6th Parliament · 1st Session
Mr. Speaker took the chair at 3 p.m., and read prayers.
Assent to the following Bills re ported : -
War Precautions Bill (No. 2) ;
Defence Bill (No. 2);
Judiciary Bill (No. 2);
High Court Procedure Bill.
Mr. RICHARD FOSTER presented a petition from certain South Australian farmers praying the House that jute goods may remain as in the last Tariff.
Petition received and read.
– I ask the AttorneyGeneral if he has observed that the brokers of Australia have refused to work for the Queensland Government with “ blackleg “ brokers, and I should like to know whether, in matters of this kind, in which the Commonwealth Government is concerned, Ministers will see that the principle of preference to unionists is observed?
– The scope of the Commonwealth power is not so wide as the honorable member seems to imagine. So far as I can gather, the subject to which the honorable member refers is an industrial one, and our powers over such matters are most limited. It can hardly be suggested that anything has occurred which would justify the calling out of the military to suppress rioting by the brokers to whom he has referred. No doubt these gentlemen, as well as all others, when personal interests are affected, give effect to the principle in which we believe, that of preference to unionists.
The following papers were presented : -
Inter-State Commission Act -
Inter-State Commission - Tariff Investigation Reports -
Boots and Shoes.
Hides and Skins.
Ordered to be printed.
Arbitration (Public Service) Act -
Memorandum by the Public Service Commissioner in connexion with the Award made by the Commonwealth Court of Conciliation and Arbitration on a plaint submitted by the Australian Letter Carriers’ Association.
Dominions Royal Commission (Imperial) - Natural Resources, Trade, and Legislation of certain portions of His Majesty’s Dominions (Newfoundland, &c.) - Fourth Interim Report.
Land Tax Assessment Act -
Regulation Amended- StatutoryRules 1915, No. 53.
Public Service Act -
Regulation Amended (Provisional). - Statutory Rules 1915,Nos. 59, 60.
Correspondence between His Majesty’s Government and the United States Ambassador respecting the treatment of German Prisoners of War and Interned Civilians in the United Kingdom.
– I have received united and concerted representations from fourteen mail contractors, self-respecting men, who point out that their supplies and horses are exhausted, and that they are unable, under the altered conditions, to perform their mail contracts. Will the Postmaster-General - yes or no - consider the giving of relief to these men? They were prepared for variations, but what has happened has gone beyond their calculations.
– I have made the attitude of the Department very plain.
– That does not give relief.
– The Department does not see its way to grant relief, and no member has yet shown us how it can be done.
Imperial Reservist Officers’ Pay : Separation Allowance : Transport Conditions: Soldiers’ Curios: Payment of Duty : Australians at the Dardanelles - Composition of Forces: Results of Fighting: Casualty Lists - Delay in Publishing: Death of Private Dancocks; Week-end Cables: Rejects at Broadmeadows.
– Is the Assistant Minister of Defence in a position to reply to the question which I asked on Friday last, namely, whether the Government will pay to Imperial Reserve officers domiciled in Australia the difference between the Imperial and Australian rates of pay, which is done in the case of Imperial Reserve men who are domiciled here?
– The Minister is considering the matter.
– The Assistant Minister told us last week that the separation allowance to wives and widowed mothers would be increased from the 1st May. At what date is it intended to make the first payments at the increased rates?
– On the 14th May.
– Is the Assistant Minister aware that complaints about the quality of the food provided on the transports are very general, some men having said that it is not fit for pigs. It is also asserted that the number of life-boats provided is not sufficient to accommodate al] the men carried. Will the Assistant Minister look into these complaints, and have the grievances remedied at once?
– The Department is paying the shipping companies sums which are quite sufficient to enable them to provide proper food for every soldier on board the transports. In that respect we are making ample provision. As to the complaint that the number of life-boats carried is insufficient, I shall cause inquiries to be made; but I am confident that we are doing everything possible to insure that the men shall obtain good and wholesome food while on the transports.
– I desire to ask the Minister of Trade and Customs whether any action has been taken to allow soldiers at the front to send small parcels of curios free of duty to their parents or friends in Australia.
– The matter was considered by the Government two or three months ago. We communicated with Sir George Reid while he was in Egypt, and I understand that he then announced to the troops that we had decided to allow each soldier to bring back or to send to friends in Australia £10 worth of goods, the duty paid on which would be refunded by the Government. We have no power to suspend any duty in this regard, but a record will be kept of the amounts so paid, and the Government will place on the Estimates a vote to provide for a refund.
– Is the Assistant Minister of Defence in a position to inform the House whether the Australian troops serving in the Dardanelles consist wholly of infantry, or whether the forces also comprise light-horse regiments?
– I am not in a position to give the information sought.
– In view of the many messages of congratulation that we have received regarding the bravery of our troops in action in the Dardanelles, is the Assistant Minister of Defence in a position to tell the House with what result the bravery of our men has been attended ?
– I am not.
– Having regard to the fact that a complete list of the casualties sustained by the New Zealand troops in the Dardanelles, with particulars of their injuries, has been published in Melbourne, I desire to ask the Assistant Minister of Defence why we have not received, up to the present, even the names of the rank and file belonging to the Australian Forces who have been wounded, and why we have no particulars at all as to the character of the wounds suffered by those whose names have been published ?
– The reason is that the information has not been sent from the seat of war to the Minister of Defence.
– Is the Assistant Minister of Defence in a position to give the House any particulars in relation to the death at Broadmeadows of a soldier named Dancocks, to which reference was made in the daily newspapers last week ?
– The honorable member questioned me about this matter, and I promised to have it inquired into. It is true that the Argus recently made some serious comments regarding this case, and for the information of the House, and the public generally, I think it well that I should read the following report which the Secretary of the Department has received from the Inspector-General, Colonel Legge-
In accordance with the Minister’s instructions, I inquired to-day into the complaint made by Miss Dancocks as to her brother’s treatment. I do not consider that her brother, the late Private Dancocks, suffered from any neglect at the hands of the A.M.C. at Broadmeadows. Major Maguire, A.M.C, was examined by me, and I ascertained from him that with reference to Miss Dancocks’ statement that the patients were attended by untrained nurses, that the attendants in hospitals in Broadmeadows Camp, although not actually trained in hospitals, but undergoing training there, are fully qualified for medical duties under medical direction.
As regards the statement that the patient was unwashed, this is quite correct at the time. The patient, however, was washed regularly. He was unshaven, and, of course, suffering from a severe illness, appeared to be neglected. It is not usual, however, to shave patients whilst subject to fever.
As regards nourishment, the patient was getting the full diet that was ordered by the medical officers, and the necessary comforts were available and issued.
As regards the attendance of medical officers, the patient was seen at least six times in twenty-four hours, and from the 6th April one medical officer was detailed to attend to him only.
As regards the statement that patients were attended by students, all were fully qualified, and men in private practice.
It is true that permission was refused to allow the patient to go to Miss Duff’s house. The medical officer considered he was not in a fit state to travel.
There is no place in Melbourne to which he could have been taken at any stage of his disease. The public hospitals will not receive measles cases. For this reason a separate enclosure has been provided at the new base hospital at Broadmeadows, which is not yet in actual work. The patient was moved into one of these buildings, which is of galvanized iron, in order to satisfy his relatives, but he would have done just as well remaining in the tent. For such cases, tents are as good as any hospital.
The alleged statement of a person described ap a trained nurse that nothing had been done for him is incorrect. His heart was strong, and it was this that kept him alive so long, but it was the disease in his lungs which killed him.
Female nurses are not considered necessary in the Broadmeadows Camp. During the last fifty days there have been over 200 cases sent to hospitals in the camp, and only two deaths, notwithstanding the fact that the percentage of deaths in pneumonia cases is, under ordinary circumstances, very high.
The camp adjutant stated that LieutenantColonel Hardy, who was the senior medical officer in camp, came up personally and telephoned to Casterton that he was himself taking a personal interest in the case. The patient was only admitted to hospital on the 2Sth March. It was, therefore, not correct for his sister to state that he laid battling for life for fourteen days, but had only been in hospital for five days when the message was sent.
Captain Bond, 6th Field Ambulance, states Captain Fogarty was in charge of the measles cases. Dancocks received the usual treatment for measles and broncho-pneumonia. On his admission he was very ill. He kept on changing his condition, with rising and falling temperature, probably with septic pneumonia. The patient had been ordered to attend sick parade on the 28th, but absented himself. He came along to the hospital later. I was detailed to attend him from the 6th April. He was clean when I saw him, and had certainly not been unattended for a fortnight. He was, of course, unshaved. Captain Fogarty told me that he had been sponged. . . .
The report goes on to say that there was no neglect shown, and that everything possible was done for Private Dancocks.
– Will the Assistant Minister of Defence send a communication to the authorities representing the Commonwealth Government at the Dardanelles, and ascertain as quickly as possible the true facts relating to the men who have fallen in action ?
– The Minister of Defence is doing everything possible. As the news comes through he is only too willing to give it to the public after he has given it to the nearest relatives of those who have suffered. One can only assumed that everything is being done at the front in order to supply information to the Australian people as quickly as possible.
– Is the PostmasterGeneral aware of the disability connected with the cheap week-end cables allowed to our troops, in that cables arriving on Sunday are not allowed to be made public, or even to reach their destination, until Monday morning? Can he see his way clear to modify the rule so tha,t at least intimations of casualties coming from the Dardanelles and elsewhere may reach their destinations before Monday morning ?
– We have not complete control of the cables.
– It is your office that imposes this restriction.
– If I find that we do control the matter, I shall see that during the present crisis the facilities desired are given.
– Can the Assistant Minister say whether the Light Horse regiments are at the Dardanelles?
– I cannot answer that question.
– Is it a fact that persons who submit themselves in country districts to medical officers who are authorized and empowered to examine applicants for military service, have to resubmit themselves for medical examination in the metropolis; that they are liable to rejection after having been passed in the country, and thus are subjected to a great deal of hardship 1
– I believe that that id the case.
– Is the Minister of Trade and Customs aware that owing to the spread of the “ little drought “ in the coastal areas there will be a shortage of something like 70,000 tons in the sugar crop this season ? Further, in view of the fact that the Necessary Commodities Commissions in Victoria and New South Wales have refused to allow the price of sugar to go beyond £22 10s. per ton, and that it will be necessary very shortly to import sugar, I desire to ask what action the Government propose to take in regard to the duty on this commodity?
– The Government do not propose to alter the rate of duty as was suggested prior to their consideration of the question.
– Will the PostmasterGeneral inform the House whether the complaints that have been made in reference to sickness and other matters at Woodlark Island have been attended to?
– The whole matter has been considered. Having regard to the fact that a good deal of sickness in the shape of malaria has taken place among the employes, I have made complete provision for the payment of wages at local rates, which are much higher than those which the contractor was asked to pay. I have also provided for the payment of these higher rates as from the beginning of operations.
– I wish to ask the postmaster-General whether it is correct, as reported, that he has refused permission to a member of the Postal Department to join the Expeditionary Forces on the ground that his services, although he is receiving only something like £100 per annum, are indispensable? Is it also correct, as reported, that the honorable gentleman stated that if there were an urgent demand for men other arrangements might be made ?
– The case referred to is a very old one. Of postal employes engaged practically within the metropolitan area in this State, 116 officials have gone to’ the front, and in view of this some objections were raised to leave of absence being granted to the particular officer, about whom the press has been making some fuss. This clerk is employed in a rather important branch of the Department, from which five clerks had already enlisted, and the officer in charge reported against his going away on the ground that his place could not be immediately filled. But there is no objection to postal employes generally volunteering for active service.
– Is the Assistant Minister of Defence in a position to make any statement with reference to the location and capacity of, and numbers in, enemy concentration camps in Australia 1
– I have had the information compiled, and I shall be glad to show it to any honorable member privately. It is not for publication.
– Is it correct, as stated in the Sydney press, that the Federal Government, while claiming the right to pass troops over State railways free of charge, are submitting a financial claim for guarding the waterworks of Sydney ?
– I am not aware of it, but I shall ascertain particulars for the honorable member.
– Has the Minister of Trade and Customs noticed the recent increase in the price of butter; and also that in Brisbane recently the quantity of butter stored was 500,000 lbs., which quantity was increased a week later to 600,000 lbs. ? In view of this fact, has the Minister any intention of prohibiting the export of butter ?
– I understand that there is no butter being exported from Australia. In fact, there has been none exported for the last three weeks, and prices are higher in Australia than anywhere else. As to what may be done in any particular State, the honorable member knows that the States have complete power to do what they like; and, unfortunately, the Commonwealth Government cannot intervene, even although thequantity of butter stated was being held up.
– Is it a fact that alien enemies are still employed on the Naval Base at Westernport?
– Not to my knowledge.
– Will the Assistant Minister inquire into the matter ?
– Is there any truth in the rumour that in order to grant preference to unionists the Government are paying £5 8s. per ton more for bread at the Enoggera camp than they need do; and is the Assistant Minister of Defence prepared to lay on the table of the House the papers connected with the Enoggera camp bread contract?
– I have no knowledge of the matter; but if the honorable member will place his question on the noticepaper it will receive attention.
– I notice that the Leader of the House, who, also, is the leader of the Labour movement in Australia, has gone to Sydney to confer with the Premiers of the States on one subject, among others, namely, daylight saving. In view of the Labour agitation for a sixhours day, can the Attorney-General say Low the Government propose to allot the hours of daylight saved?
– That is a question which I think the honorable member may refer to my distinguished leader on his return.
– May I ask the Minister of Trade and Customs if he will obtain, for the information of the House, a record of the prices paid for sugar in New Zealand compared with Australia, and also a statement as to the duties charged in New Zealand and Australia, so that members may understand what a huge profit is being made by the Colonial Sugar Refining Company?
– I will endeavour to obtain the information, and will make it available for the House.
– Has the Minister of Trade and Customs observed in the report regarding the loss of the Endeavour that no inquiry seems to have been made as to why the Government had not caused wireless apparatus to be put into the vessel, although other shipowners are required to provide a wireless installation ?
– The honorable member is as well informed in navigation matters as any other honorable member, and he knows perfectly well that no Government in the world compels any vessel of the size of the Endeavour to be fitted with wireless.
– Although the matter has been wholly omitted from the scope of the inquiry, is it not the fact that those in charge of the Endeavour asked for a wireless apparatus to be installed before they started on their ocean expedition ?
– So far as I know, they never made any such request-
– Is it a fact that in the new Navigation Bill to be submitted to this Chamber the Minister proposes to make provision for compelling wireless apparatus ‘to be fitted upon vessels very much smaller than the Endeavour?
– I cannot carry the provisions of the proposed Navigation Act in my mind, but I do not think so. I think there is a limit to the number of passengers a vessel may carry without the wireless installation being fitted, but I do not think there is any reference to tonnage. The Endeavour really carried only one passenger. I agree, of course, with the honorable member that, as far as possible, every vessel should be fitted with wireless apparatus.
– Is the AttorneyGeneral aware of the kind of treatment that is being meted out to certain naturalized Germans and their dependents, as the result of which a number of men have been practically debarred from earning a livelihood for themselves and their families? Can the Government do anything to maintain these people in the same way that interned Germans are maintained?
– I am aware that in certain cases naturalized Germans have been debarred from earning their livelihood, and I believe that in some cases these men are married to British subjects. I have no doubt, also, that in some cases the effect of this prohibition has been to place both the man and his wife and family in very unfortunate circumstances ; but, although one feels in such a case that action of some sort ought to be taken, it is very difficult to decide what action is proper in the circumstances. I can only say that I will bring the matter before the Government as such, with a view to seeing how far it is possible to proceed by way of assisting the families of those persons who are, by some act on the part of their fellow workmen - it is, I presume, to such action that the honorable member refers-
– To a large extent that is so.
– I will bring the matter before the Government to see what can be done.
– Will the Minister make some provision for Australians who are prevented by the same people from earning their living?
– I have received a letter from one of my constituents who is opposed to vaccination. He wants to know if the high death-rate amongst the troops in Egypt is due to vaccination. Has the Assistant Minister any information on the point?
– I will endeavour to get the information for the honorable member.
asked the Minister of Home Affairs, upon notice -
Will he give instructions to the Divisional Returning Officers throughout the Commonwealth to issue quarterly a list of all persons struck off the electoral lists of each subdivision, as well as of all names added to such lists, thereby enabling the public to know the state of the Electoral Rolls at the end of each quarter ?
– The heavy expenditure involved is not at present considered justifiable in view of the fact that a notice is issued to every person whose name is removed from the roll, and that an acknowledgment is sent to every person at the time of his enrolment. The matter will, however, receive further consideration in connexion with the movement now in progress for co-operation in the preparation, maintenance, and printing of joint Commonwealth and State electoral rolls.
asked the Assistant Minister representing the Minister of Defence, upon notice -
– The answers to the honorable member’s questions are -
The Department also purchased one car from Denny, Lascelles, & Co. apart from the number purchased by Advisory Board or by public tender.
asked the Minister of Home Affairs, upon notice -
Will he inform the House what were the retail selling prices severally in Sydney, Adelaide, and Melbourne (if possible, on the 29th April last) of the following foodstuffs, viz. : - Wheat, flour, bread, meat, butter?
– The answer to the honorable member’s question is as follows : -
The Commonwealth Statistician obtains returns once a month from quite a number of traders, so as to obtain a true indication of the prices ruling. I have already given the honorable member the prices current on the 15th April last. The next returns are not due until the middle of this month.
asked the Assistant Minister representing the Minister of Defence, upon notice -
– The Commonwealth Statistician has furnished the following memorandum in connexion with this matter : -
An epitome of the methods of collection and material used in connexion with the return showing the number of members of trade unions who have enlisted in the Expeditionary Forces up to the end of January, 1915, has already been published in section XVI. of Labour Bulletin, No. 8, pp. 294-6. Since the particulars on which the results were based were furnished by the secretaries of trade unions and by the Department of Defence, there is no practical way of revising the figures already furnished.
Mr.HAMPSON asked the Assistant Minister representing the Minister of Defence, upon notice -
Whether any active steps are being taken to manufacture naval and artillery ammunition for the Australian forces within the Commonwealth ?
If so, where is it proposed to locate the factories ?
– The answers to the honorable member’s questions are as follow: -
asked the Assistant Minister representing the Minister of Defence, upon notice -
Whether the supply of equipment for the troops of the Expeditionry Forces is sufficient to permit the Government to offer any further contingents of troops to the Imperial Government for service abroad in the immediate future, beyond the regular supply of reinforcements ?
asked the Minister of External Affairs, upon notice -
– The answers to the honorable member’s questions are as follow: -
asked the Assistant Minister representing the Minister of Defence, upon notice -
Have the Defence Department entered into arrangements with the State Government for the supply of stone for the Naval Base at Cockburn Sound, or do they propose to open up their own quarries at or near Armadale?
– Arrangements have been entered into with the Western Australian Government for the supply of a limited quantity of stone for the Naval Base at Cockburn Sound, but investigations are now being made with a view to the Commonwealth opening up its own quarries.
asked the Assistant Minister, representing the Minister of Defence, upon notice -
In view of the enthusiastic response made to the appeal of the Commandant of New South Wales on behalf of the formation of rifle clubs, and in order to make the training of those who have formed effective, will the Minister issue instructions that the various clubs must be supplied with rifles immediately?
– Instructions have been issued to the Commandant that every endeavour is to be made to arrange for clubs which have not received rifles to be supplied with the least possible delaywith sufficient rifles to enable all members to get instruction in the use of the rifle. The
Government expect that the rifle clubs will appreciate the difficulty of immediately meeting all demands, and utilize rifles issued to the fullest extent among the members.
Debate resumed from 30th April (vide page 2822), on motion by Mr. Fisher -
That, in accordance with the provisions of the Commonwealth Public Works Committee Act 1913-14, the following work be referred to the Parliamentary Standing Committee on Public Works with a request that the reference may be dealt with as an urgent matter : -
Small Arms Factory, Lithgow - Extension of buildings, plant, &c.
– In accordance with the Public Works Committee Act, it is necessary for the work mentioned in this motion to be referred to that Committee for investigation.
– Where are the plans and specifications which the Prime Minister laid on the table on Friday?
– I am not exactly sure how the position stands. The Prime Minister is absent, the Attorney-General has been called out of the chamber, and I have been asked to take charge of this motion, which was formally moved by the Prime Minister on Friday. I understand that the motion will not bind the House to anything beyond the mere reference of the proposed work to the Committee.
– We do not understand what the proposed work is.
– I have not the particulars, but I believe that the proposal will involve the extension of the present buildings to about double their size, and a proportionate increase in the machinery, and that there is land on the factory site that can be utilized for that purpose. The Committee will be given an opportunity of investigating the whole question, and ascertaining whether it is desirable to extend the factory at Lithgow. When the Committee have reported, it willbe the duty of the Government to bring a proposal before Parliament, and place a sum on the Estimates for whatever works are recommended.
– To put the matter in order, a statement, accompanied by plans and specifications, should be made by the Minister, showing what are the estimates of his Department.
– I do not think that is necessary.
– I assure the honorable member that it is necessary. The Public Works Committee is to check the estimates of the Department.
– All the papers relating: to the matter are available in the House.
– I suggest you should postpone the motion until there is a Minister present who can give the House full particulars.
– The House is not asked to vote on the expenditure of any particular sum. The proposal is merely to refer a projected work to the Public Works Committee.
– Will the Committee be able to look into matters of the past as well as of the future?
– I presume the Committee will be able to ascertain what the buildings have cost up to the present time, and to consider whether the site chosen was the best obtainable, and whether it is advisable to extend the factory at that point.
– What matter would the Committee not be allowed to inquire into?
– According to the Act the Committee may inquire into practically everything in connexion with this work, and when the Committee reports, it will devolve on the Government to take action in Parliament. As the estimated sum involved is more than £20,000, it is obligatory to refer the work to the Committee, and, in order to expedite the reference, the Prime Minister has brought the matter forward in this form.
– I have been in communication with the Minister of Defence regarding this proposal, which has also been under the consideration of Cabinet. The Government considered this project so important as to justify inquiry by the Works Committee as to whether an extension of the Small Arms Factory at Lithgow should be made, or whether another factory should be established in some other portion of Australia. I suppose that during the inquiry the Committee will have lati tudc to do much more than is involved by the bare terms of the motion. Their inquiry will not be confined to the buildings and plant, but may touch every phase of the question. The Government thought it desirable to obtain a report from the Public Works Committee before extending the existing establishment. It may be that the Public Works Committee will not recommend the extension of ‘ the present factory, but that it should be established in Federal Territory, or somewhere else in Australia. At any rate, honorable members will have the benefit of any information on the subject that the Committee can obtain; and the Government think that, at the present juncture, the motion represents the proper step to be taken.
– What I desire to know is. what, the motion really means. What the motion proposes shall be referred to the Public Works Committee is the consideration of the “ Small Arms Factory, Lithgow : Extension of buildings, plant, &c”; and now the Assistant Minister tells us, after having had some conversation with the Minister of Defence, that he supposes the motion to mean that the Committee are to inquire, not only as to the extension or otherwise of the factory at Lithgow, but as to whether it might not be advisable to erect it at Canberra, or some other place. We ought to have something more than a mere supposition put before us, or we should add words extending the scope of the inquiry to cover Canberra or any other place in Australia. In my opinion, Lithgow is not the proper place for an extension of this factory, although, of course, it is fortunate that there is an establishment there with many facilities for the manufacture of the necessary commodities. In any case, I do not think we ought to have all our “eggs in one basket.”
– It will be within the jurisdiction of the Committee to recommend that the factory be placed anywhere.
– Then why not amend the motion so that it may be in conformity with that idea ?
– I think the honorable member was a member of the Government which decided that the factory should be at Lithgow.
– That only shows that, unlike the honorable member, I am not parochial. At that time, I thought Lithgow a very good place for the purpose; but it will be remembered that, supported by a good many other honorable members, I very strongly protested that all Commonwealth factories should be situated on Federal soil, other things being equal. It is claimed that the Government are pushing on vigorously with the preparation of the Capital Site; and I see no reason why this and similar factories should not be situated there. Will the Minister say definitely that this motion leaves it open to the Committee to recommend Canberra, or any other place, as the site ?
– Yes; I do say so definitely.
.- I take it that this request for £100,000 is really the outcome of the special requirements brought about by the war situation.
– That is so.
– If that be so, my only comment is that we have been extraordinarily slow in dealing with the matter. We have been at war since last August, and it surely shows some slackness when we find the Government, some eight or nine months afterwards, coming forward with a suggestion to extend the factory to meet the abnormal position. I might be permitted to express disappointment, which I think will be shared by honorable members generally, at the slackness of whoever is responsible under the pressing circumstances. During the Boer war it was found possible to manufacture a very efficient field gun in Kimberley during the siege; but we in Australia have been content to sit down and wring our hands at our inability to manufacture what we require. The Minister of Defence must realize that the delay does not reflect any credit on the Department, and is hardly worthy of the people of Australia.
.- If there is anything that the people of Australia regret, it is the period of office of the Cook Government. I am sure that had the electors had any conception that that Government would do all they could to injure the industries of the Commonwealth, it would never have been returned to power. As showing the insincerity of the late Government in respect to the war, I may point out that, during their term of office, they endeavoured to block operations at Cockatoo Island-
– The honorable member must confine himself to the matter before the Chair.
– I can hardly think that the honorable member for Eden-Monaro is really serious in his suggestion that this factory should be transferred to Canberra. My own opinion is’ that the inquiry of the Public Works Committee should be confined to the extension of the present premises at Lithgow, with a view to an augmented production of war materiel. It would be most unwise, in my opinion, to give the Public Works Committee a roving commission, in view of the urgency of the situation; and I can only think that the honorable member for EdenMonaro is merely trying to liven up a somewhat dull House. The motion ought to be passed at once, so that the proposed extension may be inquired into and carried out as rapidly as possible.
– I am very glad that the motion has been submitted in its present shape. Last session, in answer to a question, I elicited a reply that the rifles which were being turned out at the Lithgow factory had cost something like £100 each.
– The honorable member must not go into that question.
– May I say that it was then pointed out that the comparison was unfair, seeing that we were also informed that a huge plant had been put up sufficient to turn our rifles for Australia for many years to come. We now find, however, that, at the first stress, it is necessary to practically rebuild, or, at all events, to greatly extend the factory. One of the many good services that will doubtless be rendered by the Public Works Committee will be that of eliciting facts connected with our Defence Department - facts which hitherto honorable members have been unable to ascertain, no matter what Government has been in office. I trust that the Committee will be able to determine exactly what this Small Arms Factory is costing. Last year information was adduced which showed clearly that the cost of manufacturing rifles at Lithgow panned out at more than £100 each, notwithstanding that equally good weapons could be imported for about £3 each. The provision in our law which requires the reference to our Public Works Committee of all works involving any considerable expenditure is, in my judgment, an admirable one. Had such a system been in operation years ago, it would have saved the Commonwealth millions of pounds. Indeed, it will effect a saving of millions of pounds in the future. In my judgment, the Committee may be trusted to conduct an exhaustive inquiry into this matter. The honorable member for Eden-Monaro has raised the very important question of whether Lithgow is a suitable site for the Small Arms Factory. In my opinion, there is much to be said in favour of establishing all national works in Federal territory. Other things being equal, I believe that it would be better to so establish all national factories, thus assisting to attract population to that territory.
.- As this proposal is one that vitally concerns an industrial centre of my electorate, I feel that I ought to say a word or two upon it, and particularly upon the suggestion of the honorable member for Eden-Monaro that national works should not be confined to one locality. I take it that his suggestion is merely one of his characteristic serio-comic efforts which we may dismiss from our consideration.
– The honorable member ought to be a good judge of that sort of thing. He often indulges in it here.
– The honorable member need not get excited. This question was thoroughly threshed out before the Small Arms Factory was established at Lithgow.
– I ask the honorable member not to enter into an argument regarding the establishment of works there. The proposal before us is one to refer a certain work to the Public Works Committee.
– I was under the impression that, in view of the proposed extension of the Small Arms Factory, the question of where it should be established naturally arose. If it does not, I merely wish to say that, situated as it is, behind the natural ramparts of the Blue Mountains, with deposits of iron, coal, and shale in close proximity, ‘no better site could be desired. We all recognise the necessity which exists for getting a move on in regard to our supply of armaments. There are facts connected with this matter which, in view of existing conditions, it would not he wise to discuss here. But I heartily welcome any suggestion which would have the effect of facilitating the manufacture of armaments. I do not think that it becomes honorable members to raise the slightest question upon this proposal. If the Government undertook the extension of the factory of their own volition, and without referring the matter to the Public “Works Committee, their action would be abundantly justified. I object to the delay which will be involved in the procedure which is now proposed.
– We have waited for months - surely we can wait a few weeks longer.
– Even a day or two in the arrival of armaments at the front may mean all the difference between the loss and the saving of valuable lives. This is not a proposal which should be discussed. It should be agreed to without debate.
.- I understand from your ruling, sir, that under this proposal honorable members are not at liberty to discuss the broader question of where the Small Arms Factory ought to be established. I am not concerned with whether we have only one institution of this kind in the Commonwealth, or whether every honorable member has a small arms factory in his own constituency. That seems to be the idea of some honorable members. The motion affords me a convenient peg upon which to hang a question of great interest to the public. I listened attentively to the observations of the Assistant Minister of Defence, who did not tell us whether the adoption of this motion will have the effect of increasing the supply of rifles that are available for use in the Commonwealth. Apropos of quite a number of questions which have been put to him from both sides of the House, I wish to point out that rifle clubs have been established all over the country, and that their great need at the present time is a sufficient supply of rifles. If this proposal be adopted, can the Assistant Minister hold out any hope that a greater supply of these weapons will be forthcoming to rifle clubs, so that in future these institutions may not die of inanition ?
An Honorable Member. - And ranges, too.
– Order ! I must ask the honorable member not to discuss details.
– I do not intend to do so. All I desire to know is whether the Government propose to continue their support of these clubs without providing them with the means for continuing their existence.
– Order ! The honorable member must not go into that matter.
– Can the Assistant Minister of Defence hold out to these clubs any hope that they will he granted a larger supply of rifles in the near future ?
– I would point out that the honorable member is discussing a question which is entirely foreign to this motion. If I permit him to do that, I cannot reasonably decline to allow other honorable members a similar degree of latitude.
– It relates to the motion.
– Last year Parliament enacted legislation which provides that all works involving an expenditure in excess of £20,000 shall be referred to the Public Works Committee for inquiry. When the report of that body is presented to Parliament, honorable members will be allowed the fullest opportunity of discussing it in all its bearings; but it would be quite unreasonable to expect me to permit a general discussion on a motion of this character. I cannot allow it.
– Under this motion, we are asked to sanction an expenditure of public money.
– The House may refuse to sanction it at a later stage.
– I am afraid, sir, that you miss my point. We are asked to refer to the Public Works Committee, for inquiry, a proposal to duplicate the rifle plant at the Lithgow Small Arms Factory. In New South Wales, where an analogous body has been in existence for twenty-five years, the rule invariably followed in connexion with similar undertakings has been for the Government to submit a detailed proposal to the House, including plans, specifications, &c, so that honorable members might be seized of the desirableness or otherwise of assenting to it. The Prime Minister, on Friday last, presented estimates of cost running up to £100,000, and there is a detailed plan submitted showing exactly what is to be done. This surely is for the purpose of inquiry at this stage as to whether the House would be justified in incurring any further expenditure of the kind, or whether it would be better to spend the money in some other way ; otherwise, why make provision for, at this stage, dealing with such matters?
– I am in somewhat of a difficulty in dealing with the matter, as this is the first time the question has been raised. I take it that the House is prepared to create its own procedure, and, until the House otherwise orders, I am not prepared, in dealing with such a motion, to permit a general discussion enabling honorable members to roam over the whole of the activities of the Defence Department. I am unable to say what is covered by the papers which have been submitted in connexion with the motion. It is no part of my duty to go through such papers to enable me to decide whether matters to which honorable members would like to refer are relevant to what is contained in them. If on such a motion I am to allow a general discussion upon matters controlled by the Defence Department, I shall do so only by direction of the House.
– That is not proposed.
– One honorable member commenced a discussion about the manufacture of rifles, and. the honorable member for Parkes touched upon that incidentally, and upon the question of the supply of rifles to members of rifle clubs. Every honorable member of the House is deeply interested in the promotion of rifle clubs, but that has nothing whatever to do with the motion now before the House. Other side issues might be introduced in the same way, and I believe I am, in the circumstances, compelled to ask honorable members to confine their remarks to the necessity or otherwise of submitting these works proposals to the Public Works Committee. The Committee, after inquiry, will bring up a report, and in dealing with that report an opportunity will be given for a full discussion of all matters referred to in it.
– I do not think, sir, that you are far off the mark in your last statement. I remind honorable members that the Public Works Committee is a Committee of the House, and, therefore, the Government are submitting this proposal to the House. The House, in turn, if the motion is carried, will submit the proposal to the Committee. Clearly, before the House is able to do so intelligently, honorable members must be given an opportunity to understand the proposal by the process of discussion. I take it, therefore, that anything is relevant to the motion which is contained in the papers presented by Ministers.
– That is a very difficult matter for me to follow.
– It is, and I think the only thing to do is to follow the excellent precedents which have already been laid down, under similar Acts, in two or three of the State Parliaments, and followed successfully for a quarter of a century.
An important question confrontsus at the outset . in considering this motion. According to reports submitted a little while ago in connexion with the Small Arms Factory, the Commonwealth has. already incurred responsibility for an expenditure of £300,000 upon it. Here we have a proposal to add, at least, another £100,000 to that expenditure. That is the official estimate by Mr. Wright of the cost of the proposed extension of the factory.
– How many rifles have been turned out by the factory?
– I know, but at this particular time I do not think that such a matter should be discussed here. I shall only add that I, for one, am profoundly disappointed with the results to date of the Small Arms Factory at Lithgow. One thing which disappoints me bitterly is the fact that at the present time one shift only is being worked at the factory. That information is public property.
– This is a motion for referring these works to the Public Works Committee.
– I am talking about the capacity of the existing plant, and if the honorable member does not understand the matter, let him hold his tongue. He is blundering in as usual. While Lord Kitchener, at the other end of the world, is exhorting people to work during week ends, and at all times, our Small Arms Factory at Lithgow works but one shift per day, and closes its gates religiously from noon every Saturday until the following Monday morning. No man in these times can be perfectly satisfied with such a condition of things as that. There may be reasons for it, but if there are we are not permitted to know them. “We can only form a judgment as outsiders, and I say that in war time, when rifles are of the very essence of our preparations for war, this is not to me a satisfactory reflection. It is about five years since it was decided to erect the factory. It is, I think, four years since the machinery arrived here, and. the plant has been completed for three years. Large additions have already been made to the original plant, and one cannot but express disappointment at the poor results achieved up to date. Here we have a proposal to practically duplicate the existing plant at a cost of an additional £100,000. If it were not war time I should ask some very plain and pertinent questions regarding the use which is being made of the plant we already have. I am not sure that I ought not to ask them even now. The Minister has said that after inquiry he is satisfied that the best is being done at Lithgow.
– The Minister of Defence recently visited the factory with a view of seeing whether it would not be possible’ to increase the output.
– I am disposed to think that the best is not being done.
The fact may be mentioned that once the machinery is erected there is nothing very difficult about the work of a Small Arms Factory. That was brought out very clearly in connexion with one of the disputes which came up for arbitration at the Lithgow Factory. I may say that if ever there was a place where there has been a crop of little troubles to settle the Lithgow Small Arms Factory is such a place. Whatever else State Socialism does for us it does not prevent industrial troubles. In connexion with one of these troubles the question arose as to what should he an engineer’s work. It was asserted very distinctly at the time by the manager of the factory that it was not difficult for any man to learn the work of sharpening the tools required to he used, which, it waa stated, was largely the work to be done on the engineering side. In the circumstances, why it is not possible, after three years, to work a couple of shifts at this factory, where no greattechnical skill is required, I do not know.
– The technical skill required in some branches is great.
– In some it is; but for those branches the Government have the engineers’ associations of the whole of Australia to draw upon. It is only the other technical branches that are to be learnt on the spot. Sharpening and setting tools is the main thing that is novel or new up there; and I remember that the manager was emphatic that that should not take a man very long to learn. Yet, for some reason or other, after three years’ experimentation at the factory, we are able to work only one shift, and close the gates at noon on Saturday. In the absence of any other reason that I know of, this state of affairs strikes me as not satisfactory, to say the least of it.
Here is a proposition that, so far as we know - and this is the answer to the honorable member for Nepean - will make no impression whatever on the war. Mr. Wright’s own estimate is that it will take from twelve to eighteen months to erect the new plant.- There is the preliminary inquiry ; there are all the details of ordering the plant, which has to come over the sea and be put into working order.
– The other took a good deal longer.
– Several years. But this is only the addition of another section to fit into the old plan; yet Mr. Wright says it will take from twelve to eighteen months, and cost £100,000. I am not so sure that in the circumstances there is all the urgency that has been alleged. I hope the war is not going to last another eighteen months. Altogether, I feel that the matter is going very properly to a committee of inquiry, who, if they do their duty, will view the whole plant, and review the totality of its functions from the time it was first attempted.
– They will be able to get information that no Minister has been able to get.
– I am inclined to think that that is so. I do not see how else they are to make their inquiry thorough, and inform the House intelligently of the result. I am glad the Government are sending the matter to an inquiry in this particular way, and hope that when the Committee have made it they will he able to inform the House on all the points raised so pertinaciously by the honorable member for Eden-Monaro, and on many others besides.
I observe that the final minute on the subject by Senator Pearce is dated 1st April. I hope it is a wise and intelligent proposition. I understand that the site is safe and secure, and adjacent to many natural advantages. Even there I am not quite sure that all expectations have been realized. One of the strong reasons for putting the site at Lithgow was that we should be able to manufacture our own steel suitable for rifle-making, hut I have not heard that any steel of the kind has been manufactured at the local works, nor, so far as I can ascertain, is it likely to be for some time to come. There is not sufficient demand here to compensate the proprietors of steel works for making the particular kind of steel required. It is too late to attempt to uproot the plant; it is there, and the duty is laid on this or any other Government that may happen to be in power to make whatever additions are necessary to equip it and make it an up-to-date rifleproducing factory that will enable Australia to be self-supporting in every respect relating to preparation for war. I shall raise no objection to the motion, and congratulate the Government on sending the question on for full and complete inquiry, which I hope will result in a full and intelligent report to the House, giving us an infinitely better understanding of the works at Lithgow, and perhaps a greater degree of satisfaction with them, than I, at any rate, have at present.
.- I support the motion ; but, at the same time, it is not quite clear that the Government are adopting the right procedure. It is possible for them to undertake the work themselves without any preliminary inquiry under the Act. If the Minister is as desirous of despatch as he suggests, and as some of his colleagues behind him recommend, it is possible for the GovernorGeneral in Council to exempt the vote from the operation of the Act, as an item required for the military and naval defence of the Commonwealth. Having, however, brought it before the House, and followed the procedure suggested by the Public Works Committee Act, it seems to me that the discussion ought to be as wide as you, sir, in your judgment can allow. The Committee are directed by the Act, in considering and reporting on any work, to have regard to its stated purpose, the necessity or advisableness of carrying it out, and, where it purports to be reproductive or revenue-producing, the amount of revenue likely to be produced, and its present or prospective public value. They have generally to take such measures, and procure such information, as may enable them to inform or satisfy Parliament as to the expediency of carrying out the work. This is an expenditure to increase the output of small arms in Australia. Whether we be at war or not, the whole question of the production of small arms, whether their quality or quantity has been satisfactory in the past or may be made so in the future, whether they will be needed in the future, and how they shall be used if and when produced, ought to come within the ambit of the discussion. I, therefore, suggest that honorable members who desire to see the necessities of rifle clubs considered, apart from the needs of our trained troops here or overseas-
– The honorable member must not discuss the question of rifle clubs.
– I shall take care not to, sir, if you are in that mood, as I do not desire to transgress your ruling. But if we cannot discuss the use to be made of rifles produced as the result of this extension, we shall be limited in one of the most important sections of the discussion we wish to undertake.
– The Public Works Committee will consider that matter and report upon it.
– We have had every reason to be bitterly disappointed with the result of the work at the Small Arms Factory under Government control. All our calculations, so far as we are able to ascertain, have been falsified by experience as to the amount of money necessary to equip this factory, the number of men to be employed, and the quantity and quality of the production. No man has been satisfied that the anticipations have been fulfilled, and, as an illustration of faulty management or administration, we had the astounding fact a week ago that the report for the year ending 30th June, 1913, was laid before Parliament twenty-one months after the period named. Surely it is time we had a more up-to-date report of the management than that for the information of honorable members. That circumstance alone should be sufficient to arrest the attention and excite the anxiety of honorable members, especially when taken in conjunction with the fact, whether we like it published or not, that the quality of the article turned out of the factory up to date has been unsatisfactory to experts. The most searching examination by the Ministry, apart from a searching examination by the Committee, is demanded.
– It is supposed to have had that.
– No; a non-expert examination would not be sufficient to elucidate the causes of failure and apply a ready means for its removal.
– Areyou satisfied it has not had all that?
– No, it has not had that; and, if the honorable member can tell me where and by whom, I would be glad to know. A visit by the Minister could not afford that, and a visit by this Committee would not. The Government should order, as early as possible, a complete and searching investigation by expert officers of the Department into the matter, particularly into the question of the quality of metals, in order that they may be satisfied that the articles turned out are likely to be of durable value, and will not fail our men at a critical time. Now, as to the quantity of articles produced. I do not know whether the Minister or the manager of the works is responsible for the fact that the factory is only working one shift. If we can trust the cables from Great Britain, all the authorities of the Mother Country, from Lord Kitchener down, desire that every part of the Empire should turn out all the small arms that our soldiers are likely to require. If that is so, why cannot we work two or three shifts in Australia ? Are the men not obtainable? I venture to say that no attempt has been made to add to the expertness of the existing staff, or to increase it, by bringing in workers from allied industries.
– What is the good of talking about that now?
– Because we want to prevent any recurrence of the difficulty, and I hope that will be the attitude of honorable members on both sides of the House. I notice that in the Imperial House of Commons the Government have invited criticism and co-operation in connexion with important naval and military affairs. That is an attitude which should be adopted here. If in connexion with the Small Arms Factory material is lacking, the Government should take steps at once to increase it. I believe the Minister and his colleagues are endeavouring to do their best in a most difficult situation. In the gravity of the position as it exists in the minds of some members of the lower House, I do not know that any money should be spared to make this factory, as early as possible, capable of producing, in as large a quantity as may be required, the highest class of small arms that our workers can turn out. Particularly should this be so with the Forces that have gone overseas, and for the reinforcements, because, as experience has shown, the life of a rifle in trench fighting is very short. Just as in the War Precautions Bill we took notice of certain civil and other offences for the safety of this country, so we should do everything we can to encourage the movement for our second line of defence, by providing equipment for those who join it. I hope that the Committee, when this motion passes, will regard the investigation as an urgent one, and, regardless of the feelings of officials or Ministers, or anybody else, will conduct a most searching inquiry. I hope, also, that the Minister will act with that promptitude which the occasion demands, and I feel sure that the House will give due expedition to any measures that may be necessary to increase rapidly the production of small arms in Australia.
Question resolved in the affirmative.
Debate resumed from 30th April (vide page 2829), on motion by Mr. Hughes -
That this Bill be now read a second time.
– The Patents Act gives statutory form to a practice that has been in vogue for centuries, modified, of course, by the developments in the arts and sciences, and particularly in the concept of society in its relation to patentees. A patentee, during the period for which his patent is granted, may sue any person who infringes his patent rights. He has, in short, a monopoly which he may maintain by civil action. By the amending Act of last year the patent rights of enemy subjects were made liable to suspension or avoidance, at the discretion of the Minister, who was empowered to appoint licensees to exercise them. A similar position was created in regard to trade marks and designs. But it is found that, when patent rights have been suspended or avoided, every person in the community may make or vend the patented article, which makes a Crown licence of little or no value. No person would be willing to invest a capital of, say, £50,000 in the production of a patented article unless he were assured of a market in which he would be protected, and in which his outlay could be recouped. If a licensee is to be in no better position than any other person in respect to the production of patented articles, there will be no inducement to obtain licences.
– Are the royalties being retained until the war is over ? That was the understanding in England.
– We have no power to demand royalties from any person other than a licensee, and the royalties paid will remain in a trust fund, to be administered at the close of the war as circumstances may determine and Parliament may dictate. There is another phase of the matter. Suppose A to be the patentee of an article, the production of which demands a capital of £50,000 or thereabouts. If A’s patent rights are suspended, and a licence to manufacture the patented article is granted to B, on condition that he pays a royalty to the Crown, B will manufacture only if he is protected against competition, or if the competition is limited to Crown licensees. Now, any person may infringe the patent rights. Where a patent has been avoided and a licence to manufacture has been granted to a Government official as representative and agent for the Crown, other persons may manufacture the patented article, and cannot be proceeded against, either civilly or criminally. The Crown cannot sue for infringement, because the right to do that was vested solely in the patentee, and does not pass to the Crown, on the avoidance or suspension of a patent.
– I called attention to that weakness in this legislation during the second-reading debate of the Bill of last year.
– That is so. The honorable member then said that the right of action for infringement was gone. But it has not gone permanently; it has gone only during the war, or during the period of suspension or avoidance of the patent. After the war, patentees will be able to call to account any person who, without their permission and without licence from the Crown, has infringed a patent. Action against a licensee would, of course, be barred by Statute. The Bill has been introduced to give the Crown power topunish unlicensed persons for infringing patent rights which have been suspended in favour of any person or persons. It thus safeguards to some extent the rights of patentees as well as thoseof licensees. Whatever be determined as to the distribution of the royalties collected under the amending Act of 1914, the patentee whose patent has been suspended or avoided is placed by this Bill in a better position to recover after the war whatever he may be entitled to. The measure also assures a monopoly in the production of the patented article tothe Crown licensee. and is thus a necessary complement to the Act of last year. The intention to give the licensee a monopoly, and to transfer to him all the rights of the patentee, was imperilled by a defect in .the Act of 1914. That Act took his monopoly from the patentee whose patent was avoided or suspended, but left the community free to make, vend, or use the patented article, nob only when the patent was- avoided, but whenit was suspended ‘in favour of a Crown licensee. In this explanation of the Bill I have confined my remarks to patent rights, and have not referred totrade marks and designs, because, so far as this Bill goes, the difference between them is not one of principle. If it can be shown that the measure can be made more effective, I shall be glad to adopt amendments to that end. The Act of last year was introduced to enable the community to continue to enjoy the benefits of patented articles affected by the wax, to offer sufficient inducements to licensees in whose favour the patent was suspended to put their money into the manufacture of these articles, so that Australia should gain not only by opportunities for use of the article, but also by the establishment of industries for its manufacture, and where this could only be effected by suspension and not by avoidance. The 1914 Act has been found defective in so far that a licence now granted to a person under it does not give that person such a monopoly as would induce him to invest his capital, nor does it protect the community, because, since it enables any nian to use the patent involved, it, in effect, in many cases, will prevent any from doing so.
– I am not at all sure that I do not agree with the Attorney-General regarding the main object that he has in view. The honorable gentleman practically stated that object in the concluding words of his speech when he said that where we suspend the right of an enemy patentee to enforce his patent, and merely grant a bare licence to some one else to use it, we may not give encouragement to any person to enter upon the manufacture of articles that may be useful to the Commonwealth. I admit that that is so, and, therefore, although the Bill involves a new and a very serious inroad upon the principle of the Crown granting monopolies which will need to be watched with the utmost care by the Ministry and Parliament, I do not think that at the present time I should oppose such legislation. I wish to point out, however, that while the object which the Minister has in view is that which he has stated - and in that I shall be prepared to make some suggestions to assist him - the Bill, as it is worded, goes to a length which, I feel confident, neither the Attorney-General nor his supporters appreciate. As it is worded, this measure revives some of the most mischievous features of the practice of the Crown creating indefeasible monopolies in individuals, which existed at the time of the Tudors, and which, after a great constitutional struggle by the Commons against the Crown, was at last limited - in many respects it was abolished - by the famous Statute known as the Statute of Monopolies. That Statute, which was passed in the time of Elizabeth, provided that the Crown should not be permitted to grant any monoplies except subject to a certain definite limitation. The Crown had been granting monopolies and making revenues out of the practice. I am not suggesting that anything of the kind is likely to happen here. But the principle involved in this Bill is one that has been fought for and maintained throughout the history of, not merely Great Britain, but every modern civilized country - the principle that the granting of monopolies by the State must be limited within a very defined area. That defined area is that a monopoly shall be granted only as a reward for a new and useful invention. Both those words are used in the Statute of Monopolies, and they have been taken by the Jurisprudence of every civilized modern country to be a fair mark of limitation to the State’s right to grant monopolies. They are, indeed, the basis of all our patent laws, and I have referred to them because they have an immediate bearing on this Bill. Every person to whom a monopoly in the shape of letters patent is granted, by the Crown never has that right absolutely granted to him. It could not lie guaranteed by the State, but must be subject to the condition that the invention which is claimed to be new and useful is, in fact, new and useful ; that the patentee has not got letters patent for something which, in reality or in effect, was in the possession of the public mind before those letters patent were granted. Honorable members will recognise that that is a perfectly reasonable position. In granting a patent for an invention the Crown says, in effect, to the applicant: “ We do not know whether your invention is new or not. You say that it is, and we have an office which will make inquiries for you, as far as such inquiries can be made, to ascertain whether, in fact, your invention is new and useful.” The Examiner of Patents in every country examines the official records to determine, as far as can be determined from them, whether an invention claimed to be new is new in fact! The Crown says to an applicant for a patent, “ That is all we can do for you. If your invention is new, we shall give you a monopoly in respect to it for fourteen years, with a right, under certain circumstances, to have it renewed, but you must take it at your own risk.” It will be seen that the real safety to the public and the Crown against the granting of improper monopolies lies in the fact that there is thrown upon the person who secures a patent right the condition that if his invention is challenged he must show that it was new when the patent was granted in respect of it. Every patentee, whether an enemy or a friendly patentee, is subject to that condition. The first thing that an inventor does nowadays is to patent his invention in every country. We have hundreds of German patents here, and doubtless there are hundreds of British patents in operation in Germany. Many of these patents are not worth the paper on which they are written. Many of them are absolutely worthless. The patentees have paid their fees, and have obtained their patents for what they are worth. If any one chooses to exercise such an invention, the patentee cannot say to him, “ Here is my patent, and that must be quite enough to you. You must pay me a royalty.” On the contrary, the person seeking to exercise an invention has the right to say to the patentee, “ Your invention was not new when you obtained a patent for it in Australia.” The Attorney-General will agree with me that of the German patents with which we are now dealing there are hundreds in Australia which are probably as bad as possible, and which every Australian citizen has a right to challenge. I understand that this Bill has an immediate connexion with what is known as the Thermit case, and I cannot help regarding this measure as an illustration of the danger that always attaches to the passing of a Bill, in general terms, to deal with a particular subject-matter. If the Government wish to deal with a particular matter, Parliament should be so informed, and a measure relating specifically to it should be introduced. But when we have brought forward a general change of the law to meet a particular difficulty arising in a particular case we are apt to fall into serious dangers. Before alluding to the facts which I think have led to the introduction of this Bill, I wish to point out that there are hundreds of German inventions patented in Australia which any one has a right to use. We can say in respect of many of them that the invention to which the patent relates was published in a scientific magazine here before the patent was granted, or that something almost exactly similar was being used, say, in the Castlemaine Foundry before the invention was patented.
– Would that be only in war time?
– At any time. The Crown, in granting a patent to any man, has always said, in effect, to him, “ You have a monopoly in respect to it only if you can prove that your invention is new. Any man has a right to do that, in respect of which you claim a monopoly, if he can show that your invention is not new.” This Bill has nothing to do with the war, except in so far as it takes its origin from the fact of certain patentees being enemies of ours. The Commonwealth Act of 1914, copying the Imperial Act, enabled the Minister to make a regulation under the general patent law providing for the suspension or cancellation of the patent rights of the subject of any State at war with us - to put it shortly, the patent rights of any German - or, in the alternative, to grant a licence without suspending a patent-
– Not alternatively. The word “ and “ is used. We may suspend without giving a licence; we may suspend and give a licence or avoid a patent altogether.
– The AttorneyGeneral is in error. Section 3 of the Act of 1914 provides that regulations may be made -
In other words, a German patent may be avoided or suspended. The section provides, further, for the making of regulations -
Paragraph c deals with applications and has nothing to do with the point with which I am dealing -
The word “ and “ merely connects the different paragraphs, giving power to make regulations. It will thus be seen that the Minister has power to make regulations to suspend or cancel a German patent, or, allowing a German patent to remain in force, to grant a licence to any individual. If a German patent be annulled, a licence in respect of it cannot be granted. A licence has force only as long as there is in force a patent relating to it. Obviously, we cannot grant a licence if we annul the patent.
– We can annul or suspend a patent, and yet not grant a licence.
– Quite so. I understood the honorable gentleman to go further, but I accept the statement just made by him. We can annul or suspend a patent, and yet refrain from granting a licence in respect to it. If we annul or suspend a patent we may not grant a licence, but we may leave a patent in force.
– Unless we annul or suspend our authority to grant a licence does not arise.
– I take a totally different view from that just expressed by the Attorney-General. If we annul or suspend a patent, the necessity for granting a licence to use the invention relating to it does not1 exist. The operation of the patent is either destroyed altogether or suspended during the operation of the war. If it is suspended any person may, without licence, use the invention to which it relates.
– I was speaking of the Statute.
– It is only where a patent is not suspended or annulled that the Minister may grant a licence that may be of any purpose. That being so, I come now to the point to which I wish to direct special attention, because I believe it has been overlooked. This legislation, if carried in its present form, will have extraordinary, farreaching effects. If a patent be annulled or cancelled, or suspended, or if a licence be granted without annulling or suspending the patent concerned, then any person who gets that licence is merely exempt from being sued by the patentee. . He has no monopoly. If we suspend the patent we abolish the monopoly for the time being. If we annul the patent we abolish the monopoly altogether. If we do not suspend or annul a patent, but grant a licence to a particular person, still under the existing Act, every other Australian citizen has exactly the same right as he had without that Act to make the thing which is supposed to be protected by the patent, but only at his own risk.
– Do you mean at the risk of civil recovery?
– Purely civil. But the criminal element has also been introduced, and I shall deal with that later.
– But that applies to the term of the war only.
– Only in the case of a suspension. If a patent is annulled, the original patentee is out of Court altogether, but suspending a patent during the currency of the war does not suspend the right of the patentee to sue during the war; it merely suspends his monopoly during the war, because no object can be gained by suspending the patentee’s right to sue, seeing that, being an enemy, he has no right to sue during the war; he cannot be heard in our Courts.
– That is true, but if a licence is granted, will it hold good only during the term of the war? Can the patentee come in afterwards and sue for the use of his patent?
– Certainly not. In the new Act, Parliament has said that the Minister may “grant licences” - he may grant a licence to a particular person, authorizing that person to manufacture the patent, but that licence does not give the licensee a monopoly; it simply authorizes him to manufacture without paying royalty to the patentee. If the Minister grants a licence under statutory authority to a man to manufacture, notwithstanding a patent which still remains in existence, the man has an absolute right to do it under the existing Act, and the patentee is absolutely precluded from suing afterwards with regard to the actions of the licensee. Of course, after the termination of the licence, the patent, if it has not been annulled, will come into full force, and from that time onward the patentee will have the right to sue any person for manufacturing the article covered by the patent.
– The honorable member is not forgetting that everything turns on the fact that the power given to the Minister is to suspend, in whole or in part, in favour of a particular person.
– Of course, if the Minister grants a licence, it is in favour of the person to whom he gives it. The words “ in part “ cannot mean “in favour of any particular person.” To suspend a monopoly even in part means to allow everybody to do the thing which the monopoly claims to do.
– We are dealing with patent rights.
– I am endeavouring to put my own view. I have no doubt as to it.
– The effect of the limitations in the Bill are such that they conflict with the argument of the honorable member.
– I had some difficulty in understanding what was the meaning of suspending a patent “ in part.” It can only mean that, if a patent consists of several subordinate monopolies or claims, it may be suspended in regard to some of the’ claims,, though not in regard to the whole patent. It cannot mean suspension in regard to any particular person, because, once suspended, it is suspended in regard to everybody, or not at all. If honorable members will give me a little more attention upon this very technical subject, I shall be able to explain this very dangerous quality in the Bill, and I have no doubt that the Government, if they view the matter as I do-, upon explanation, will be prepared to make the necessary modifications to gain their real end. According to clause 4 -
Where a patent, or the registration, and all or any of the rights conferred by the registration, of a trade mark or design, has been suspended in favour of any person-
Mark these words - in favour of any person - because there is nothing in the existing law which speaks of suspending a patent “ in favour of any person “ ; the words are meaningless. There cannot be a licence where a monopoly is suspended. It is not required. A licence is permission to do something which, but for the licence, on© would be prevented from doing by law. The clause proceeds - any person other than the person in whose favour the patent, or the registration, as aforesaid, has been so suspended, who, during such suspension, makes, uses, exercises, or vends the invention forming the subject-matter of the patent, shall be guilty of an offence. Penalty : £500.
If it be passed in this form, the clause will achieve two objects which could not have been contemplated by Ministers. It will deprive the people of Australia of the right which they have always had against any patentee, no matter how useful his invention may have been, to say that, so far as Australia was concerned, it was not new at the time the patent was obtained. This provision not only takes over a German patent, which may be good or bad, and vests it in some licensee, but .it also arms that licensee with a power and authority such as no patentee has ever had in any British or modern community.
– It gives him stronger patent rights?
– Unassailable patent rights - so much so that no Australian citizen can say, “Your invention was never a new invention here.” Not only does it deprive every man of the right of claiming to dispute a monopoly on the ground on which similar monopolies have always been open to challenge, namely, that it was not new when the patent was obtained, and that it was in the possession of the public previously, but it also adds, or perhaps substitutes - it is difficult to say - but it certainly creates a new and drastic enforcement of the monopoly such as exists in no other jurisdiction, for we make any encroachment on the patent a criminal offence with a penalty of £500, whereas, under the existing law, the sole right that any patentee has to support his monopoly is a civil action for damages. He may say, “You have made use of my invention; it was new, and I have a patent for it; by using it you have caused me a certain amount of damage, and I shall sue you for damages, and claim an injunction against you in order to prevent you making further use of it.” That relief the patentee has subject to the inherent right of the man whom he attacks to say, “ You have never had a valid patent, because the invention was not new at the time you got it in Australia.”
– Do you mean to infer that if this right is granted to a certain party, protected by this Act, no man in Australia can come along and ask for an improvement?
– No ; that is not my meaning. An improvement is an entirely different thing. A patent may be issued for an improvement on an existing patent, so long as it is new ; but the existing patent cannot be used without the payment of royalties to the patentee.
– The new Bill removes the onus of proof from the patentee to the other person.
– It is not so much a question of proof. This Bill now proposes to give to the patent the guarantee that it is a good patent, whether it is new or not, and the man who gets a licence will not only have the right to manufacture without paying royalty to the patentee - that is to say, he will have the right to do what no other man will have the right to do if the patent is good - but, also, he will have a monopoly which is conferred on him in a way which it is not now conferred on any patentee. No one will be able to dispute the validity of the patent, whether it be good or bad. The right which we all have to dispute any German patent in the hands of a German patentee will be gone. Thus hundreds of these patents, which may be good or bad - that many of them are bad has been proved in our Courts of law - may be taken over under this Bill, and vested in licensees, and at once be made impregnable.
– Would not the Crown have the right to get the royalties the original patentee would have received?
– Probably ; but why should the Crown have that right against the public? That is the danger. We are creating a new monopoly for inventions which are not new. A German may have a German patent for something which has been used in Australia in various forms before. It may be thoroughly bad, but the German patentee comes here and gets a patent at the Patents Office. It is often done, because the examination is necessarily bad; it is an examination of documents only, and numbers of these patents are very easily attackable and capable of being upset. Nevertheless, the patent stands, but any one has the right to go on making Thermit - I merely take this as an example ; I do not know whether the patent is bad - and if the patentee chooses to sue for damages the other party may be in a position to prove that it is a bad patent. Now, however, under this Bill, once the patent is vested in the licensee it becomes impregnable. It may be as rotten as possible, but it is at once built up into an impregnable fortress so long as the licence is held.
– How long would that be?
– It may be for the unexpired period of the patent, anything up to fourteen years. As the Attorney-General has pointedout, if we desire people to put capital into the manufacture of these articles, we must give them something worth going for, and probably licences will be granted for as long a period as possible; therefore, the monopoly may rest for all that time, and it is an impregnable monopoly. It is very dangerous, indeed, to vest in the Crown, in any shape or form, the right to grant monopolies, except subject to conditions which have been attached in every country to the grant - for instance, the condition of giving something to the public in return for the monopoly. The patentee gives the public the benefit of a new invention, but for that alone does he get the right to prevent other people from using it?
– The onus of proof is upon the patentee.
– I do not think there is any question of the onus of proof. It is not merely the onus of proof that is thrown upon him-
– Assume it goes to Court.
– Suppose the licensee goes to Court, do you mean ?
– No. The patentee takes the person to Court and says “ You are using my patent.” The onus of proving that he is rests upon the patentee.
– Are you. speaking of the existing law ?
– Yes. The onus of proof would be on the patentee.
– No. Under the existing law, the person who assails a patent has to prove that it is not new. That is the ordinary law. He has always the right to call evidence that it is not new : but the position created under this Bill is that nobody can prove that the original German invention was not new.
– Does the Labour party wish to give a monopoly?
– I do not wish to use language of party controversy in this matter. I merely wish to point out to my friends on this side of the House, as well as to those on the other, that this power, whether in the hands of a Government supported by honorable members on that side, or by honorable members on this side, is an equally dangerous power. That is what I want to point out. I propose to take up a few minutes by referring to an instance of what I mean. I do not think there is any disputing the fact that the occasion responsible for this Bill is in connexion with the question that has arisen regarding a German invention named Thermit. I know very little about the subject of the invention, excepting that it is a kind of chemical or physical preparation by which enormous heat is generated, and that it is largely used in the welding of iron and steel.
An Honorable Member. - It is used on our tram-lines.
– That is the history of the Thermit controversy. After the last Act was passed in 1914, two applications were made under it, and under regulations raised by it, in respect of this particular invention. One application was made by Mr. Teesdale Smith, the other by Mr. Henry Chinn. Both were made to avoid the Thermit patent. If either had succeeded, in effect, it would have meant that Teesdale Smith, or Chinn, or anybody else, might have used the patent - that is, under the operation of the Act. Both the applications were opposed by a number of persons. First of all by the patentees, then by the Australian Thermit Company, who were, I imagine, tha exclusive licensees of the patent in Australia. They were opposed by the Minister of Railways in New South Wales, by the Commissioner of Railways in that State, and also by the Malvern Tramways Trust. Mr. Chinn opposed Mr.. Teesdale Smith’s application.
– Were these opponents persons who had applied for licences or persons wishing to apply ?
– I do not know what relation these people stood towards one another, or towards the original patentee. They all opposed the applications, and Mr. Chinn opposed Mr. Teesdale Smith’s application, though the granting of Mr. Teesdale Smith’s application would have had exactly the same effect as the granting of Mr. Chinn’s application. They were all persons who opposed the applications to avoid or suspend the Thermit patents. At that stage there were no applications for licences. The applications, I am informed, and this information has been supplied to me by a gentleman engaged professionally in the litigation-
– What was the first application before the Commissioner fort
– To avoid or suspend.
– Exactly. But some of these persons were applicants.
– At this time the only applications were to avoid’ or to suspend the granting of either of which would, of course, have thrown the whole thing upon the world at large.
– The honorable gentleman has coupled them both together.
– I say two persons made application to avoid or suspend. One was Mr. Teesdale Smith, the other Mr. Chinn.
– Yes, that is so; but the application was not granted.
– I am not making any accusation against the AttorneyGeneral. I am sure he did what he thought was right in this case; but I want to show what might be done. The applications, as I have said, were opposed by quite a number of persons. For some remarkable reason, Mr. Chinn opposed Mr. Smith’s application, the granting of which would have had exactly the same effect as if Chinn’s application had been granted. The contractors to the Malvern Tramways Trust also for some reason opposed Smith’s application. These, however, are details that do not matter. The fact is that the applications were opposed by quite a number of persons. The applications were made to the Attorney-General himself. Very properly, he referred them to the Commissioner for Patents for inquiry; but Mr. Teesdale Smith, before the hearing before the Commissioner for Patents, withdrew his application. The next step was that in which the Commissioner would have heard Mr. Chinn’s application, which up to that time had been merely an application to suspend or avoid a patent - that is, to open the door to the world. Mr. Chinn asked the Commissioner for an exclusive licence to be granted to him- self. An “ exclusive licence “ means nothing. I do not know whether Mr. Chinn knew that it meant nothing, but that is what he asked for. There was no power under the existing law to grant an “ exclusive licence.” There was power to grant a licence, but this power to grant an “exclusive licence” is only now being asked for. After the matter had been further dealt with, a decision was given, the effect of which was, shortly, that the Attorney-General refused to grant Mr. Chinn’s application, but suspended the patent “ so far as regards and in favour of (a) the EngineerinChief of the Commonwealth railways; and (b) such persons as the Minister may license.” Now that again was meaningless. I say so with great respect to the Attorney-General; but to say that under the existing law you can suspend a patent “ as far as regards and in favour of “ any particular person, has no meaning. Under the existing law, all a Minister can do is to suspend a patent - that is, he can open the door, but he cannot open the door to any one particular person. He suspends the patent; he annuls it-
– Except by refusing an application to grant a licence !
– Of course, if he granted a licence, he would open the door to one person and close it to the rest of the world, but leaving to the rest of the world the right to put the law into operation to show that there is nothing in the door, so to speak - in other words, to show that the patent is bad. I have the orders made by the Minister here, and, assuming that he possesses the power, I want him to understand that I take no exception whatever either to the form or substance in which he proposes to take this power, provided he has thoroughly looked into the matter. It may be highly desirable to invest the Engineer-in-Chief for Railways with the exclusive power to utilize this Thermit patent in Australia. It may, or it may not be. If the Minister has looked into the matter, and has come to the conclusion that it’ is, I do not quarrel with his decision. It may be desirable that he should possess power to grant an exclusive licence to some other person beside the Engineer-in-Chief. I do not dispute that. But he had no power to do it at the time that order was made, and this Bill is, of course, couched in language which is intended obviously to vali date that order, because it now; for the first time, speaks of a case in which a patent has been suspended in favour of any person. As far as I know, no patent has ever been suspended in favour of any person except the Thermit patent.
– Are you talking about the Bill or the Act?
– The Bill. I want to say this, putting it shortly, that if the Minister wants merely to grant the same rights as the patentee had for the purpose of enabling that person - subject to all the disabilities of the patent, subject to the right of anybody to prove that there is nothing at all in it, that there is no monopoly in it - if he wants to transfer the right of a German enemy to a citizen of Australia, I have nothing to say in opposition, but, as I said before, it is a power in the hands of any Government, or any Ministry, which ought to be exercised with the utmost caution and watched with the utmost jealousy. It may be a power which it is very desirable for the Minister to possess; but, in order to grant that power, all Parliament has to do is to say that the Minister may invest some person with the same rights in a patent that the German patentee had. That is what should be done. It would not take the Parliamentary Draftsman five minutes to put that simple thing into a form which would give the Minister all he wants. If, as he pointed out, he wants to invest some person with that power, and to give him the necessary inducement to invest his capital, and, with that end in view, to grant him a monopoly, let him grant £he monopoly subject to the same conditions and the same risks that now exist in the German patentee from whom he proposes to take the patent. But, if you go beyond that, and say that the Minister or the Government may take any German patent out of the hundreds that exist in this country, and may transfer it to a particular individual, and render him absolutely safe from any attack, no matter how vicious, then the licensee to whom you grant that power will not only have his ordinary rights to sue for damages against an infringer if his patent is good, but you are also going to protect him by granting an inviolable monopoly with a penal provision, fixing the penalty for infringement at £500. By doing this you are not only introducing a very grave novelty into legislation - I do not know of any country in the world which has adopted anything like it in its patent laws - but you are introducing a power winch, with this or any other Government in office, is a power which ought not to be given.
– Even if the licensee is an officer of the Crown?
– If you are giving the power you are giving it in general terms. The exercise of that power when in the hands of an officer of the Crown may be harmless, but the power itself is a mischievous one.
-For what purpose is the transfer of a right made from a patentee to a licensee? Does it not arise out of the circumstances of war, and is it not for the benefit of the community?
– The AttorneyGeneral can only carry the principle of emergency to a certain extent. He cannot cover up everything by the war.
– I do not wish it for one minute.
– I am prepared to support the Government in granting everything they ask that is essential, or that they consider is essential, for the prosecution of this war.
– Does not the honorable gentleman see that we are keeping these German patents alive ?
– Yes ; I want him to keep the German patents alive ; but ought we not to keep them alive for our own benefit?
– And how is that to be done other than by granting certain licences ?
– If the German patent is worth anything, if the German monopoly ought to exist here at all, I have shown you how you can transfer it to any body you like, and how you can give all the protection to which a German patentee would be entitled. What more do you want to give him? Do you want to give him a protection to which the German patentee would not he entitled? I say you are introducing a very mischievous principle into this legislation.
– We are not considering the German patentee. We are considering the community and the position arising out of the power to infringe a patent with, impunity.
– There is always power to infringe a bad patent with impunity, but there is never power to infringe a good patent with impunity.
– People do that, and chance the consequences.
– They do, but they have to take their chances. What I should like to know from the Attorney-General is, whether he desires to go further in this Bill than to take the right to transfer a German patent with all the protection which the patentee had in it.
– So far as the licensee is concerned, yes; but so far as concerns the patentee, no.
– Is there any necessity to create a new and previously unknown monopoly - in other words, to make a rotten patent a good one?
– Does the honorable member suggest that the Crown should be content with civil remedies?
– Certainly. If the Crown is not content with a civil remedy for an ordinary civil right-
– But these are something more than ordinary civil rights.
– The AttorneyGeneral wishes to make them something more than ordinary civil rights, and that is what I object to. I am prepared to help the honorable member, if he desires facilities to invest persons with the ordinary patent monopoly - but no more than that - which the German patentee had, in order to encourage them, in the interests of the community, to make those articles which the honorable member says ought to be made, but if the honorable member wishes to invest the Government with power to create unassailable monopolies protected by law, the House ought to pause before giving sanction to any such provision. I venture to think that had a Liberal Government introduced a measure of this sort, they would have received criticism from the Attorney-General, compared with which my remarks on this measure this evening are milk and water.
– You charge us with changing our opinions when we change our seats.
– It seems as if honorable members opposite are changing not only their opinions, but their principles. However, 1 wish to deprive this discussion of all flavour of party politics, and I ask honorable members, on the statement of the AttorneyGeneral himself, whether it is necessary for him to ask the House to give greater power to the Government than that of vesting in those people whom he wishes to encourage to manufacture thermit or any other article the full authority which the patentee, whose patent is being suspended, possesses?
– The honorable member for Flinders has clearly shown that the. Bill ought to be withdrawn for the present and further considered, and I emphasize that statement by mentioning that Imperial legislation has not been amended in the direction proposed in this measure. Since the war broke out, three Acts dealing with the subject of patents have been passed by the Imperial Parliament - one in August and two in November. Immediately afterwards a Bill based on the Imperial legislation was introduced into this Parliament, and on the second reading I pointed out that, whilst war practically took away the right of the patentee to sue during the war, any member of the public might use a patent, subject to the liability to be sued afterwards for infringement during the war. Whether or not the Imperial Government intended to render a patent open to use, and not to give an exclusive licence, I am not sure. It has been stated in England, amongst others,, by Mr. Baty, in an article on the subject, that the intention was to grant an exclusive licence, but it is rather significant that the Imperial Government have never brought in a Bill to do that. As a matter of fact, the Act which we passed last year does not, in its present form, authorize the granting of an exclusive licence. It has been said in England that the assumption was that there was power given to grant exclusive licences, but the matter has been in doubt, as, indeed, all this patents legislation has been, because it has never been clearly shown what is the object sought by this legislation. In my opinion, what the Government are really aiming at is this: In the first place, following international comity, to protect when the war is over the rights of the patentee, to acquire in the meantime any benefits that might accrue for the benefit of the public, and to provide for any payments which may be made to be retained until after the war, when they will be payable to the patentees again. In the next place, we have to provide for the granting of permission, by the suspension of the patents, to persons who wish to use those patents, and regulations have been made which provide for an application to be made for suspension of a patent by some one who, in his application, states that he intends to use the patent. That person is not necessarily entitled to an exclusive licence. In fact, at the end of the regulations there is a provision that the Attorney-General or Comptroller may grant “ a licence “ to any person.
– I do not think the Comptroller can do that.
– At all events, the AttorneyGeneral may grant “ a licence “ - it does not say exclusive licence - to any person. But there seems to be some assumption that the person who made the application to suspend was entitled to an exclusive licence.
– That does not follow. It was not done in the Thermit case. Mr. Henry Chinn and Mr. Teesdale Smith were applicants for suspension, and both their applications were refused.
– I was asked, soon after the Act was passed, what was the good of passing the Act if the applicant was not to obtain immediately an exclusive licence. I never for a moment thought that that was the object of the Act. We have to protect the interests of the man whose right to sue in a Court is suspended during the war, but whose patent remains, and remains because some of the English orders provide for giving a licence to a person, to an enemy subject even, to pay fees in England upon a German registration, and there are reciprocal orders permitting Englishmen to pay fees in Germany during the duration of the war to keep alive their patents in the enemy country. That bears out my contention that there was no intention on the part of either Germany’ or England to annul these patents. In fact, I do not believe that any application to avoid was ever successful in England. .
– I believe the Thermit patent was wholly avoided.
– That may have been done for reasons independent of the legislation passed since the war broke out.
– It was done quite recently, and we must assume, it was byvirtue of a power given in recent amending legislation.
– It has been declared that the power to avoid under the regulations is ultra vires. As a matter of common sense, you would not avoid a patent if you were going to give a licence for its use. This Bill does not deal at all with the avoidance of a patent, but only with its suspension.
– You may avoid a thing in parts.
– I do not think that was ever intended. My impression is that the word “ avoid “ ought never to have been put in the Act we passed at the end of last year.
– So far as this Bill ?s concerned, it is clearly directed to the power of suspension.
– That is all. The point to which I am calling the attention of the Attorney-General is this : One of the considerations in passing this Bill was to protect the right of patentees during the war, because at such time they had no right of action.
– That was not the main reason.
– On the 23rd of last December 5 orders were published in England permitting the payment of the necessary fees for obtaining a renewal or a continuance of a patent in an enemy country, and also reciprocal permission was given to pay enemy fees in England on patents held by enemy subjects, so that the suspension of the rights of the patentees should not, except by precluding them from taking action for infringement, be prejudiced by the duration of the war. Primarily, what we are doing is fulfilling the international rule that, unless we deliberately abrogate contracts, the patents also should be protected during the war.
– There is no suggestion of abrogating contracts.
– Not in this Bill, but it is a rule of law that contracts are not necessarily abrogated. The next reason is that adduced by the Attorney-General - to induce people to take up these patents by issuing licences to them. For that reason the Act allows licences to be granted for the full term of the patent, and the> allegation is that, unless that were done, people would not embark on the expenditure necessary in order to use the patent. The point I would impress on the Attorney-General is, that if such licences are granted, he must not interfere with the rights of a patentee, or do anything which would be in the nature of giving away those rights.
– I have always held that as one of the guiding principles.
– That is another reason why I believe this legislation was introduced. Only the right of action for infringement is suspended; at the end of the war that right accrues again, and its revival enables action to be taken in respect of infringements during the war.
– Is that so?
– According to some authorities. Perhaps such action is not possible, but I have seen opinions to that effect from eminent men.
– I feel certain that is not so.
– I do not say that it is absolutely clear, but the opinion has been expressed that on the revival of the patent, as the remedy only during the war was suspended, the right to take action in respect of an infringement will be restored.
– The patentee’s rights continue’ during the war, but his right to take action in regard to them does not.
– Assuming that is so, then any one who uses a patent now would be subject to that liability after the war, and legislation was passed to enable licensees to be protected against being subsequently sued. These are three of the probable objects or reasons which influenced Ministers in England in putting this measure on the statute-book. As the honorable member for Flinders has shown, we have far exceeded these objects, because we are really putting beyond all doubts patents that may be open to challenge. Again, we may be inadequately protecting the rights of the patentee whose rights are merely suspended. If we grant an exclusive licence for an inadequate fee, we are not only preventing others, but we are not compensating the man who is deprived of all his remedies. The Imperial Parliament did not intend that, because, if so, they would not have allowed an enemy subject to keep alive a patent by paying fees, nor would they have allowed a British subject to keep alive a German patent which had not been cancelled by the war. My impression is that it would be far better to withdraw the measure and amend it. If we impose a fine of £500 for in any way using a patented article, the right which is given to another to use it under licence amounts to an exclusive licence.
– Does the honorable member suggest that the patentee should still have the right to issue a licence?
– I do not, but the honorable member for Flinders suggested that, if a licence is granted, the licensee ought to be placed in the same position as the patentee, but not a better. And we ought to see that the licensee pays an adequate consideration; otherwise we defeat one of the objects, which is to protect the patentee.
– I shall endeavour to show that the position of the patentee and the position of the licensee are not the same - that one has an effective remedy, while the other has not.
– At any rate, my impression is that, under the circumstances, this may be regarded as rather hasty legislation.
– I am at a disadvantage in not having heard the remarks of the AttorneyGeneral, though I did hear a portion of the speech of the honorable member for Flinders. From a legal stand-point, there is not the slightest doubt that the honorable member for Flinders has established a very strong position, indeed - an almost unassailable position. But if we depart from the strict legal aspect, and’ put aside for the moment the technical objection to the introduction of the penal terms, and regard the matter from a somewhat more practical point of view, I must say that I am not prepared to condemn, in the same wholesale fashion, the provisions of the Bill as they appear. I admit that the terms of the Bill indicate a better title for the licensee than that of the original patentee, and that strikes one at first as somewhat anomalous. But we have to distinguish between the two, in the emergency that has arisen. The original German patentee holds a monopoly, and has data and material at his disposal, in order to establish his title, that the licensee could not hope to have. The object of our legislation is to induce our own people, in the case of large and valuable patents, to invest, possibly, large sums of money, with a view to giving the Commonwealth the benefit of the patent. If the licensee is to be harassed, and doubts thrown on his title, we are placing him in a very serious position.
– Does the honorable member wish the Crown to grant the licensee a new monopoly for an old invention ?
– I even go so far as to say, in the circumstances, that that might be justifiable, in order to insure that we are not deprived of the benefits of the patent. Some assurance should be given to the Commonwealth citizen who invests his capital in the production of the commodity.
– Would you pay that price for making good all patents now bad?
– I am not referring to all patents, but valuable German monopolies. It is from the practical, or public-policy, stand-point that I wish to deal with the question. First of all, we desire to encourage the investment of capital in a particular patent which we believe to be a good one; and a man, before he invests his money, desires to know that he is reasonably secure. This is either a good or a bad policy. If it is a good policy in the interests of the public, we should encourage the production in every way, and, practically, give to the licensee a new patent in order to encourage him to invest his capital, establish an industry, and give the public the benefit of the patented article.
– Would the honorable member give encouragement in the form of a monopoly in the case of an invention as old as the hills?
– Let us start from the position that the German patentee has already got his monopoly, and that that monopoly has -not, up to date, been assailed. We will take it that the product of the monopoly is good and desirable for Australia; and we should, I submit, provide a scheme of protection for the establishment of a valuable industry, and thus give the public the benefit of the product, and workers the benefit of employment. We can only hope that people will invest their money in this way if we give some assurance as to the title; and, if necessary, we should even be prepared to go as far as I have suggested. To all intents and purposes the licensee should get a new patent; and that is a position we can justify from the public stand-point. As a matter of public policy, we give the licensee protection in order to bring about that production which previously was exclusively vested in the German patentee, and probably only known in the form of German imports.
– Why does the honorable member wish to give the licensee more protection than we give to one of our own patentees?
– I start from the stand-point that, first of all, the German patentee has had a monopoly, and that the product of the patent is desirable for Australia. Therefore, we tell our capitalists that we will give them some assurance as to title, inasmuch as they are placed at a serious disadvantage in not being able to establish a title to the original patent in the absence of the. original material. Sometimes we give protection by means of the Tariff, but in the particular case before us, we give protection by an assurance of title.
– Sometimes we give protection by means of a bonus.
– That is so; and, after all, the licence is only a different form of protection in order that the industry may be- encouraged, and the benefits of it enjoyed by the Commonwealth. From a public policy point of view, there is much to be said in favour of the Bill as it is presented. I do not attempt to justify the Bill from a technical or legal stand-point; but, with a view to the protection and creation of an industry, I am quite prepared to support the terms of the measure.
.- The House is very much indebted to the honorable member for Flinders, who, out of the wealth of his legal knowledge in this particular direction, has given us valuable advice and guidance. Everybody knows of his wide practice and knowledge, and I think we may accept, without qualification or reservation, the legal advice that he has tendered. But I wish at once to join issue with the honorable member for Kooyong, who, unfortunately, did not hear the most telling portion of the speech of the honorable member for Flinders, and may, in his concluding sentences, have misinterpreted the honorable gentleman. The honorable member for Kooyong takes the view that it is desirable to give a doubtful title an unassailable position under the new law.
– With the object of establishing an industry.
– With the object of inducing capitalists to take up suspended or voided patents and granting them a monopoly during the currency of the licence or the period of suspension. In a general fashion, of course, we all desire to encourage the increase of manufacture, particularly of patented goods. The honorable member, however, advocates a most extraordinary view. For the sake of getting capital introduced into an industry he is prepared to grant to one person a monopoly, exclusive and unassailable.
– That is our patent law.
– No, it is not. And the honorable .member would refuse to, probably scores or hundreds of others, the right to embark in competitive investments.
– Our patent law applies only to inventions that are new.
– The view of the honorable member for Kooyong on the point was that accepted until about 350 years ago. There came a time when great evils grew under the old copyrights and patents - when privileges and monopolies ramified in the Mother Country - and the British Parliament decided to destroy those ancient and enduring titles, good or bad, and to establish a patent law on & totally different footing. First of all, there was fixed a time limit, and, at the expiration of the fixed period, the community was given the great benefits which it was deemed to have been paying for, by way of royalties, for fourteen years. Then we arrived at conditions which were practically copied by the civilized world as manufacture spread itself abroad. So far as I understand, all that any community has done in the last century in regard to terminable rights is to consent to give the patentee a certificate. But the man who undertakes the utilization of it doe3 so with all the risks of infringement - successful or unsuccessful. In our patent law we do not presume to say that when a man issues from the Patents Office with a certificate of patent he is immune from all attempts at competition, or the destruction of his particular rights by individuals who believe that they had the thing before he invented, or perfected, or patented it. Thus we have men trading on patent rights, with vast sums of money invested in their industries, who are subject to all the risks of this kind of competitive manufacture. I think it is good that it should be so. If a patent be good, it will stand the test of the Law Courts; if it be not, it will go down. Surely that is in the interests of competitive invention. But the Attorney-General and the honorable member for Kooyong apparently wish to change all that.
– Not at all.
– In order to encourage the introduction of fresh capital, the honorable member is prepared, in these times of stress, to say that we should proclaim as good all these patents, which are the subject of weekly contests in the Law Courts, and which eventually find their way into the High Court. Irrespective of whether they be good or bad, we are going to proclaim them good.
– We do not contemplate anything of the sort.
– I do not suppose that the Government are likely to do any such thing in a wholesale way.
– I am not discussing the magnitude of the effort; I am merely showing the practical effect of the Government proposal.
– Before that could happen, licences would require to be issued.
– It may be that a process dealing with leather or textile fabrics is held by an Austrian subject in this country, and that an application is made to suspend or void his patent. Thereupon the Attorney-General, aided by his Commissioner of Patents, may say, “ We will do neither of the things which we are asked, but we will issue to A, B, and Company a licence for thirteen years, which represents the unexpired portion of the title.” Now there may be half-a-dozen other applicants for suspension or voidance of that same patent. All of them may be desirous of laying down machinery and of entering into production under licence conditions, and yet the Attorney-General may say to them, “We will give A, B, and Company a licence for that period.” That could, be done whether the patent were good or bad. Under existing patent law, if it were bad, A, B, and Company would not take the risk. But if effect were given to the Government proposal, and the licence were issued, we should probably be giving a title to something which was not new, but which was probably useful-
– The honorable member for Flinders will not say that. So far as the patent is concerned, the patent rights are the basis upon which the whole fabric rests.
– I wish the honorable member for Flinders had heard that statement. What the Attorney-General says is that the Government merely propose to give a monopoly of rights as they exist.
– We should all be content with that.
– Certainly. We cannot give more than we have.
– That was the whole burden of the argument of the honorable member for Flinders.
– That honorable member forgot that he was in a deliberative assembly, and not in the Law Courts. Let us suppose that a licensee applies for a certain patent. Either he gets it, or he does not. If he gets it, and the patent right be bad, he gets it with that defect in it.
– Then the AttorneyGeneral does not say that in the Bill. Those who are opposing it are prepared to grant him that power. What the honorable gentleman said in reply to the honorable member for Flinders was that the Crown ought to have an unassailable right to ask for something which the subject patent holder does not possess.
– I was speaking then of civil as opposed to criminal rights.
– And the honorable member for Kooyong suggested that this unassailable title should be given to an assailable patent. He pointed out that the original holder was possessed of the details of the process involved, whereas the transferee was not.
– I agree with the point urged by the honorable member for Kooyong, but it does not touch my point, that the licence cannot cover anything more than the patentee had.
– Let us look at the clause, which reads -
Where a patent, or the registration, and all or any of the rights conferred by the registration, of a trade mark or design, has been suspended in favour of any person, any person other than the person in whose favour the patent, or the registration, as aforesaid, has been so suspended, who during such suspension -
Take the case of au avoidable patent, which, for the purpose of argument, we will say is bad in point of law. A man who obtains a suspension of that patent in his favour will get the additional protection that is afforded by the circumstance that the individual who opposes him is guilty of an offence. A criminal prosecution may be launched against) him, and in case of conviction the penalty is £500.
– I do not think that the honorable member can call it a criminal prosecution.
– It is certainly the criminal law that is exercised against him. -
– His position is similar to that of a man who does not get his child vaccinated.
– I am like one of the grenadiers in the celebrated charge of Balaclava in that there are cannons to the right of me, cannons to the left of me, aud, indeed, cannons’ all round me. I wish that these legal giants would permit a layman like myself to express a practical opinion. The clause affirms that where the suspension of a patent is made in favour of a particular person, any other person who exercises or venda that patent shall be guilty of a particular offence. Now, the present law does not say that. If the Attorney-General has a patent for any particular process, and I say that I am going to take all the risks of infringing it, I am not subject to a criminal prosecution and to a heavy penalty, but only to civil recovery for the damage which I may have done his business. Very well. If the AttorneyGeneral wishes to give the kind of right, which now exists, to the new individual or to the Crown, let him say so in this Bill, and he will not find a word of ob jection urged from this side of the chamber. I understood that that was what the honorable member for Flinders suggested should be done, and also the honorable member for Angas. . Let us take the other view. Let us suppose that the phrases now in the Bill are incorporated in an Act of Parliament. What will happen? Honorable members opposite will be parties to new monopolies which have not existed in British communities for over 300 years, under patent or copyright law. Do they wish to go to bed with that kind of thing on their consciences 1
– The honorable member need not worry. We will take care of ourselves.
– I am not going to take care of the honorable member. That task might be intrusted to God Almighty with more or less success. I was dealing rather with those honorable members who have been thoughtfully participating in this discussion. Is it a fair thing that any political party - revolutionary or reactionary, to use our popular platform phrases - should, under the guise of war, do a thing the intention of which may not be in that direction, but the effect of which inevitably will be?
– Neither the intention nor the effect will be what the honorable member suggests. No greater monopoly will be given to the licensee than was vested in the patentee.
– Let me traverse that argument for the tenth and last time. I agree that that is all that should be done.; but I am content to accept my own eyesight, and the opinions of legal gentlemen around me, who affirm that under this Bill the title will be altered and a higher right will be given to the transferee than that previously enjoyed by the transferror. At the present time, civil recovery is all that is possible for damage alleged to have been done to a patent. That position will be maintained under the new condition of things, plus a prosecution and heavy penalties. If that does not amount to practical immunity, I do not know what does. The majority of honorable members who will vote upon” this question are laymen, and they must either think it out for themselves or accept the opinions of the legal members of this Chamber. I take leave to cut my own way through the forest and to vote accordingly. If I am present when the motion for the second reading of the Bill is put, I shall vote against it.
– Is the interpretation of the law to be settled by numbers?
– As Carlyle said, “ We count heads to avoid breaking them,” in this generation; and the AttorneyGeneral is the most eloquent advocate of that principle in this country.
– If that be so, the honorable member has more lawyers upon his side than I have upon mine.
– I do not say that the number of lawyers in this Chamber should determine the matter. There are laymen here, and they must not be afraid to enter the lists, especially when the lawyers themselves disagree. I submit that this clause would confer upon any Government enormous and dangerous powers of patronage, which they do not need, and with which they should not be intrusted. Let me put a case to illustrate my meaning. Let us assume that two men apply for the suspension of a patent, and that the suspension is granted in favour of one of them. It might be granted under the principle of preference to unionists. I do not say this with a view to throwing the apple of discord on the table. One of these men might be a unionist, and the other might not. Let us suppose that both apply to the AttorneyGeneral for the suspension of a particular patent, and that such suspension is granted to one of them in accordance with the language of this clause. If he be true to the principles of which he is so able an exponent, he should give it in favour of the unionist.
– Because the honorable gentleman would believe that’ the unionists would be better intrusted with the work because he was a unionist.
– Then the honorable gentleman would give,it to the non-unionist.
– No; because I do not believe in preference of any kind.
– No; the honorable gentleman only practises it.
– I do not practise it, either. I have this preference, that where lurid adjectives are to be handed out, I prefer to apply them to my honorable friends opposite rather than to my friends on this side, but I should have no preference in the exercise of judicial discretion or administrative selection, because I do not believe in it at all.
– Then why assume that I do?
– Because the honorable gentleman has said that he does.
– That is not true.
– And because the Government, of which the honorable gentleman is a member, have said that they do.
– That is not true.
– It is true; but the honorable gentleman’s interjection is not parliamentary.
– I ask the Attorney-General to withdraw his statement.
– I withdraw it, but I now ask you, sir, to ask the honorable member for Balaclava to withdraw his statement that this Government, or any member of it, pollutes the fountain of justice and makes appointments to the Judiciary for party reasons.
– I did not say that.
– The honorable gentleman did say so. If he did not say that, he said nothing. That is a reflection which ought not to be allowed to pass.
– I followed the honorable member for Balaclava very closely, and I did not understand him to say what the AttorneyGeneral has attributed to him.
– If I used the words or conveyed the impression attributed to me by the Attorney-General, I should not have the slightest hesitation in immediately and unqualifiedly withdrawing it, but I did riot, and would not, make any such suggestion.
– The honorable gentleman spoke of the exercise by me of judicial discretion in a party manner.
– I do not know why the Attorney-General should claim to be a mentor in the matter of parliamentary manners when he is himself guilty of this unseemly behaviour. I wish to pursue the subject without any party venom. I have been led into an argument which has assumed the character of a dialogue with the honorable gentleman. I do not wish to continue that.
– What has preference to unionists to do with this Bill?
– I am showing how it could be exercised under the Bill.
– The honorable gentleman could not lose the opportunity of making a party attack.
– I have had many opportunities to make party attacks this session which I have refrained from taking advantage of.
– I rise to a point of order. The honorable member for Balaclava said, in the plainest and most unmistakable way, that I, in the exercise of my judicial discretion in regard to this matter, would exercise it so that I should give preference, not to the man who was most fit, but, for party reasons, to some other person. I resent that.
– I must repeat that, although I followed the honorable member for Balaclava very closely indeed, I did not gather from his words the meaning attributed to them by the Attorney-General. There has evidently been a misunderstanding.
– I rise this time to give the Attorney-General the assurance that I did not say that which he has attributed to me, and did not mean it. If I had used the words I should at once withdraw them. I acquit the honorable gentleman, and always have done so, of any attempt to improperly use the judicial functions intrusted to him. I was endeavouring to show that this power could be used by the honorable gentleman in the way I have described, and I said that, as he was an advocate of preference to unionists, it seemed to me that it should be so used by him if he were true to the principles he professes. I do not wish to continue the argument indefinitely. If the present Government were turned out of power, and the other party came in-
– No hope!
– Surely the honorable member will allow an “ if,” which implies, not an expectation, but a hope? If that happened, I say this would then be an equally dangerous power to intrust to any body of men, if it is not absolutely necessary for the national safety. I close with the observation that I trust that the Attorney-General will take counsel with the legal members on this side, who have expressed very strong views as to the legal effect of the clause which has been referred to, and that, if possible, before the Bill emerges from the Committee stage, the honorable gentleman will assure honorable members that only those rights which now exist will, under the Bill, be transferred to the new holder of the patent.
Sitting suspended from 6.30 to 7.45 p.m.
.- I was rather surprised at the heat displayed in the debate by certain legal gentlemen, whose training ought to have shown them that it is a great advantage in argument to keep cool; nor could I quite understand the heated manner in which the honorable member for Balaclava endeavoured to discuss the question. It struck some of us that there must be some underlying reason for this display of temper and enthusiasm over a Bill of this character. I take it to be a Bill necessitated by the present disturbed state of the patent rights law, owing to the war. Certain patentees, being enemy subjects, have been deprived of their rights under their patents, and, as there is no legal authority to carry the patents on, the Government have brought in the measure to enable licences to be issued to persons willing to do so. The Attorney-General has repeatedly stated that the licensee will have no more privileges than the original patentee. A patent is a monopoly, but honorable members on the other side have been endeavouring to impress on us the enormity of the offence of monopoly. We on this side know quite as much, and a little more, about monopolies than they do, and have taken a little more interest than they have in the various monopolies from which the people suffer. In Great Britain a number of patentees, especially German patentees, have had a great monopoly over certain scents, dyes, and patent medicines. This caused the British Government some trouble, but they overcame the difficulty by enacting that, unless the patentee manufactured the article in Great Britain within two years, he forfeited his patent rights. Some of these German patents are absolutely essential in trade. The honorable member for Flinders referred to one connected with the laying of rails for tramways and trains. Some provision would have to be made to meet cases of that kind. Under the Patents Act, the patentee has the protection of the civil law, but if I understand this Bill aright, the protection afforded to the licensee is a maximum fine of £500 for any infringement of his licence. In view of the enormous expenditure involved in creating industries, it is essential that licences should be protected; that is what this Bill does.
– That does not apply to the particular patent referred to. No enormous capital is required for that.
– Whether that is so or not, I have always endeavoured to encourage people to put their money into investments. The honorable member for Flinders, ably supported by the honorable member for Balaclava, seemed to display exceptional eagerness, determination, and perseverance to impress on the House that it would, by this Bill, be creating monopolies, detrimental to the interests of those represented by us on this side. The facts, however, are plain. The honorable member for Flinders was in quite a new role in taking up the cudgels on behalf of the oppressed. The whole of the honorable member’s argument is met by pointing to the circumstances of the times, which demand a Bill of this character. But for the war the measure would not be before us. The complaint of some honorable members that it is oppressive and tyrannical might be justified in ordinary times, but it has no weight now. We have had a number of ornaments of the legal profession disagreeing this afternoon, but the AttorneyGeneral has maintained his ground, and, applying to the subject that business capacity which I think I possess, I have come to the conclusion that the Bill will not have the harmful effects predicted by the Opposition. It will do what is urgently wanted towards keeping the wheels of industry going, and I shall support it.
– It will do something to create monopolies.
– Many silly things are said by way of interjection. I have just explained that no monopolies will be created by the Bill. A licensee will undertake certain obligations, and ought to have some protection.
– I would ask the Attorney-General to reconsider the Bill. His desire to give adequate protection to licensees or persons in whose favour there is a suspension of a patent under the original Act appears reasonable. The original enemy patentee is blocked from operating his patent, although the patent is one which it is desirable to work in the interests of the people. Our problem is to devise some protection which will encourage the person in whose favour a patent has been suspended to undertake the work. A patentee has the right to bring an action for damages for an infringement of his patent. If another person is to be put into the position of a patentee, we ought to see that he has all the rights and privileges as regards the protection of his interests that the patentee had, but this Bill makes different provision from the right of action for infringement. It gives entirely new rights. The best way to test this is to ask what are the defences that can be raised upon an action for infringement. Terrill, in his book on patent law, sets out nine different defences that may be raised by the defendant for an infringement of patent. For instance, he may -
There are various other defences which may be raised by a person who, it is alleged, has committed a breach of a patentee’s right.
– Yes, I quite agree with you there.
– We will assume that a man has received a particular patent, and he has taken action against the person for having infringed the patent. The validity of the patent can be questioned by the defence. Another defence that can be raised in an ordinary civil action is the want of novelty. As one of the Judges puts it -
If the public once possessed of an invention by any means whatever, no subsequent patent can be granted for it either to the true or first inventor himself or to any other person, for the public cannot be deprived of the right to use the invention, and a patentee of the invention could not give any consideration to the public for the grant, the public already possessing everything that he could give.
That is the law as laid down by Lord Blackburn in the case Patterson versus Gas Light and Coke Co.
– Is it to be assumed that the Government would give to this patent a licence subject to particular risks ?
– The patent is on the register, and the man has to take his patent for what it is worth. If any one infringed it, he could bring an action against the person for an infringement. Under proposed new section 4 of this Bill, there is no provision by which a man can raise the defence and attack the original patent on the ground of want of novelty of the patent.
– I say this : He ought to be able to raise that defence ; and if there is any ambiguity in the clause - and apparently there is, according to the honorable member’s interpretation of it -I will be willing to make it right, so that such a defence may be raised.
– If the AttorneyGeneral will look into the matter, he will see that the ground of want of novelty is one of the defences that may be set up in an ordinary action by a patentee. In any prosecution under this Bill, the person prosecuted should have the right to raise the same defence for his action as he could have raised had the action been for a breach on behalf of the original patentee. The licensee ought not to be in any better position than the patentee originally was. I would suggest a proviso enabling the defendant to raise the same defences as could be raised in an action for an infringement.
– You want to put a person who infringed the patent in a better position.
– No, the honorable member is mistaken. A person infringing the patent ought to have only the same right to raise the defence as he could have raised it against the original patentee; nothing more, and nothing less.
– That is what the honorable member for Flinders was contending for.
– In addition, the remarks of the honorable member for Flinders had reference to the criminal law. The second point that was raised by the honorable member for Flinders was that the Bill was introducing a protection for the licensee which was not afforded in the original Act to the patentee. That is to say, if a man commits an infringement and a summons is issued against him, he may be fined £500 under this Bill, and this is new Protection. The honorable member for Flinderscontended that the original grantee did not have the same protection as the licensee would now have.
– I do not admit that the cases are similar.
– The person in whose favour the suspension may have been made ought only to get what the original patentee had. The right of the patentee under the original Act had something in it in the nature of a monopoly. He had the right to manufacture and sell a particular article, and could bring an action for damages and recover compensation against any person who infringed his rights. There is merit in being an original inventor; but so far as the licensee is concerned, the position is different. He obtains the right to sell any particular article by virtue of the fact that he is the first man in.
– No; he need not be the first man at all. The Government might grant three or four licences.
– I admit that; but, generally speaking, the position is as I have stated. The point is that, inherently, the licensee is not entitled to any merit in connexion with any discovery. Such a right is given to the original inventor to stimulate and encourage the exercise of the inventive capacity in man. But the licensee has not done anything of that sort. He takes advantage of another man’s invention; but it seems now that the Attorney-General is justified in giving him something in the nature of a monopoly if a licensee says, “ I am prepared to put my capital into this venture and manufacture the article for the good of the public.”
– If there is competition, what would be the position?
– Assuming that three or four men want a licence, and will manufacture, in time of war like this, it might be given to each. I know from experience that at one time certain medical requisites were required, and it was essential that they should be manufactured. Now, if a man were willing to manufacture, and said, “In ordinary times it would not pay me, but I am prepared to do so in the public interest if I get a monopoly,” and if it could be shown that competition after the war would close up his factory, it would be right and proper to give him something in the nature of a monopoly, because it would be encouraging him to carry on operations for the benefit of the community as a whole. The point that we look at is this : When we do give a man a licence, what is the nature of it? How is it to be safeguarded and protected ? Then, if he has that privilege, the person who commits an infringement ought to be able to prove that the man was not entitled to it on the ground of want of novelty, or the other ground of invalidity. It is also doubtful whether we ought to enforce it by the penal provisions. In this matter we are only trying to assist the Minister. In time of war, we ought to relax patent measures so as to be able to carry on all those industries that are essential to Australia.
.- I have listened with a great deal of interest to the clear exposition of the legal position by the honorable member for Flinders and the legal members who have followed him. The question of granting licences is one which no responsible Minister will consent to except after the most exhaustive investigation into the particular character of the patent, and to the nature of the application. The principle of the Bill should be to embody or carry over into the licences just exactly that measure of protection which is afforded the original patentee.
– Can you give an illustration of one instance to the contrary ?
– I believe that the Government laid down conditions under which the freezing factory should be erected in the Northern Territory. I know that it is not quite on all-fours as an illustration, because a patent is a monopoly, and the granting of a licence by the Crown, generally speaking, is not on all-fours with the monopoly rights that exist under our patent laws. At a time like this, it is advisable that there should be some elasticity in the Act, and discretion allowed the Attorney-General in the administration of any law of this nature. For instance, in Australia we might have 500 patent rights held by Germans, and in the public interest it might be advisable for the AttorneyGeneral to cancel or avoid 480 or 490 of them to allow of the manufacture locally of articles that were formerly protected.
– Are you prepared to give the Minister power to prohibit people in the Commonwealth from manufacturing thermit, or something of the kind ? Are you prepared to give the Minister the right to stop people who are manufacturing as against a bad patent?
– I am not prepared to discuss that just now.
– That is the whole question.
– No, it is not. I say it might be advisable to do so under existing circumstances. I cannot understand the intention of the Government with regard to the penal clause in the case of a breach of the licences. I cannot understand why that clause was put in. I know that that is the policy of the Government, and I take it to be acceptable to the Opposition generally; but, in my opinion, although in a majority of cases it might be desirable in the public interest that the patents held by enemy subjects should be suspended or avoided, it might also be advisable, in particular instances, for the establishment of industries useful to the Commonwealth, for the Administration to go beyond the patent rights to give security to capitalists.
– That can be done by licence now.
– I take it that no greater rights are transferred to a licensee than were possessed by the original patentee. As a matter of general principle, that is as it should be; but in certain cases it may be advisable to give to licensees more protection than was possessed by the patentees. Generally, I am in agreement with the views expressed by the honorable member for Flinders, and accepted by the Attorney-General; but I think that there might be a reserve power which would enable a licensee to be given greater security than was possessed by the patentee, in order that important industries may be established in the Commonwealth. I do not know how far the treatment of the baser metals is dependent on patent rights, but what I suggest might be found very useful in regard to that matter.
.- I think that the Opposition is inclined to exaggerate the danger attendant upon the vesting of power in the AttorneyGeneral. The Leader of the Opposition said, by interjection, that rights in respect of suspended patents would be granted according as the Government favoured applicants for them. No doubt that is so. But the implication that the Government, in favoring certain applicants, would act unjustly to the people as a whole is not a fair one. The Opposition must trust the Government in this matter, as those who are now supporting the Government would have to trust its successor. It is clear that there will not be a rush to secure suspended patent rights. Patent questions are delicate matters to handle, and great expense would have to be incurred before any new industry of importance could be established. To successfully jump any claim would need very clever men. It is necessary to hedge with more than the ordinary security those licensed by the Government to use patent rights. They run the risk of having the rights taken from them at the conclusion of the war, because the patents are only suspended, and in a re-adjustment following upon the war they might lose what had been granted to them. This alone entitles them to special protection while engaged in a manufacture which is distinctly to the advantage of Australia. I am inclined to agree with the opinion that their position should be made more secure than would be that of an ordinary patentee.
.- The further the discussion proceeds, the less need there appears to be for the Bill. Under the Act which it is proposed to amend two alternatives were open to the Attorney-General. He could continue the old patents, and grant licences to any one who applied to him for permission to carry on any particular process or manufacture which was protected.
– How many licences would have been applied for?
– The presumption would be that if a great many licences were applied for in regard to any particular industry it would pay a great many persons to manufacture the patented article.
– There would be no applications at all.
– The Minister will see, if he turns up the list of patents granted to enemy subjects, that by far the greater number of them apply to articles already manufactured in Australia. For instance, improvements in connexion with harrows for attaching to seed-drills have been patented. There are in Australia many persons engaged in the manufacture of seed-drills. Why should not they be permitted to apply to. the Attorney-General for a licence to use this patent during the currency of the war? Why should not the right to use the patent be given to every individual who wished to use it?
– Why have licences not been applied for in these cases?
– Presumably, because it would not pay manufacturers to use the patent rights. The other alternative open to the Attorney-General was, on application, to suspend a patent altogether, in which case any person in Australia could manufacture the patented article. In regard to the thermit process, the Attorney-General has suspended the patent in favour of a particular individual. If, instead of doing that, he had granted a licence to every individual who desired to use the process, he would have done all that was needed. If a number of persons in Australia wished to take up that process, I cannot see why they should not be allowed to do so, or why a monopoly in regard to it should be given to one individual.
– In some manufactures a monopoly must be assured to offer an inducement to a manufacturer to take up the business.
– If that be so, when the Attorney-General granted a licence, and a firm commenced to manufacture the patented article, no one else would attempt to enter the business, because it would not pay. I protest against the granting of a monopoly to any individual.
– The honorable member knows something of the risks of business.
– If half-a-dozen persons are prepared to take those risks, why should they not be permitted to do so? If half-a-dozen persons are willing to invest capital in the manufacture of an article protected by German patents, why should not they have a free hand to do so?
– They can do so, except in cases where a patent has been suspended by operation of the Statute, and a licence granted. For nine months the public has had the right to do what the honorable member says should be permitted.
– Only upon applying to the Attorney-General for the suspension of a patent.
– No. The effect of war is to suspend the patent rights of enemy subjects, so far as the right of such patentees to sue for infringement is concerned.
– The Government are going much further than that.
– Under the Act of last year there is power to suspend patents on application. When that is done, full legal protection is afforded to every person who infringes the patent rights. It seems to me that that is sufficient protection. Why should we give a monopoly to any individual?
– By way of offering an inducement to manufacture.
– Why give a monopoly to one person?
– Because it would not pay & number of persons to enter upon the manufacture of the patented article.
– Then why not grant a licence to manufacture, instead of suspending the patent. I see no necessity for this provision in the Bill, and, although I shall vote for the second reading, I shall oppose the measure later, unless the Government make considerable alterations in it.
.- The establishment of a monopoly is not a matter which troubles me very much iu this regard. I quite understand that there may be many businesses governed by the possession of patent rights which have been suspended, whose establishment would be very advantageous to the Commonwealth, in which, if a man could not get the whole trade into his hands as a monopoly, it would not be worth while to invest capital. I have risen to ask the Attorney-General whether he will be prepared to accept an amendment providing that where a patent is suspended, and a licence granted in respect of it, the licensee will not be put in a stronger position than was occupied by the original patentee.
– The honorable member is referring to the question of the validity of a patent. I have already said that we will make that perfectly clear.
– If the only object that the Attorney-General has in view is to put any person to whom he grants a licence in practically the same position as that occupied by the original patentee-
– That is so.
– Then if the honorable gentleman will accept an amendment to that effect, I shall have nothing to say in opposition to the Bill.
.- This Bill is of far more importance than it would at first sight appear to be. I take it that in this time of dire trouble, arising from the terrible war, if the Government confiscate any patent rights at all, they should hold them for the benefit of the whole community. In a case to which reference has been made during this debate, Mr. Chinn, who was dismissed from his employment in connexion with the construction of the Kalgoorlie to Port Augusta railway, because he Avas a Labour man, applied to have a certain patent right suspended. Mr. Chinn, I believe, is a much-wronged man. When he made this application and sought to secure a licence to use the patent, he was opposed by another man who has been greatly benefited in connexion with the railway to which I have referred ; but the evidence in support of the application was so clear that Mr. Teesdale Smith retired, I believe, from the case. The patent related to the welding of rails, and certainly is an important one. As a member of the party of whom the Government are the mouthpiece, I wish to urge that if any man or body of men be deprived of patent rights in the stress of this terrible war, then all patent rights so suspended should be held by the Government for the benefit of the whole community.
– That might be advisable in regard to a certain class of patents.
– The inventor of a patent rarely reaps any reward. The harvest is usually gathered by capitalists. That great mechanical genius, Mergenthaler, the inventor of the linotype, was allowed to die in misery in Chicago. The wretched men who held his patent even desired to remove his name from the machine which he invented, but that was prevented by the patent laws of the United States of America. Mergenthaler, however, never derived the full benefit from his invention. I hope that the Government will certainly reserve for the benefit of the whole community any patent rights in regard to means of locomotion - patent rights relating to trains and tramways - that may he suspended or annulled. The honorable member for Wimmera, who interjected a few moments ago, probably thinks that it would not be worth while for the Government to take over the patents in respect of the manufacture of certain goods. Where that is not done, a licence granted to an individual to exercise the patent should not operate for any considerable length of time. The Government should always control the monopoly of patents. I would welcome the establishment of a Government workshop, where a man could experiment with his invention and submit it to tests. If that were done, then the Government, having assisted the man to develop his invention, should be entitled to a moiety of the benefits arising from it, or it could take over the whole patent, and allow the patentee a bonus in respect of every machine or article manufactured.
– That would be a big contract for the Government.
– The Government often have to face big contracts. We heard much the same kind of yelp when it was first proposed that the Government should take over the Post Office, the education of the young, and a thousand and one other public instrumentalities.
– But they have not taken over a thousand and one things.
– The Government of Japan, in connexion with the tobacco monopoly alone, have taken over the manufacture of a thousand different things. I do not wish to delay the passing of this Bill. I have full confidence in the Attorney-General, who is to be given these practically unlimited powers. The eyes of Australia will be upon him, and I am sure he will not do anything to injure his party or to lower the glorious flag of Labour.
– The more we discuss this measure the greater are the difficulties with which we are confronted, and the more we have to look not so much at its legal aspects as at the objects sought to be achieved by it. I take it that the House is anxious to commercialize the period of the war. We are anxious that some use shall be made of certain patents that are placed at the disposal of the community, and which deal very often with absolute essen tials. They may relate to war material, to the construction of rails and other Government requirements. There are two points of view that we must not disregard. The legal aspect has been put very clearly by lawyers in the House, who have reminded us that Australia has fallen into line with all other civilized countries, in so far that it has declared by law its intention to grant monopolies for a period of fourteen years to the patentees of all inventions. By the Commonwealth Act of 1914 patents held by enemy subjects have been suspended, and the debate to-night has centred round the question whether the Government should grant licences to manufacture or vend t*lie goods to which these patents relate in competition with those who are prepared to take on what, I think, is a most insecure position. When the honorable member for Kooyong put the industrial side of the question before the Chamber, I did not follow him clearly. I now see that those who are going to carry on industries in this country under rights that are, to some extent, emasculated, must have a greater security than has been suggested inferentially by those who have said that no greater rights can be given to a licensee than are possessed by the holder of the patent to which it relates. I recognise that there is a good deal, from a legal, and also a moral, point of view, in the contention regarding the granting of greater privileges to licensees than we would give to ordinary patentees. This community, by no act of its own, has been deprived of the advantages which accrued to it under certain original patent rights, and we have to decide how it can make use of those patents, relating, it may be, to commodities essential to the life and wellbeing of the community. It can do so only by some form of concession or privilege. We cannot dogmatize as to what the exact nature of that privilege should be; but it seems to me that the Government would do well if, instead of granting licences on a wholesale scale, it would confine its attention to patents relating to commodities that are essential to the needs of the country, in the hope that the war will not be of long duration. There is something to be said for the contention that the declaration of war deprived certain people of patent rights. The Mother Country, however, has seen fit not to wholly confiscate those rights, and has passed legislation such as that now before us. I hope that the AttorneyGeneral, in replying to the arguments that have been advanced, will traverse the practical, as well as the legal, side of the question, and show how it is possible to get men of business knowledge and commercial enterprise to enter upon these undertakings unless they are given some form of security that, during the period of the war and for a considerable time thereafter, their right to use the patents concerned will be continued in such a way as to place them in the position of the original holder of the monopoly. The term “ monopoly “ at first causes one some alarm, but our own patent laws create an absolute monopoly for a period of fourteen years in respect of every patent granted. Any man who is prepared to take up an established industry, and to carry it on for the unexpired term of the patent relating to it, seems to me to require substantial protection.
– I hope that the Attorney-General will not be disposed to pay too much attention to the arguments of the Opposition, and to so alter this Bill that those who engage in certain industries here may be insufficiently protected. As the result of the war, we are living in exceptional times, and the Government of Britain have recognised this fact in regard to the patent law. I read only a few days ago that they were ready to stand behind those who were prepared to enter upon the manufacture of dyes and other materials that are so essential to the community - and to stand behind them to the extent of millions of pounds.
– By lending the money straight out to them.
– I am not particular as to what form the encouragement shall take.
– But the encouragement offered by the British Government does not take the form of prohibiting citizens from continuing to carry on manufactories which they are honestly working. The Government, by this Bill, will create a monopoly, with all the worst mischiefs of monopoly, if they validate a bad patent.
– I believe that the honorable member’s fears willbe dispelled by the Attorney-General’s reply.
– Yes, if he will accept an amendment.
– In other words, the honorable member says that if the AttorneyGeneral will accept his view all will be well. I do not agree with him.I hardly approve of the sort of tacit consent that the Attorney-General has already given to the suggestion that those who are licensed to carry on certain works to which patent rights relate should have no more rights than were enjoyed by the original patentees.
– Why should they?
– Thehonorable member for Kooyong has replied to the honorable member’s contention. I am not going to be a stickler for the legal features of this question. I shall vote with the object of trying, as far as possible, to establish in Australia industries that have previously been carried on in Germany.
I wish to see Australian workmen manufacturing goods previously supplied to us by Germany.
– We all do.
– I do not know why the honorable member for Flinders is so disturbed about this matter. I cannot see in clause 4 the awful danger that he sees. He has had a nightmare over the provision. Evidently he has studied the measure and come to the House prepared to debate it. Honorable members paid him every attention while he was dealing with what I admit is a very intricate subject from the legal and technical point of view. My endeavour is to bring a practical mind to bear upon the question, because I believe that it has a practical, as well as a legal and technical, side, and my hope is that under the provisions of the Act now in existence and the Bill now before us, the Government will be able to take in hand some of the patents which it is absolutely essential should be under their control. I think that every honorable member will agree to the action taken by the AttorneyGeneral in granting the power to operate a certain patent to the Engineer-in-Chief of Commonwealth Railways instead of suspending the patent rights in order that a few of the cutest men in Australia might get a licence to operate them. In other words, he has made that particular patent a Commonwealth monopoly, and the honorable member for Kooyong and others will agree with me that the AttorneyGeneral has enabled the Commonwealth to take over something which will be of immense financial benefit to Australia, and will be very helpful indeed. In the event of a licence being granted to persons who wish to be secured for a number of years before they lay down plant costing a certain sum of money, I should like to know from the AttorneyGeneral whether the Commonwealth will draw royalty during the time those persons are manufacturing under the terms of their licence. If that is the case, not only shall we get employment for our own people, but also we shall have continual revenue from this source.
– No licence has been issued without the condition of the payment of royalty except, of course, in regard to a licence to the Crown.
– Great Britain, which has nob the Protectionist policy that I hope we shall have in a few months’ time, has adopted another method of protecting British workmen and employers. I understand that if a German or Frenchman who has patent rights in Great Britain, is selling in Great Britain goods manufactured outside, he is given two years in which to establish his works in the United Kingdom for the manufacture of the goods he sells there under his patent. If he does not establish, his factory in Great Britain the patent is voided.
– I remember having introduced a similar provision in the amending Patents Bill in 1909.
– I am pleased to hear that, but I ask whether any person selling goods manufactured in another country under patent rights obtained in Australia must, after two years, manufacture them here? If that is the case the law is certainly not being obeyed, or our importations would not be so large. It is impossible for a man to spend a large sum of money in the establishment of an industry unless he has some security of tenure. The Attorney-General gave us an illustration. He said: “If £50,000 is needed for the manufacture of certain articles which hitherto have been made in Germany or Austria, can we expect any person or persons to erect the necessary buildings and lay down the plant at that initial expenditure without some security?” We cannot expect it, and consequently, unless the Government take up the manufacture of any of the things? covered by patent rights held in Germany, or unless we give encouragementto private enterprise, it will not be done. I do not wish to see this legislation continue for the period of the war only. I trust that we shall be able to continue it under certain patent rights, or licences even after the war, so that,. Australia may enjoy the privileges hitherto enjoyed by Germany, which we havepatronized very well indeed. I trust that the Attorney-General will not give way to the persuasiveness of honorable members opposite, and I hope that in Committee we shall be able to frame a Bill that will have, as its first object, the protection of Australian interests. I am out to protect Australian interests in this asin any other measure we have before us; and I hope that when the Bill finally leaves this House and the Senate it will” be framed so as to benefit Australiansand Australian industries.
. I had not. the benefit of hearing the exAttorneyGeneral and the present AttorneyGeneral, but a perusal of the measure does not. indicate clearly to my mind what is reallyintended by it. For instance, clause 4 speaks of rights conferred by the registration of a trade mark or design, and of thesuspension of them “ in favour of any person.” What does “suspension” mean?’ Does it mean “ suspension in perpetuity “ or only “ suspension during the war” ? If it means “ suspension during the war “ only, what man in his senses in Australia* mil embark a huge amount of capital in an industry?
– We may issue a licence that will cover the whole unexpired period of the patent. If two years have elapsed” Hie licence may be for twelve years.
– Then “ suspension “ means “ confiscation.” We arepractically confiscating the patent rights of aliens.
– I would not say “ confiscation,” because there are royalties, and the question will arise as totheir disposition after the war. It means the transfer of the patent rights, that is, the working of them, from oneperson to another.
– Subject tothese royalties hanging over him like ft sword of Damocles, what Australian will invest a huge amount of capital in these industries ?
– He will not unless he gets security of tenure.
– I should think that the main thing would be relief from these royalties.
– He must pay royalty. Why should he not?
– Then everything depends on the amount of the royalty. Who is to determine that?
– The royalties are fixed by the Minister, who may alter them as circumstances suggest.
– To all intents and purposes it is practical appropriation. If these licences are not to confer a free and full advantage of the monopoly the patent gives to the patentee, there will be little inducement to our industrialists in Australia to take advantage of patents and embark large sums of money in them in the belief that they are securing a monopoly.
– What th© right honorable gentleman is saying is a complete answer to what the honorable member for Flinders has said.
– I have heard the honorable member for Kooyong and some others claiming that the man in whose favour the suspension is made should have no more rights than were possessed by the original patentee. Why give any person any further rights of an exclusive and monopolistic character?
– He will not get any further rights.
– Yes; the very essence of the clause is the word “ favour.” We have “ in whose favour “ also “ suspension in favour “ of a person to the exclusion of some other persons. If that be not discrimination - if it be not the very essence of monopoly, I should like to know what it is.
– It is the transfer of a monopoly from one person to another.
– Exactly, and there is not much relief to the community in the process.
– The royalties are the relief to the community.
– But I understand that after the war they become the property of the patentee. We grant a complete monopoly over the particular article such as was possessed by the original patentee. I do not think there is very much ground for argument as to the effect of this legislation on new Australian industries. I cannot see how any man who has a huge sum of capital ready to be sunk for the purpose of creating a new industry will take it on with all the disabilities which the Attorney-General imposes upon him, or which are potential in the proposition.
That leads me to the position I wish to put as a layman, looking at the matter from the outside, without any reference to fiscal theories or that sort of thing. Why should we hamper the community in its industrial operations by conferring any favour upon any particular individual to the exclusion of other individuals in the community ? Many of the things in daily use are subject to patent rights. In our Post Office we use, or we did until very recently, material of an absolutely inferior character because of the existence of patent rights. Here is a chance to relieve the community from a disability imposed upon it by the exercise of patent rights by German or other enemy patentees. I refer particularly to the jacks that we used to use in the telephones. Years ago, we had to use a particular type of jack, and, though the experts of the Department said that there was a very much superior article to be obtained, we were prevented from using it because of these patent rights. I understand that that condition of affairs in some respects still continues. Here is an opportunity in this Bill to relieve the community of many of these patents held by the enemy, and to make it most effective in its assistance to many of our industrial enterprises.
– This Bill, and the Act it amends, only apply to enemy patents.
– But the AttorneyGeneral knows to what extent these enemy patents enter into many of the things which make up our industrial efficiency to-day. In fact, it is only during this war time that we have realized to what an extent Germany has been allowed to monopolize many of these things, and I want to be shown why, when these patent rights have been suspended, and suspended almost, if not quite, to a point of confiscation, they should be tied up any more from the community, and in that manner made to interfere, as I suggest this will interfere, with the general industrial efficiency?
– There is not much chance of their being applied to a similar invention. The Bill will only affect the bigger industries.
– I do not know. All I know is that we are legislating to put discriminating power into the hands of the Government.
– But who will apply for the patents?
– I feel sure there will be a great rush of applications for many of these patents, particularly in these days when prices are ruling high and the temptation to industrial enterprise is very great. I only want to see the best done for our industrialists in Australia, and for the life of me I cannot understand how it can benefit our industries as a whole if any one individual is given a right as against the rest of the industries of Australia. During the currency of these patents our industrial efficiency is lessened. Now, owing to this cataclysmic upheaval we are relieved of that kind of thing, yet this Bill, it seems to me, is going to take what advantage we have, as the outcome of the war, and place it at the disposal of the Government, with the idea of its being given again into the control of some individual as against the community as a whole. Any Government will have to use a power like this with great discrimination, for, if two or three people apply for the same patent, only one can get it. Therefore, there is to be favour. That is the word used in clause 3. Favour will have to be shown by the Government to one man as against another. A protecting ring is to be drawn round one man to the exclusion of all others. They may be equal in their ability to the man who gets into the inner circle by the rights conveyed by this clause, and I should like to hear some further argument on that aspect of the Bill - why there should be any discrimination at all in favour of individuals, seeing that the war has given us possession of rights that were formerly held by enemy patentees. That is the position which appeals to me under this Bill.
I certainly think that the attitude taken by the honorable members for Flinders and Darling Downs is correct, and that we should confer no further powers upon a licensee than were possessed by the original patentee. I cannot conceive that any harm would come to our industrial enterprises as a whole if such a limitation were placed in this Bill. My own impression is that, by spreading the operation of the Bill over the whole of our industries, we should be giving infinitely more relief to the community generally than we shall give by granting a monopoly to any one individual.
.- I think the House may congratulate itself that the Bill has brought from members of the Opposition expressions of opinion of a much more frank and hearty character than they were disposed to favour us with in connexion with a former war measure. With my friend the honorable member for Maribyrnong, I realize that if even a junior member of the legal profession rises to speak, his action immediately leads to the impression that he will naturally take that peculiarly technical and unstable view - often unpractical - known as the legal view, as against the view of those persons whose business it is to express practical opinions in matters of this kind. I have always felt, and I still feel, that there is not, in a matter of this kind, as wide a gulf between the technical and legal and the practical position as some honorable members suppose; and I should like to put forward one view in connexion with clause 3 which, perhaps, should be more properly debated in Committee, but which has been fully discussed on the second reading.
– That clause really is the Bill.
– It contains the main principles of the Bill, and it is a curious thing that the Protectionist argument should have been so used to buttress that clause as it at present stands. Does it occur to honorable members that if the Protectionist argument is to apply at all the effect of this clause will be to protect German patents, because these German patents are to be suspended, we assume, for a period which will end either with the termination of the war at the earliest, or some time before the expiration of the period for which the patents exist ?
– The latter, according to the Attorney-General.
– If it is merely for a brief period, then as soon as the war is over we may suppose that the original patentees will seek to become possessed of their patents again, together with all their patent rights. Many hope not, and I express no opinion about it, but I suggest that, as one phase of the question, these patent rights will be re-established, and in the result we shall have the extraordinary anomaly that we shall have been preserving from attack under a special form of Protection a patent which belongs to an alien enemy.
– We commandeer it.
– If we do, as the honorable member for Maribyrnong says, commandeer it, we may be prescribing for the unexpired period of the patent. A monopoly which is open to attack could not stand the test.
– That is the suggestion, anyway.
– Surely we ought to have some explanation from the AttorneyGeneral regarding this proposal. What is the object? I cannot conceive why these particular patents in the hands of a licensee are to be treated in a different way from other patents. Why should they be protected from, attack? Why should we say, as we are saying in this Bill, that we will protect patents owned by Germans - by alien enemies? We are going to take them over, and clause 3 establishes special laws for their protection. It may be that the patent to which th« law will apply will be a perfectly rotten thing. There are hundreds, I suppose thousands, of patents issued already, and to be issued, in Australia, which would not stand a moment’s attack if they were to be attacked. Yet, if they are taken over as patents issued to enemy aliens, they will have the advantage of this clause, which protects them from oil attack, because the Bill imposes a very severe penalty, as has already been pointed out, upon any person seeking to manufacture the article in question. At the present time anybody may start manufacturing, and his right to manufacture is a matter to be tested under civil law. If that is Protection, it is the kind of Protection to which I do not, as a practical person, or as a legal person, propose to lend any support. Protection, as I understand it, is the price, or, as I prefer to call it, the subsidy, paid to manufacturers in the form of duty to enable them to set up local industries in this country. In that case, there is some competition at the worst, unless we have absolute prohibition. In the case of these patents we have absolute prohibition. A patent may be the rottenest in the world; it may be incapable of standing any investigation or opposition if such were applied to it; but because it has been taken over by the Government, and a licence issued to some persons to manufacture the article, it is to be exempted from the ordinary laws relating to patent rights.
– I have already stated half-a-dozen times that that is not so, or, if it be so, it is not intended.
– I am very glad to have that assurance; but the words of the Bill certainly appear to convey what I have stated, and I venture to suggest that they may convey that meaning to the Courts when they are called upon to answer any question relating to such patents.
– I think the House is to be congratulated upon its freedom, during this discussion, from all the traditional ties that usually hamper its eloquence and powers, and on the manner in which it lias approached this measure. Certainly, if one had time, it would be easy to show that the arguments of various members are effective in one thing, at any rate;, that is to say, they are mutually destructive. The view taken by the honorable member for Flinders, for instance, applied to that taken by the right honorable member for Parramatta, shows a conflict, not only as to the purposes of the Bill, but also as to the whole scope of the Act which the Bill is to amend. However, I shall not serve any useful purpose by continuing along these lines, and I desire only to say to the House that I thoroughly appreciate the manner in which the measure has been approached. It is perfectly true that the Bill has been criticised, but, on the whole, I think not unfairly. Very likely its purposes have been misapprehended ; possibly, the verbiage of the Bill is responsible for that. There has been in some quarters evidence of a misapprehension of the scope and purpose, not only of this measure, but of the principal Act of 1914. I think I cannot do better than quote what I said in introducing that Act, because I then dealt with a number of points raised by the Leader of the Opposition and other honorable members as to the scope and intention of the measure, and because these directly deal with many points raised in the debate on this Bill. On page 604 of the Hansard debates for November, 1914, I am .reported as having said -
We are at war with Germany and with Austria, but we do not propose to violate any principle of international law, or to sanction the expropriation of private property. A fund will be created from the royalties received which may be used to compensate at the conclusion of the war, and to the extent demanded by the circumstances in each particular case, the original patentee for the use of his patent. I do not put this provision forward on the low ground that we should do unto others what we hope they may do unto us; I put it on the higher ground that a civilized community has no right to take away private property, which inheres as much in a patent as in any other form of property. Civilized warfare does not interfere with “ the property of individual enemies; this is now one of the settled principles of international law.
– What about the evidence in this morning’s newspaper?
– I was about to say that circumstances have occurred since I delivered that speech which make it perfectly clear that this is not a settled principle of international law, for it is certainly being daily violated by our enemies.
– It is, if you speak of civilized nations.
– I agree with the honorable member. We may say, then, that expropriation of private property is forbidden by international law and is opposed to the practice of civilized nations. If I may adopt the emendation of the honorable member for Flinders, and apply my remarks to “ civilized nations,” I can stand by my original statement. I continued -
What we propose is in proper cases to offer facilities for the use of patents now possessed by alien enemies, so that persons may manufacture or produce or use locally articles protected by these patents, which the community would otherwise not be able to obtain. The period and conditions of the licences must be such as will induce persons to set about the manufacture of these articles in this country, and the circumstances of each case must be considered separately.
Those are the principles which underlie the original measure. I venture to say that they are principles with which every honorable member in the House is in accord. They recognise, first of all, the fundamental principle - and it is a fundamental principle, although it has been of late foully violated - that private property is not subject to expropriation in civilized warfare. It recognises that a patent right is granted primarily to encourage the inventor, and, secondly, to protect the interests of the community. It limits a monopoly to a period, at the expiration of which the patent is free to all. And usually a patent “is available to the community during the term of the patent on payment of a price which sometimes takes the form of a royalty. The 1914 Act, recognising these principles, was drafted to deal with very special circumstances. In that measure the Minister is given power to suspend or avoid a patent. In all that has been said to-night, the exercise of the power to avoid a patent has not been affected or called into question, because if a patent right be avoided, then ipso facto it becomes the common property of the whole nation; if it be suspended wholly or in part, and a licence be granted to an individual, then the matter is in a different position. The Leader of the Opposition asked why a licence should be granted to a particular person, and why we did not leave it open. In some cases it is left open. And in every case where a patent is avoided it becomes common property, and any one may use it, but in deciding whether a patent ought to be suspended or avoided we must look at the circumstances. If the patent is such that by avoiding it the people may get it, then we avoid it; but if it is such that by avoiding it we simply cut off our nose to spite our face, then we suspend it, and give a licence to some person or persons who are able and willing to engage in the manufacture or sale of that article so that the community may get it.
– You do not grant licences where you suspend the patent, do you?
– We grant a licence where we suspend the patent. We suspend the patent in favour of some person, with certain reservations. In the avoidance and in the suspension it is the welfare of the community that is looked at.
– As a matter of fact, they do not avoid patents in England.
– I am speaking of what we do in Australia. I was Baying that in all cases the welfare of the community is the first consideration. Where a patent is of such a character that avoidance will make it available to the community, we avoid it; where the effect of avoidance will be to place the patent out of reach of the community, we suspend it and make arrangements for its manufacture by a licensee. Mention has been mad© to-night of the Thermit process. I may briefly refer to the matter. Applications were made by Mr. Henry Chinn and Mr. Teesdale Smith for a suspension of a number of the patent rights involved in that process, but I was unable to see my way clear to grant the application. The application had to be considered from the stand-point of the community. It was very desirable that the public should have an opportunity of using the Thermit process, and it was highly undesirable that the benefit of that use should vest in the German patentee. That being so, a licence was issued practically to the Crown itself, in the name of one of the departmental officers.
– “Would the royalties preserve the original interests?
– I will come to the effect of royalties generally in a minute. I have mentioned what happened in regard to the Thermit process. In giving effect to the principles I have mentioned, we must have regard to three things - the welfare of th© community, the rights of the patentee, and the rights of the licensee. The rights of the community are clear and paramount; and the rights of the licensee and those of the patentee must not be regarded if they are inconsistent with the rights of the community. One of the rights of the community is to have access to the patented article; and to do that in a great number of cases it is necessary to offer an inducement to some person to go on manufacturing it. To that end w© must give security of tenure, so that, when the war is over and the measure lapses, the rights of the licence may continue for a period conterminous with that of the patent right. At present, a licensee has a right to go on manufacturing and vending a patented article for, let us say, ten years ; but when the war ceases, or even now, he has ‘no protection from infringement. But this position is incompatible with the purpose of the Statute, which is the general good of the community. The community is given an opportunity to have the benefit of the patent. But, unless the licensee be protected, this is not possible.
I come now to another phase of the matter. In every case in which a licence has been issued a maximum price has been set forth in that licence, in order to protect the community against exploitation. The rights of a patentee are safeguarded by a royalty, and the rights of the Crown are safeguarded by the same means; tm« royalty does not necessarily flow wholly to the patentee or wholly to the Crown. This measure has been assailed from so many different points that it is difficult to deal with them all, but I am endeavouring to do so. As I say, the royalty fund is not necessarily wholly at the disposal of the patentee. First of all, it has to await the terms of peace, and, secondly, its disposition has to await tho decision of this or some future Parliament and the Government which exercises the Executive power. The Crown is surely entitled to some consideration for having carried on the business of the patentee; and the fees enable the Crown to recoup itself in part for the time and effort expended in carrying out these measures on behalf of patentees and tho public.
I come now to the proposal in the Bill. We find the licensee is in a fix. While we have given a licence for which a licensee pays a royalty, he is exposed to the competition of any person in Australia - any man may come along and use for nothing that for which he is paying a royalty. Clearly that is incompatible with the fair rights of the licensee and the fair rights of the community. The community is not concerned so much about an opportunity to manufacture the article as that some person or persons, who are able and willing to manufacture it, shall be put in a position to do so; and clearly no man will manufacture unless he sees some margin of profit and some security of tenure. It, therefor©, is necessary to give the licensee an assurance that the rights he has cannot be enjoyed by any on© excepting a person to whom a similar licence has been granted by the Crown. I may here state the principles actuating the Ministry in this regard. Licences are granted to one or to several persons, according to the nature of th© patent rights. Where it is such a patent that one per. son can easily manufacture sufficient foil the whole of Australia, the licence is granted to one person; where there is ample opportunity for several, licences are extended to several. Otherwise, no man would pub enough capital into a business to insure that ample supply for the community that we desire. I now come to the manner in which we propose to give a licensee those rights that are necessary to induce him to invest his capital and to insure him against competition, generally, by unauthorized persons. Under the Bill we give the licensee rights that a patentee does not possess. The patentee, at the present time, has a right to sue in a Civil Court for damages for infringement. That is his only remedy ; and, according to the honorable member for Balaclava, he has had no other remedy for 350 years. It has been urged tonight by the honorable member for Balaclava and others that this Bill is a new departure, which creates a new criminal offence, and that we have no right to give a licensee remedies other than those given to a patentee. That view, in my opinion, is quite wrong. It is assumed, in the first place, that the licensee is in exactly the same position as the patentee, but, as a matter of fact, he is not. A licensee during the war, no doubt, might be given the right to sue for infringement, just as a patentee may sue; but both during the war and after the war a licensee will be in a position quite different from that of a patentee. “When a patentee comes into Court, he is the only person who can sue for infringement. His monopoly is complete, and excludes the whole world; he alone has the right, against all the world, to make or sell the article. If he can prove that anybody has infringed his right, the damages are measured by the circumstances. But a licensee, when he comes into Court, cannot, like the patentee, say that he has a monopoly against the world - that nobody else can sue for infringement, for he has not an absolute monopoly. He shares it with the patentee and with other licensees, for the patentee never loses his right to sue for infringement. It is perfectly obvious that the damages given to the licensee for infringement of his right cannot be those ordinarily given to a patentee.
– Where does a licensee get any right to bring an action for infringement?
– I do not say that he has any right, but supposing we give him that right, the question then is, is he in as good a position as a patentee is ordinarily? Obviously not. I now come to another point. I think that a licensee, under this Bill, should be put in a better position than a patentee is ordinarily, because a licensee is a trustee for the community, for the purpose of establishing a new industry and creating a new opportunity for the -people of Australia. He is acting as the licensed agent of the Crown for a public purpose, and we ought to protect him by some special means, in order that he may not be put to the expense and difficulty involved in seeking redress by civil process. I know that this measure is a blow at my honoured profession, and I realize that there will be some “weeping, wailing, and gnashing of teeth.” I know that, under the patent law, there are opportunities for advising clients in regard to infringements - of egging them on, holding them back, or leading them this or that way - opportunities glorious in themselves, though perhaps disastrous to the unfortunate clients. I venture to say that, nevertheless, the method proposed by the Bill is absolutely fair and proper in the circumstances. We create, as it were, a new kind of patentee, who has to carry on a business for the benefit of the community. And are we not going to safeguard him ? Are we going to throw around his neck a millstone of litigation at the end of the war? What will happen at the end of the war ? Germany will make every effort to regain her trade. She will not hesitate, in the Courts of this and every other country, to endeavour, with financial and other assistance, to once again get hold of that ever-increasing volume of trade that was hers before the war. We desire to provide beyond all possible doubt that these licensees shall be safeguarded, and that any man who puts his money into a business under licence shall be assured during the currency of the licence that he is safe against any attempt to chouse him out of his rights. I now come to a point raised by the honorable members for Flinders, Angas, and Darling Downs, that we are giving a licensee more than a patentee had. In an action for infringement of patent rights the defendant is at liberty to prove that the patent is bad, and ought to be revoked on the ground that it is not new, and to set up a number of other defences. Very well. I quite agree with those who say that these defences ought to be given to defendants under this Bill. I think it is fair and proper. When the honorable member for Flinders contended that this Bill would give to the licensee more than the patentee himself enjoyed, I did not accept his statement. I said that it would not. But having since looked into the matter, I say that it is very questionable whether that view might not be fairly argued. When the honorable member for Darling Downs was speaking, I said that if ambiguity existed in the Bill I would remove it by stating in plain words exactly what is intended. What I wish to convey is that under this measure we propose to give every licensee the rights, whatever they were, of the patentee. If the patent contains a defect we do not intend to cure it in this way. We intend only to relieve the licensee of any necessity for maintaining his right in a civil Court; but, if the patent itself is bad, then the welfare of the community must be regarded, and in such circumstances the monopoly will cease, and the patent rights be evenly distributed over the whole body of the people.
There is one more point that I desire to make. This provision - as I have said previously - is intended to cure a defect in the Act of 1914, which took away from the patentee the right to sue for infringement, and gave that right to nobody else, noc even to the Crown. The powers given under clause 4, and the penalties which may be imposed upon any person who makes, uses, exercises, or vends a patent, ought not in my opinion to be exercised save by the AttorneyGeneral or some person authorized on his behalf. It is not a right which should be used by any man who chooses to draw a bow at a venture. It is a remedy which should be used only in a proper case. Consequently I intend, in Committee, to move such amendments as will make that position perfectly clear.
The Act of 1914 has been used for the benefit of the community, and, although we have not been able to exercise its provisions as freely as we would have liked, that has not been clue to any fault of the Government, but to the fact that very few applications have been made for suspension or avoidance of patents. The Leader of the Opposition and the honorable member for Richmond mentioned a number of cases in which patent rights were retarding the manufacture of better or useful articles. To them I say: “ There is the Act; let the public take ‘advantage of it.” If there is any German patent which can be manufactured in Australia, is the enterprise of the people of this country so hamstrung as not to take advantage of it? I invite them to do so, and they may rest assured that this measure will be utilized to protect the community, and to encourage the manufacture in Australia of articles which are covered by German and Austrian patents.
Question resolved in the affirmative.
Bill read a second time.
Clauses 1 and 2 agreed to.
Clause 3 -
After section three of the principal Act the following section is inserted : -
*’ 4. - (1.) Where a patent, or the registration, and all or any of the rights conferred by the registration, of a trade mark or design, has been suspended in favour of any person, any person other than the person in whose favour the patent, or the registration, as aforesaid, has been so suspended, who during such suspension -
in the case of a patent, makes uses exercises or vends the invention forming the subject-matter of the patent; or
in the case of a trade mark, uses in respect of the goods in respect of which it is registered, the trade mark or a mark substantially identical with the trade mark or so nearly, resembling it as to be likely to deceive; or
in the case of a design, applies the design or any fraudulent or obvious imitation of it to any article in respect of which the design is registered, or, without the authority of the person in whose favour the registration has been suspended, sells or offers or keeps for sale any article to which the design or any fraudulent or obvious imitation of it has been applied, shall be guilty of an offence.
Penalty : Five hundred pounds. “ (2.) Upon the conviction of any person for an offence against sub-section (1.) of this section, the High Court may, if it thinks fit, upon the application of the Attorney-General, issue an injunction to restrain the person from committing any further offence against that subsection. “ (3.) The costs of the determination of any such application shall be in the discretion of the Court.”
– I move -
That after the word “ pounds,” line 34, the following new sub-clause be inserted : - ” (Xa) It shall be a defence to a prosecution under this section if the defendant satisfies the Court that a petition for the revocation of the patent, or for the removal of the trade mark or design from the register, as the . case may be, would be successful.”
The effect of my proposal, if adopted, will be to enable the defendant to raise all the defences which could be raised in an action for infringement under the Patents Act. Under that Act, in an action for infringement, or a petition for revocation, certain grounds of defence may be raised. In Frost’s Patent Law and Practice, Vol. 1, 3rd edition, page 297, the practice is made clear. Amongst the grounds for which a patent may be revoked are that the patentee was not the true and first inventor, that the alleged invention is not the proper subjectmatter, or that it lacks the essential element of utility or novelty, or that the specifications are defective, or on any one of these grounds singly. It may also be revoked on the ground that it was obtained in fraud of the rights of the petitioner. Also, where the specification directs a certain thing to be done, which turns out to be not only unnecessary, but also disadvantageous and useless, the patent may be revoked on the ground of false suggestion. I have clearly shown that under the general defence, which can be raised under the proposed new subclause, all the points can be urged which could be raised in an action for infringement.
– I am very glad that the Attorney-General has introduced this amendment, which entirely removes the most substantial objection which I had to the language of the Bill. The honorable gentleman has given us his assurance that the objections which could be raised on a petition for the revocation of a patent are as wide as those which may be made a defence to the action. Without having looked into the matter, I am inclined to agree with him. At all events, I accept his assurance. That removes what was to my mind the substantial trouble which I experienced in accepting this Bill. I do not raise any objection to the penalty that is proposed in lieu of damages, though it seems to mean extraordinarily awkward method of enforcing patent rights. But it is possible - as the Attorney-General has explained - that it may be necessary for the Crown to have some power to protect these patents, seeing that it is thecustodian of this private property during the period covered by the war. Bub I would ask the honorable gentleman whether it is intended that a licensee or a person in whose favour a patent is suspended should be entitled to recover damages for infringement. Under this Bill it is proposed that the Crown shall take to itself the right to protect this property. I quite appreciate that proposal. It is further intended to give the licensee the right to secure an injunction against infringement. That also is proper. But I do not know whether the penalty of £500 is intended to be exclusive of any claim for damages in a civil suit which the licensee might otherwise have. I throw this out for the consideration of the AttorneyGeneral. He may think it desirable to consult the Parliamentary Draftsman or his own colleagues as to whether - if we are going to give these substantial rights to a licensee, and to make him pay a substantial sum of money for this monopoly - we ought to invest him, not merely with the right to secure an injunction, but with the ordinary civil right of damages for wrong-doing by an infringer. The Crown protects the patent by criminal proceedings, and I understand that it is further proposed that the Attorney-General shall alone have the right to say whether or not a prosecution shall be instituted. But this power is also to be used for the purpose of inducing persons to put capital into industry. If that be so, we shall be giving a very great and valuable monopoly to individuals for which I presume we shall make them pay. If they will give a big price for this valuable monopoly, probably they will also wish to protect it, not merely by injunction against past infringements, but by damages for future infringements. I am rather inclined to think that that is not provided for in this Bill. At any rate, I throw out the suggestion for the consideration of the AttorneyGeneral
.- Following on what the honorable member for Flinders has said, I suggest that the effect of the amendment will be that an alleged infringer of a patent operated under a licence will have a greater measure of protection than such a person has in ordinary circumstances. It will now be necessary to prove under the criminal law an offence against the person alleged to have infringed the patent.
SirWilliam Ir vine. - Unless there is provision for an action for damages.
– Yes, unless there is such a provision. It is more difficult to prove an offence under the criminal law against a person than to merely weigh the respective rights of two individuals under the civil law and turn the balance against the same person. If, then, we do not insert some clause making provision for damages, we shall be giving a more extended protection than possibly the Attorney-General intends to a person who, following the words of the clause, “makes, uses, exercises, or vends the invention forming the subject-matter of the patent.” I suggest that the AttorneyGeneral should bear that in mind.
.-There are one or two matters to which I should like to direct the attention of the AttorneyGeneral. There is power under the regulations and under the Act to grant a licence, not only where a patent is suspended, but where it is avoided. So far as I can find out, they do not avoid patents in the United Kingdom, and for two reasons. One is that it is contrary to what is generally done between nations, because patents are not cancelled. As a matter of fact, I believe that, Germany has not touched the patent law at all so far, and France has only modified it to some extent. There is another reason, and that is that you cannot grant a licence for a patent that has been avoided, because if it is voided it is declared absolutely nonexistent. For that reason regulations which provided, as ours do, for granting licences for avoided patents have been described as ultra vires, and to an extent absurd. I wish to know from the AttorneyGeneral whether he intends to act upon the powers given by the regulations to avoid patents upon application being made, because if he does he cannot grant licences for those patents. To do so would be contrary to the policy of these Acts, because it is not the intention to destroy patents unless they could be destroyed for some reason which would have been applicable and of force before this legislation was passed. The regulations provide that a licence may be granted whether a patent is avoided or merely suspended; but this Bill provides for a penalty where there is a licence granted upon the suspension of a patent. The Bill does not touch the avoidance of patents at all. The draft of the Bill seems to me to recognise what I say is the proper policy. The Attorney-General has recognised that, or he would not submit a Bill dealing with suspension only, but in his reply to the debate on the second reading the honorable gentleman talked about avoiding patents as well as suspending them. I understand that he stated that it was not intended to grant a licence where there has been an avoidance of a patent.
– That is so.
– It could not be done.
– What I did say was that it seemed the proper thing to avoid a patent where the community gets the whole benefit of the patent, but where the community could not get the whole benefit it was necessary to suspend the patent and grant a licence.
– We cannot affect the administration, and we are only trying to help in this matter. I hope that very grave consideration will be given before any attempt is made to avoid a patent, because it is not the policy of this legislation to do that. Under proposed new section 4 “ where a patent . . has been suspended in favour of any person “ certain things shall follow, and apparently the intention is to grant the licence to the person in whose favour a patent has been suspended. But I point out that other persons may want licences. My own impression is that a patent is not suspended “ in favour of any person,” but upon the application of any person. That is what the regulations provide for.
– I do not think so.
– I think that is so. Clause 3 of the regulations provides that-
The Minister may, on the application of any person, and subject to such terms and conditions, if any, as he thinks fit, order the avoidance or suspension in whole or in part of any patent or licence the person entitled to the benefit of which is a subject of any State at war with the King.
That would seem to imply that the person to whom the licence is given is the person in whose favour the patent was suspended. Clause 5 of the regulations provides that -
Notwithstanding anything in these regulations contained, the Minister may at any time, if in his absolute discretion he deems it expedient in the public interest so to do, order the avoidance or suspension in whole or in part of any such patent or licence upon such terms and conditions, if any, as he thinks fit.
That does not touch it. That is an independent power.
– I think it does touch it. Under that regulation I am not to wait for an application. I may act of my own volition.
– There is no doubt that the honorable gentleman may act on his own initiative. That is not what I am speaking of. Where there is an application, proposed new section 4 seems to imply that the licence shall be given only to the person who applies for the suspension of a patent.
– That may be implied, but the clause does not say so.
– Proposed new section 4 provides that -
Where a patent, or the registration, and all or any of the rights conferred by the registration, or the trade mark or design, has been suspended in favour of any person, any person other than the person in whose favour the patent, or the registration, as aforesaid, has been so suspended.
That refers to the person who made the application for the suspension; but there is nothing in the regulations, or the existing Act, to say that there is a suspension “in favour of” a particular person. There is a suspension “ on the application “ of a person. Clause 6 of the regulations says -
In any case in which the Minister makes an order in pursuance of the Patents, Trade Marks, and Designs Act 1914, avoiding or suspending a patent in whole or in . part, the Minister may, in his discretion, grant in favour of persons, other than the subject of any State at war with the King, licences to make, use, exercise or vend- the patented invention. Under that, upon an application for suspension being successful, the applicant may be the person to get the licence, or any one afterwards; but then the suspension would not be in favour of the applicant, but in favour of the general public. Under proposed new section 4, it might be only the person who first applies for the suspension of a patent who would have the right to a licence.
– The honorable member suggests the omission of the words “ in favour of any person “ ?
– I think that would better convey what is meant.
– I shall look into that.
– There is another point to be considered. When the war is over, what will be the effect upon the patentee’s rights? He will have a patent then subject to the burden of a licence which will not be an exclusive licence, but one protected against infringement by others who have not a licence, but not as against the patentee himself. What will his position be? Can he grant other licences? Can he sue for infringement by other people; or what can he do? The Bill does not deal with that. It is a difficult subject, and I ask the Attorney-General to consider that point also.
– My impression is that, under the principal Act and this Bill, the Minister may take away from the patentee all his rights except possibly his right to sue for infringement when the war is at an end. I do not think that the patentee will have the right to grant a licence to any one else.
– I doubt it, because it is not proposed by the Bill to give an exclusive licence. It gives the effect of an exclusive licence by putting other people under a severe penalty if they manufacture the patented article while the licence is in existence. But that does not deal with the patentee.
– I shall look into that point also.
– The honorable member for Flinders has referred to the penalty. I have spoken of the international policy, and have said that it is not to interfere with the rights of the patentee at all, but to cover the effect of the suspension of his rights, to protect him, and to enable the public to have the use of the patent in the meantime. This penalty will go to the Crown. Why should there not be some provision made, by regulation or under the Act, to pay the penalty to the person whose rights are affected, and who might be the licensee or the patentee? There might have to be an apportionment of the penalty between the two. The Patents Act does not provide that penalties shall go to the Crown, except in the case of some fraud or breach of the official regulation. This is an anomalous provision.
– We shall not hesitate to bring down amending legislation if this is found to be deficient.
– I am satisfied with that statement. The matter is a very difficult one, and the legislation may affect very substantial rights.
– In reply to what the honorable member for Angas has just said, I admit the difficulties surrounding this question. They cannot be easily brushed aside; they are very real, and are not figments of the imagination. What is more to the point, they cannot all be stated, nor can they all be anticipated. But, as they arise, and when it can be shown that the law is defective, we shall not hestitate to ask Parliament to agree to such amending legislation as appears to be necessary. If upon looking into the questions which have been raised we find that some amendment of this Bill should be made before it goes through another place, we shall not hesitate to propose it, and ask honorable members here to agree to it later. The honorable member for Batman, speaking in support of uie suggestion made by the honorable member for Flinders, considers that we might give the licensee civil rights to sue for damages.
– There are patents for the use of which a man might be willing to pay a penalty of £500.
– It appears to me that, although we are dealing with patent rights, we are creating an anomaly, and we should deal with the person in the anomalous position in a way different from the way in which we would deal with the ordinary patentee. His rights are given to him by the Crown for a specific purpose. We shall safeguard those rights, but he has none of the rights to sue *for damages that properly belong to the patentee. The honorable member for Batman said that this measure was one which would better safeguard German patents. I think that is quite true: it does safeguard German patents, but it will not safeguard German patentees but Australian licensees. I think that it is a quite sufficient answer to the honorable member.
Mr. JOSEPH COOK (Parramatta) the Government proceed to put it into operation, and confer exclusive rights on individuals on their own responsibility, or will they come to the House and let the House approve of the grant of any exclusive power and privilege of the kind?
– These powers have been already exercised several times. If honorable members so desire, there is no reason why the exercise by the Minister of the powers under the Act should not be tabled at intervals for their information. If honorable members think the information is interesting and necessary, I shall make it my business to furnish, say, monthly returns, if anything happens during the month. Without occasion, of course, there need be no report.
– That is not quite what I want. This proposal is clearly protective. The protection is to be exercised by the Executive away from Parliament, but I hold that whatever protection is granted to individuals under this proposal should be the grant of this Parliament in the last resort. I am only asking that when the Attorney-General makes an exclusive grant of the kind, which is in its very essence protective, and intended to be protective, he should let the House know what he is doing before it actually takes place. We do not protect an industry by the Tariff without consulting Parliament. The same principle should apply here.
– The honorable member does not seem to have a clear conception of the object of the measure. Every day the Commissioner of Patents grants patent rights to persons, giving them a monopoly for fourteen years. He does not ask Parliament to exercise the power. If Parliament thinks I am not fit to exercise the same powers as a relatively subordinate official of the Department, it had better say so. Under these measures the application has first to be made to me. The Commissioner hears the evidence and puts it before me, but makes no recommendation. I act on the evidence, and if it appears to me proper to suspend, I suspend; if it is proper to refuse the application, I refuse it; if it is right to grant a licence, I grant it. Surely the honorable member does not suggest that I should consult the House about each particular case. Take the case of Thermit. There are at least a dozen pa tents affecting it; one has been avoided in Great Britain, the others have not. Some are affected by the decision I gave, but not all. “We should be turning this place, which is a deliberative assembly, into a sort of quasi-judicial tribunal by bringing such cases before it. Parliament has ample authority over the Executive Government, which every day exercises powers that, compared with this power, are as a mountain to a molehill. The honorable member hardly realizes that such rights as these are granted nearly every day by the Commissioner of Patents in the ordinary exercise of his powers. One case out of about 2,000 comes back to me, and I have to decide whether it should stand or not, and if it should not stand, in whose favour it should be given.
Amendment agreed to.
– I move -
That the following words be added: - “(la) No prosecution under this section shall be brought except by the Attorney-General or a person authorized in that behalf by the AttorneyGeneral.”
The effect of this will be to prevent the proposed new section being used without sufficient cause, or other than in a proper case. It is the usual proviso with regard to extraordinary powers; and as this is a clear departure, I think the House and the country will have a better guarantee when the sole authority for the exercise of the power is a member of the Government, which is, and must be, subordinate to Parliament.
– I can only conclude that the Attorney-General is not clear as to the duty of the Commissioner of Patents. This case is fundamentally and vitally different from the granting of the original patent.
– On a point of order, is the honorable member in order in speaking to the clause, to which he has spoken twice already?
– The honorable member must at this stage confine his remarks to the amendment.
.- Would not the restriction of the rights of action under the amendment very much lessen the revenue likely to be got, and the competition likely to be secured ? The power to initiate for enforcement of the penalty is limited if confined to the AttorneyGeneral, and the licensee will have no right to protect his patents on his own initiative. Surely that will vitally lessen the competition for these patents ? The licensee will be a much better judge than the Attorney-General of what is an infringement.
– The point raised by the honorable member for Wannon deserves a good deal of consideration; but I understand the Attorney-General intends to consider, before the Bill goes to another place, whether it is not desirable to frame a clause giving the licensee a claim for damages. Under the unamended clause, there was a general power in the patentee, or licensee, to enforce his patent, or licence, by claiming a penalty. If we are going to take away that weapon from him, we must give him an alternative. The licensee should have another mode of enforcing his right, and I understand the Attorney-General will consider the matter. Unless that is given, we shall not be able to reap anything like the same fruits from the measure.
– I am perfectly willing to withdraw the amendment. I only put it in because I thought honorable members opposite wanted it.
– The position would be worse for the licensee if the amendment were withdrawn.
Amendment agreed to.
– Before any special privileges are conferred for no other reason than to give a special trade advantage to an individual, the Committee has the right to know what is being done. The Commissioner of Patents simply considers whether there is novelty or not. He does not consider the question of the effect on trade and industry.
– Under the Act of 1914, he does not have to consider only whether there is novelty or not.
– When the AttorneyGeneral comes to grant–
– I do not do anything under this Bill ; it gives me no power at all.
– It gives the honorable member the right to grant a special privilege. My point is that that power ought to be given by the House. We are amending the Act, I understand, and anything that is an amendment is relevant, and should be considered here. I am asking the Attorney-General, before granting these special trade privileges to individuals, and so preventing others from taking advantage of them, to allow this House to have a say whether those special powers should be granted or not. The Minister should not have the right to confer those privileges upon an individual for the purpose of giving him a trade monopoly. Any special privileges of that kind ought to be subject to review by this House.
– We are all Protectionists now.
– I am really very sorry that the House seems to be so disinclined to consider a matter of this kind, which, I think, affects its own special prerogatives. The Minister has no right, merely by Executive action, to give protection to monopolistic industries.
– He is only transferring it; he is not giving any rights.
– That is a very simple way of putting it, but what is the effect? Under this clause the establishment of some industry will be the sole privilege of some individual in the community to the exclusion of everybody else; and I affirm again that a special privilege like that ought not to be in the sole determination of a Minister, but that the House ought to take the responsibility for it, just as it takes the responsibility of conferring fiscal protection upon any individual or industry.
.- The honorable gentleman has brought up a matter which may be technically relevant - I do not know whether it is - but all I have to say is that the honorable gentleman ought to have made his remarks six months ago, because Parliament conferred this power to which he objects upon the Minister in the Act which was passed six months back.
– Not with regard to a monopoly.
– I say yes.
– Oh, that ends it; you have said so !
– There is no doubt about it at all; but the honorable member is such a bully himself that he is astonished when he finds that even a worm turns.
– Order !
– Under section 3 of the Act passed six months ago the power which the honorable gentleman says ought not to be exercised by the Minister was conferred on the Minister, and the Bill to-night does not afford any extra powers at all. It onlygives the licensee certain protection. The power to suspend a patent and issue a licence is not affected by this measure at all. Honorable members can see for themselves, if they look at the debate which took place on 12th November last. The honorable gentleman was in his place, and I do not observe that he took any exception ‘to the matter. These powers were exercised by me during the interval, several persons have been granted licences, and, so far as I know, it has not been suggested that I was acting improperly. If the honorable gentleman wishes to take away the powers given under the Act passed six months ago,he must do so by moving an amendment. The powers are vested in the Minister, whether rightly or wrongly, and while they are there I must exercise them.
– All I can say is that the AttorneyGeneral beats all I ever saw. He called me a bully just now. I might just as well call him-
– Order !
– I might just as well call him an ignorant little “ bluffer.” I ought to have done that earlier in the. evening.
– Order ! I must ask the honorable member to withdraw that statement, and proceed. I called’ the honorable the Minister to order for using the word “ bully.”
– One is just as proper as the other.
– Both honorable members are wrong.
– The AttorneyGeneral sucked the brains of the legal talent on this side of the House, and now takes advantage of the fact that we treated Him well when this Bill first came before the Chamber. When the Bill was. before the House on a former occasion. we were prepared to give him any of the powers he asked for as a war precaution measure, and in relation to matters arising out of the war. That has been our attitude all along, and there is no reason now for the honorable member to be abusive when I am simply asking for safeguards in the public interest.
– The honorable member only hears his own voice, and imagines it is the voice of others.
– Order !
– I ask you, Mr. Chairman, to keep this abusive, vulgar little man off.
– Order! I must ask the honorable member to withdraw those words.
– I withdraw them, and I now ask you to require him to withdraw his insulting remarks.
– I only said that the honorable member hears his own voice and imagines that it is the voice of others. If he says those words are insulting I will certainly withdraw them. I know what this little business is.
– I am affirming that any powers granting exclusive privileges to any person in the community should come from Parliament. The very essence of proposed new section 4 is discretionary power in the hands of the Minister, for it says -
Where a patent or the registration and all or any of the rights conferred by the registration of a trade mark or design has been suspended in favour of any person. . . .
The very purpose of the provision is to give the Minister the right to suspend a patent, and it goes beyond the powers given to the Minister in the original Statute.
– That is not so.
– Is there any suspension in the original Act?
– Certainly there is. Look at the Act and you will see what it means.
– That, however, has nothing to do with my point, which is that no Minister ought, by Executive action, to have the power to grant to any individual in the community such tremendous trade advantages as are contained in this proposed new section. That responsibility ought to rest with
Parliament, just as the special privileges in the shape of bonuses and other encouragements to people to build up an industry are vested in the Legislature. I am sorry that I have been so abused for making a simple suggestion of this kind.
– I only want to say once more that no power is conferred upon the Attorney-General by this Bill to suspend a patent in favour of anybody, or to grant licences in favour of anybody. That power was granted by Act 15 of 1914, which has been the law since the 19th November last. The present measure does nothing of the sort. I refer the honorable member now to the Manual of Emergency Legislation, 191 k, *» Great Britain, and I direct his attention to order No. 1328, on page 236, dealing with Patents and Designs (Temporary) Rules, dated 7th September, 1914, which states -
In any case in which the Board of Trade make an order by virtue of the powers vested in them under the provisions of the Patents, Designs, and Trade Marks (Temporary) Rules Acts 1914, (a) and under any rides made under these Acts or either of them avoiding or suspending in whole or in part a patent or avoiding or suspending registration and all or any rights conferred by the registration of any design, the Board may, in their discretion, grant in favour of persons other than the subject of any State at war with His Majesty, licences to make, use, exercise, or vend the patented invention or registered design so avoided or suspended upon such terms and conditions, and either for the whole term of the patent or registration of the design, or for such less period as the Board of Trade may think fit.
Those are the words that we have incorporated in our Act, and those are the powers that were conferred upon the Minister of the Commonwealth for exactly the same reason as that which actuated the British Parliament in granting those powers to the Board of Trade. I hope the honorable member will accept my explanation.
Clause, as amended, agreed to.
Title agreed to.
Bill reported with amendments.
Bill presented, and (on motion by Mr. Hughes) read a first time.
House adjourned at 10.45 p.m.
Cite as: Australia, House of Representatives, Debates, 5 May 1915, viewed 22 October 2017, <http://historichansard.net/hofreps/1915/19150505_reps_6_76/>.