much of the Standing and Sessional Orders be suspended as -would prevent the Bill being passed through its remaining stages without delay.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [2.48].- I shall certainly oppose the suspension of the Standing Orders, particularly as the Minister has failed to show any reason why this measure should be passed today. Why cannot it be placed upon the business-paper for Wednesday next? I hope that the Minister will not insist upon the suspension of the Standing Orders in the absence of urgent reasons for the passage of this Bill. I need scarcely point out that the measure contemplates a certain course of action not in the immediate future, but in the course, possibly, of weeks or months. In these circumstances it is unreasonable to ask us to suspend the Standing Orders. If we adopt that course in the present instance we may just as logically adopt it in respect of every measure that may be submitted for our consideration. It is my desire to offer some observations on the motion for the third reading of the Bill, and, owing to what has been said to-day, it will be necessary for me to obtain information which I have not now in my possession. There are certain authorities which I am anxious to consult, and in these circumstances I urge the Minister to withdraw the motion, so as to allow the Bill to stand over until Wednesday next, when I have no doubt that it will finally be disposed of. If the honorable gentleman cannot see his way to accede to my request I shall have no option but to oppose the motion, and to trust to my friends to assist me in preventing the suspension of the Standing Orders.
– The AttorneyGeneral advises me that there are good reasons why the Bill should be passed today.
– I quite recognise that in a critical time like the present occasions may arise in which it is necessary to sweep aside all our rules of procedure in order that we may proceed with business. I think I may safely say that nobody has exhibited any disposition to do other than to help the Government to enact legislation which has been rendered necessary by the war. When urgency stands out as a marked necessity there can be no question of the desirableness of taking the unusual course which is now proposed. But if, because a state of war exists, it is intended to make that circumstance an excuse for suspending the Standing Orders in regard to every piece of proposed legislation, we shall be opening the door to very grave dangers indeed. The Minister of Defence has informed us that he has been advised by the Attorney-General that there are reasons why this Bill should pass to-day. I can only accept that statement. But I would point out that six weeks have elapsed since the Government took office, and only quite recently they proposed the adjournment of Parliament for a fortnight. Seeing that there are some very big questions involved in this Bill, and that one of our legal members has expressed a desire to be afforded an opportunity to consult authorities on the subject, I say that, unless the Government can show that there is an immediate necessity for the passing of the measure, it would be more in keeping with the dignity of this chamber if we refrained from suspending the Standing Orders on this occasion. Unless there be some public necessity to serve, some public danger to avoid, I ask the Minister to respond to the appeal that has been addressed to him by the previous speaker.
Question put. The Senate divided.
Majority … … 16
Question so resolved in the affirmative. Bill read a third time.
– With the leave of the Senate I desire to submit a motion.
– Before granting the desired leave I think it is reasonable that the Senate should be afforded an indication of the nature of the proposed motion.
– I do not desire the honorable senator to read it, but merely to give an indication of its character.
– It relates to an amendment of the Defence Act, which is outside the order of leave.
– What would be the effect of the amendment?
– My motion has for its object the omission of section 51 of the Act.
– Does that relate to canteens ?
– Oh, no!
– To what does section 51 refer?
– It is the provision in our Defence Act which requires members of our Defence Forces to take part in putting down domestic violence.
– Is it the pleasure of the Senate that the honorable senator have leave to submit a motion?
– One objection is fatal.
The following papers were presented : -
Cordite Factory : Extracts from report for year ended 30th June, 1913.
Harness, Saddlery, and Leather Accoutrements Factory : Report for year ended 30th June, 1913.
Public Service Act 1902-1913.- PostmasterGeneral’s Department. - Promotion of J. T. Thompson as Postmaster, Grade IV., 3rd Class, Longreach, Queensland.
– I move -
That the Senate do now adjourn.
In submitting the motion, I wish to inform honorable senators that the Defence Bill will be taken on Wednesdaynext. The first reading of the Pensions Bill and of the Navigation Bill will be taken on Wednesday, and probably the second readings on Thursday. We expect the Arbitration Bill here on Thursday, and when it arrives it will be given preference to the other Bills referred to.
– I should like, in a very few words, to make some reference to the answer I received to a question I put to the Minister representing the Prime Minister this morning. The matter had relation to the Department of Home Affairs, and I should like to say that it was not through any discourtesy that I directed my question to Senator Pearce rather than to Senator Russell, who represents the Minister of Home Affairs in this Chamber. As a matter of fact, I saw Senator Russell, and told him that I intended to submit my question to Senator Pearce, &nd while he did not openly approve of the course I proposed to adopt, the honorable senator did not object to it. My question was upon a matter vital to the policy of the Labour party, since it had relation to the matter of preference to unionists. I thought, and still think, that the Leader of the Government in the Senate was the right person to whom I should address a question of the kind. A reference was made to a statement by the Minister of Home
Affairs, reported at page 388 of Hansard for this session, which was quoted this morning, and the reply of the Minister from my point of view was not at all satisfactory. The Minister said that the policy of the Government is preference to unionists, other things being equal. But how he is to give preference to unionists, other things being equal, without ascertaining whether a man is a unionist or not, must be known only to the Minister himself. It may be considered that in these times this is a somewhat trivial matter.
– It is a very big matter.
– I agree with my colleague, Senator Mullan, that it is a very big matter. It is so big, as a matter of fact, as to have held up the Houses of this National Parliament for a term of fifteen months, during which the late Government endeavoured to bring about a double dissolution on the question. In my opinion it was also big enough to have brought about a change in the Vice-Regal representation of the Commonwealth. I believe that Lord Denman’s retirement as Governor-General was due to the fact that he did not see eye to eye with vested interests as to the justice or the necessity of a double dissolution, and had not the moral courage to stand up against a proposal of which he could not approve. The matter involves the issue which was considered important enough to bring about a double dissolution for the first time in the history of the Commonwealth Parliament. The people of Australia indicated the importance which they attached to the matter by indorsing the policy involved, and by giving the present Government a mandate to put’ that policy into operation. If they expect to put that policy into operation without ascertaining whether the employes of the Commonwealth are unionists or non-unionists, they are, in my opinion, up against a very tough proposition. I believe that the PostmasterGeneral and the Minister of Home Affairs are well intentioned and sincere in this regard. My only fear is that as new Ministers they may, like many other Ministers, permit themselves to be influenced to too great an extent by the sub-heads of their Departments, and generally by official pressure. There is in this, I believe, a grave danger to the future welfare of the Australian Labour party. We have had experience in the State Parliaments of the baneful influence of this kind of procedure. I believe it to be the duty of the representatives of the people in Parliament, whether they sit behind the Government or in Opposition, to call public attention to and ventilate what they believe to be a grievance. It is in that spirit I have raised this question. A few short years ago the policy of “smother up” was adopted by the Labour party in the Queensland Parliament. It was held that it was not in the interests of the party to subject the leaders to any criticism by their supporters. The immediate result of this decision was that for a time in Queensland Laborism developed into Kidstonism. Labour has, happily, since returned to the old fold in Queensland. In New South Wales at the present time the Parliamentary Labour party seem to have dropped Laborism for the new political creed of Holmanism. I fear that there is some danger, unless Ministers are prepared to set their backs up against departmental pressure, that a time may come when the Australian Labour party will also be subjected to a little weakness. To my mind there are some indications at the present that Federal Laborism may develop into /theism or some other brand of spurious Liberalism or delusive Democracy. In the circumstances I think that every one of our Ministers will be well advised to put into effect, without any side stepping, the policy for which they received a mandate from the people of Australia. Some Ministers, to my knowledge, have done this. I have made inquiry, and I am very pleased to be able to say that the Assistant Minister of Defence, Mr. Jensen, is in his administration carrying out the Labour policy in this particular. After men have been chosen for employment in the Department they are obliged before they are sent to their work to produce their union tickets. I think that is a very excellent principle for a Minister to adopt, in view of the results of the last Federal elections. So far, Mr. Jensen is the only member of the Ministry I know to be adopting that principle.
– The honorable senator forgets that many people who are earnest Labourites are not in the unions.
– The principle of preference to unionists in Commonwealth employ was the issue at the recent Federal elections. I have no hesitation in saying that I speak for all my colleagues in Queensland when I assert that we regarded it as a most important principle of our policy, and never attempted to burke the issue. I know that some of us expressed regret that it was not the only issue submitted to the electors, because we felt sure that it was only necessary that our side of the question should be put before the people of Australia to receive indorsement at their hands. I wish to assure the Senate that I speak in this way in no carping spirit, but in order to express my fear of what might happen in the future.
– Referring to the remarks made by Senator Ferricks, I have only to say that, having read the statement made by the Minister of Home Affairs in another place, it does not seem to me to in any way contravene the policy of the Government or of the party who support the Government, and that is the policy of preference to unionists. What happened was that Mr. Archibald was claiming that he was prepared to investigate any complaints made by any employe of his Department which came to him in a proper way, when another member interjected, “All except nonunionists.” Mr. Archibald said that that was an insult.
– To the Government?
– Yes, an insult to the Government; because it was an insinuation that, as a Minister, he was prepared to give an inquiry to unionists and not to non-unionists.
– Under the policy of the Government, there ought not to be any non-unionists in the Public Service.
– That is not quite correct, because non-unionists who were given a preference for employment whilst my honorable friends opposite were in office are still there.
– No one got a preference while we were in office.
– Do the present Government intend to keep them there?
– Mr. Archibald further said that he had no desire to disturb any men in the employment of the Grown at the present time. He said, “ I do not ask a man who is already employed, whether he is a unionist or a nonunionist.” The policy of preference to unionists outlined, not only by Mr. Fisher, but byLabour members from every platform throughout Australia, was that, in giving employment, other things being equal, it should be given to unionists. It is when employment is being offered that the question is asked of a man whether he is a unionist or a non-unionist. That is the interpretation of the policy which is being adopted in the various Departments, and not the interpretation that, immediately the Labour Government took office, every non-unionist in the employ of the Commonwealth was to be discharged.
– Does the honorable senator expect that non-unionists in the employ of the Commonwealth will become unionists?
– I should like them to become unionists, and I think they ought to become unionists.
– Do the Government intend to put any compulsion upon them?
– I say that we never put the issue to the country that, if we were returned to power, we should at once discharge all non-unionists in the employ of the Commonwealth, and we have no mandate from the country to do so. That was not the issue between ourselves and the last Government, nor was it the issue put to the country. The issue we put was that, if we were returned to power, we should bring again into operation the principle we adopted before, and that was that, in giving employment, other things being equal, preference should be given to unionists. That is the policy which is being carried out by Mr. Archibald to-day, and the remarks of that honorable gentleman, which have been quoted, arc in consonance with it. He cannot be accused of having broken away from the policy of the Government or of the Labour party, or from the principles upon which the last Federal elections were fought.
Question resolved in the affirmative.
Senate adjourned at 3.12 p.m.
Cite as: Australia, Senate, Debates, 13 November 1914, viewed 22 October 2017, <http://historichansard.net/senate/1914/19141113_SENATE_6_75/>.