2nd Parliament · 1st Session
The President took the chair at 2.30 p.m., and read prayers.
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Senator MCGREGOR laid upon the table the following paper: -
Report upon the Water Supply and Water Power for the proposed Federal Capital site at Dalgety.
Ordered to be printed.
The Clerk laid upon the table the following paper : -
Return to an order of the Senate of the 26th May relating to the selection and approval of the Commonwealth flag.
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asked the VicePresident of the Executive Council, upon notice’ -
If the Government will take steps to endeavour to have the printing of necessary documents done more expeditiously than is often the case, notably in connexion with the evidence of witnesses before the Select Committee on “ Privilege “ - that which was sent to the Printer early on 2nd May not being printed till 6th May, whilst that forwarded at raid-day on 30th May was not delivered to Senators till 2nd June?
– The answer to the honorable senator’s question, as supplied by the Government Printer, is as follows : -
It is admitted that the evidence first referred to, occupying twenty-one pages of print, was not put into type as rapidly as it might have been. In extenuation of the “delay it should be mentioned that this Department had to edit or prepare the
MS. for the Printer before it could be proceeded with. That involved the making of several inquiries to ascertain what portion of the accompanying exhibits was to be inserted in the evidence and where. Despite these inquiries, it was afterwards discovered that a full page of printed matter had been set up which was not required. Had urgency been notified, proofs would have been furnished earlier. The evidence next referred to came to hand about midday on the 30th May, and proofs were delivered at 9.30 a.m. on 2nd June. Four or five -hours were again occupied in preparing the us. for the printer. The proofs of this evidence, comprising eighteen pages of print, were, therefore, produced in two days. Greater expedition shall be observed if desired. But in order to assist this Department in that direction, it is suggested that the MS. of evidence should be sent here in a state in which it can be put into the operators’ hands without preliminary preparation.
– I desire to ask the Vice-President of the Executive Council if the Government, instead of merely asking for an explanation from the Government Printer, will do their best to expedite the printing of documents?
– The Government will do all they possibly can to expedite the work.
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Motion (by Senator Lt.-Col. Neild) agreed to -
That leave, be given to bring in a Bill to enable the Parliament and any Committee thereof to adminster oaths and affirmations to witnesses.
Bill presented, and read a first time.
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Motion (by Senator McGregor) proposed - That the report be adopted.
– I do not feel myself - at liberty to support the motion. A number of honorable senators, including, of course, the members of the’ Labour Party,, have; with commendable candour, told us that they desire, not the rninimum area for the Federal Capital, but a much larger area, in which to try a scheme of land nationalization. Whether that is right or wrong is not the question. I cannot conceive that we have any right to take nine times the minimum area, unless it be with the consent of the Government of New South Wales. In Committee I moved an amendment that the taking of this large area of not less than 900 square miles should be subject to the consent of that Government, and it was negatived by a majority of only fourteen votes to thirteen. Since that occasion a very strong opinion has been expressed in New South Wales by the Premier, on the one hand, and the leader of the Opposition on the other, that no such area as that will be granted by its Government. I am inclined to think that, if good reason can be shown, the Government of the mother State will be inclined to deal liberally with us, to sweep away all troubles, and that we shall have very little difficulty in coming to terms. I should like to see the negotiations on this very important and delicate subject commenced with some show of success. Is it wise for Ministers to commence them with the assertion of a right which many of us believe cannot be maintained, and which we know does irritate and annoy the Government of New South Wales? lt appears to me that if the Bill leaves the Senate in its present form, it will place Ministers under a disability when they come to negotiate, because when they begin they will find that the Parliament has passed an Act in spite of all warnings, in spite of the fact that all the senators from New South Wales said that the people of their State regard this as a kind df grab-all policy or description of robbery. With their eyes open, honorable senators insist on passing a Bill, as if we had the right to take nine times the minimum mentioned in the Constitution. I only intended moving that the Bill be re-committed, for the purpose of considering clause 3, but if there is any hope of such an amendment being passed, it might be well to consider the whole Bill, because I find that in clause 2, the words “the State of New South Wales” are used twice, which is, I think, a mistake..’ We might well improve the verbiage of that clause. Therefore, I move - >
That all the words after the words “That the” be left out, with a view to insert in lieu’ thereof the words “ Bill be recommitted for the reconsideration of clauses 2 and 3.”
I desire to lessen in every possible way I can the friction which seems to be constantly arising between the Commonwealth on the one hand, and individual States on the other. I do not think that this friction can. be got rid of if we claim in the Bill certain rights which appear to most of us to be unreasonable, and to many of us to be absolutely unconstitutional. It is no argument to reply that the High Court will decide, or to say, “We shall do what we can with our friends in New South Wales.” If at the beginning of negotiations one party insists that he is right, there will be very little hope of the parties coming to an understanding. If we adhere to the words of the Constitution, and say that we want an area of not less than 100 square miles, - and, subject to the consent of the Government of New South Wales, such larger area as, including that area, will make an area of 900 square miles, we’ shall commence to negotiate on fair terms, instead of holding a pistol to the head of the mother-State, and asserting rights which are disputed, and which irritate the people wilh whom we? have to deal.
– I support the amendment, for reasons very much the same as those alleged by Senator Dobson, and for other reasons also. In my opinion, the Bill is absolutely lacking in candour. Anyone who listened to the debate which took place here last week must be thoroughly convinced that the Senate favours Dalgety as the site for the Federal Capital. Anyone outside whoreads the Bill may well ask why - it was that the Senate did not mention Dalgety, but, on the contrary, selected a point and said that the Seat of Government ‘ should be within a certain distance of that point? That is where the Bill, in’ my opinion, lacks candour. We know the object of that provision. The object was to secure Dalgety on the one side, and Eden on the other, without putting in the Bill a demand for the enormous area which would be required to bring those two points within the Federal Territory. Roughly speaking, a distance of 160 miles separates Eden from Dalgety, and in order to have an area, of only 900 square miles we should require a strip of country about 100 miles long by nine miles wide - just a tongue of country driveninto that comer of New South Wales. That would be an impracticable proposal. The Bill is lacking in candour in not having affirmed, as Senator Findley asked the:
Senate, to affirm, that the area should be 5,000 square miles.
– Which the Senate negatived.
– The Senate negatived the amendment, but that is what was in its heart all the while. What is wanted is an area which will give Dalgety on the one side and Eden on the other, and the Senate should have been honest and said so.
– I do not think the honorable’ senator is in order in imputing dishonesty to the Senate.
– I withdraw the word, sir, and say that it would have been better had the Senate been sufficiently candid and stated exactly what it wanted, that is, Dalgety one the one side and Eden on the other. I defy any honorable senator to say how we can embrace those two points in an area of 900 square miles if that area is to have anything like a shape which will commend itself to anybody here or in State politics. If I am right in the assertion that it is desired to have the Federal Capital somewhere in the neighbourhood of Dalgety, and at the same time to have Eden within the Federal Territory, then it follows that what is required is not an area of 900 square miles, but an enormously enlarged area. My first objection to the Bill, in its present form, is that it is not frank and candid ; that underneath it there is some reservation, that there is evidence of an effort to get something which is not clearly shown on the surface. I submit that that is a form of legislation which ought not to commend itself to this or any other legislative body. Now, as regards the area which we ought to ask for, I submit again for the consideration’ of the Senate, whether it would not have been wiser to adopt the simple terms of the Constitution, which provides for an area of not less than 100 square miles. Had that been clone, in no sense would the hands of the Government have been tied in their effort to obtain a larger area. They could have approached the Government of New South Wales, buttressed by the fact that they were acting in entire accordance with the Constitution, and they might have been able to show that there were substantial reasons why that area should be increased.
– Without a mandate from the Seriate for it?
– Yes ; as it is now, the Government cannot negotiate for an area of 899 square miles.
– The inference would be that the Senate wanted an area of only 100 square miles.
– What is the inference now ?
– That they want an area of ‘900 square, miles.
– The honorable senator had nothing to say about an inference when I was dealing with Dalgety and Eden.
– The honorable senator is full of inferences, and they are not correct.
– I was pointing out when I was met with the interruption, that had the Bill simply adopted the language of the Constitution, the hands of the Government would not have been in any way tied, but their position would have been stronger. The Senate ought to have indicated with some approach to definiteness what area it did want. So far as the Bill being a mandate to the Government is concerned, does it tell the Government to negotiate for any particular area? Does it give the Government any guide at all as to where the Senate desires the Federal Territory or the Federal Capital to be ? Had we just stated in the Bill that the Federal territory should be on the plains of Southern Monaro, it would have been just as clear an indication of what we want as is now given. As the Bill stands, the Government have absolutely no guide. I submit that if it- were placed before any person not familiar with our proceedings of last week, and he were asked to judge from its provisions where we wanted the Federal Capital or the ‘Federal territory to be, what particular parcel of land it authorized the Government to negotiate for, he could not say. Surely the Senate can make up its mind as to what it does want ‘for a Federal territory. Surely it can say where it thinks that the Federal Capital ought to be, and so give the Government some definite directions as to the form which the negotiations are to take, and the particular parcel of land which it is authorized to negotiate for. As it is now, the Government can roam all round over a radius of 100 miles in any given direction. Unless it is intended that the Government should endeavour to get the whole of the area contained in that, -radius of 100 miles, the Bill is absolutely valueless as a direction to -Ministers and an indication of the wish of the Senate. Senator Dobson has referred to some expressions of opinion given in New South Wales about the action of the Senate in asking for the enlarged area. I suppose that honorable senators are- familiar with them. Speaking as a representative of that State, I can only say that the utterance of its Prime Minister very -fairly echoes the sentiment which is generally held there. I repeat what I said on the second reading, that I do not believe New South Wales will be found niggardly in granting any area which we can show, to be necessary for Federal purposes. Beyond that the Federal Parliament has no right to ask New South Wales to go. But to express- an opinion that New South Wales will meet any legitimate demand for Federal purposes is very different from passing a Bill in which we say that the area “ shall be not less than 900 square miles,” when the Bill carries on the face of it evidence that what we really desire is not 900 square miles, but 5,000 square miles. If the Senate be, as I believe it is, desirous of terminating this matter, I would ask honorable senators to agree to put the Bill in such a form that the Government will be enabled to open negotiations with New South Wales with some reasonable prospect, of success. There is no reason why they should not be left with an absolutely free hand to obtain any area over and above the minimum prescribed by the Constitution. When it is found that the Senate is. prepared to multiply the constitutional minimum by nine, there is a not unreasonable fear in New South Wales that when the Government begins to negotiate they will endeavour to multiply the minimum fixed in the Bill by nine. It is a big jump from 100 square miles to 900 square miles, and the people of New South Wales are concerned to know where this will end, and what the next jump may be.
Sena’tor Dawson. - Have they got a bad argument ?
– The Premier of New South Wales gives an’ answer when he tells members of the Federal Parliament that they will not get this larger area.
– He may not be Premier for .long.
Sena’tor MILLEN. - Whoever is Premier he will say the same thing. The gentleman who is likely to succeed Sir John See, should a. change of Government take place in New South Wales - I refer to Mr. Car ruthers - is equally emphatic in resisting the demands of the Federal Parliament for an unduly large area. I venture to say that there is no public man in New South Wales who will be prepared to concede what is asked for in this Bill if it is put forward in the shape of a demand.
– There is one in the House of Representatives.
– Does the honorable senator refer to Mr. Watson ?
– No; but to an honorable member who has said that he believes that if New South Wales is asked for the larger area she will be prepared to grant it.
– One swallow does not make a summer, and it is the exception which proves the rule. All the evidence we have on the subject tends to support my statement. Now and again an eccentric individual may express an opinion opposed to that held by the majority, but the opinion which I am expressing will be accepted by the State as fairly representing the view of New South Wales. If the words of the Constitution describing the area had been adopted, the Government could have entered into negotiations with the Government of New South Wales; they could have gone into details as to the particular area desired, which at the present time we do not know, and then they could have ascertained exactly the area that would be required. That is information that we are entirely without at present. Whilst we do not know what particular area is to be acquired, we do know, as well as this Bill can tell us, that the Senate desires that we should acquire not less than 900 square miles, and that the Federal area should include the territory from Dalgety to the sea coast. If that is insisted upon we may just as well throw this Bill under the table, because no Federal Territory will be granted in New South Wales upon such terms.
– I rise to support the amendment moved by Senator Dobson. I do so for the reasons which have been . very clearly enunciated by Senator Millen, and for the further reason that I have ‘ not the least ]doubt that if this Bill be passed in its present form it will be a nullity, because a stand and deliver proposal of this kind is one which no Parliament or Ministry, present or future, in New South Wales’ will agree to. If in this Bill we had said in the terms of the Constitution that we required an area of “ not less than 100 square miles “ - which means 100 square miles, or as many more as may be needful without limitation - I feel sure that, as Senator Millen has said, the Parliament and Government of New South Wales would have sought to meet in a. free and open-handed manner any legitimate’ request put forward by the Parliament of the Commonwealth. But if, instead of complying with the provisions of the Constitution, an inordinately large demand is made, it is inevitable that there will be such an opposition to the proposal by the Government and people of New South Wales as will prevent the intention of honorable senators being given effect to. It should not be forgotten that this question will be prominently before the electors of New South Wales during this or next month, in connexion with the general election about to take place in that State. Do honorable senators for a moment suppose that any candidate for the State Parliament will be successful at the poll if he advocates what is regarded in New South Wales plainly as an effort in the direction of a “ big steal.” That is how the proposal is regarded in New South Wales ; that is what the newspapers call it ; and it is what candidates, who desire to be in touch with local feeling, will also call it. “ Not less than 100 square miles “ is practically the same as “ not less than 900 square miles,” because an area of “ not less than 100 square miles “ may be extended to any degree necessary. The minimum included in the Bill is, therefore, unquestionably a useless minimum and when it is set so high, as Senator Millen has observed, Ave cannot go back on it by a square mile. Speaking without heat, but with positive assurance, I say that if passed in its present form, this Bill will remain a dead-letter, and I do not think that can be the intention of honorable senators. I urge upon the Senate the advisability of more moderation in the minimum demand, whilst leaving the maximum demand as free as it is under the Constitution. I desh:-, to do what is proper and lawful but I consider that to fix a needlessly high minimum will be to create a difficulty which will most assuredly stand in the way of the friendly settlement of this question, that I am sure we all desire. Let me suggest another view of the matter. Those who desire to secure the splendid water power of Dalgety, and also the port of Eden, are suggesting the acquisition of a strip of country of an extraordinary form. The acquisition of that country would leave a part of New South Wales at the back of the Federal Territory - a sort of no man’s land, between the Federal Territory and the State of Victoria.
– No; New South Wales could throw that in, too.
– That is exactly my contention ; that what honorable senators want is 5,000 square miles.
-Col. NEILD.- That is what it would come to.
– Senator Neild is objecting to that strip of land being left over.
– I am objecting to it, and if that land is included in the Federal Territory, the area acquired will be needlessly large for a centre of Government.
– What is New South Wales doing with that territory now?
– That is not the question. Senator Dawson is probably the possessor of real estate in some part of Australia, out of which he is not making very much money at the present time. I dare say there are many honorable senators in a similar position ; but, though we may not be making money out of our property, we may not be able to see any fun in some one else taking that property from us.
– Surely it would be better to give up a portion of your property, if, by so doing, you enhanced the value of the rest.
– It has not been shown that that would be the effect. Apart from details, I say, as Senator Millen has said, that the needlessly high minimum fixed in the Bill will meet with undoubted opposition of a serious character. I most courteously urge upon the Government and upon my fellow honorable senators that to set forth in tSe Bill a needlessly high minimum will be to provide for that which is not only unnecessary, but is also mischievous, especially in view of the fact that a low minimum would accomplish all that is required. I pledge my word, for one, that I shall not attempt to interfere with the granting of all the territory that may be necessary for a handsomely provided and buttressed Capital, with every possible advantage of communication, and particularly of water supply, But to tie down the negotiations by the Federal Government to an abnormally high minimum will be to create difficulties for which there is no necessity, and which will eventually become paramount.
– It is regrettable that some honorable senators should accuse other members of the Senate of want of frankness and want of candour in the legislation we have been enacting.
– It is regrettable that they should have to do it.
– Such an accusation can have no good result, and it must have a very bad effect as far as the people of New South Wales are concerned! The suggestion is that we are engaged in a sort of plot to hoodwink the people of New South Wales, and that we ha ve some ulterior design in this legislation, which I am sure was never in the minds of honorable senators. I personally regret that, in indicating that we desire an area of not less than 900 square miles, we did not add the words, “ with the concurrence of the Government of New South Wales,” because we must meet the New South Wales authorities in the matter, and both parties must be agreed before we can acquire any area beyond the limit of 100 square miles mentioned in the Constitution.
– It would only be surplusage to include those words.
– I believe it ‘was necessary to mention in the Bill the area which, in the opinion of the Senate, should be acquired. Senator Millen has said that we should adopt the words of the Constitution, and provide for an area of “ not less than 100 square miles.” But if we were now to alter the area proposed to 100 square miles, the representatives of New South Wales would probably say that, after further consideration, the Senate deliberately altered the area from 900 square miles to 100 square miles, and itwould be said that we did not desire the acquisition of any larger area. We should tie the hands of the representatives of the Commonwealth in their negotiations with the New South Wales Government ; a false impression would be created ; and it would be suggested by certain newspapers that the representatives of the Commonwealth were not carrying out the wishes of the Federal Parliament if they asked for any larger area. The position I have taken up all along is that we should indicate the area we desire.
– By resolution of the Senate.
– I think it would have been better to have done it by resolution of the Senate. But, in any case, the area we desired should be indicated, and I think we should add the words, “ with the concurrence of the Government of New South Wales.” If we may judge by what appears in the Sydney press, which is not always reliable, the Commonwealth is desirous of taking a huge area, and the majority of the members of the Federal Parliament are in favour of that in order to carry out some scheme of land nationalization, irrespective of the requirements of the Federal city.
– The honorable senator moved in the last Parliament to do that.
– I asked that we should have an area of not less than 1,000 square miles. I am still of that opinion, and I am supported in that view by the report which has just been submitted, and in which we are told that the catchment area of Delegate is 1,600 square miles in extent. If Delegate were selected, we should not be asking an acre too much in asking 1,000 square miles, in order that we might secure our water supply and prevent it being fouled by being under another jurisdiction.
– Would that other jurisdiction foul it?
– What I mean is, that it should be entirely under our control, that we may be able to see that the source of our water supply is not vitiated. From the statements which have been .made, the idea prevalent in New South Wales would appear to be that the Senate is desirous of doing something which, I am sure, we have no desire to do. Surely New South Wales representatives should be anxious to have this question settled as soon as possible? Senator Dawson. - It does not look like it.
– Is it not better that they should endeavour to smooth over difficulties, and acquaint the people of New South Wales with the true position, than that they should raise factious op position ; inflame the spirit of provincialism already existing in some quarters of New South Wales; and appeal to what I may call the anti-national feelings of certain people and of certain newspapers in that State? Having indicated the portion of New South Wales within which we desire the Federal Capital to be located, contour surveys will require to be made, and a great deal of information furnished before we can take a step in the actual selection of the site for the Capital, which cannot subsequently be retraced. If we can induce honorable members in another place to agree to the area which we have proposed as that within which the Capital shall be located, we shall have taken a step forward, and there is no doubt that within a short space of time the actual site of the Capital will be selected.
– Is the honorable senator personally in favour of Eden being included in the Federal Territory?
– I am coming to that question. One of the most extraordinary statements made by Senator Millen was that the Senate had chosen Delegate, and desired to have the whole of the area from ihat site to Twofold Bay included in the Federal Territory. T have not heard a majority of the members of the Senate say anything of the kind.
– The honorable senator said so himself’ last week.
– I beg the honorable senator’s pardon ; I have never said such a thing during this debate.
– The majority of honorable senators desire to have a port.
Senator STANIFORTH SMITH.That is very different from fixing on the Monaro tableland, taking a site in the western portion of it, and seeking to connect that site with Twofold Bay, within the Federal Territory.
– Does the honorable senator deny that he wishes to have Eden included within the Federal Territory ?
– It all depends where the Capital site is to be. Honorable senators will recollect that I objected to the provision with respect to fifty miles from Delegate being included in the Bill, because I considered that it might be possible to select a site nearer to Twofold Bay, if it were considered essential that a port should be included in the Federal Territory. For my part, I do not believe we could justify a claim to have Delegate selected as the Capital site, and to have the Federal Territory extending from that site to Twofold Bay. I think that we are bound by the intention and spirit of the Constitution. While I should like to see an area of 5,000 square miles acquired, and should prefer to include in the Federal Territory the whole of the Monaro tableland and Twofold Bay, I do not think that under the Constitution ‘ we have the right to ask that that should be done. We are not justified under the Constitution in asking for a larger area for the Federal Capital than may be considered reasonably necessary for the expansion of the Federal city and suburbs, including parks, water supply, and essentials of that kind. While 1 say that I should like the Commonwealth to acquire 5,000 square miles, I do not think that we have a right to ask for such an area. If we are to carry out honorably our compact with New South Wales, we should not ask for an area which it is extremely unlikely that New South Wales will grant. But we can go to New South Wales in a proper spirit, and ask the Government of that State to grant a reasonable area which we can very well claim as being necessary to safeguard the Federal Capital against some portion of its territory being under a divided authority. I am hopeful that the representatives of New South Wales and the people of that State; will not be inflamed with the feeling that: we are trying to rob them of a huge areaSenator Neild said that we are entering upon a “big steal.” It is regrettable that such expressions should be used. We admit that we cannot take more than 100 square miles, unless with the consent of tha: State. Of course, we have always the strong position that we need not choose any site, unless we get what we believe to be a reasonable extent of territory. But we want to be able to approach New South Wales without inflaming that provincial spirit, and that hostility which it is so easy to kindle in all young Commonwealths. That spirit prevailed in the early days of the United States, just as it prevails in Australia to-day. We want to be able to approach New South Wales in a friendly spirit, and to point out that we require more land for various purposes. I think that it can be clearly shown to be a reasonable proposal, that it would be unsafe for us 10 take an area less than 900 square miles, if we desire the Capital city and suburbs 10 be, for all time, under Commonwealth jurisdiction. That is the only ground that this Government can take up as to why a larger area is necessary. When we have acquired the territory, it will be for the Federal Parliament to decide by legislation how it is to be managed. If we decide that, in the interests of Australia, it is advisable that the fee-simple should not be parted with to private individuals, that can be done. But it is unnecessary to mention it in the negotiations. Nothing has been decided by this Parliament in regard to that point, nor have we come to a determination as to what kind of a water supply we shall have, or whether we shall provide lakes and parks. I hope that the New South Wales Government and people will not take up the position that we are dishonest in placing certain provisions in the Bill, when we have an ulterior intention to do something else. I think that it would have been better to have said in the Bill that we desired to acquire 900 square miles “ with the concurrence of the Government of New South Wales,” because that would have tended to obviate any provincial feeling of hostility; but, as the Senate has decided not to insert such words, and as it has shown its desire to see the Federal Capital erected as soon as possible, I hold it to be regrettable that New South Wales senators should allege motives which I do not think the Senate will for a moment indorse.
.- The supposed loquacity of the Labour members sinks into utter insignificance when contrasted with the real loquacity of the New South Wales senators when they talk on a Seat of Government Bill. There has been one huge deluge of talk, and so far as we can see, it is still raining hard. It comes somewhat peculiarly from Senator Neild, Senator Millen, and other of their colleagues, that they should take advantage of every opportunity that is offered to them by the Standing Orders or the customs of Parliament, to delav the settlement of this Question, which thev tell their constituents in New South Wales they are striving their very utmost to expedite.
– Does the honorable senator say that we should accept any Bill that this Government chose to propose? Senator DAWSON. - The honorable senator pointed to the evil influence exercised by the Victorian representatives in the last Parliament, on the late Government, in order to tie up and prevent a number of areas in New South Wales from being thrown open for settlement. They urged then that it was necessary to select the Capital Site in order that the other sites now being reserved might be released. They alleged that a grave offence was committed by the Victorian representatives, who used their influence with the last Government so as not to expedite this Bill. There is equally as grave an offence now on the part of the present
Government, because they are trying to expedite the settlement.
– That is absolutely untrue.
– Order ! The honorable senator must not impute untruths to another honorable senator.
– Of course I shall conform to your ruling ; but if Senator Dawson is going to make statements of that kind, I ask for Mme opportunity to tell the Senate that thev are not correct.
– The honorable senator can say that the statement is incorrect ; but he must not say that it is an untruth.
– I say deliberately that in my opinion these moves have been made in order not to expedite the settlement of this question.
– Does the honorable senator say that we are “stone-walling’’ this Bill?
– Undoubtedly.
– I rise to a point of order. I ask whether the honorable senator is in order in launching accusations of “ stone- walling “ ?
– I do not think that it is unparliamentary to say that an honorable senator is “ stone-walling.”
– Then I will take an opportunity of showing the Government what “ stone-walling “ means !
– The honorable senator is entirely welcome to do what he pleases in that direction. He has suggested many things during the short career of this Government, and when he gets one or two shots back at him he does not seem to like it.
– I like the truth, that is all.
– It is a pity that the honorable senator likes the truth so much that he does not seem to care to part with it.
– The honorable senator must not say that.
– I withdraw that remark, Mr. President. So far as concerns my individual position, during the whole of the last Parliament I was at one with the New South Wales senators in assisting them in any movement they had On foot to secure a settlement of this question. There was no member of the New South Wales party who was more assiduous than I was in that direction. I adopted that attitude because I believed that we, as members ot the. Commonwealth Parliament, are under a solemn and honorable obligation to the people of New South Wales to settle the locality where the Federal city shall be, in order that of the nine sites which the New South Wales Government has reserved, eight may be released. I therefore believed that expedition was absolutely necessary. This Government, realizing that obligation, have taken advantage of the very first opportunity that has presented itself to them to introduce the Seat of Government Bill as their first measure in the Senate. To our astonishment - to our amazement - the men who are placing obstacles in our way are not the Victorian senators who were blamed during the last Parliament -
– Improperly blamed.
– But those who come from New South Wales.
– The honorable senator says that because we try to bring the Bill into conformity with the views that we hold.
– Surely it is patent to every one that the New South Wales senators were offered every opportunity that they could have to bring the Bill into conformity with the views that they held. They availed themselves of those opportunities in the most liberal spirit. They had two recommittals. Now they want another one.
– The Government themselves asked for one of those recommittals.
– Out of deference to the wishes of the members of the Senate.
– No; to patch up the clumsiness of the Government’s Bill.
– Not a bit of it. The representatives of New South Wales, with the assistance of their Tasmanian colleague, Senator Dobson, took every advantage of their opportunities, and debated the Bill in the fullest manner. It could not have been debated to a fuller extent. The very reason urged this afternoon as to why there should be a further recommittal was debated at length last Friday. This Bill is the outcome of those debates. Senator Millen says that the Senate is lacking in candour, as is evidenced by the Bill. But Senator Dobson, who has moved the recommittal,, says that the Senate is candid, as is shown by’ the Bill. In fact he considers that we have been rather too candid.
– The two points were hot quite the same.
– I never knew the honorable and learned senator to have one opinion for two minutes at a time. Senator Millen has said that it was evidently the desire of the Senate to accept Dalgety. I think that when a House of Parliament, after a full and free discussion, comes to a decision, that decision ought to be regarded as the expressed opinion of that House. I voted for Dalgety ‘ myself, but I was in a minority. The voting was thirteen to twelve. That is to say, the decision was arrived at in a House of twenty five senators, which Senator Millen will acknowledge, from his experience of the last Parliament, is a fairly high average of attendance. Deliberately, on a vote, by thirteen to twelve, it was decided that Bombala should be inserted.
– That Bombala should be the site?
– That Bombala should be the starting point, and not Dalgety. It is useless for Senator Millen or any one else to say that by leaving out the word “ Dalgety “ the Senate showed a want of candour or frankness. On the contrary, the Senate was perfectly open and frank, both in the expression of its opinion and in its voting. Personally, I regret that Bombala was inserted. I “believe it to be the wrong place. But I bow to the will of the majority when I am beaten, just as I expect the minority to bow to me when I am in a majority. I wish to say a few words about the point which has been made concerning the value of the land which it is proposed to take. The New South” Wales representatives seem to be very much alarmed about our asking for so large an area. But there is really no reason for fear concerning a large area in this particular locality. What has New South Wales ever done with the land that she has there? She cannot sell it. She cannot give it away. She cannot pawn it. But if the Capital’ site be selected there, and the Dalgety district becomes the centre of the Government of the Commonwealth of Australia, the value of the territory will rise, not because of anything that New South Wales. of her own exertion has clone, but because of something deliberately done by the Government of the Commonwealth of Australia. That added value must redound to the benefit of New South Wales. But the added value within the Federal area will belong to those who create it.
– We are not discusing that point.
– But Senator Neild discussed it. I think that New South Wales will have a very good bargain; because, if the Federal Capital is established in such a place, and added value is given io the land in the locality, a large added value will certainly be given to the land outside that locality, which will benefit New South Wales and more than compensate for the territory which she is asked to give up, and which is useless and worthless to her now.
– I :lo not think there is -any ground for heat in this discussion. We can very well make allowance for the representatives of New South Wales, who naturally endeavour to voice the feelings of the people of their State in reference to this matter, even ‘f they express themselves as being dissatisfied with the Bill. I have risen to say that I do not like the Bill as it stands ; but, at the same time, I am not in accord with the amendment moved by Senator Dobson for the recommittal of clauses 2 and 3. A very large majority has passed this Bill, which, therefore, expresses the opinion of the Senate. In the Bill we have certainly done one good thing. We have affirmed that the Capital site shall be established in the Southern Monaro district. But we have also affirmed something that, in my opinion, should have1 been declared by resolution rather than in an Act of Parliament. It would have been better had we passed a resolution declaring that we desired a larger area than 100 square miles.
– I want to take the Bill back into Committee for that purpose.
– But the honorable and learned senator wants to have inserted in the Bill some words which I do not wish to see there. He wishes to declare that we desire to acquire an extended area “ with the consent of the Government of New South Wales*” While willing to consider New South Wales in every possible way, I should not like to put those words in an Act of Parliament. My own view is that 100 square miles is approximately the area to which we aTO. entitled under the Constitution, and that w should acquire only as much more land as may be found to be necessary for :he purposes of the Capital site. Therefore, light through the discussion I have been against mentioning any special area, although, like Senator Smith, I should like to see a large area acquired. I should prefer to leave the question of the area to be the subject of negotiation between the State and the Commonwealth Governments. But I must vote against the recommittal of the Bill, on. the ground that the majority of the Senate has affirmed its opinion, and a number of honorable senators who were here last week are away now, on the understanding that the third reading would merely be a formal matter.
– While feeling that there is an obligation upon this Parliament to select the Capital sate with every reasonable expedition, I must also say that it seems to me that the Government have acted with promptitude in the matter, and have introduced a Bill which, on the whole, is eminently satisfactory. The question immediately before the Senate is as to the recommittal of the Bill, with a view to make some provision within its four corners for securing the consent of the Government of New South Wales. What is the object of that? The Federal Parliament simply indicates its desire on the face pf the Bill. It is not binding on the Government of New South Wales in any shape or form. I do not believe that it is competent for the Federal Government against the will of New South Wales to take Crown lands for the territory which is mentioned in the Bill.
– The Vice-President of the Executive Council says that it is.
– Then I totally dissent from what the Vice-President of the Executive Council has said. I do not think that it is competent for the Federal Parliament compulsorily to take any area belonging to the Government of New South Wales. The position will be that, if the Federal Parliament expresses the view that it desires a site within a particular area, and the Government of New South Wales, after negotiation, does not see its way to grant the territory, the fixing of the Seat of Government will be delayed until the consent of that State is obtained.
– Does that mean that if we cannot get 900 square miles we shall take nothing ?
– Parliament has the right to say that it desires a reasonable area of territory within which the Seat of Government shall be fixed. Consequently, if the Government of New South Wales are not prepared to yield to the wish of the Commonwealth Parliament in this connexion, then so much the worse it will be for the people of that State. It is not likely that we, as a
Federal Parliament, will select a territory wholly inadequate for the purposes of a Seat of Government. Although I think that every reasonable expedition is demanded by the terms of the Constitution, yet it would be unwise for this. Parliament to ask for an area which it knew to be insufficient for ils purposes, and consequently we have an unfettered right to express in an Act of Parliament our opinion as to the area of the territory. To recommit the Bill for the purpose of including in its provisions an indication that we recognise that the consent of. the Government of New South Wales is required, would be simply a work of supererogation.
– And more important still is the alteration of the minimum area.
– The Senate has expressed its opinion so strongly on that point that it would be a sheer waste of time to recommit the Bill to further discuss it. The determination of the Senate is that there shall be an area of 900 square miles, and to re-affirm it would be a waste of lime. Therefore, I think that we are asked to recommit the Bill for no useful purpose whatever.
– I would submit that, whilst the Standing Orders provide for the recommittal of a Bill, they obviously only do so as a safety valve. It is not usual to’ recommit a Bill except for the purpose of discussing some matter which appears to have been overlooked. The question which we are asked to reconsider is, perhaps, the one which was the most fully discussed. It was fully and ably discussed by Senator Dobson, who introduced an .amendment at our last sitting.
– Ably?
– Yes ; I take the liberty of thinking that the honorable and learned senator is an able man, who puts his case with very great clearness and decision, as he did on that occasion. It was subsequently discussed by most members of the Senate. Senators Millen, Smith, and others, including myself, very fully discussed the question whether it would be wise, in a formal matter, to recognise the right of anybody outside this Parliament to deal with this subject. We recognise pretty generally that there must be, for a final solution of the question, some sort of negotiations with New South Wales ; but we affirmed emphatically, with our eyes open, and after full discussion, that it was extremely unwise to put that thought into an Act of Parlia- ment. Therefore, there can be no excuse for recommitting the Bill, on the ground that the point which is now presented has not been considered by the Senate. As regards the other point suggested by Senator Millen - that a reduction of the area is contemplated - that aspect of the question also was very fully considered, and a very strong feeling was expressed that the area mentioned in the Bill, large as it is, was insufficient. Therefore, there can be no object served in recommitting the Bill. I do not agree with the attitude assumed by the Minister of Defence towards the representatives of New South Wales. I do not consider that there has been any undue delay. In view of the importance of the measure, I do not think it can be said that there has been a lengthy discussion. I quite realize and sympathize with the feelings of the senators from New South Wales. Their mission here, while legislating for Australia, is to see that the interests of that State are not prejudiced. Therefore, we ought .to be prepared to make great allowance to them, even if they were going beyond what might be called the limits of reasonable debate. I do not think that they have done so in this discussion. I am strongly opposed to the recommittal of the Bill, on the grounds which have been urged.
– I hope that, on further consideration, the Minister of Defence will withdraw all suggestion of “ stone-walling “ on the part of senators from New South Wales, and any other State. So far as I have been able to see, there has been no “ stone- walling.” A senator is entitled, under the Standing Orders, to move for the recommittal of a Bill, and although the Senate may hold a contrary opinion, still that is no reason why he should not urge the Senate to reconsider its provisions. I do not agree with Senator Millen that there has been a want of candour shown by honorable senators in framing the Bill. I think it is as candid as it can possibly be. We have stated to New South Wales that within a certain limit it is our desire that the Seat of Government shall, when we have obtained the Federal Territory, be fixed. We have released from further consideration ‘all the other proposed sites in various parts of that State. We have stated explicitly what we consider should be the minimum area of the territory granted to us. The only objection that I have to the wording of the
Bill is that it contains the word “shall” in clause 3 -
And shall contain an area of not less than 900 square miles.
There is considerable force in the contention that we either have or have not the right to take more than the area fixed by the Constitution - not less than 100 square miles. If we have the right to increase that area, of course we have the right to increase it indefinitely.
– -Surely that- does not follow ?
– My own opinion is that we have no right to increase the area, except with the concurrence of the Government of New South Wales.
– That is the important consideration.
– Yes; and I think that we made a mistake in saying that the territory “shall” contain a certain area, as if we had the right to fix the absolute area.
– That is only an expression of our own view. It does not affect New South Wales.
– It is a view which the great majority of senators believe that the Senate has not the power to express. It is very much like passing a Bill, in which we say that certain things shall be, when we know very well that Ave have not any power to pass such legislation. Let us express our opinion as definitely and as candidly as we like, but do not let us use the word “ shall “ in clause 3, as if we had the determining power. Now, the determining power, after all, in regard to any area over the 100 square miles, rests entirely with New South Wales. ‘ We should merely in this clause express the opinion that the Federal Territory “ should “ contain not less than an area of 900 square miles.
– Has the honorable senator ever seen the word “ should “ in an Act of Parliament under such circumstances?
– Very possibly not. but these are exceptional circumstances.
– Last year, unfortunately, it was used.
– Very possibly it may have been used. I do not recollect at the moment.
– It is far too indefinite.
– It is only going through a farce to use the word “ shall “ in this clause. A number of honorable senators have to admit that after all it will depend on what the Government and the people of New South Wales are prepared to do. Although they are willing to admit that that is the position, yet, apparently, from what the Minister says, they insist on the word “shall” being used in the clause. Otherwise, it is as good and perfect a measure as we could pass in the circumstances. The mistake which we made last year was, in fixing a site for the Seat of Government before we had obtained a Federal Territory. It is plain from the words of section 125 of the Constitution that we cannot fix a site for the Federal Capital until a Federal Territory has been granted to or acquired by the Commonwealth. We are now going to work in the right way, that is, exactly as the Constitution requires. But we are not doing as it requires in the matter of the area. If we follow the Constitution in that regard we shall do what Senator Millen wishes us to do - put in the words of the Constitution relating to the area. I think that that would be a mistake. It is our plain duty to express to New South Wales a strong desire that under no circumstances should the area of the Federal Territory be less than 900 square miles, for that, I consider, will be little enough. In the last Bill we asked for 1,000 square miles. Possibly we may require considerably more than 900 square miles, if we have to take in those portions of the river which are, necessary to supply electric power. I do not know sufficient of the country to be able to express a definite opinion on the subject. My own idea is that we should approach New South Wales, showing a strong desire for an area of not less than 900 square miles, but at the same time not setting up its back by saying that we “ shall “ acquire that area.
– What is the difference between the language in section 125 of the Constitution and the language in clause 3 of this Bill ?
– The words “ shall contain an area of not less than “ are used in each case.
– If we were to follow the language of section 125 of the Constitution, and say that the territory “ shall “ contain an area of not less than 100 square miles, there would be no trouble at all ; but when we are asking for nine times that area we have no right to use the word “ shall “ in the clause. Under the terms of section 125 of the Constitution, the Government of New South Wales would be bound to give an area of not less than 100 square miles, if it were asked for.
– Which would be of no use.
– We desire to obtain a larger area, but I contend that we have no power to take it from New South Wales. I do .not wish, however, to recommit the Bill, even for the. purpose of dealing with the word “ shall,” in clause 3, because no doubt the question of its use will be threshed out in another place, which, I think, will be wise enough to make the alteration I have suggested. I do not con- ‘sider it advisable that the Government should approach New South Wales in a stand-and-deliver attitude, because, if they do, the chances will be that they will set up their backs and trouble will ensue.
– So far I have not had an opportunity to express my opinions on this Bill. It is somewhat strange, after having learnt that the Bill had been almost finally dealt with, to hear the whole question being re-discussed by various honorable senators. Before I was elected to the Senate, I was strongly of opinion that it was exceedingly desirable, in the interests of the Commonwealth, that the site of the Federal Capital should be fixed, and the Seat of Government established there with as little delay as possible; first, because I believed that it was the duty of the Parliament and the Government to give effect to the obligation imposed on them by the Constitution ; and, secondly, because I recognised that it would be good ‘for the Commonwealth to have the home of the National Government entirely removed from the provincial influences which so largely prevail in the metropolis of every State. That opinion has been very strongly confirmed by the knowledge I have gained since I became a member of the Senate. I am still of opinion that the sooner this question is finally settled the better it will be for the Parliament, the Government, and the Commonwealth. I am prepared to go a very long way in the direc’tion of sinking my individual opinions as to what is necessary and desirable in connexion with the Federal Capital, in order to get the question settled as soon as possible. I approach the question, not from the point of view of New South Wales or Queensland, but rather from the point of view of Australia, because, so far as convenience is concerned, it would really not matter to the State I represent whether the
Capital was fixed in Sydney or in Melbourne, or in Southern Monaro, or any other part of New South Wales. For all practical purposes any one of those places would be as near to the larger portion of Queensland as the others would be. Therefore, the representatives of Queensland can discuss the question without any bias. A little while ago I visited Southern Monaro, and the district impressed me most favorably. I believe that if there is one portion of New South Wales more than another which is eminently fitted to make a suitable site for a Federal Capital, it is Southern Monaro. I shall speak as candidly as I can, so that Senator Millen, and the other senators from New South Wales, may know what are my opinions on this matter. He has said that in the Senate there is a sort of unexpressed desire that the Bill should embrace a very large territory, and include the port of Eden. Senator Neild went further when he said that the Senate had a desire to grab, in fact to steal, a greater territory than was necessary from New South Wales. Even if it had, my opinion is that it would be a very good thing for New South Wales, although it might not be a very good thing for Sydney, which, in the minds of a great many persons, seems to be New South Wales.
– Australia !
– And which, in the minds of some persons, seems to be Australia. I desire that the Commonwealth shall own a port.
– And a large number of honorable senators agree with the honorable senator.
– I say so straight out. Senator Millen. - But the Bill does not. Senator Trenwith. - I think we have all said so straight out.
– It would not do the slightest injury to New South Wales if the Commonwealth had its own port. It might perhaps do a little injury to Sydney, but it would do no injury to New South Wales. On the contrary, it would be an enormous advantage to New South Wales. I consider that if Southern Monaro is connected by railway with the port of Eden, and properly opened up, it will be capable? - quite apart from the Federal Capital being fixed there - of supporting a population of 250.000 persons. Not only will that be a good thing for the Commonwealth generally, but it will be an enormously good thing for New South Wales as a whole, although, as I have said, it may do a little intermittent injury to Sydney. It is ridiculous to suppose that the Senate should look on this question from the mora] point of view. Now, with regard to the area, I am of opinion that an area of 900 square miles is not quite sufficient, because, as Senator Smith pointed out a little while ago, it is absolutely essential for the Federal Capital to have control over the catchment area for its water supply. One hundred square miles would be altogether insufficient to cover even the catchment area required for a water supply. According to a report laid upon the table this afternoon, if the synopsis of it which I have read be correct, the catchment area of the water supply for Delegate covers 1,600 square miles. A large portion of that area, as we know, is precipitous, mountainous country, of very little use for any other purpose, and New South Wales would not lose a great deal if she gave us a large area in that district. Senator Millen and his colleagues representing New South Wales will admit that it is essential that the Federal Capital should have control of its water supply. An idea seems to predominate in many minds that the Constitution specifies an area of 100 square miles. It does nothing of the kind ; it specifies an area of not less than 100 square miles, and it may be as many more as the Parliament thinks necessary.
– Not this Parliament.
– - Yes; this Parliament, because this 1 is the only Parliament that is entitled to legislate under the Commonwealth Constitution.
– It is easy to say “ Yes,” but it will not be so easy to prove it.
– Could we take the whole of New South Wales, outside the 100 miles limit, from Sydney?
– No; there are certain reasonable limits beyond which reasonable men would not be inclined to go, and beyond which, I think, we should not be allowed to go.
– What are those reasonable limits - the absolute requirements of the city?
– Yes; the requirements of the city. It is agreed that control pf the catchment area of the water supply is essential, and 100 square miles would be a ridiculous area for that purpose. The Constitution does not specify any particular area; it specifies “not less than 100 square miles,” and that may be as much more as is required.
– Not merely for the requirements of the city, but for the requirements of the Federal Territory, which includes all the purposes of Government.
– One hundred square miles would not give us even decent park room. With reference to the suggestion of “ grab,” I would point out that it is not this Parliament that has shown any desire to grab. When New South Wales, in the first instance, presented her pistol at the rest of Australia, and denied us any Federal Constitution until she had her demands conceded in respect to the location of the Federal Capital, she showed a desire to grab. When we propose to grant that demand she meets us with other’ demands, and says that the Capital shall be located in a limited area, in order that the results of the wealthproducing power created by the Federal Capital may be obtained by her. It is the New South Wales people who are continually desiring to grab. We propose to create the wealth, and they wish to grab it. I should have no objection whatever to the recommittal of the Bill in order that we might assert in it our conviction of the absolute necessity of acquiring even an increased area for the Federal Capital, because I am convinced that 900 square miles is not sufficient. But rather than have the question delayed I should agree to 500 square miles, and to almost anything, in order to prevent the letter and spirit of the Constitution being nullified, as some honorable senators would appear to desire. If honorable senators from New South Wales expect the help and sympathy of honorable senators from the other States, they should show a more magnanimous and a more generous spirit. We are asking them for nothing which we do not ourselves give. The Southern Monaro land proposed to be taken is almost useless to New South Wales at the present time. Some of the finest agricultural land it is possible to conceive of, endowed with’ a splendid climate, is to be found in the Monaro district, and it is being used merely as sheep runs. The country is held in enormous areas, is without railway communication, and is denied facilities for communication with its natural seaport, owing to the jealousy of Sydney and her desire to draw all the trade of the State to herself.
– Where would the trade go if there were a railway from Monaro to Eden?
– It would go to Eden.
– Where then?
– Very likely to Sydney.
– A good deal would go to Europe, as it does now.
– A good deal would go to Tasmania.
– I consider the Sydney policy in this respect short-sighted, as weld as selfish. The trade of the district, if it had an outlet at Eden, might go to all parts of the world, and that would be an exceedingly good thing for New South Wales. The land in the district is at present useless to New South Wales for purposes of settlement; but if it were properly opened up and utilized, as it might be, and as I am hopeful it will be in the near future, when the Federal Capital is established there, it would accommodate an exceedingly large population, and that would be a good thing for New South Wales as well as for Australia. The climate of the district is exceptionally good, and is suited to the breeding and rearing of a hardy white race of people, who might com- pare with the people of the old country in physical strength and endurance. If the people of New South Wales are desirous of doing a fair thing by the Commonwealth, they will .not approach this question in any carping spirit, and will not grudge us the little bit of territory we ask. After all, what is an area of 900 square miles within an enormous territory like New South Wales? It is a mere nothing. New South Wales has magnificent stretches of country, in which an area of 900 square miles would be lost ; yet she grudges us that area, and says that we must have the Capital where she chooses - because that is the attitude taken up by many New South Wales people, and by sections of the press in that State. They contend that New South Wales has the right to choose the Capital, and that it should be chosen from the, New South Wales, and not from the Australian, point of view. That I totally deny. I believe that it should be chosen by this Parliament absolutely from an Australian point of view, and without any undue consideration of the claims of New South Wales. That State, in common with the other States of the Commonwealth, is entitled to a fair deal, and to no more. Giving her that fair deal, we should do what is best for Australia, even though what we do should not be pleasing to a section of the people or the representatives of New South Wales. If we do this we shall do good to New South Wales,- in spite of herself, as well as do good to the rest of Australia. I shall vote against the recommittal of the Bill, because I believe thai, after a full discussion, it now expresses the opinion of the Senate, and I am prepared to stand by that opinion.
– I have listened to all the speeches delivered in support of the recommittal of the Bill,- and in my opinion not one solid argument has been submitted for delaying the passing of this measure any longer. It was rather outside Senator Dobson’s intention that we should again discuss the area, as his only object was to provide that what we proposed to do should be done with the consent of New South Wales. Senator Millen and Senator Neild have put forward the idea that the area set down in the Bill is excessive. With respect to obtaining the consent of New South Wales, I hope that its consent will be given to the acquisition by the Commonwealth of a very substantial area apart from anything we may do or say. We have no right to delegate our powers to New South Wales or to any other State. What, it is our duty to do, we should do on our own responsibility. This is our work, and’ we should require no help in its performance. With respect to the area, I should like to emphasize what has been already said as to the absurdity of suggesting an area of not less than ‘1.00 square miles. If we inserted that in the Bill, after having inserted “ not less than 900 square miles,” it would be an indication to the Government of New South Wales that we believed we had made a mistake in asking for 900 square miles, and that we now thought that about 100 square miles would be quite sufficient. I have already referred to what has been done in connexion with other large cities - Sydney and Melbourne, for instance, although they are not by any means the largest cities in’ the world.’ We must recollect that we are now passing a measure intended to have effect for generations .to come, and we can have no conception of what the development of the Capital of Australia will be. I have pointed out to honorable senators that the suburbs of Melbourne extend for seventeen miles to the east, west, north, and south. That gives a diameter of about thirty-five miles, and an area of about 1,200 square miles. That shows the absurdity of talking of 100 square miles. I ask honorable senators to view the question seriously. Within twenty miles of Sydney there are reserves for pleasure and recreation to the extent of 35.000 acres in one instance, and 36,000 acres in another. Then, almost in the city itself, there are reserves of 6,000 or 7,000 acres, and Others of 3,000 acres. I believe that an aggregate area of almost 100 square miles has been reserved for these purposes within twenty miles of Sydney. How absurd then is the idea that the Federal Territory should have an area of only about 100 square miles. The suggestion is so absurd that we should not waste time in talking about it. Whilst speaking in this way, I have no desire that honorable senators from New South Wales should imagine that I think they have no right to put their ideas forward. They have the same rights as have honorable senators from the other States. If they consider that they have been acting in the interests of New South Wales, in conducting the discussion of this Bill in the manner in which they have conducted it, they are justified in the course they have taken. With Senator Trenwith, I agree that the time taken up in discussing so important a measure as this is, has been very reasonable indeed. I have just a word to say to Senator Playford with respect to the use of the word “ shall.” That word has been used because it is the word used in the Constitution. But the area of 900 square miles was .adopted because it was thought that it was much more reasonable than an area of 100 square miles. We have had this Bill before us for a considerable time, and if Senator Playford had given the matter sufficient attention he would have discovered long ago that the word “ shall “ was being used. I mentioned the matter to some honorable senators before the Bill passed its second reading, but as they agreed that “ shall “ is the proper word to use in an Act of Parliament, no proposal was made to alter it. But whether the word used should be “ shall “ or “ should,” Senator Neild is making a mistake when .he speaks of holding a pistol to anybody’s head and demanding a large area of his territory. The honorable senator has asked us to consider what a private individual would do supposing someone demanded from him 10 or 20 acres of his property for any purpose. Every honorable senator present, who carries his memory back to the days of land speculation in Australia., will remember many cases of this kind : Syndi- cates and companies bought areas of 300 acres, 400 acres, or 500 acres in the suburbs of different cities, and I have two or three instances in my mind at the present moment where, from an area of 100 acres, they reserved 10 acres for a cricket ground, a football ground, or a recreation ground of some description. Why was that done?
– To gull the public and boom their transaction.
– Certainly, and would it not be booming New South Wales if the people of that State were generous enough to do the same thing in this instance ? Ten acres out of 100 acres is the tenth of the whole. But while we do npt ask for onetenth of New South Wales, we believe that it would be to the advantage of that State’ if she were so generous as to give the Commonwealth a sufficient area for development, because trade will spring up in the locality selected, which will be of very great benefit to the (railways’ already existing in New South Wales.
– She has not much room for the exercise of generosity when honorable senators use the word “ shall.”
– If the Federal Capital were established in the locality indicated in this Bill, and the territory developed as it ought to be, there would be thousands of passengers travelling from Sydney and Melbourne, and from other parts of the Commonwealth, to the Federal Capital. We have only to go to other parts of the world to see what would take place. Senator Fraser sniggers because such a thing is mentioned.
– That is a very elegant word.
– I cannot help it ; the sound was just as elegant. The honorable senator has only to go to Canada to see the numbers of persons who travel to Ottawa, and to the United States to see the number of persons who travel to Washington. The result of the establishment of the Federal Capital would, undoubtedly, be that New South Wales would benefit to a very considerable extent, and I have not the least doubt that, ultimately, Victoria would benefit also. I hope that honorable senators will realize that all these statements are , bound to become facts in the future, and will do all they possibly can to have this Bill passed. To refer it back to the Committee in order to insert a provision requiring the consent of New Sout’h Wales, would only be to delay it for two or three days more.
It is necessary that the Bill should pass this stage to-day, in order that we may be able to take the third reading to-morrow. The action of the Senate last week made it necessary for us to be here to-day. I do not intend to again ask for the suspension of the Standing Orders to pass the third reading of the Bill, and that stage will, therefore, come on to-morrow- I, therefore, hope that honorable senators will be satisfied with the Bill as it is, that in the other branch of the Legislature it will be dealt with from a broad and liberal stand-point, and that it will come back to the Senate in such a form that we shall be able to pass it unanimously.
Amendment negatived.
Original question resolved in the affirmative.’
Report adopted.
page 2097
– I move -
That the Bill be now read a second time.
In submitting this motion, I have pleasure in pointing out, as I did in moving the reading of the last Bill with’ which we dealt, that it involves entirely a non-party question. I am sure that there is not an honorable senator present who has not an earnest desire to see the business, the trade, and the manufactures of the Commonwealth carried on in accordance with principles of honesty. But the experience of the past and the necessities of our national life have made absolutely imperative the introduction of Bills such as that I am about to explain. Honorable senators will know, not only from what they have read from time to time in the newspapers, but from their own personal experiences, in Australia, as well as in other parts of the world, that trade and commerce are not a’, all times carried on in accordance with the most honest principles. We have heard how food stuffs, such as jams, preserves, sauces, cordials, and other goods of that description are tampered with or adulterated, either in the process of manufacture or during their course from the manufacturer 10 the consumer. There is probably not an honorable senator who has not heard of apple and other jams being manufactured largely from pumpkins, turnips, and other descriptions of vegetable matter. It must be acknowledged that it is time something was done to protect the public. Honorable senators will also be aware that in connexion with the clothing of the people, frauds of every description have been perpetrated. There are instances where socalled linen goods have been entirely composed of cotton. They have been palmed off on an unsuspecting people as being nothing but linen. In other instances, articles labeled “ linen “ may have contained 10 per cent, of linen and 90 per cent, of some other material. We have also heard of goods supposed to be woollen fabrics, which contained more than 50 per cent, of cotton. It is time that somethingwas done to protect the people against frauds of this description. There is a threefold object in such a measure. Our first duty is to protect the consuming public. That ought to be the first duty of every representative of the people, no matter whether he is a member of the Federal or of a State Parliament. It is almost equally our duty to protect the honest manufacturer and the honest trader. Our third duty is to do all we possibly can to expose and punish those who are guilty of fraudulent practices, no matter in what department of life they happen to be perpetrated. I have mentioned the adulteration of foods, and fabrics used for clothing. I could dwell for a considerable time on the possibilities, and even the actual facts, in relation to both those classes of commodities. But I desire, as rapidly as possible, to get over the different points to which I have to refer, so as to give honorable senators an opportunity of expressing their opinions. The next class of goods to which I desire to call attention in connexion with fraudulent practices is jewellery. In Australia, to some extent, the people are better off than are the people of any other part of the world. The result is that they indulge to a greater extent in ornamentation in the form of jewellery. It is our duty to protect them as far as we can, even in that line of business. I will .point out some of the frauds which are practised in connexion with the jewellery trade, and which have come to my knowledge. I am certain that honorable senators will have many opportunities before the Bill comes up again for discussion to verify my statements, and even to acquire a greater amount of information. Of course, when a person makes a purchase from a jeweller’ he expects to get a genuine article, and in nine cases out of ten I believe that when a person goes to a first-class firm in Melbourne, Sydney, or any other large city, he gets the article for which he pays, and probably receives his money’s worth. But it is the one case out of the ten in which the dishonest practice takes place, and which makes it almost necessary for the honest man to become a rogue if he intends to pay his way in the world, and to live on his business. It is in this sense that we ought to do something for the protection of the honest trader, as well as of the public. The jewellery business in Australia is not at present, perhaps, very important in respect to a Bill of this character, because the population is not yet large enough to justify the establishment of very large manufacturing houses. Consequently, I have secured some returns from different sources showing the importations of jewellery into the Commonwealth. The returns differ somewhat, but lean fur’nish a very fair explanation of the difference. In 1.902 there was imported into Australia, according to one authority, £483,000 worth of jewellery. According to inform’ation derived from the Customs Department, there was imported into Australia in the same year ,£250,785 worth of jewellery. In 1.903. £325,227 worth of jewellery was imported. The difference between the £483,000 worth of jewellery, which is the estimate of the Victorian Statistical Office, and the £250,785 worth, which is the estimate furnished by the Customs Department, is explained as follows : - In :the [Victorian calculations, clocks and watches are included with jewellery. In the Customs estimate, jewellery is valued apart from clocks and watches. Therefore, honorable senators will observe that there is no real inconsistency in the figures. But both sets of statistics show the importance that must be attached to the importation of articles of this description. Especially must that be so when we remember that if the Customs valuation is fixed at ,£250,000, the value of the actual quantity of jewellery imported must be greatly in excess of that amount; because I have never known the importer - nor do I think has any one else ever known him - who would pay more duty than he could possibly help paying. Therefore, the probability is that jewellery to a much greater value than £250,000 was actually introduced to Australia in the year mentioned.
– Is the honorable senator charging the importers with smuggling ?
– I am charging some of them with valuing the articles which they introduce at much less than the actual value.
– Some have been guilty of far more serious offences than smuggling. They have marked goods as 18 carat gold when there was not a particle of gold in them.
– I am not going to discuss a question that concerns the Customs Department. We have Customs officers who, I hope, will do their duty in that direction. But I intend to point out what is sometimes done in the jewellery trade. Of course, these practices are not pursued by honest people, but honest people have to compete with others who are guilty of them. I do not wear a ring myself, and cannot give a personal illustration, but a great many gentlemen wear rings in which stones are set. The portion of the ring in which the stone is set is much more massive than the remainder of the ring. I am informed on the most reliable authority that the practice is for the manufacturers to send the rings in the rough to be marked. The British hall-mark, in which every Britisher shows such faith, is imprinted upon the smaller portion of the ring. It goes back to the manufacturer, and the custom has been, in some instances, to cut down the thick portion of the ring where the stone is fixed and replace it with an inferior metal. If the hall-mark indicated 18 carat gold, the probability is that the thicker portion of the. ring - which constituted perhaps more than two-thirds of its value - would be cut out and replaced by a metal that would be, perhaps, 9 or 12 carat gold. It has been proved that these things have occurred, yet we have no power, so far as the Commonwealth is concerned, to deal with people who are guilty of such practices. I have here a small piece of metal which in gold is supposed to be the foundation portion of a brooch. These pieces of metal are stamped out in England, and sent to one of the three places established for hall-marking gold. They are hall-marked as being, say, 18 carat gold. An unprincipled manufacturer or jeweller gets these pieces of metal and replaces the broad portion - what is called the gallery of the brooch - by an inferior metal. Though the ‘brooch is stamped as being 18 carat gold, the greater part of it is very likely made out of metal which is only 9, 12, or 15 carat gold. Underneath some brooches there may be a series of small globes. These also may be made out of inferior metal. Sometimes these globes are made hollow. Instead of being solid gold, which the purchaser imagines them to be when he buys the brooch, they are filled with inferior stuff - it may be with a metal as cheap as lead, or even with cement. It is to be borne in mind that a brooch of this kind is sold by weight, and it is marked with the British hall-mark as 18-carat gold. I think that when frauds of this description come under the notice of the authorities they ought to have power to deal with those who practise them. There is another practice in connexion with jewellery which is very common. I have here a smaller brooch. It is gold. The back of this brooch is made in a hollow form, and the front is fastened on to it. There is a space nearly one-eighth of an inch wide between the face and the back of the article. In many instances that space is filled in with inferior metal, though the brooch is sold by weight as solid gold of whatever quality is indicated on the back” of the article. These are some of the swindles to which the public are subjected, and to which 1 should like to call the particular attention of Senators Smith and Keating, who are young men, and- may be in the habit of buying articles of this description for presentation to their lady friends. I think I have now given sufficient reasons why we should do something in the way of passing a Fraudulent Trade Marks Bill.
– Why not deal with foods, some of which really poison the people who purchase them?
– Senator Fraser was engaged writing when I was informing the Senate about apple jam being made from pumpkins and turnips, I might also have referred to brands of cocoa, the greater portion of which consists of starch or some cheaper material.
– Does Senator McGregor believe that?
– I know it to be a fact.
– Then the honorable senator will believe anything.
– I have never gone to the extent of believing that sugar is sanded, but I know that inferior material has been mixed with tea, and there have been many evidences of such practices in Victoria itself.
– Nonsense ! Senator McGREGOR. - It is not nonsense.
– The Customs Act covers such cases in Victoria.
– We know that the public are very often swindled by the sale of tinned goods which are not of the weight described. If customers would take the trouble to weigh- their purchases, they would find that in some cases, instead of a pound they have received only 14 oz.
– Nonsense !
– We have had evidence in Melbourne that butter exported from Victoria to Western Australia weighed only 14J oz., instead of 1 lb., as described on the tins. These are everyday matters, proof of which can readily be found in the newspapers.
– And has it not also been proved that butter agents deliberately remove brands from boxes?
– To my personal knowledge, in other places in the world where butter was supposed to be cleansed, it has been mixed with inferior kinds of fat before being sold. It is in evidence in Victoria that very often brands are removed from butter-boxes, and’ other brands substituted. I am not, however, going to dwell on all the trickery that has recently been exposed in Victoria and other parts of Australia.
– Tell us something about South- Australia for a change.
– I do not need to say anything about South Australia. I do not pretend that there are not a few dishonest people in that State, but there are so many dishonest people in other parts of Australia that the South Australian examples have scarcely a chance to live. No honorable senator will, I think, deny that a Bill of this kind is necessary. I do not say that all the people in Victoria, New South Wales, or any other State of the Commonwealth are dishonest. I have already indicated that probably only one trader in ten carries on these dishonest practices. But these practices are to the detriment of the general public and to the injury of the honest traders. In the interests of both the public and the honest traders we ought to do all we possibly can to alter the present conditions. I should like now, as briefly as possible, to trace the history of fraudulent trade marks legislation in Great Britain. A large number of people do not believe in legislation of any description, unless it follows that of the “ grand old motherland,” and I believe that in many directions the United Kingdom has set a noble example to the Empire. I believe that there are a number of very honorable and estimable people in the United Kingdom; but that country is, nevertheless, afflicted with the usual proportion of rogues and vagabonds. In the jewellery trade, for instance, legislation and the customs of the business have been developing there for the last 600 or 700 years, and have not arrived at perfection. The first Fraudulent Trade Marks Act in Great Britain was passed in 1862, after a very exhaustive inquiry by a Select Committee. That measure, however, was very imperfect, possibly owing to the fact that many of those who were promoters of it were themselves engaged in commerce. Probably one or two of those to whom I refer purposely left loopholes in the provisions, although the majority may have had the most honest intentions. Be that as it may, the measure then passed was made most imperfect by its opponents ; and here I may express the hope that no honorable senator will be found desirous of making the Bill less perfect than it is. The measure is of a very technical character, and for this reason I hope to have the assistance of honorable senators who are members of the legal profession. I knowthat those honorable senators are able to give assistance, and I am sure they will be willing to do so. The British Act, passed in 1862, was so defective and impossible of administration, that the subject was referred to another Select Committee in 1887, on the recommendation of which certain amendments were made, dealing particularly with importations. Those amendments ought to be considered with some degree of seriousness by the people of Australia. It was in that year that a Conference was held in Great Britain on this same subject, and amongst those present were Mr. Deakin, Sir John Forrest, Sir John Downer, and Sir Samuel Griffith, the present Chief Justice of the Federal High Court. That Conference was presided over by Sir Henry Holland, who. was then Colonial Secretary ; and the general desire seemed to be that the legislation recommended should be made uniform throughout the Empire. Some of the then Australian Colonies took steps to model their legislation on that of Great Britain, and the late Mr. James Service, of Victoria, whose knowledge of the trading habits of the people of Australia may be admitted, strongly advocated uniformity. The authority of Mr. Service was recognised at the Conference, and I think it will be recognised here.
– An Act of the kind was passed in Victoria.
– But the Act of 1887 was defective, and it was found necessary to further amend it in 1891, and also in 1894. In these amendments a mistake was made which I hope will not be made in regard to the measure before us. When the British Act was passed, there was no Department which could take the responsibility of its complete administration, and the last amendment made was for the purpose of handing the control’ of certain matters over to the Department of Agriculture. Prior to that time the administration of the Act had been supposed to be with the Board of Trade and Customs Department, but it was not effective, and frauds continued. When we consider that it has taken such a length of time to bring legislation on this matter up to its present state in Great Britain, and when we realize that there are still defects in the legislation, we ought to be careful to avoid the mistakes of the past. The object of the Government in introducing the measure is to bring into Australian law all the best that is in the British law. Of course, there are critics who point out the defects in the measure before us. These defects, however, are matters for consideration when we arrive at the Committee stage; and if those critics are not then in a position to suggest improvements, or point out weaknesses, their duty is to allow the Bill to pass as rapidly as possible. It will be remembered that a similar measure was introduced earlier this session under the title of the Merchandise Marks Bill, but it has been found necessary to make certain alterations which are regarded as improvements. Some clauses which apTpeared in the previous measure are now altogether omitted.
– Are the Government going to introduce a Merchandise Marks Bill ?
– The Trade Marks Bill and this Bill are very different measures. This Bill is for the purpose of protecting the public, while the Trade Marks Bill is for the purpose of protecting those who register . trade marks.
The Bill before us is divided into five parts. Clauses 1 to 7 inclusive are introductory, but clause 3, which is the definition clause, has legislative effect throughout. Clauses 8 to 1 1 deal with the offences under the Bill, and clauses 12 to 16 with the importation of fraudulently marked goods. Clauses 17 to 3:1 provide for legal procedure under the Bill, and in dealing with this part of the measure, I shall be glad of the assistance of honorable senators who are members of the legal profession. The last part of the Bill deals with miscellaneous matters, and includes a clause empowering regulations to be made for carrying the measure into effect. I have no desire to go into the details of this Bill. In introducing a measure of the kind, or in discussing it on the motion for the second reading, it is not necessary to deal with the details of every clause ; that is a matter for Committee. The probability is that to-morrow we shall adjourn for a. week or two, and, before the Senate again meets, the Bill, together with any remarks which may be made on its provisions to-day, will be circulated, so that honorable senators may charge their minds with information to be used in the interests of the people of Australia.
– I think we all agree with the opinion expressed by the Vice-President of the Executive Council, as to the desirability of protecting the public, and also the honest trader. I think, however, that Senator McGregor has rather exaggerated the scope of this measure, which is not one to prevent the adulteration of food. That is a matter we should expect to find provided for in what is ordinarily known as a Foods and Drugs Bill, a measure which it would probably not be within the competency of this Parliament to pass. The object of the measure before us is of a much more modest character, being simply to provide that goods sold shall correspond with the description given on the goods or packages.
– We can amend the Bill to compel traders to correctly describe all goods.
– That is questionable. I doubt whether this Parliament could pass a law compelling traders to place any particular marks on goods; at any rate, the Bill does not attempt to do so. Without questioning the accuracy of the historical retrospect given by the Vice-President of the Executive Council, I am of opinion that the earlier British measure to which he referred, was a Trade Marks Act, and not a Merchandise Marks Act. The British Merchandise Marks Act of 1887 was the outcome of an International Convention, which was held for the purpose of inducing all civilized countries to agree to a uniform measure to insure that articles sold should correspond with any marks placed upon them. That measure has been adopted by some other countries.
– It was adopted in Victoria.
– I understand that Victoria has an Act - I presume much on the lines of the Act of 1887.
– That is so.
– A Bill was introduced in Queensland in 1892, and it passed its second reading; but for some reason it was not carried any further. I was in Parliament at the time, and, speaking from the point of view of a self-governing Colony, I said I thought it was very desirable that its provisions should be extended to the marking of produce that was exported from that Colony; and also to the marking of furniture that was made by the Chinese If that idea had been adopted in Queensland and other Colonies, probably the furniture trade in Australia would not have been in the condition in which it is todayIt would have been- well within the competence of a self-governing Colony to make such provisions. I am not arguing that such an extension could be made of the measure before the Senate ; but, seeing that the Act of 1887 was the outcome of that International Convention, I think it must be recognised that it is desirable, if it is adopted by other countries, that it should be adopted as nearly as possible in its own words. When I spoke on the subject in Queensland, I pointed out that the people of that Colony, and the people of other Colonies in Australia, were all admittedly deriving great benefit- from the fact of that Act having been passed in Great Britain. We are getting a benefit in Australia by being protected, in consequence of the law requiring that in Great Britain articles shall correspond with the marks that are placed on them. The advantage that we derive from the operation of that Act depends in a very large measure on the extent to which it is adopted by many countries, Where alterations have been made, even in the wording of this measure, the onus is thrown on the Government, of giving us a reason for them. When they came into office they found ready to their hand a Merchandise Marks Bill, a very carefullyprepared, and I. think, well-drafted measure; and although I am not in a position to say that the alterations which have been made in the language may not be improvements, still I think it is ‘for them in each case to show us that they are improvements. . The onus does not rest on us, because it would be very difficult sometimes, in discussing a measure in Committee, to show exactly what alterations of the law would be effected by a change in the language employed. I do not know, for instance, the reason why the title has been altered to the Fraudulent Trade Marks Bill. If we are adopting the legislation of Great Britain, we have to bear in mind that we are not dealing with a very old Statute in the English language of the time of James or Elizabeth, which it is necessary to translate into a language “ understanded of the common people.” We have the Act of 1887 as the basis, and we must admit that in that year they knew something about Bill drafting in England. So where an alteration has been made, even in the title, the Vice-President of the Executive Council should be prepared at the proper time, to show us what is the advantage of the change.
– I thought it was self-evident - that it is a more appropriate title.
– I think not. The object of the second division, as the honorable senator told us, is to protect the consuming public, and the honest manufacturer. Quite right. And the object of the third division is, he said, to expose fraud. The way in which we do protect the consuming public and the honest trader is by exposing fraud. But I think that the fraud is not the circumstance that is most apparent in a Bill of this nature. What we desire to do is to protect the people. We need not anticipate that there will be fraud. If there is fraud, let it be punished. But I do not think that the object of the Bill is so entirely to punish people that we need put the word “ fraud “ into its title. Of course, there is no reason why it should not be there. I do not for a moment say that it is incorrect. I only say that the honorable senator, having made this change in the Bill, should be prepared to show why that title is better than “ Mer chandise Marks Act,” which is adopted in Great Britain, and has been copied in other countries.
– Amongst other things, the Bill deals specially with the importation of fraudulently-marked goods.
– It does. In nearly every Bill we state what shall be an offence, and what shall be the punishment for the offence; but we do not necessarily state the offence or the punishment in the title. There is one variaion. from the English Act of 1887 which was made in the Bill of the late Government, and which has been adopted in this Bill. It is an alteration of a very important character, although it is the insertion of only one word.
– “ Quality.”
– Yes. It was found in working the English Act that, although it was useful in insuring that the quantity of goods in a package should correspond with the quantity marked thereon, there was nothing to insure that the quality would be the same, especially in the case of jewellery. It happened that goods which were marked as being of a certain quality were very often of a quality very much inferior, and by inserting the word “ quality “ in the trade description in the interpretation clause we are able to insure that the quality shall correspond with the mark on the article.
– There is a special case on that subject.
– There is; but it is not necessary for me to refer to that now. Sena’tor McGregor told us about the fraud that is worked in connexion with jewellery by having a certain part called the carriage, I think, marked with the quality, and then having built on ‘that carriage a brooch of inferior quality. I was surprised that he did not tell us that he intended in this measure to do something to prevent that class of fraud.
– That is what we wish to prevent.
– For that purpose I thought that the honorable gentleman would want a clause which would state that when the quality was marked on one part of an article it should denote the supposed .quality of the whole of the article. But what do I find? I find that, not only has he no provision of that kind, but he has struck out of the Bill of the late Government clause 10 ‘that corresponds with section 7 of the English Act, which actually provides against fraud of a very similar character. ‘
– That is only in connexion with watches.
– It is in connexion with watches.
– That is provided for in the general scope of the Bill.
– Why was it inserted as a separate section in the Imperial Act?
– The honorable gentleman will, perhaps, tell us the reason of its omission from this Bill. In the English Act there is this special section to provide against frauds of that kind, because the practice has been to have the case ‘ of the watch stamped with the name of the country where it was made, and then to put in works which might or might not be of an inferior character, but which were probably made in a different country. Unless a provision of that kind is inserted in the Bill, traders will still; I apprehend, he able to stamp the watch case, and then put in works of an inferior character. Senator McGregor spoke of the , Bill being shorter than the one introduced by the late Government. I find that five clauses, each of them of value, I think, have been omitted; but I cannot find anything to take the place of them. Of course, I shall be glad to be shown, if it can be shown, that the absence of those clauses is compensated’ for by some alterations elsewhere. I have compared the two Bills very carefully, but I have not been able to find in this Bill anything which would make up for the omission of those five clauses. With regard to the alterations, they may be only in language. They may not affect the sense, or they may be alterations which really make a substantial change in the law. I shall mention one case, just by way of illustration, and for the consideration of Senator McGregor. Clauses 9 and 10 of this Bill - that is, clauses 12 and 13 of the Bill, of the late Government- are reenactments of sub-sections 1. and 11. of section 2 of the Act of 1887. Honorable senators will notice that under the first paragraph of the clause an offence is committed unless the person accused shows that he acted without intent to defraud. That is to say, intent to defraud is a necessary ingredient of the offence. If that is shown not to exist, then no offence has been committed. Then, under the next paragraph of the clause, the position is different. There the intent to defraud is not a necessary ingredient of the offence, and the offence may be committed where there is no intent to defraud. I remind honorable senators that I am quoting from the Bill introduced by the late Government. Under clause 13 of that Bill the accused person would have been held to be guilty, unless he proved -
– I think those are the words of the English Act.
– They are exactly the words of the English Act, and they appeared in the Bill introduced by the late Government. In the Bill now before us those three paragraphs are struck out, and the paragraphs to which I have referred are substituted. At first blush it might appear that this was simply making the two clauses uniform, and it might also appear, as I have just said, that the defence that the accused person had acted without intent to defraud was equivalent to the defence stated in the English Act. However, it is not so, and I propose to illustrate that by reference to an actual case, from which I think honorable senators will be able at once to see the difference. An aerated water manufacturer had his bottles stamped with his name and address, as he had a right to “do. A rival manufacturer of aerated - waters got those bottles, filled them up with his own stuff, put his own label on top, and sent them out in that way. . A complaint was laid against him under the sub-section to which I have referred for having sold his goods with a false trade description on them. The magistrate found that he had acted without intent to defraud, but that he had acted knowingly - that is to say, that he knew that he had used the other man’s bottles - and he held that no offence had been committed, because there was no attempt to defraud. On appeal the Lord Chief Justice of England said “ No.” That was a defence under the first sub-section, but not under the second sub-section, because the intent to defraud under the second sub-section is not a necessary ingredient of the offence, and for this reason it was not only the person to whom the goods had been sold, called the purchaser, who required to be protected, but also the honest trader. The VicePresident of the Executive Council has told us that he proposes to protect the honest trader ; but he will have no protection whatever if, in a case like that which I have quoted, it could be held that no offence had been committed. The Lord Chief Justice of England held in the case to which I have referred that, although there .was no intent to defraud, still, as this man had been selling the goods knowingly in another man’s bottles, he had committed an offence under the second sub-section of the English Act.
– It was held in that case, I believe, to be an offence against what is paragraph b of clause 8 in this Bill.
– Under the English Act it is not sufficient for the accused person to show that he has acted without intent to defraud ; he has also to show that he has acted innocently.
– Under this Bill he would have to show that he used those bottles with the other man’s consent.
– Oh no. Under the
English Act it is not a defence for him to say that he had no intent to defraud - that is to say, to defraud the purchaser - but the Act also . provides that he must not use bottles containing the distinctive trade mark of another man. If he does, though he may do it without intent to defraud, he does it knowingly, and, therefore, does not act innocently. That is the difference. In this Bill, that defence has been struck out, and the other defence substituted - that he acted without intent to defraud.
– Notwithstanding that, there would be a conviction under this Bill in such a case, because it is covered by paragraph b of clause 8 - “ falsely applies a trade mark to any goods.”
– No; it would not come under that at all, because he would not apply a false trade mark. He would be simply using bottles upon which there was another man’s trade mark; he would not apply it himself.
– According to the Bill, the trade mark is attached to or woven into something. It would apply to the cover, and the cover in the case referred to by the honorable and learned senator would be the bottle, and the man would, therefore, be liable.
– These two paragraphs in the Bill before us are contained in one sub-section of the English Act.
– I think the honorable and learned senator is making a mistake.
– No. The first mentions it as an offence to falsely apply a. trade mark, and the next says -
Whoever sells or exposes for sale or has in his possession for sale or for any purpose of trade or manufacture any goods to which any forgery of a registered trade mark or any false trade description is applied or to which any trade mark is falsely applied shall be guilty of an offence against this Act.
In the case to which I have referred, the man was accused of having in his possession for sale articles wilh another manufacturer’s trade mark on them.
– My memory of the case is not the same as that of the honorable and learned senator.
– I can give honorable senators the reference. It was the case of Webb v. Burgess, 24 Q.B., Division 162. I have shown honorable senators what the Lord Chief Justice of England held to be the law, and I point out to the VicePresident of the Executive Council that if the Bill introduced by the late Government be altered in the way here proposed, there could be no conviction in a case such as that . to which I have referred. The decision of the magistrate would have been upheld, and the person accused would have escaped any punishment for having knowingly used the other man’s bottles. If it were desired to make that alteration in the law, I could understand it, but if the Government wish that, in this respect the law shall be the same as it is in England, I point out that it will be necessary in Committee to restore the clause to the form in which it appeared in the Bill introduced by the late Government. I may not have gone very deeply into the matter, but I do not think it is necessary to refer at length to any of the other alterations of language proposed in this Bill. I am not prepared at the present time to say with regard to any of the other alterations, that they would lead to undesirable consequences. I repeat that, in my opinion, the onus is on the Government to give us reasons for all the alterations of the measure previously introduced, that have been made in this Bill. If honorable senators are convinced that the alterations are improvements, they will adopt them at once. I have always strongly supported the passing of a Merchandise Marks Bill in Australia. I shall support the Government, and I hope that the Bill will be made as nearly perfect as possible.
Debate (on motion by Senator Best) adjourned.
Senate adjourned at 5.13 p.m.
Cite as: Australia, Senate, Debates, 8 June 1904, viewed 22 October 2017, <http://historichansard.net/senate/1904/19040608_senate_2_19/>.