2nd Parliament · 1st Session
The President took the chair at 2.30 p.m., and read prayers.
page 2748
-I desire to ask the
Vice-President of the Executive Council, without notice -
– The attention of the Government has been called to these statements. We are making, inquiries, and will take all. possible steps to protect the interests of the producers.
page 2748
Senator McGREGOR laid upon the table the following papers : -
Transfers approved by the Governor-General, Appropriation Act 1903-4, dated 18th June, 1904.
Amendment of Financial and Allowance Regulations, Naval Forces.
Regulations under the Customs Act.
Reports of the Divisional Returning Officers for Melbourne and Riverina on the recent byelections.
Ordered to be printed.
page 2749
Assent to the following Bills reported: -
Acts Interpretation Bill.
Supplementary Appropriation Bill 1903-4.
Supplementary Appropriation (Works and Buildings) Bill 1903-4.
page 2749
Debate resumed from 8th June(vide page 2104). on motion by Senator McGregor -
That the Bill be now read a second time.
– I quite agree with the Vice-President of the Executive Council that this is a non-party measure, and, consequently, that honorable senators will be able to discuss its merits apart from, embarrassing considerations. It purports to be founded on the Imperial Statute, and essentially it is, but I notice that several departures from that Act have been made. In some instances they are of a valuable character, and, to my mind, improve the measure. I would especially emphasize the extensions which have been included in the interpretations of “ trade description,” and “ false trade description.” Evidently, the Government have been watching the operation of the English Act, and, very wisely, have remedied those defects which have been found in its provisions by practical operation. In the Bill, “ trade description “ means -
Any description, statement, indication, or sug. gestion - the insertion of “ or suggestion “ is the first alteration which is made, and it is a very important one - direct or indirect (a) as to the number, quantity, quality - the word “ quality “ is put in - measure, gauge, or weight of the goods.
Then, in paragraph c of that definition, the Government have inserted these words - as to the manufacturer or producer of the ‘goods.
Certainly any representations from that source would be valuable. Again, in para graph e of the definition these words have been inserted - or from which they are derived.
The paragraph reads -
As to the material of which the goods are composed, or from which they are derived.
Subsequently these words are inserted -
And any mark which, according to the custom of the trade or common repute -
Then, in defining “ false trade description,” the Government have not merely been content with the English definition - “ a trade description which is false “ - but they have added the words, “or likely tq mislead.” [n this connexion the Government have made various alterations. Some alterations are founded on various English cases which have arisen, and all go in the direction of further avoiding the imposition of spurious goods on the innocent public. But in my judgment, they have made a mistake in some other respects, particularly in regard to clauses 8 and 9, which are supposed to substantially reproduce the provisions of the Imperial Act, and also in the omission of section 7 of that Act. I am not’ going to emphasize those matters which perhaps, on explanation, may prove to be justified. Senator Drake . dealt so fully with them that I do not propose to do more than to draw attention to it, and confirm the views which he expressed. No doubt, in good time, Senator McGregor will make an explanation, as, of course, his anxiety, like our own, is to secure the most effective and . perfect measure that we can get on this all-important subject. I have two serious objections to make. In the first place, the Government have only attempted to deal in a piece-meal fashion with the subject of trades marks. They have attempted to deal with the criminal application of false trade marks, b’ut they have not attempted to deal with the civil aspect of the question, which is, of course, equally important. Secondly, in that portion of the Bill which deals with importations the Government have not attempted to exercise their full constitutional power or make the provisions sufficiently comprehensive or drastic.
– Would not that be done by another Bill?
– That is not necessary. Of course, I am aware of the constitutional limitation by which the Government necessarily are bound. Section 51 of the Constitution defines the legislative power
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth, with respect to : -
I have incidentally quoted that sub-section, but the one under ‘.which the Bill is framed, reads as follows: -
We have dealt very comprehensively with the question of patents of inventions and designs, and made the law in this respect uniform throughout the Commonwealth. The question of copyrights will, I hope, find an early place in the programme of the Government. What we are now partially dealing with - and that is my objection - is the question of trade marks. The Government have not attempted, I repeat, ro deal with the civil aspect of trade marks, but merely with the criminal offence of falsely marking. This is all the more- regrettable because we have already in operation the machinery of the Patents Act so that in introducing a full and comprehensive measure, dealing with the civil aspect of trades marks, it would not be necessary to incur additional expense. It would have this undeniable advantage, that we should have the benefit of uniform laws throughout Australia in regard to trade marks. I have pointed out our constitutional limitations. There is one thing that we cannot get away from, and that is that as regards cognate subjects, such as food adulteration, health, and sanitary matters, there must be, according to the terms of the Constitution, a separate law in each State. The result, therefore, is that there will be a degree of confusion which will be further increased if ws divide the Trades Marks Act administration between the Commonwealth and the States. The subject of trade marks in its comprehensive character, more or less, comes into the matter of food adulteration, and certain sanitary aspects of life. But, according to the terms of the Constitution, and the division of legislative powers between the Commonwealth and the States, it is inevitable that a degree of confusion will occur by reason of the fact that each Parliament - the Federal Parliament, on the one hand, and the States Parliaments on the other - has its own defined right. This makes it all the more important that, when dealing with a subject that
– They will not necessarily clash.
– They may or they may not, but that is a risk.
– Can the honorable and learned senator imagine a case in which they would clash?
– I think that there would be no difficulty in showing that there would be room for legal complexities, and that is what we have to avoid as far as we can. The subject of trade marks is dealt with by the various States in several stages.
– Give an illustration.
– I shall try to give a limited illustration as I proceed ; but the point I am now making is what is contemplated by section 108 of the Constitution -
Every law in force in a Colony, which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State ; and until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the’ State shall have such powers of alteration, and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.
That means this - that so soon as we attempt in the Commonwealth Parliament to deal with any measure that is assigned to us, our law takes the place of the law of a State; and I am endeavouring to emphasize the anomaly that will ensue as regards one subject that is assigned to us. If a State has dealt with it and we are dealing with it at the same time, complexity and confusion are likely to result.
– But so far as the Commonwealth deals with a subject, we take away the power of the States to deal with it.
– That is the point I am dealing with. In so far asthe criminal aspect is concerned, we shall take away the right of the States to deal with this subject.
– Therefore there will be no clashing.
– There may or there may not be. Different definitions are given as to what a trade mark is. One definition is contained in the Bill before us. Others are given by States Acts. I feel that it is our duty in dealing with this and other subjects that are assigned to us to aim at complete legislation, and to deal as comprehensively with the subject as our constitutional rights will allow. It is our duty to deal with the all important subject of the registration of trade marks, and to offer every facility that we can.
– We have another Bill in which we are prepared to deal with that subject. .
– It is a complementary Bill to this.
– It should not be complementary to this Bill- In some of the States - in Victoria for example - the criminal and civil aspects of trade marks have been dealt with in one measure. I am glad to hear the assurance that a measure dealing with the civil aspect is likely to follow rapidly upon this Bill. But the point which I am making is, that it is desirable that the whole subject should be dealt with in one measure.
– Can the honorable and learned senator suggest a way in which it can be dealt with in one Bill?
– I can, indeed. I will try to show my honorable friend how the two aspects can be dealt with in one Bill. There is no constitutional difficulty as to this Parliament dealing with the registration of trade marks, or the facilities as regards application for trades marks, or for regulating the rights of proprietors in regard to them, or the restrictions which are necessary. We have dealt with the subject in Victoria in a comprehensive measure, which I would commend to the Government as regards the civil aspect ; and it is absolutely competent for the Commonwealth Government to introduce a measure dealing with the two aspects. For instance, to give the barest skeleton of the Victorian Act, which is founded to some extent upon English legislation, it provides for the appointment of a Commissioner and for a seal. Under this measure, of course, the Commissioner of Patents will be the officer appointed. Then the Victorian Act deals with the registration of trade marks. This is most important to the whole community, because the natural result of Federation will be a greater community of trading interests throughout Australia, and it is essential that every facility should be made applicable to the whole of Australia in regard to trades marks and matters relating thereto. There is nothing to prevent a measure being introduced by the Government dealing fully with the registration of trade marks, and the very fact that we have already in operation the machinery in that regard makes it more easy. Then the Victorian Act provides for the manner in which applications are to be made, and it goes on to indicate what are the essential features of a trade mark, and what are the essential particulars required. Will it be submitted by the representatives of the Government that it is not important to Australia as a whole that the essential features of a trade mark should be made uniform throughout Australia? I think it will be conceded that that is so. Then the Victorian Act goes on to provide that a trade mark must be registered for all goods or classes of goods.
– Suppose a trader puts a wrong mark on goods that he manufactures - a mark that is not registered?
– If I were to pursue that subject it would lead me on to abstruse and difficult questions of law. Registration is not necessary to a right in a trade mark.
– Surely there is legal responsibility.
– I do not know what my honorable friend means by legal responsibility in that connexion. While registration carries with it certain proprietary rights, yet trade marks which have been attached to goods for many .years - long before there was any legislation on the subject - may have become the property of the makers of the goods. In that connexion I would almost go so far as to say that if certain goods have obtained a reputation under a trade mark, which is not registered!, it would not be competent or legal for any person to attempt to sell other goods under that trade mark.
– Registration is not essential to, good title.
– No, but registration carries with it certain proprietary rights, and offers greater facilities. That is the reason why some encouragement should be given in this connexion. Honorable’ senators may know something, about the troubles and complications in regard to applications for trade marks where conflicting rights exist. We shall have certain machinery to deal efficiently with those matters. Then provisions in regard to the assignment of trade marks, the conflicting claims as to registration, and restrictions on registration, are all essential to the facilities which should be offered. The effect of registration is a very important matter. Registration in Victoria, for instance, is equivalent to “ public user,” and the right in that State is proprietary, and extends to the exclusive use of a trade mark. The Victorian Act also indicates restrictions as regards infringements, and gives a right for the issue of certificates enabling exclusive use. Then it formally establishes a register. I am citing these points in order to show that these provisions should not be applicable to Victoria alone, or to any one State, but should be applicable to the whole of Australia, because they would give to the trading public greater and more important facilities. There are also in the Victorian Act provisions dealing with the falsification of trade marks, forgeries, and the rectification of registers ; and the Act likewise deals with the subject of penalties and fees. The Act to which I have alluded, is the Victorian Trades Marks Act, No. 1146.
– In that Act two subjects are dealt with, which should be kept distinct, and which are kept distinct in English legislation.
– Will the honorable and learned senator point out to me how that objection is in any way relevant to my argument? Under the Constitution, we have the right to deal with the subject of trade marks. In dealing with it, I maintain that the- civil and criminal aspects should be dealt with together, so that we may have a uniform measure, applicable alike to criminal and civil matters. I have sought to emphasize the objection from that particular stand-point, which will, however, be to some extent remedied by a complementary measure that we understand is to follow rapidly upon this one. As regards the object in view, we are in complete accord with the Government, and approve of the measure, so far as it goes. It is desirable, we all admit, to prevent the passing off of goods by one person as the goods of another. We have to reckon with this condition of affairs - that in every trade there will be a percentage of unscrupulous traders, who, for their own advantage, will try to take advantage of the honest trader and to rob the public. I
We have to contend with a class of traders who will endeavour to trick and to cheat at every opportunity, to the serious disadvantage of honest men.
– The honorable and learned senator would not, I suppose, allow a man to sell his registered trade mark to other people who did not sell goods up to the classification of the goods to which the trade mark was usually affixed?
– I do not know what the indirect reference of my honorable friend may be.
– The .evidence taken before the Butter Commission reveals what I mean.
– We are not dealing with that at the present moment. What I want to point out is that we have to reckon with such traders. We have also to remember that science, and the highest degree of skill, have now managed to secure the manufacture of articles in imitation of genuine articles, and that it is by no means easy to distinguish the genuine article from the spurious. That is a state of affairs against which we have to legislate. Although, for instance, when we speak of serges we mean woollen goods, science and skill have been enabled to secure the prepa ation of goods composed largely of cotton, but which to all appearances are serges. The same is the case in regard to tweeds. In that line of business the most perfect imitations are made, partly of cotton, and to all intents and purposes the public believe those goods to be genuine woollen articles. So if is in regard to blankets. I will undertake to say that if cotton blankets and woollen blankets were handed around this chamber, it would be quite impossible for us to distinguish the spurious from the genuine articles, so complete is the imitation. In regard to flannelettes and flannel the same remark applies. But it is in relation to linen and cotton goods, possibly, that the most wholesale swindles daily take place. To such a degree is skill exercised in getting up cotton shirts, collars, handkerchiefs, underwear, and other descriptions of linen goods, that it is almost impossible to distinguish the genuine from the counterfeit.
– - But the public get the cotton goods for half the price.
– In some cases the public get the goods cheaper, so far as money is concerned ; but it is very likely that even at the price they obtain dearer articles.
– Very often the spurious goods are sold as genuine.
– ‘Frequently, as my honorable friend says, the imitation goods are represented’ and sold as genuine. That is the state of affairs we have to reckon with. Wc have in Victoria a very zealous, energetic, and able analyst, Mr. Wilkinson, .and if he were allowed a free hand many desirable alterations would be effected. Not so long ago twenty-five samples of so-called woollen goods were collected and analyzed by Mr. Wilkinson, and he found that in only eight cases were the articles genuine. As regards the balance the percentage of cotton ranged from 5 to 66 per cent. Senator McGregor when introducing the Bill dwelt at length on fraudulent practices which have taken place with regard to jewellery. Only to a limited extent can we deal with that subject in this measure. Not until we. establish in Australia what they have in the old country, an assay office at which jewellery is marked with the nation’s official ‘stamp, shall we be able to completely and effectually deal with fraudulent jewellery. In matters of food the most serious adulterations are taking place, which are detrimental to a large extent to the health of the community. In the State of Victoria a certain cordial is largely sold as raspberry vinegar, a deluded public thinks it buys a fruit extract. A number of samples were analyzed recently, and it was discovered that most of these cordials simply consisted of chemical preparations, composed principally of salicylic acid, saccharine, and colouring matters. Out of forty-four samples of so-called raspberry vinegar analyzed, only one was discovered to be pure. Therefore, it is clear that we have a grave problem to solve. We ought to go quite as far as we can go in the matter of the rectification of this state of affairs. Our duty is to go as far as our constitutional powers will permit us to go ; and it is more than probable, if we show a good example in this connexion, that it may induce the States to follow with the complementary measures within their several jurisdictions which are necessary to protect the public. I admit that we have difficulties, to face. I am not now referring to any constitutional limitation upon our powers, but to the Imperial Act, upon which this Bill is founded, and which it has been held does not apply where a description is purely verbal. Consequently any verbal misrepresentation would not constitute an offence. To show that this is the case, and so that the legal position may be clearly grasped, I will quote from a wellknown authority, Kerly on Trades Marks. By that authority it is laid down that -
It has now been decided by a Divisional Court (confirming the view expressed in the 1st edition of this work) that the provisions of section 2 (2) of the M.M.A., 1887, which make- it an offence to sell goods to which a false trade description is applied, do not apply where the description is entirely verbal, still less where it is a mere inference from conduct, e.g., the act of a salesman in handing over to a customer a parcel (alleged to contain a false description) without comment. The whole framework of the statute, with the exception of section 20 (inf., p. 641), points to the necessity for a written or printed mark, or a physical mark in some other sense than a purely verbal description. ]3ut unintelligible writing may be explained by a statement made at the time of sale. Where a merely verbal description is the subject of complaint, proceedings may be taken under the Sale of Food and Drugs Acts.
That is the present law on the subject, and I am sure it will be interesting if I read an extract from the case on which that law has been recently founded. That is the case of Coffin v. Moore, and it is reported at page 300 of the Queen’s Bench Division, 1898, as follows: -
The provisions of section 2, sub-clause 2, of the Merchandise Marks Act, 1887, which make it an offence to sell goods to which a false trade description is applied, do not apply where the description is entirely oral. The respondent asked a salesman in the appellant’s shop for a small English ham ; the salesman pointed to some American hams on a shelf, and said, “ These are Scotch hams “ ; the respondent chose one, which was weighed, and an invoice which did not contain the word “ Scotch,” was handed to the respondent by another assistant. The respondent told the assistant to put the word “ Scotch “ on the invoice, as he had bought the ham as such ; the assistant did so, and handed the invoice to the respondent, who then paid the amount : -
Held, that the description in the invoice was a false trade description, sufficient to satisfy the statute.
And the Judge, in dealing with the matter, said: -
In my opinion the provisions of section 2, subsection 2 of the Merchandise Marks Act, 1887, do not apply in the case of a trade description which is wholly verbal. The whole framework of the statute, with the exception of section 20, points to the. necessity for a written or printed mark, or a physical mark in some other sense than a purely oral description. There is no decision, nor even a suggestion, to the contrary, in any reported case, and I think that the section deals with marks, and marks only. The subsection is aimed at persons who sell, or expose for sale, or have in their possession for sale, or any purpose of trade or manufacture, goods or things to which a forged trade-mark or false trade description is applied, or to which any trade-mark or mark so nearly resembling a trademark as to be calculated to deceive, is falsely applied ; the language seems clearly to deal with the special cases of the employment of some visible or physical mark which is calculated to affect the sale of the goods, and not to apply to cases of mere verbal description. Where a merely verbal description is the subject of complaint, there is no reason why proceedings should not be taken under the Sale of Food and Drugs Acts, and we are in no way impairing the security given by the Legislature to the public in so holding.
– Then it appears that a man may not write lies, but may speak them ?
– That is so. In this case a person was ‘ sent for the purpose of securing a ham, it being known that the misrepresentation was going on ; and that person managed to induce the shop assistant to mark on the invoice “ Scotch ham.” It was the misrepresentation on the invoice that enabled the authorities to get a conviction. I fear that the Commonwealth Parliament has not the power to deal with any misrepresentation purely of a verbal nature.
– Cannot we compel vendors to put marks on the goods?
Senator- BEST. - That is a matter with which I shall deal if my honorable friend will allow me. I admit, as I have said, that this Bill is a valuable advance; but I want to emphasize the view that it does not go to the full extent ‘desirable. Moreover, I say that it does not appear in the Colonies - and it only recently appears in Great Britain - to have been fully realize’d that the Imperial Act is of the comprehensive character which it is. Last year, X think it was, the flax spinners, knowing of the frauds that were being perpetrated in regard to cotton, brought various cases before the Court, and it was when convictions were obtained in those cases, that the attention- of the public was specially drawn to the full and comprehensive character of the measure. I noticed in the Melbourne Age the other day that another decision had been arrived at by an English Court in the following case : -
The decision of the English Court in the appeal brought by the Demiel Fabric Company, confirms the magistrate’s conviction of that company for an offence under the Merchandise Marks Act. Dr. Deimel invented a loose, open fabric, which seems at the outset to have been really made of linen. According to his statement of the case, he presently found that it was more advantageous, having regard to the comfort and convenience of the material in wear, to mix cotton-yam with the linen. But the fabric was still described as “ linen-mesh,” and on a prosecution being instituted, the magistrate held that the description was- a representation or statement that thegoods were composed of linen, and were of mesh structure, and that it was false in a material respect, inasmuch as cotton entered into the composition to a substantial extent. Accordingly, he convicted the defendants, and the judges have refused to disturb that decision. They take the view that a fabric which is admittedly half cotton, cannot legally be described as “ linen,” and that view is not only sound in law, but conducive to sound trading.’ It is understood that these goods are sold locally, and the decision of the home authorities is therefore of considerable importance.
That is an important decision, which shows the trend and development of publicopinion in this connexion. We find that the Judiciary is supporting what was the manifest object and intention of the Act. That measure has been discovered to be more comprehensive than was originally intended, although, as I say, it does not apply to a verbal, but only to any written misrepresentation. I feel that notwithstanding the constitutional limitation to which I have referred, we still may overcome some of these difficulties by the absolute control which we have in regard to all importations. The third part of the Bill deals with importation j and this to us is a very important part. This legislation is the outcome of an International Conference held in the year -1883,. and the object is to prevent the importation of goods of foreign manufacture unless they are branded with the name of the country of origin. Hence it is that we have managed to evolve the legend “ Made in Germany.” There are some objections to this particular portion of the Bill, with which I shall deal in Committee, but not at the’ present stage. I say again that this third part is most valuable, though it is not altogether free from objections. Unfortunately, so far as Victoria is concerned, that law has practically been a dead letter, and the reason is - I should like to draw the attention of the leader of the Senate to this - that some three or four successive Ministers of the Crown feared that if they gave effect to this particular part of the measure, it would mean advertising foreign goods. I shall not deal now with that aspect of the case ; but that is the view they took. That aspect, strange to say, has been recently emphasized by what has taken place in. the old country. I observed the other day that Sir Howard Vincent has introduced a measure to strike out the words which necessitate the name of the country of origin being placed on goods. He proposes that there shall appear on the goods a- label indicating that they are imported from or were made abroad. Personally, I think that what we should do, particularly having regard to the objection taken in Victoria, amongst other States, to the full enforcement of the law, is to substitute the words - “ Not British manufacture.” In . these days of anxiety to promote preference as between the mother country and ourselves, we. should not place British goods in this connexion on the same basis as we place goods made in foreign parts. I feel that the correct course is to have the goods labelled “ Not British manufacture,” in order that they may be distinguished. Of course, this Senate is not desirous, in any way, to unduly embarrass commerce. What I would urge on the Government is that, having regard to our constitutional powers, we should make provision, particularly in Part III. of the Bill, to enable the Minister of Trade and Customs to prohibit the importation of articles of food which are so adulterated as to be injurious to health. We have complete control over, importations, and the Minister of Trade and Customs, if he knows that certain foods, for instance, are being entered for consumption in the Commonwealth, should have power to say “ No ; these are injurious to . health, and I am not going to permit them to enter, except on very specific terms.”
– Just in the same way as tea may be dealt with.
– I was just going to say that there is nothing unusual in the suggestion I am now making. Such a power on the part. of a Minister could not be described as wilfully putting manacles on commerce, seeing that section 52 of the Customs Act provides for the prohibition of certain imports into the Commonwealth.
That section is as follows: -
The following are prohibited imports : -
Any reproduction except by permission of the proprietor of the copyright of any work copyrighted in the King’s dominions, and of the existence of which copyright and date of its expiration written notice has been given to the Minister by or on behalf of the proprietor of such copyright.
False money and counterfeit sterling, and any coin or money of the King’s dominions not being of the established standard in weight or fineness.
Blasphemous, indecent, or obscene, works or articles.
Goods manufactured or produced wholly or in part by prison labour, or which have been made within or in connexion with any prison, gaol, or penitentiary.
Exhausted lea, and tea adulterated with spurious leaf, or with exhausted leaves, or being unfit for human use, or unwholesome.
Oleomargarine, butterine, or any similar substitute for butter unless coloured and branded as prescribed.
All goods the importation of which may be prohibited by proclamation.
All goods having thereon or therewith any false suggestion of any warranty, guarantee, or concern in the production or quality thereof by any persons, public officials, Government, or country.
Mineral oil, and mineral spirits, unless imported under and subject to such restrictions as may be declared by proclamation.
Undesirable as it is to introduce literature of the character described, it is even more undesirable that adulterated and injurious foods should be permitted. The point I am making is that we have laid down in the Customs Act the very principle for which I am contending. I wish to draw the attention of the Vice-President of the Executive Council particularly to this matter, because it would be a mistake for any honorable senator to attempt himself to prepare a provision in this connexion. Such provisions ought to be framed in consultation with the Customs officers, who have these matters in hand as part of their dailyavocation. If the Vice-President of the Executive Council will accept my suggestion, which I urge strongly on him, I think we shall be able to make this a most valuable measure. There are enormous importations of adulterated foods, and I suggest that we should follow out the same course in regard to shoddy articles of clothing. The Minister of Trade and Customs should be authorized to insist on such articles being branded before they are allowed to enter the country, so that they shall be known for what they purport to be. . We are in difficulty where goods are within the Commonwealth, inasmuch as I believe we have no power in the Constitution to order that such goods shall be branded. That is essentially a power to be discharged by the States. We have, however, the power to say that we shall not allow goods to enter our ports unless those goods are branded in such a way that the public shall not be deceived.
– So that the Minister of Trade and Customs may see that the goods are what they are described to be.
– Just so. We have enormous importations of tweeds made of cotton, and of cotton goods purporting to be linen. The Minister of Trade and Customs ought to have the power’ to say, if he receives a report from his officers that certain goods are on a ship, or in a bonded warehouse, that because those goods are essentially shoddy, he will insist on their being branded on the selvage, every two or three running yards, with a statement that they are cotton goods - that they are adulterated goods, and not the woollen which they pretend to be. And so with regard to cotton shirts, underwear, collars, handkerchiefs, and table linen. If these goods are branded so as to show clearly and conclusively what they are, the public will purchase with their eyes open. It may be said, “ Yes ; but when the public buy these goods, they buy them cheap, because they are of inferior quality.” But I contend that such goods are not cheap, but dear ; because the man who fraudulently puts such goods on the market as the pure article knows that, though they may . be cheap as compared with the latter, they are verv dear having regard to their quality.
– How far would a Customs entry meet the case?
– I do not think that a Customs entry would meet the case. A recommendation of a Royal Commission resulted in the introduction of an amended Imperial Act which .introduced a Customs entry into the trade description, and my friend, the Vice-President of the Executive Council, has adopted that amendment in the measure before us. But what I am suggesting in this regard is essentially practicable.
– The measure will not be of much use unless it is made comprehensive on the lines which the honorable and learned senator has indicated.
– I may point out that I had the honour to introduce this very principle into Victorian law. In the old Victorian Tariff there was the item “ cotton blankets,” and there was a provision that a duty of 25 per cent, should be charged unless such blankets were legibly and indelibly branded with the words “ all cotton,” in accordance with regulations to be made by the Commissioner of Customs. If cotton goods were so branded they were admitted free. The result was that if a man desired to import cotton blankets - and we know very well how complete the imitation is, and how easily it can be palmed off - he had to pay a duty of 25 per cent. On the other hand, if he branded the cotton goods as such they were admitted free.
– Surely the honorable senator has never1 known a big importer to offend in this connexion ?
– I shall not say as to that. In these days cheap goods are always popular, and the gullible public must be protected. The public have the right to look to this Parliament to protect them, having regard to the fact that by the Constitution we are empowered to deal with this subject. We are expected to deal with it, therefore, in the most comprehensive manner that we can. We must let the dishonest, unscrupulous, fraudulent’ trader know that Australia is not to be an open market for his spurious productions. Not only must the public not be robbed, but they must be protected against suffering, because if adulterated foods or inferior articles of clothing are palmed off on them, it means that the health of the community must suffer. In the latter instance, in place of getting the warmth and comfort of wool, which they expected, they get only that of cotton. Under all these circumstances, our clear duty is to exercise the power that is thus given for the benefit of the public, the honest shop-keeper, and the honest trader.
– Whilst I am in agreement with the provisions of theBill, I, like Senator Best, feel that it is not sufficiently drastic. We know that foodstuffs are adulterated with highly deleterious substances. We know that in this community there are certain traders, particularly in the jewellery line, who. in their desire to become immensely rich, are palming off jewellery marked and branded 18- carat, when some of it does not contain a particle of gold. In regard to commodities such ‘ as wearing apparel, boots, and shoes, there are in this community traders who are making themselves rich day by day at the expense of the health and comfort of men, women, and children. We have in Victoria a drastic measure which was passed mainly in the interests of the farming. community. I refer to the Artificial Manures Act. I do not take exception to the Bill before the Senate. It must be welcomed by every one who desires to prevent adulteration and fraud ; but it does seem an extraordinary thing to me that, while in Victoria we take every provision to safeguard farmers against getting adulterated manure, there is no provision against the sale of adulterated foodstuffs. Section 4 of the Artificial Manures Act provides -
Upon the sale of any manure, whether paid for at the time of sale or not, the vendor shall at time of sale, or before delivery of the same or any part thereof, give to the purchaser an invoice certificate, signed by the vendor or his agent, stating -
the full name and place of business of the vendor ;
the figure, trade mark, or other sign attached to or associated with the manure, and intended for identifying it;
the quality of manure comprised in the sale; and
the proportion per centum in which such manure contains the following ingredients : -
It goes on to enumerate the ingredients. Because of the non-observance of that provision several traders were recently summoned to the Geelong Court and fined in various sums. Only the other day a man was brought before the police court in Fitzroy for selling a package of sawdust as tea. His excuse was that he was under the influence of liquor, and was carrying about the package to indicate the size of the package in which the tea was made up. For selling a package of sawdust as tea he got seven days’ imprisonment. No one will have any sympathy for him, nor should any honorable senator or other person in this community have any sympathy with traders who palm off goods on the public such as those I am about to exhibit. Here is a pair of shoes sold and bought in Melbourne as leather, for a child between five and six years of age. After being worn for eight or nine days the shoes lost their shape, and the child’s feet were upon the ground. The soles are made up to resemble leather ; but they are composed mostly of cardboard. The mother of the child believed that she was buying shoes that were made entirely of leather.
– Does the honorable senator know where these shoes were made ?
– No ; but I know where they were bought. I have an idea where they were made; but I am not absolutely certain.
– Does the honorable senator know whether they were imported or not ?
– I think they were made in Victoria. In regard to the making up of boots and shoes with cardboard, I have received, from Mr. George Dupree, secretary to the Operative Tanners’ and Leather Dressers’ societies a communication in these terms : -
I have been requested by the Operative Tanners’ and Leather Dressers’ Societies of Victoria to write to you with a view of obtaining your aid in securing, if possible, the insertion of a clause in the Fraudulent Trades Marks Hill, pro hibiting the use of cardboard and paper in the make-up of boots and shoes. Cardboard is used to a large extent in boots and shoes as “ stiffeners,” as well as between the inner and outer “ sole,” about the “ instep.”
The use of cardboard and paper in boots and shoes, besides being an apparent fraud upon the public, is also injurious, in so far as the cardboard easily becomes damp, and retains that dampness. It is also liable to lose its shape,, and by this means becomes not only unpleasant, but adds materially to the deformation of the feet of the person wearing boots and shoes containing such cardboard.
The use of materials other than leather in boots and shoes in- England has become so common that it has been facetiously suggested that boots and shoes be branded “Nothing like leather,” “ Something like leather,” and “ Real leather.”
There are many imitations and compositions palmed upon the public as leather, and the members of the above societies are of the opinion that whatever commodity these imitations and compositions become part of, the fact should be fully set forth.
Incidentally, I might mention, though not instructed to, the extensive use of glucose in “sole” leather. Glucose is a grape sugar, and while an infinitesimal portion of it may be of some use in leather, its chief virtue is its weightgiving properties. You can readily understand that, with glucose, at, say, 2^d, to 3d. per lb., and with sole leather at, say,11d. to1s. 2d. per lb., its use by certain tanners is very profitable. I have heard, . though I cannot say positively, that in Germany the use of gluco’se in leather has been prohibited.
I trust that the above will receive some consideration.
We know that in some towns in Germanythere is a rigid law in regard to adulteration. In one town, for instance, if a man is caught in the act of adulterating bread he is placed in a huge iron instrument shaped like a crinoline, and no matter what the weather may be, he is dipped into wafer until he is almost drowned. It is a lesson which he remembers for the term of his natural existence. In another town, traders who palm off inferior goods and attempt to deceive the public are put in barrels in which their heads are visible, and On which their names and the nature of their offences- are’ inscribed. They are then made to parade the principal streets of the town. We know, too, that in France persons who are charged with the adulteration of goods are brought to the courts and fined, and in addition have to place in their windows a ‘huge placard describing the nature of their offence. I have also a few other exhibits which have been obtained from Mr. PercyWilkinson, the Government Analyst of Victoria - a gentleman who takes a keen interest in the people’s welfare, and who, like every other well-wisher of the Commonwealth, is extremely anxious to put a stop to the adulteration of food and the sale of inferior articles. In this direction, as Senator Best has pointed out, our first duty ought to be to see that no goods come into the Commonwealth through the Customs House, unless they are properly described and labelled. In his analysis Mr. Percy Wilkinson has followed exactly the methods adopted by the Government Analysts of Germany and other countries. Here is an exhibit, sold as linen roller towelling, and here is another exhibit showing the article after it has been analyzed. The analysis shows that it contains about 50 per cent, of linen and 50 per cent, of jute. As we know, potato and other bags are made from jute. It is sold as all linen. Senator
Best spoke about tweeds-
– The honorable senator must have raided a draper’s shop somewhere.
– No; these have all been bought and paid for. Here is a piece of tweed marked “ bought and sold as all wool tweed,” although it contains 20 per cent, of cotton. I ask honorable senators to note the cotton which was sold as all wool. Senator Best has spoken about the health of young children. I have exhibited a pair of child’s shoes, made mostly of cardboard. Here is a child’s “modesty” sold as all wool, but containing 40 per cent, of cotton. The exhibit shows the difference between the article when analyzed and when exhibited for sale. Here are samples of collars.
– Has the honorable senator got any infants’ food ?
– No; my bag -was too small to hold all’ the samples which I could have obtained. Here are some collars marked and sold as all linen. They do not contain a particle of linen, but are all cotton. People, seeing the collars marked all linen, are invited by the label to go into the shop and purchase, and when an analysis is made it shows that there is no linen in the article. Again, people buying handkerchiefs under the impression that they are linen discover when an analysis is made that they are all cotton. Here is a very fine imitation. It is finished exactly as linen, and any person, unless he or she were an expert, would be deceived. Athletes as a rule desire to be comfortable. We know how anxious most athletes are to wear woollens next to their bodies, especially when going out cycling. Here is a sample of a sweater which was sold’ as all wool, but which is 50 per cent, cotton and 50 per cent. wool. Senator Best has spoken about woollen flannel. Australia is said to be the greatest wool-growing country on earth, and it does seem regrettable to me, as it does to the Government Analyst of this State, that it should be subject to the introduction of so much shoddy. From one of the reports of the Government Analyst I have copied this extract -
It is truly deplorable that the public of one of the greatest wool-producing countries of the world should be so covertly tricked with wool-resembling goods of such false descriptions.
Here is an article which was marked and sold as woollen flannel, although it contains 60 per cent, of cotton. That is wholesale deception and fraud, and I think that this Parliament would not be doing its duty to the citizens of the Commonwealth unless it took drastic steps to prevent further imposition on the part of traders in this and other States. When we get to the Committee stage on the Bill it is my intention to move an amendment which, if accepted, will be the first step, I hope, towards protecting the public against deception and fraud. I know that the rights of the States are preserved in this way, that once goods have passed through the Customs House the States have the power to frame laws to deal with traders, and so on. Our duty is to protect the States against the goods coming in, unless they are properly described, and, therefore, I propose in Committee to move the insertion of the following paragraph in clause 12, to come into operation on a day to be fixed by proclamation -
I have been informed that in Germany and France, where the laws on this subject are rigid), manufacturers are unable to sell their shoddy stuffs, and that some of their commodities find their way to Victoria. ‘I do not know that those two countries are exceptions in that regard. The probability is that other countries are just as bad in that respect. It is our duty, however, to see that these goods, if they do come here, shall be properly described, and, in order that no injustice shall be done to the traders of the world, my intention is”, if that new paragraph be. embodied in the Bill, to give the importers ample time to make provision, so as to comply with the new legislation. I hope that with the assistance of the Government, who, I feel sure, are as anxious as any body of citizens in any part of the Commonwealth to do the right thing in the interests of the people, we shall be able to pass a measure which, if it will not absolutely prevent, will considerably minimize the deception and fraud which are practised in various States to-day.
– I have one or two observations to make on the motion for the. second reading’ of this Bill. I am very glad indeed to see that the Government have taken up this subject, which was intended to be dealt with by the last Government, and have availed themselves of the earliest opportunity to submit the Bill to this branch of the Legislature. I observe that they have made a few alterations in the measure as previously introduced. What the exact extent of those alterations is, and how far the Government have been justified in making these departures, are points upon which I shall look forward with interest to hear what the representatives of the Government have to say in explaining them to the Committee. In regard to the main principle of the Bill, while agreeing with Senator Best that many of its provisions form part and parcel of more comprehensive measures existing in the States, I would point out that the Bill, as it stands, has for its object, not merely the conservation of the rights of the proprietors of trade marks, but the protection of the interests of the public. Therefore; I think we are justified in going on with it. I do not think. as Senator Best evidently does, that it is necessary that the whole subject should be dealt with in a more comprehensive measure. There are two aspects from which the Legislature may consider the subject of trade marks. One is the aspect of the proprietary rights in trade marks, which are enjoyed by the registered proprietors. The other is the aspect of the interest of the general public. This. Bill purports to deal only with trade marks primarily in- so far as they affect the general public of the Commonwealth, and not those individuals who are the proprietors of registered trade marks. If the Government cannot see their way at present to bring down a more comprehensive measure dealing with the whole question of the registration of trade marks, I think that it is just as well that the greater interests- the interests of the public of the Commonwealth should be dealt with without delay. It is important that at the earliest possible moment we should have upon the statute-book of the Commonwealth legislation which will prevent the public from being constantly deluded, as. they have -been in the past, as has been shown by the remarks of both Senator Best and Senator Findley. It is by no means inadvisable that we should have a Bill dealing with one aspect only of the law of trade marks. We may, in the same way, have a law dealing with one class of property, regulating the distribution; of certain classes of that property that may be held under certain conditions, and delining what shall be the penalties incurred by those persons who deal with that property illegally. In some of the States, we have Acts dealing, not only with trade marks, but also with patents and designs.. In the Commonwealth we have passed a Patents Act, and to that extent the Acts of the States have been superseded by that legislation. In Tasmania we have a Patents Designs and Trades Marks Act - 57 Vic, No. 6. The portions of that Act affecting patents have been superseded by Commonwealth legislation, but the parts that deal with designs and trade marks will continue operative; unless they aire superseded by subsequent Commonwealth legislation. This Tasmanian Act deals with the subject of trade marks from the aspect of the public, as well as of the proprietors., Several instances have been given to Uc of articles which in the. past have been traded.’ off on the Australian public as possessingcertain qualities, but in regard to which the public who have purchased them have been grossly deceived. I do not think there can be any question of the competence of this Legislature to prevent the public from being victimized in that way. I will go further. We have had instances given to us with regard to the adulteration of woollen and linen goods. The example of raspberry vinegar was mentioned by Senator Best. When we consider that fraudulent goods of that description are sold, we must necessarily ask ourselves how far the Commonwealth Parliament can go in the direction of protecting the people, not only with respect to the purchase of articles which do not respond to the quality which they purport to possess, but which may be actually deleterious to the public health. How far is it competent for us to go in that direction? So far as I can see we are not immediately responsible for legislation for the protection of the public health. But it is conceivable to me - I am not speaking after lengthy consideration, but merely after such thought as I have been able to give to the subject since it has come up for consideration - that in such an instance as was given by “Senator Best, in regard to raspberry vinegar, the Commonwealth Parliament can exercise some control. It seems to me that we ought to insist upon framing legislation such as was referred to by Senator Findley, making it compulsory for any person who is vending any article Of food made up in a certain form to conform that article to a certain standard of quality.
– Does the honorable and learned senator mean that we can exercise control, not over importations!, but over goods soldi within the Commonwealth ?
– Apart altogether from the importation of goods - speaking now of trade and commerce within and between the States of the Commonwealth itself - it is a question that certainly ought to be considered by the Government, whether it is not possible for us, by legislation, to provide that any individual who endeavours to sell to the community any article of food made up by any process of manufacture, which is distinctly marked as a particular article, shall make that article conform to the statements indicated by that mark, and that the individual responsible for putting such an article before the public shall incur a penalty, if it does not so conform. That is the only way I can see by which we can exercise any legislative jurisdiction to protect the health of the public. I think it is very advisable that the Government, before the Bill is finally dealt with, should consider the powers which we possess, not alone with regard to goods imported, but also to goods that are manufactured in the Commonwealth, and sold within our own borders under certain designations. All articles of food, which are sold within the Commonwealth, should, it seems to me, be made to conform to certain standards of quality, and should certainly conform to the description which the name under which they are sold implies. I do not intend to offer any further observations upon the Bill, with the main provisions of which I think the Senate will be in accord. When we come to details, there are a few differences between the Bill as it stands and the Bill as it was placed before us by the previous Government, which we shall have to discuss. The Government may have to justify their procedure in altering the Bill in those respects. But probably very few amendments will be made, or, at all events, very few that will call for serious consideration, unless, indeed, it be with respect to the extent to which the powers of the Commonwealth can be applied in the direction of still further protecting the public, not only in regard to articles which do not come up to standard, but also to articles which may be injurious to the health of the community. I am also glad to see that in the definition clause the Government have gone so far as to include in paragraph a the term “ quality.” The paragraph provides that “ trade description “ means -
Any description as to the number, quantity, quality, measure, gauge, or weight of the goods.
The word “ quality “ is an addition to the original Bill. There is also an addition in paragraph e, where the words “ from which they are derived “ in relation to the material of which the goods are composed, have been added. From those additions it seems to me that the Government are quite prepared to extend the provisions of the Bill as far as we can constitutionally go, and I hope that’ they will consider the advisability of doing something in the direction which I have indicated, with regard to the injury which the public have suffered in the past, from having articles of food traded off upon them which have not answered to anything like a fairly, reaso- able, and honest standard.
– I do not intend to say very much, but on looking through the Bill it occurred to me that there is a possibility of the measure if passed in its present form doing some injury to the trading community. I wish to draw the attention of the Senate, and of the Government to that possibility. In clause 12, paragraph b, it is provided that-
All goods manufactured at any place outside Australia, and having applied to them any name or trade mark being or purporting to be the name or mark of any manufacturer, dealer, or trader in Australia, unless that name or mark is accompanied by a definite indication of the country in which the goods were made or produced.
– That is very objectionable.
– I do not object to the provision, but I should like to point out that the Bill -will become law as soon as it receives the assent of the GovernorGeneral. That may happen within a few weeks. I believe that arrangements are very often made for goods manufactured abroad to be marked with the name of the trader in this community who sells them. A tradesman may at the present time have- valuable shipments of goods on the way to Australia. They may not be in any way injurious to the health of the community. But, if this Bill is passed in the interim, when the goods arrive in Australia they will be liable to forfeiture if they are marked with the name of the person who is importing them, and who intends to sell them.
– This provision is at present the law in Victoria, so that the honorable senator’s remark cannot apply to this State.
– It might apply in some other States. It appears to me that the Bill is one that should come into force on proclamation.
– Due notice ought to be given, so that no wrong may be done to any individual.
– ‘Justice would be done if we provided in the Bill that it should come into operation by proclamation. It will be remembered that that was the course that was adopted in connexion with the Patents Act.
SenatorMcGregor. - Does not clause 16 provide for the case of traders who wish to obliterate marks?
– Yes ; but in the case of chinaware sometimes the name of the tradesman in Australia who intends to sell it is imprinted thereon, and to obliterate the name from chinaware would be to obliterate the whole of the goods. I have no objection to the present practice being abolished, but it has to be remembered that there are many trading customs which this Bill will render illegal, and it would be just as well to give people due notice that the measure is to come into operation on a certain date by proclamation. That procedure was adopted with reference to the Patents Act, because we recognised that the Commonwealth Act would supersede -the Patents Acts of the States, and it was thought advisable to give due notice of the date when the Federal Act would come into operation. Surely that would be a proper course to follow with regard to any measure of this kind, in which we propose to interfere with trade. By giving notice traders will be able to make arrangements to conform to the conditions imposed by the Bill. I therefore suggest to the Government the advisability of preparing a clause to provide that the measure shall become law by proclamation, after it has received the assent of both Houses of the Legislature. In that way traders will receive ample notice, and in addition the machinery by which the Bill is to be given effect to will be perfected, and made ready for complete operation.
Senatbr Best. - Has the honorable senator looked at paragraph b of clause 9 ?
– It is true that the principle for which I am contending is to some extent covered by that provision. When a trader proves that he has acted without intent to defraud he is not considered to be guilty of an offence. But it would be better to obviate any chance of a prosecution. There would be no loss to the community by following the course which I recommend, and it would give traders an opportunity of making their arrangements conform to the Bill. It seems to me that Senator Best’s criticism with regard to the disadvantage of dealing with trade marks until we can legislate upon the whole question is lacking in force. When Ave dealt with the question of patents it might have been said that we ought to deal at the same time with copyright. But I venture to say that Senator Best will agree that our law with regard to patents is fully effective, although it does not cover copyright.
– But does not the honorable senator see that the Constitution deals with patents in one provision and with trade marks in another?
– As we have an assurance from the Government that legislation providing for the efficient registration of trade marks is to be introduced, I do not see that there is any objection to this measure being proceeded with. I take it that each State has legislated for itself on the subject of trade marks, and that that legislation will stand until the Commonwealth law is effected.
– The States legislation goes beyond fraudulent trades marks,’ and deals with fraudulent descriptions, of all sorts.
– That is so. The argument of Senator Best, if it means anything, means that we must not touch this matter until we legislate on the whole subject.
– No.
– Surely the honorable and learned senator argued on those lines when he pointed out that -we had not gone to the full scope of our powers under the Constitution ?
– I said there should be introduced a complete Bill, instead of a partial Bill.
– I cannot see that Senator Best proved the necessity to introduce what he calls a complete Bill. Each State has its own machinery, and (hough that machinery may vary, it will be carried out by exactly the same officials as before.
– It is our duty to safeguard the interests of the States.
– And I say we are doing so.
– We are not doing so unless we make this a comprehensive measure.
– I say that we are safeguarding the interests of the States. There will be another opportunity to bring in a measure to deal with the remnant of power left under the Constitution. The arguments against the effectiveness of the measure-
– We have different definitions of “ trade mark “ in the different States.
– But trade marks will be dealt with in each State according to the existing law.
– But there will be different definitions.
– A prosecution for breach of the law of any State would be based on the definition of “ trade mark ‘ ‘ and when there was a case under -this Bill the definition would be that of the Bill. The f act of there being a difference would not interfere either with the effectiveness of this measure or of any existing State measure. I can see no reason why the Government should in this Bill exercise the whole of the powers they propose to take. It may be of advantage for us to have some experience of the working of this measure, so that when the next Bill is introduced we may know how the law has worked in relationto the Jaws of the States. We should then be able to shape our Federal law in conformity with our experience. There is a point on which I have not been able to satisfy myself that this Bill would be effective. I understand that it is a common practice amongst local cigar manufacturers to buy from tobacconists the boxes in which well-known brands of cigars have been imported, and to refill those boxes with local cigars, which are sold as the imported article. Looking through the Bill, as a layman, I have seen no clause under which that class of offender could be reached. It. can hardly be said that a man who resorts to this practice removes or effaces a trades, mark.
– There is no doubt that such an offender can be reached under the Bill. There was the case of a soda-water manufacturer who put soda-water into the bottles of another, and was convicted of the offence.
– That case wasquoted by Senator Drake ; but I think Senator Best will find that the sodawatermanufacturer he refers to put his own label on the bottle.
– But even that did not save him.
– That was because the name of the original manufacturer was blown on the bottle. The fraud, however, was clearly proved, because by the very fact of putting his label’ on he declared that the soda-water was his manufacture, while he traded on the brand of the other manufacturer. The cigar manufacturer, however, does not do that sort of thing, and, so far as I can see, does not come under the Bill.
– Yes ; the cigar manufacturer, under such circumstances, comes under paragraph c of clause 8.
– The cigar manufacturer does not put a label on the box, but merely leaves the box as it is.
– Part II. of the Bill covers such an offender.
– I am glad to have’ that assurance from the honorable and learned senator, because what I have, described is a common practice in Australia.
– The definition of “ trade description,” coupled with paragraph c of clause 8, covers such a case.
– I do not know whether using a cigar-box under the circumstances can be said to be applying a false trade description.
– If the honorable senator will read the definition of “ trade description,” together with paragraph c of clause 8, I think ‘he will find that such cases are covered.
– I am prepared to take the opinion of honorable and learned senators. I know that if this provision finds a place in any of the States Acts it is, to some extent, inoperative. I am given to understand that a tobacconist can always find a ready sale for empty cigar-boxes which represent the favorite brands ; and that seems to me rather a suspicious circumstance.
– Does that occur in Western Australia or in Victoria?
– I am informed that it occurs in Victoria. I know that it is the people who live in the back blocks who surfer most from fraudulent trade marks. In Western Australia we have had some very gross frauds in connexion with the supply of preserved meats, fruits, and other foods, both as to under weight and bad quality. In the recent history of commercialism in Victoria, we have seen that there are people who are prepared to substitute one brand of butter for another, trusting to a well-known brand to sell an inferior article. These facts all show the necessity for legislation of this kind being as stringent as possible. The health and well-being of the people are endangered by such fraudulent practices, and I trust that the legal members of the Senate will endeavour to frame such a measure as will restrain men who, in endeavouring to make a little more profit, jeopardize the health of the community. As I say, I am glad to have the assurance of legal senators that the Bill will meet such cases as those to which I have referred; and I shall support the second reading.
– There seems to be some difference of opinion as to the exact powers which this Chamber has in regard to legislation dealing, with the purity or quality of food. I am very pleased to hear from Senator Best, in reply to Senator Pearce, that, under paragraph c of clause 8, a false trade description on any goods will come within the scope of the measure. This leads us to another question which has not yet been dealt with, but which is worth a moment’s consideration. It is well known to a large majority of people - though I do not suppose that it is known to members of the Senate - that throughout Australia hotel-keepers have, a custom of placing inferior spirits in bottles in which good brands of liquors have been imported. I may take the “ House of Commons “ brand of whisky, or “ Usher’s Whiteseal “ whisky, as an example. When a particular liquor has become popular with the whisky-drinking portion of the community, it is a custom, with many hotel-keepers, to lay in a small stock of the particular brand, and when the bottles are empty to fill them with a cheaper article. I will not say that the cheaper article is inferior, because I am not a judge of whisky ; and, indeed, I do not, for one moment, think that honorable senators are judges. However that may be, such practices enable large profits to be made.
– Does that occur in Tasmania or in Victoria?
– I “am informed that it occurs in Victoria. I have not heard of many instances of such practices in Tasmania ; but it is well known to be general. I was at first in doubt as to whether such a practice could be prevented by this Bill.
– This Bill will reach such an offender if we can get evidence.
– I am glad to have the legal opinion of Senators Best and Keating that the offenders I have indicated may be punished, if sufficient evidence is forthcoming. I have known cases in which it was not at all difficult to get evidence. I am well aware that in some States this practice has been effectively dealt with through the medium of the excise officers; but there are States in which excise officers are either not appointed or do not carry out their duties in this connexion. I have travelled through some of the back blocks and outlying parts of Australia, and I know that the practices I have described are very common in such districts. I have heard whisky-drinkers say that, as a matter of fact, the liquor which they sometimes buy for whisky consists of a very small portion of that liquor, and a very large portion of water and nitric acid, or some liquid of that kind. I have specially mentioned whisky, but the same remarks apply to brandy,, in which the practice prevails to an even more injurious extent. We know that brandy is very largely recommended by the medical faculty in certain ailments, and that there are brands imported which, rightly or wrongly, are regarded as the best. As a matter of fact, we know that in many hospitals certain brandies have been recommended by medical superintendents ; and there is one particular brand, Hennessy’s “ Three-star,” which is very expensive as compared with other brands. I am told that it is a common custom in some places, especially in outlying districts where there is not much police supervision, for hotel-keepers to empty the bottles of the better class of spirits, and fill them with inferior spirits. The latter would by no means be recommended by medical men, but they are sold for medical purposes to the detriment of the public. If this measure can embrace cases of that kind, it will prove to be very useful. Tinned milk has also been brought under my attention. We know that Nestle’s milk is regarded by a large number of the mothers of Australia as superior to any other brand for the use of infants.
– And it is so regarded by miners.
– That is so. I :do not, however, hold that opinion, because, as a good protectionist, I wish to see Aus” tralian industries prosper. I should like to see Australian brands of tinned milk come into popular favour, and prove that they are as good as any that can be imported. The fact remains, however, that Nestle’s milk- is held by a large majority of the women’ of Australia to be superior to all other brands, and it is, therefore, purchased very largely for the use of infants. I understand that the extra good properties of this milk are largely due to the quality of the grass on which the cows feed in Switzerland ; and whether Australian milk is or is not the better, I take it that if a person asks for a particular brand, that - brand ought to be supplied. In many of the stores in Melbourne and suburbs we may find Nestle’s Swiss milk, and another brand, also labelled Nestle’s milk, but having on the tins in very small print the words, “ Packed for export in Norway.” I do not pretend to know what is the meaning of those words, “but I have heard it stated by a woman who should know that that milk is of very inferior quality. At the same time, it is palmed off on a large number of people as genuine Nestle’s milk.
– Why do not Nestle’s people bring an action against the dealers who sell that other milk?
– Nestle’s people may be doing this themselves.
– I do not know about that, but I think that such cases ought to come within this measure. By reason of the fact that these words, on the tins are so small, the ordinary purchaser, standing a few feet away, could not decipher them, and even if a purchaser did see them they might not convey to him any significance.
– But the words “ or likely to mislead,” which have been inserted, would cover such a case.
– I should say that the words I have mentioned would, in connexion with an article so extensively used, be very likely to mislead. I have given only a few instances, but it is common knowledge that the practices I have indicated are very largely resorted to. I shall be very glad to find that offences of this nature are punishable under this Bill.” As a layman, I do not pretend to have gone into legal technicalities ; but I hope that in Committee we shall have the assistance of legal senators in making this a perfect measure. I am sure that honorable senators are under a debt of gratitude to Senators Best and Findley for the information which they have given us this afternoon. Senator Best has evidently been a very close student of the subject, and our thanks are due to Senator Findley for the very practical illustrations he brought before us’. When I listened to Senator Best I began to think that, after all, it is not very surprising to find that some of our Australian importers have made large fortunes, as is indicated by their beautiful mansions in some of our suburbs. And the practical illustrations given to us by Senator Findley made the matter very much clearer.
– I have only a few words to say on the second reading of this Bill, which has been so very ably debated. The special point to which I wish to direct attention has reference to the very natural demand by some honorable senators that we should extend the scope of the Bill. It appears to me that if those who framed the Consti- tution had intended that we should have the powers which Senators Best, Findley, and O’Keefe appear to think we should have, they would have mentioned, in addition to trades marks, the adulteration of foods and drinks. It appears to me that the framers of the Constitution did not desire to take from the States Parliaments the power to legislate on the latter subjects.
– ;But we have full power with regard to all importations of foods and drinks.
– That is another question. It was not the intention of the framers of the Constitution that the Federal Parliament should have the power to deal with the adulteration of food and drink.
– We can deal with it through the Customs.
– The States Parliaments possess the requisite machinery and the necessary officers, and the machinery has been put in force in many of the States, and is at work now in the State of Victoria, I understand, and also in the State of South Australia. Under the law in South Australia an excise officer can go into a public house and take samples of spirits exposed there for sale and analyze them.
– They could not tell by analysis that they were of a certain br-and.
– I am speaking of the adulteration of foods and drinks. What is aimed at is the protection of the health of the community ; and an effort is made to see that the community get good wholesome articles.
– The community should also get what it asks for.
– The honorable senator may say that he objects to certain brandies being palmed off as good for invalids, when they are of an inferior quality. Under the law in South Australia, a case of that kind would be dealt with, and the sale of such articles would be stopped.
– So it would here in Victoria. It is done every week.
– It seems to me that the Ministry have done perfectly right in confining this measure to fraudulent trade marks, and in extending it only in that connexion to merchandise.
– But it covers some classes of food to which trades marks are applied.
– I am not aware that it does. Let honorable senators take the definition in clause 3 of “trade description.” What is that governed by ? It is governed by the words, “ and includes Customs entry relating to goods.”
– No; that is in addition to the other definition, and the object of it is to make the measure more effective.
– Yes ; in pursuance of the recent English decision. It is in addition.
– It only applies to cases where people have committed frauds by importing articles under certain trade descriptions.
– Whether food or anything else.
– That is so ; that is all right, so far as fraudulent trade marks are concerned. If I were a manufacturer of jam, and registered a trade mark and brand, which I called, “ the Lion Brand,” that would be my brand, and might be known throughout trie States. Some other manufacturer of jam might imitate that jam, and describe his product as of “the Lion Brand.” Such a fraud would no doubt come under the measure. So far as fraudulent trade marks are concerned, there is no doubt that the Bill will cover everything produced and manufactured. I admit that, but’ what I say is. that .it will not go to the extent of covering cases in which adulterations are taking place in foods and drinks in the various States, and it was never intended by the framers of the Constitution that we should deal with that matter. I contend that, under this’ measure, we have no power to deal with the adulteration of foods and drinks, except in respect of importations through the Customs, in connexion with which we can make what laws we please. An effort to protect the people in this respect was made in all’ the States in connexion with the Customs Acts, and amongst other matters I may refer to the adulteration of tea. We have power in such cases to interfere, and that power has heretofore been exercised by all the States. In South Australia, we had the power to interfere, and to insist that people should not introduce goods into that State, which were fraudulently marked. The great trouble I had in connexion with the
Tariff in that State was to deal with the attempts of importers to introduce goods at a lower rate than the Tariff warranted. Certain cotton piece goods were free under the Tariff, and attempts were made to introduce goods which were partly cotton and partly wool, as cotton goods. That is the reverse of what Senator Findley has alluded to as a fraud perpetrated on the public in calling goods woollen that are often, to the extent of one-half, cotton. In South Australia the attempt was made to introduce as cotton goods goods which contained threads of silk, and which were afterwards sold as silken goods. These goods had only a few threads of silk in them, but, intending to sell them as silken goods, the importers endeavoured to get them in free as “ cotton piece goods.”
– The honorable senator made them pay on silk, I hope.
– We made them pay pretty severely in a good many cases. I had the administration of the Act for two years after it came into operation, and I did my best to prevent that kind of thing. I was very much struck by Senator Findlev’s reference to goods which contained so much cotton and so much’ wool, but which were so much like woollen goods that no honorable senator would be likely to detect that they were fraudulent. I could tell the honorable senator a very simple process by which to detect the difference between goods that are all wool and goods that are partly wool and partly cotton. One has only to cut a little strip off the goods and apply to the edge the flame of a lighted candle, when the cotton threads will burn away very quickly.
– A better plan is to chew the goods.
– -There is no necessity to do that. The application of the flame will show very readily what the goods are composed of.
– A man could not do that if he were buying a pair of trousers.
– We find goods made of cotton called “ flannelette,” and I point out that that is a false description. Many people buy these goods in the belief that they are flannel, and we know with what results very often. If a woman is wearing clothes made of flannelette, and they happen to catch fire, she is almost sure to be burnt to death, whilst, if her clothing were made of wool, no such dis astrous result would be likely to follow. I think it would be unwise on our part to extend the operation of this Bill in the way in which some honorable senators ‘ desire. The Government have, in my opinion, wisely confined its operation within the limits of the powers granted to us under the Constitution. No doubt a complementary Bill to this, providing for the registration of trade marks, will require to be introduced. The late Government intended to introduce such a Bill, and, I have no doubt, the present Government will do so. Still, I think, we should do nothing to take from the States the power they now have, and which, I contend, that the framers of the Constitution never intended to take from them, to deal with all matters relating to the adulteration of food and drink. We should throw upon the States Parliaments and Governments the duty of protecting their own citizens. If we pass laws in this Parliament dealing with the adulteration of foods and drinks, and the States Parliaments also pass such laws, there will surely be conflict. If we do not go beyond the strict limits of the Constitution, it will be better for all parties concerned.
– I am pleased that the discussion, so far as it has gone, has been entirely in favour of the passing of this measure. I hope that when we get into Committee on the Bill those who have special knowledge of the subject with which it deals, and who have amendments or suggestions to make, will be prepared with them. I can assure honorable senators that every amendment which will have a tendency to make this measure more perfect than it is at present will be favorably regarded by the Government. There has been very little criticism of an adverse character. Senator Drake, when speaking, desired a little information, first with respect to the change in the title of the Bill. Senator Playford struck the keynote when he said that we should, as far as possible adhere to the terms of the Constitution. In the Constitution there is nothing about “ fraudulent merchandise marks,” but in section XVIII. of sub-section 51 “trade marks “ are mentioned. It is for that reason, on the advice of the legal authorities supporting the Government, that the title was changed from “ The Merchandise Marks Bill” to “The Fraudulent Trade Marks Bill.”
-Altering the title will not give more power than we should have had under the first Bill.
– I am sure that Senator Drake will agree that the Government had a perfect right to change the title if they thought another more in consonance with the terms of the Constitution. Thaimust be admitted, and consequently no objection on the score of an alteration of the title can have any effect 011 the validity of the Bill when it “becomes law. There are some omissions from the Bill introduced by the late Government which Senator Drake thought ought to be accounted for. So far as I can recollect, the clauses appearing in the Bill introduced by the late Government which are “omitted from this Bill, were clauses 8, 9, 10, and 11. But if honorable senators will consider the very comprehensive nature of the definition clause in this Bill, they will, I think, be convinced that everything possible is provided for.
– I think the Government have gone to the full limit there.
– That is so. If Senator Drake can suggest anything which will make that clause more comprehensive, or which, if adopted, would prevent in the future any of the illegal practices which have been tried in the past, or stop up any loop-hole for trickery, I am sure honorable senators will be very grateful to -the honorable and learned senator. In connexion with clause 10 of the original Bill, which dealt specially wit.h watches, I think that if honorable senators will read clause 3 and the -following clauses of this Bill, they will find that there is no necessity for such overlapping, because any fraud that might be perpetrated by putting a fraudulent watch or a spurious watch into a case which is marked by a recognised brand having some merit, is provided for in the previous clauses of the measure. I might also say that clause 25 of the Bill introduced by the late Government was an unnecessary clause. Honorable senatoirs have only to read that clause to see the circumlocution of it. It is something like an indictment that might have been written 100 years ago. That clause is not included in this measure, because it was considered that what is provided for is already dealt with in the Bill. Then in the Bill previously introduced clause 27 dealt with evidence. Under it, if the accused party was a husband, he could call his wife as a witness. That provision might have been of some use fifty years ago in Great Britain, or even in 1887. But it would be of no use here, because the husband himself, or the wife, if she was accused, could give evidence in Australia. There was no necessity- for embodying provisions of that kind in such a Bill as we have before us at the present time. I hope that I have dealt shortly and effectively with the objection which has been urged on the score of alterations made upon the previous Bill as introduced. Senator Playford has commended the Government in trespect of the scope which they propose to include in legislation of this description. This Fraudulent Trade Marks Bill, as has been pointed out by the legal members of the Senate, will catch everybody in Australia trying to dispose of goods under fraudulent trade marks. Clause 3 is so comprehensive in its definition of a trade mark that it includes a trade description of any- kind, and also a customs entry as a trade description. Senator Playford was wrong, therefore, in his reference to a Customs entry ; his remark had no bearing on the provision. That was included. as an additional safeguard so far as fraudulent marking is concerned. If manufacturers or producers here decline to mark their goods, of course this legislation cannot touch them. But the safety of the public lies in this fact, that where a producer or a manufacturer has goods that have a recognised standard in the community he will not be ashamed to mark them. If an article were not marked the public would probably ask “ Why is not this marked ? Is it not good enough to bear its character on its face ?” The people, will, I think, be amply protected against any misrepresentaion. If the Constitution gave the power, and that is not very certain - the Government would be quite agreeable to a provision being inserted to compel every manufacturer, producer, or trader who had an’ article to dispose of to mark it in some way. We have full power, however, to deal with any imported article. I hope that an amendment such as that which has been indicated by Senator Findley will be made. If it is found’ that is contrary to the title, I suppose that the title can be altered. I hope that our legal friends will assist us in every possible way to secure an effective measure. Certain evidence has come to light, particularly in Victoria, and that little item which was brought before our notice to-day by Senator Pearce is evidence in the directionof the necessity of doing something to protect our producers. We have done nothing in the Bill up to the present time, and I do not think that under the title we could do anything to protect the producers, or even the manufacturers, whose goods are exported. But I hope that if the inquiries which are being made show that a necessity exists for something of this kind to be done, the Government will, if they find they have the power, ‘ introduce the necessary legislation. Seeing that there is an almost unanimous opinion that legislation of this description should pass, I do not think it would be wise on my part to enter into a lengthy explanation, or to bring other examples before the’ Senate. I have in my mind a number of examples where the people, not only in Australia, but in other parts ofthe world, have been defrauded and injured by trade practices ; but I do not intend to leave myself open to the accusation of stone-walling a measure which I am introducing.
Question resolved in the affirmative.
Bill read a second time.
In Committee :
Clause1 -
This Act may be cited as the Fraudulent Trade Marks Act 1904.
– I have to thank Senator McGrego’r for explaining that the short and long titles of the Bill have been altered, in order to keep within our legislative powers under the Constitution, I am not quite satisfied that it will have any effect in that respect, because, whatever it may be called, either it is within our competency to pass the Bill or it is not. What the title is will make no difference in that regard. The change in the title was responsible for a great deal of the confusion which arose during the debate on the second reading. The substitution of the words “ fraudulent trade “ for the word “ merchandise “ has mixed up the subject of merchandise marks with the general subject of trade marks. It would have been much better if the two subjects had been kept quite distinct.
– But we are legislating under the provision relating to trade marks.
– I quite understand that. “Undoubtedlywe have an absolute right to legislate in regard to trade marks, but our power to deal Avith the subject of trade descriptions is not quite so clear. For that reason it would have been much better if the two subjects had been kept distinct. With regard to the registration of and the right to the exclusive use of trade marks, in Great Britain the legislation is comparatively old, and in every State of the Commomwealth I think there is a well-recognised law on the subject. Senator McGregor is aware that a Bill, dealing Avith trade marks was in course of preparation when the late Government Avent out of office, and no doubt the Federal legislation, Avhen passed, will virtually repeal the States laws. With regard to merchandise marks, Avhich is the subject of later British legislation, only one State, Victoria, so far as I know, has passed any legislation, and’ the provisions of the Merchandise Marks Act are incorporated in a Trade Marks Act, and it is to that fact, I think, that a great deal of the confusion in the recent debate Avas due. It Avould have been better if the Government had adhered to the title of the Bill which they found Avhen they entered office, because then it Avould have been perfectly clear that we Avere dealing Avith a subject which Avas dealt Avith in 1887 by the British Parliament. I know that the Bill deals with trade marks in a certain way. A trade mark is in itself generally a description of the particular goods to Avhich it is applied.
– Not necessarily.
– Not necessarily, but generally it is. That is how the subject of trade marks comes Avithin this particular legislation. If other goods . are put under a trade mark Avhich is generally used to designate a particular kind of goods, the offence is that there is a Avrong trade description on the goods or the package, and the object of the provisions in this Bill is not to deal Avith the subject of trade marks at large, but to insure that when there is either a registered trade mark, or any other mark that indicates the quality of the goods, then the goods in that package, or under that mark, shall be what they are described to be. The illustrations Avhich
Avere giA’en by Senator Best had no reference to trade marks, but to cases which have occurred under the English Act, where a man had put “ 1 lb.” on a package to shoAv that that Avas the weight of the goods supposed to be contained therein. That note is not a trade mark, but merely a trade description. The Avord “ Scotch,” Avhen placed on the covering of a ham, is not a trade mark, but a trade description. A trade mark may be a trade description, but it does not follow that a trade description is a trade mark.
– We will make a trade description a trade mark under the Bill.
– It all comes under the heading of trade marks.
– The Bill only deals with a trade mark when it is a trade description.
– The title of the previous Bill was the Merchandise Marks Bill.
– In the title of the previous Bill the word “ trade “ did not occur. Therefore, it was kept distinct from the law of trade marks - which is of much older origin, and which has ‘been adopted in all the States. As our right to deal with merchandise marks under the Constitution is not so clear as our right to deal with trade marks, it is all the more desirable that we should have a correct title to this Bill. I recognise that this is a subject with which we have to deal very warily.
– The honorable and learned gentleman objects to the word “fraudulent” in the title?
– No ; to the word “ trade.” I think that the phrase “ merchandise marks” is better. for the purpose than “ trade- marks.”
– Would the honorable and learned gentleman leave in the word “ fraudulent “ ?
– The word is not necessary. I think it is best to follow the title of the Imperial Act. Seeing that that legislation was the outcome of an international conference, and that the desire is that there shall be a uniform law amongst civilized nations with regard to merchandise marks, it is advisable to adopt the same term as Great Britain has adopted. I wish the legislation on this subject to be kept quite distinct from the legislation on trade marks.
– I must confess that I found it very difficult indeed to follow Senator Drake.
– First he said “ it does not matter,” and then he said “ it does matter.”
– Yes. The honorable and learned gentleman said that the Bill was introduced by himself under the title of the Merchandise Marks Bill. Every provision, with a few verbal alterations that is contained in the present Bill, was included in that measure. He now objects to the denomination of this Bill as the Fraudulent Trades Marks Act, but he must necessarily admit that it was brought in under the provision in the Constitution which’ enables us to deal with trade marks. If we have not power to deal with the subject under the denomination of trade marks, then, according to Senator Drake, we have not power to deal with it at all. To my mind, he has conclusively proved that we should sail under the colours which we are allowed to sail under. We are entitled to legislate under the denomination of trade marks.
– What the Bill is called cannot make any difference. It is the substance of the Bill that makes the difference.
– Of course it cannot; but is there in the Constitution any provision enabling us to deal separately with merchandise marks ? The subject that we have the power to deal with is trade marks. I think that the Government were perfectly right in altering the title of the Bill. It is under sub-section XVIII. of section 51 of the Constitution that the Bill is introduced, and, although Senator Drake called his measure the Merchandise Marks Act, yet he had in that measure every provision which is contained in this one. I quite admit that the Government have gone as far as they can go. They have stretched their constitutional powers to the very utmost limit, and, perhaps, there may be some doubt as to whether they have not gone beyond the limit. But I think that in this respect they have erred in the right direction.
– I am pleased that Senator Best supports the view which the Government have taken in connexion with this question. I do not think that the confusion during the debate was very marked with reference to the distinction between a registered trade mark and a trade mark.Senator Drake knows very, well that there are trade marks which are the property of the individual who has registered, them, but there are also trade marks to which no one has any right, except through custom and usage. Any person can adopt a trade mark without registering it. I think that the title is right as it stands. In a subsequent clause we have made a “ trade description “ come under the heading of a trade mark. I hope the clause will be permitted to pass.
Clause agreed to.
– Can I move a new clause at this stage ?
– Yes ; we have established a new procedure under our Standing Orders. Standing order 192 lays it down that-
The following order shall be observed in considering a Bill and its title : - 1. Clauses as printed and proposed new clauses. 2. Postponed clauses (not having been specially postponed to certain clauses). 3. Schedules as printed. 4. Proposed new schedules. 5. Preamble (if any) 6. Title.
So that I shall accept any new clause that is proposed at this stage.
– I move-
That the following new clause be added : - 10. This Act shall commence on a day to be fixed by proclamation.”
The intention of this clause is to bring the Bill into conformity with other machinery measures which have been passed by the Federal Parliament. In almost every case where we have passed machinery measures - in the Customs Act, the Excise Act, the Excise on Beer Act, the Public Service Act, and the Patents Act - similar clauses have been inserted. I do not think that I need give reasons in addition to those which I gave on the motion for the second reading, but, briefly, the reasons for the clause are, that this Bill constitutes an interference with existing trade conditions. It will alter the law in several States, and it is only fair to traders that they should be given time to make their arrangements accordingly- It will also .give the Government time to get all the machinery ready for bringing the measure into operation, so that when the time fixed in the proclamation arrives the State administration dealing with the subject will be dropped and the Federal administration will commence. My proposal is in no way hostile to the Bill, and I trust that the Government will accept it.
– I “do not oppose the proposed new clause, because I believe that even had the matter been left to the discretion of the Government they would have taken care that the trading community were not put to any inconvenience. The’ only point that I hestitate about is as to which is the most appropriate place to insert the clause. I doubt whether it would not be better to put it amongst the miscellaneous clauses at the end of the Bill, but I am informed that it would be just as well to put it at the commencement, .and, therefore, I offer no objection to it.
– I should like to ask the Vice-President of the Executive Council and Senator Pearce whether they do not think that the object of this clause is already attained bv paragraph b of clause 9 ? It appears to me that the draftsman of the Bill has perceived the difficulty which Senator Pearce has very’ properly pointed out, and that clause 9 effectually provides for it. I understood that there was an immediate necessity for this Bill. I do not know whether the intention now is to leave time so that goods which are to be imported into the Commonwealth before the Act comes into operation, may not come under its scope. There may be some danger from that point of view in delaying the operation of the Bill.
Senator BEST (Victoria).- When Senator Pearce was speaking on the second reading, I drew his attention to paragraph b of clause 9, where, as I then pointed out, the principle for which he contends is involved. But I do not think that that provision answers the objection that he has made. It is most desirable that traders should have notice as to when the Bill is to come into operation. Paragraph b of clause 9 contemplates that a prosecution has actually been commenced before la. trader can take advantage of the provision ; although, possibly, if he could satisfy the Minister that the imported goods were ordered beforehand, no prosecution would take place. But the point is that paragraph b does not answer Senator Pearce’s objection, because it applies only after a prosecution has actually been started.
Proposed new clause agreed to.
Clause 2 agreed to.
Clause 3 -
Trade description, in relation to any goods, means any description, statement, indication, or suggestion, direct or indirect -
as to the material of which the goods are composed, or from which they are derived ; or “False trade description” means a trade .description which is false or likely to mislead in a material respect as regards the goods to which it is applied, and includes every alteration of a trade description, whether by way of addition effacement or otherwise, which makes the description false or likely to mislead in. a material respect, and the fact that a trade description is a registered trade mark shall not prevent it being a false trade description within the meaning of this Act.
– I wish to point out to the Vice-President of the Executive Council, in case the point should be forgotten, that two of the descriptions are out of their alphabetical order. “Trade description “.is placed before “ False trade description.” I presume that that will be put right. I do not understand the expression “ from which they are derived, ‘ ‘ which is used in paragraph e, under “trade description.” It speaks of “the material ‘ ‘ from which the goods “ are derived.”
– There are preparations,, both in regard to food and fabrics, as to which it is necessary to define the substances from which they are derived. The materials change their character entirely in manufacture, and it was to prevent advantage being taken of any slip in consequence of the change in the material that these words were inserted.
– It will be observed that in . the definition “ false trade description,” the following words are contained : - “ The fact that a trade description is a registered trade-mark shall not prevent it being a false description within the meaning of this Act.”
If I rememberrightly, the English . Act provides that a “trade description” is a trade mark, “or part of a trade mark.” I would suggest the inclusion of the words “or part of a trade mark.” Then the verba! alteration, “ shall not prevent such trade description,” should be made consequentially.
– Has the honorable and learned senator noticed that the definition uses the “term “ mislead in a material respect “ ?
– The English Act also contains the word “material.” That applies to the description ; and the English Act further provides that the fact that “ part of a trade mark” is used, shall not prevent its being a false trade description. We might as well make the provision comprehensive in that way.
– I have no objection to’ insert the words “ part of a trade mark,” because otherwise it might be taken that a registered trade mark might be defaced. Any one wishing to deceive the public might adopt a portion of a trade mark. While I think that that is amply provided for in another portion of the clause, still we cannot do too much to make the measure complete.
– I move -
That the following new paragraph be inserted : - “(g) as to the class of labour by which such goods are made; or”
In some of the States there are Acts providing that cabinet-work’ made by Chinese shall be so stamped as to convey that information to the purchaser, and there is also what is known as a trades union label. A trades union may register a label as a trade mark, and sell the right to use the label to employers who work under trades union conditions. I. know of a case in Western Australia in which a firm that was not observing fair conditions, used a trades union label : and I contend that such an act is equivalent to using a fraudulent trade mark. I cannot see, however, that under the Bill, as it stands, there is any power to punish such an offence. It would be impossible to prove that the individual concerned had fraudulently acquired a trade mark, seeing that he had bought it from a person who had the right to use it. At the same time such a manufacturer professes to his customers that his goods are made under certain conditions, and thus far there is fraud. A little while ago Senator McGregor informed the Committee that goods were made by Chinese in Melbourne, and shipped, to Adelaide, and there sold as goods made by Europeans. I do not see that this clause would meet such a case.
– Clause 4 would, I think, cover such a case.
– But that clause deals with the falsifying of a trade mark.
– It also deals with a trade mark which nearly resembles a registered trade mark.
– But there is no falsification of a trade mark in such a case as I have stated. It is merely stated untruthfully that a certain class of labour has been used ; but it ought to be made a crime under this Bill, and to that end I submit the amendment.
– I should like to ask the Vice-President of the Executive Council whether the definition of “ Justice “ means that there is an intention to appoint Commonwealth Justices ?
– I. do not know that there is any immediate intention to appoint Commonwealth Justices, but there is a possibility that such a thing might be done in the future. The Chief Justice and his colleagues, are Justices of the Commonwealth, and there is nothing in the Constitution to prevent Justices being created by the Commonwealth. As to Senator Pearce’s amendment, I do not know that there is any. very serious objection to it ; but I think that sub-clause d, which deals with the mode of manufacture, covers such a case as he has described.
– No.
– I think that “ mode of manufacture “ would include the class of labour.
– I do not think so.
– I take it that “ mode of manufacture “ means the method used in making up the article, and not the class of labour.
– There is nothing in the Bill to compel any one to mark goods which are manufactured in Australia. The only effect of this amendment would be that manufacturers would not mark articles at all.
– They would run no risk then.
– That is so. ?nd consequently, unless under some States Acts manufacturers were compelled to put on marks with reference to the labour employed, this Bill would have no effect.
Senator CROFT (Western Australia).I desire to support the amendment proposed by Senator Pearce, because I do not think that paragraph d covers the ground. I take that paragraph to refer to the methods adopted in the manufacture, and thus, in my opinion, it does not meet the wishes of Senator Pearce.
– That paragraph does not cover the class of labour.
– Read paragraph d with paragraph /. -
– That does not help me. A number of men, or a trades union or similar organization, may have registered a brand or trade mark bearing, say, the word “ Made by Trades Union Labour only,” and made some arrangement with a manufacturer, for its use. If goods be stamped “ Made by Trades Union Labour only,” surely that is a trade mark.’ If that be so, then a manufacturer who does not employ trades union labour should be guilty of an infringement of the Jaw when he places such a stamp upon his goods.
– It is a misdescription of the goods.
– That is so, and T respectfully submit that the amendment ought to be adopted.
– The amendment only emphasizes what is already included in the Bill. The definitions comprise anything which misleads, or is likely to mislead. But, of course, as I said before in connexion with the amendment which Senator Best intends to move later on, if the present proposal will make the meaning more complete I do not oppose it.
– The amendment proposed by Senator Pearce seems to me to be very vague. It is not mandatory, but merely permissive, that these trade descriptions shall be applied.
– But if these descriptions are put on goods, and they are not true, the manufacturer is liable.
– Does Senator Pearce mean that it must be said whether the goods are manufactured bv men, women, girls, or boys? If the honorable -senator means that a manufacturer shall say whether the goods have been made by trades union or non-union labour, why not propose a clause to that effect? The amendment seems, as I said, to be wide and vague - so much so as to be almost meaningless. Moreover, I do not think it will accomplish the object which the honorable senator has in view.
– The amendment is only tautology. These things are already’ provided for ; but there is no objection to the amendment.
– I should like Senator Pearce to state specifically what effect his amendment will have.
– My amendment does not compel manufacturers to say by whom their goods are made.
– But if the manufacturer states anything, he must state the truth.
Senator PEARCE (Western Australia). - In reply to Senator Smith, I may say that the only effect of my amendment will be that, if a manufacturer does say by what class of labour the goods are made, he must state the truth. If a manufacturer says that goods are made by European labour, and that is not so, he will misdescribe his goods, and thus commit a breach of the law.
– I was going to point out to Senator Smith what the amendment really means, but Senator Pearce has to some extent done that for me. If a manufacturer in Western Australia or Victoria put a label on his goods falsely intimating that they had been manufactured by coolie labour, and by so doing induced Senator Walker or Senator Fraser, or any lovers of the coolie, to purchase those goods in preference to any others, that would be an offence. If, on the other hand, a manufacturer used a label falsely intimating that his goods had been manufactured by European labour, and thus induced Senator Dawson or Senator Croft to purchase them in preference to Chinese goods, that would be a false description. But all that is already provided for. If, however, the amendment makes the clause more complete, and, in the opinion of honorable senators, more likely to protect the public, I have no objection to it. Honorable senators must recollect that there is nothing in the Bill to compel manufacturers to declare by what labour their goods are manufactured. Senator Pearce’s only object is to provide that if a manufacturer states that his goods are made by any particular class of labour, that statement must be true, or the manufacture will be liable.
– I certainly have no objection to the proposed new paragraph, but I ask Senator Pearce to say whether he does not think that paragraph c of clause 8 entirely attains what he desires.
– Paragraphs b and c.
– I particularly refer to paragraph c, which appears to me to be most comprehensive, and to entirely cover the ground traversed by Senator Pearce.
– A man who sells as prunella leather that which is not prunella leather, ought to be guilty of an offence.
– In order to be perfectly sure, I think we ought to adopt the amendment moved by Senator Pearce. I understand that the Bill means that a trade mark ought to be a true guide to the quality of the goods sold ; and if a trade mark indicates that an article has been made by a certain kind of labour, that trade mark ought to be true. We know that good workmanship enters into the quality of an article, quite as much as does the stuff of which an article is made; and if we want to be sure that articles are of good workmanship, the safeguard suggested should be placed in the Bill. I think that requires to be done, because I fail to see that it is provided for.
– The amendment will not be of the slightest use to white or black. In the case of merchandise brought here from abroad, we cannot inquire as to the class of labour employed in connexion with its manufacture.
– We can prohibit it’s introduction if it has been manufactured by prison labour.
– That is so, I believe, but with respect to the general run of merchandise, we cannot prohibit it on account of the labour by which it has been manufactured.
– We can prohibit persons using a trade mark which they have no right to use.
– That is to my mind rather doubtful. The amendment will not be of the slightest use. I cannot admire the tone which is always adopted by the Vice-President of the Executive Council in regard, to certain honorable senators, to whom he now improperly refers as being in favour of the products of coolie labour. There is no justification for the insinuation.
Senator DRAKE (Queensland). - I have no doubt that the Vice-President of the Executive Council desires that a trade description which is likely to mislead should be considered a false trade description, though it might not be false in a material respect. I think, however, that the words “ or likely to mislead “ are in this clause misplaced, and that they ought to come after the word “ respect.” The use of this expression makes the Bill very much more stringent. It may be very difficult to prove that a trade description is likely to mislead. It is certainly a tremendous power to put into the hands of a person, to enable him to prosecute on the ground that a trade description is likely to mislead, even though it may not be “ false in a material respect.” That is an enormous extension of the power conferred under the English Act. If these words are to be included at all. I suggest that they should appear after the word “respect,” because I think it could never have been, intended that the words “ or likely to mislead “ should be qualified by the words which come afterwards, “in a material respect as- regards the goods to which it is applied.” That qualification, it appears to me, is intended to follow immediatelyy after the word “false.”
Senator BEST (Victoria).- I think the Vice-President of the Executive Council should accept the suggestion made by Senator Drake, because whilst I agree with the insertion of the words “ or likely to mislead ‘ ‘ as having become necessary by reason of what has taken place in the old country, I think that they should not be qualified by these words “in a material respect.” A trade description which is “ false in a material respect “ is interpreted in the old country to mean a trade description which is “untrue” in a material respect. As the clause now stands, a false trade description would be one which was wholly untrue, because the words “in a material respect “ seem only to qualify the words “ or likely to mislead.” I think that if these latter words came after the word “ respect “ the definition would more completely attain the object sought.
– I have thought over this matter previously. Originally I did not view with very much favour the insertion of the words “ in a material respect.” I desire to point out to honorable senators what “ a material respect “ may mean in a court of law, and I am sure Senators Best and Drake will bear me out. If a description of goods would lead anyone to believe that they were woollen goods, and there were still a proportion of cotton in them, it would have to be decided by the Court what a “ material respect “ would be - whether it would cover one, two, or ten per cent, of cotton in woollen goods. It occurred to me that that would be leaving a loop-hole for people to gradually increase the quantity of cotton in so called woollen goods. Honorable senators will be aware that under section 52 of the Customs Act a prosecution has already taken place. A certain percentage of ash, 6 per cent., in tea imported is allowed by the regulations under the Customs Act. This ash is merely dirt, which the public are expected to consume as tea. This percentage was allowed, because it was admitted that tea could not be harvested and prepared for market without the accumulation of some amount of dirt, which, in the trade, is called “ash.” It is only called “ ash” to distinguish it from other dirt, or possibly to make it appear less ugly in the public mind. People introducing tea thought that 6 per cent, of dirt was not enough to ask people to swallow, and they complained of being prosecuted for importing tea with a larger percentage of dirt in it. That shows just the kind of difficulty which might arise in connexion with the definition of the expression “material respect.” I was, therefore, not in favour of the use of this expression, but it was pointed out to me that trade is such a delicate thing that we must not be too hard on the trader, and we must allow a certain limit to which he can go. The expression, “ in a material respect,” is included in the English Act for that purpose, and the Court has to decide where the fraud commences. I contend that it should also apply to the expression “ or is likely to mislead.” It must be shown that an attempt is made to mislead in a material respect, or else it might be said that trade would be frightened out of the country. 1 Personally I should have no objection to the words “ in a material respect.” being left out; but I have to accept wiser opinions than my own on the subject, and when members of the legal profession urge, the necessity for these words I think they should be allowed to remain. If it is provided that a trade description, to be a false trade description, must be false in a material respect, I think it must also be provided that it must be likely to mislead in a material respect. If some goods were branded “ wool “ and the public were misled into the belief that those goods were all wool, and the Court subsequently found that they were not all wool,, a difficulty would arise, and two or three days would be spent in Court in deciding whether the. description was likely to mislead in a material respect, as well as being false in a material respect. I should prefer to leave the clause as it is, than that there should be a conflict of opinion afterwards.
Senator PEARCE (Western Australia). - I should like the opinion of the VicePresident of the Executive Council as to whether the definition in the Bill of a trade description covers an oral description.
– No.
– Surely something of the kind is necessary.
– We are dealing with trade marks.
– We have not the power under the Constitution to make an oral description a trade mark.
Amendment agreed to.
Amendments (by Senator Best) agreed to-
That after the word “ mark,” line 15, the words “or part of a registered trade mark” be inserted.
That after the word “prevent,” line 15, the word “ it “ be left out with a view to insert in lieu thereof the words “ such trade description.”
Clause, as amended, agreed to.
Clauses 4 to 8 agreed to.
Clause 9 -
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, unless he proves -
that he acted without intent to defraud ; or
that the goods were manufactured in or imported into Australia and the trade mark or trade description was applied to them before the commencement of this Act; and were held by him bond fide and without intent to defraud.
– I do not know whether Senator McGregor intends to adopt, as I suggested, the defences in the English Act. Those provisions have been struck out of the clause in the previous Bill, and the simple defence that the defendant acted without intent to defraud has been substituted. That would leave a person entirely without a remedy, if his trade description were improperly used by any other person.
– That is provided for in clause 8.
– No. Clause 8 applies to only a case of forgery or false application of a trade mark, while clause 9 applies to a case where a man may have in his possession goods having thereon the trade description of another man. Take the case of the aerated water manufacturers, which occurred in England. A man had his own name and description blown on certain bottles; a rival manufacturer got possession of the bottles, put his own stuff into them and pasted over the name his own label. He was brought before a magistrate and charged with having committed an offence under sub-section 2 of the provision in the English- Act. The magistrate found that there had been no intent on his part to defraud, but that he knew he was using the bottles of another man, and, therefore, he held that no penalty could be inflicted. The Chief Justice of England held, on appeal, that if this view were sustained no protection would be given to the man whose trade description was on the bottles, and he reversed the decision of the magistrate on the ground that though the man had acted without intent to defraud the purchaser, he was not acting innocently, and had, therefore committed an offence, because the section in the English Act provides that in order to make, a good defence, a man must show that he acted innocently. In this case’ he had nor acted innocently, but he had not intended any fraud against the purchaser. If the clause is left as it is, a man who has a trade description on, say, his bottles, will have no protection. I would suggest to Senator McGregor that he should accept the defences which are given in the English Act.
– I do not see any reason for altering the clause. In the case to which Senator Drake has referred Burgess pasted a label over a bottle into which had been blown the name of Wood. Of course, under some legislation, even in the States, as long as there was no intent to defraud the purchaser, . the seller might get off ; but if Senator Drake will refer to clause 3, he will find that the definition of a trade description is so comprehensive that if a person were to do an act of that kind, he would be liable to be prosecuted by the Minister or an officer of the Department. I am sure that the Registered Trade Marks Bill, when it is introduced, will provide penalties for an act of that kind, and give the owner every opportunity of getting justice if the provision in this Bill is not sufficient. I do not see any necessity to alter the clause.
Senator DRAKE (Queensland). - The statement of Senator McGregor is not satisfactory, because a man may have his trade description on a bottle, and yet it may not be a registered trade mark. No doubt, when a Bill dealing with trade marks is introduced, a protection will be given ; probablv there will be a civil remedy against any one who infringes a trade mark. This is not the case of a trade mark, but the case of a man having his trade description taken advantage of by another man, and being injured by the use of his bottles in that way. In the case of Wood v. Burgess, the magistrate found that the defendant had not intended to defraud the purchaser, and, therefore, he had not committed an offence, so that the man whose name was on the bottles had no remedy. That was put right on appeal, because the- English Act requires the defendant to show that he acted innocently. That provision has been left out of this clause.
– The honorable and learned senator should see that in a case of the kind he has cited the defendant would render himself liable for applying a false trade description. In the English case the description was false if the bottle bore the name of Wood, and it was issued by Burgess.
– But the name on the bottle was covered with a label.
– According to the definition clause, it would be a false trade description.
Senator DRAKE (Queensland).- With a view to introducing the defences in the corresponding section of the English Act, I move -
That paragrah a be left out.
The defences in the English Act may be seen in clause 13 of the Merchandise Marks Bill that I introduced -
– I hope that the amendment will not be carried, because it is not necessary. All this is provided for in clause 3.
– No,
– If any one can get outside the definition of trade description in that clause, I shall be surprised.
– If what Senator Drake is contending for is already provided for, Senator McGregor does not heed clause 9.
– No.
– Senator Drake has quoted the paragraphs of the corresponding section of the English Act. Paragraph c -
– Is not the substance of paragraphs a, b, and c of the section in the English Act contained in paragraph a of the clause before the Committee?
– No; because a man may act without intent to defraud. In the case of Wood v. Burgess, which is a leading authority, a man got the bottles of a rival manufacturer, and in them sent out his . own manufacture, believing honestly that rival manufacturers who had got his bottles would do similarly with them. He actually put his own brand or name in a conspicuous place on the bottles, which showed that he had no intent to defraud. In the lower Court the evidence clearly indicated that there was no intent on his part to defraud, and the case was dismissed, but on appeal it was held that although there was no intent to defraud he . had not acted innocently, and, therefore, he was held liable. That is the necessity for the provision in the English Act. What Senator’ Drake is. asking for is that not only shall the defendant show that there was an absence of fraud, but that he acted with the utmost bona fides and in the most perfect innocence, and fairly to the public.
– I think that the Vice-President of the Executive Council will act wisely if he accepts Senator Drake’s amendment. The honorable and learned senator asks the Government to accept a provision which is more drastic than that contained in the Bill ; which is more comprehensive, and which has stood the test of some years in the English courts. It is the interest of the public that Senator Drake is looking to. His idea is that if anybody offends, and if the public has been injured, although the offender had no intention to defraud, he must be made to suffer.
– I do not wish to appear factious in opposing any amendment that may be moved by an honorable senator, especially if the object is to make it less possible to defraud the public. The amendment, certainly, does nothing to make the Bill less effective, and, as Senator Best and other legal senators think that it will be an improvement, I will not object to it.
Amendment agreed to.
Amendment (by Senator Drake) agreed to-
That after the word “ proves,” line 7, the following words be inserted : - “(a) that having taken all reasonable precautions against committing an offence against this Act, he had at the time of the commission of the alleged offence no reason to doubt the genuineness of the trade mark, or mark, or trade description ; and
that on demand made by or on behalf of the prosecutor, he gave all the information in his power with respect to the persons from whom he obtained the goods or things; or
that otherwise he had acted innocently ; or.”
Clause, as amended, agreed to.
Clauses 10 and 11 agreed to.
Clause 12 -
The following goods are prohibited to be imported, and shall, if imported, be forfeited to the King : -
All 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; and
all goods manufactured at any place out- side Australia, and having applied to them any name or trade mark being or purporting to be the name or mark of any manufacturer, dealer, or trader in Australia unless that name or mark is accompanied by a definite indication of the country in which the goods were made or produced ; and
all goods manufactured in any country npt being a portion of the King’s Dominions, and having applied to them any name or trade mark being or purporting to be the name or mark of any manufacturer, dealer, or trader in any portion of the King’s Dominions, unless that name or mark is accompanied by a definite indication of the country in which the goods were made or produced.
– This is an important provision. It follows the English Statute to some extent, but I wish to direct attention to a departure which we found to be necessary in the Victorian Act dealing with the same subject. That Act is very comprehensive. First of all, it prevents the importation of any goods to which a forfeiture is applied ; and then it operates against -
All goods manufactured at any place outside Victoria bearing any name or trade mark being or purporting to be the name or trade mark of any manufacturer, dealer, or trader in Victoria.
We had these provisions in force in Victoria for some time, but latterly Ministers have refused to enforce them. I do not speak of the wisdom or otherwise of that action. They say that if they insist on all goods from foreign countries which come to ‘.this State being marked as to their country of origin - that is to say, being marked “ Made in Germany,” and so on - that marking constitutes an advertisement of the goods of a foreign country. This view is taken in Great Britain itself, because Sir Howard Vincent has introduced a measure into the House of Commons in pursuance, I believe, of a request made by British merchants, who object to have foreign goods marked “ Made in Germany,” or “ Made in Switzerland,” as the case may be.
– Such an advertisement ought to be against the goods in the mind of any patriotic Britisher.
– The Bill introduced to ‘the House of Commons simply provides that foreign goods shall be labelled “ Imported,” or “ Made abroad.” It. is considered that that accomplishes the object without any advertising of ‘foreign goods. I think . it is very desirable that goods imported from abroad should be branded as foreign goods. It is desirable that the consuming public should know that they are foreign goods. I think that, either the word “ imported ‘ ‘ or the phrase “ made abroad ‘ ‘ would be an improvement upon the words at present used. I would suggest to the Vice-President of the Executive Council that the Bill should provide for labelling imported goods which come from foreign countries, “ Not of British manufacture.” The effect of that would be that all goods other than goods made within the British’ Dominions would be labelled “Foreign,” or “Made abroad,” but British goods would bear an indication that they came from some portion of the British Empire. In these times, when preferential trade is occupying so much attention, perhaps it may be regarded as objectionable to denominate goods imported from Great Britain as “ foreign goods.” Consequently, my contention is that this claus.e should be amended so that, instead of statingthe country of origin, goods should simply . be labelled “Not of British manufacture,” if they come from outside the British DominionsI have prepared an amendment to securethis object. I would make paragraph b read as follows : -
All goods manufactured at any place outsideAustralia, and having applied to them any nameor trade mark being or purporting to be the nameor mark of any manufacturer, dealer, or trader in Australia, unless that name or trade mark is accompanied by a name or label that the same have been manufactured outside the British Dominions, , or are not of British manufacture.
– That would not differentiate them from Australian goods.
– I admit that difficulty. I should be prepared to go to that extent. If that proposal is not accepted, I would urge that “made abroad,” or “imported,” should be put upon goods of foreign origin. But in these days of preferential trade I prefer, from the Empire’s stand-point, to treat British goods differently from foreign goods.
– That is done in the next paragraph.
– That is just one of the points I intend to emphasize - the differentiation is made there.
– I think the honorable and learned senator will find that the provision goes far enough.
– That is as to the question of the country of origin ; but there is another question that would involve the insertion of a new sub-clause. Section 26 of the Victorian Trades Marks Act of 1890 is as follows : -
Whereas it is expedient to make further provision for prohibiting the importation of goods which, if sold, would be liable to forfeiture under this Part of this Act ; Be it therefore enacted as follows : -
All such goods, and also all goods, manufactured at any place outside Victoria bearing any name or trade mark being, or purporting to be,, the name or trade mark of any manufacturer, dealer, or trader in Victoria.
Then follow words practically the same as in the Bill : -
And also all goods manufactured in any country not being a portion of Her Majesty’s Dominions, bearingany name or trade mark being, or purporting to be, the name or trade mark of any manufacturer, dealer, or trader in any portion of Her Majesty’s Dominions, unless such name or trade mark is accompanied by a definite indication of the country in which the goods were made or produced.
The new words which have been imported into the Victorian Act are -
All such goods, and also allgoods, manufactured at any place outside Victoria bearing any name or trade mark being or purporting to be the name or trade mark of a manufacturer, dealer, or trader in Victoria.
The object is to protect the proprietary rights of the owner of a trade mark. As a matter of trade, what actually takes place is this : A manuf acturer at Hamburg or some other foreign port desires to appoint a man in Australia to sell his goods, and to make him his sole agent. The way that is accomplished is that they agree on a trade mark which may be registered by the Hamburg manufacturer, and applied to all his goods. That trade mark is registered in all places except Australia, and in Victoria, say, the sole agent registers it. in this own name. The effect is that no goods can come into Victoria except through the sole agent ; and it was thought advisable in this State to offer facilities for trade in this direction. In order to offer similar facilities in this Bill, I suggest the inclusion of the new paragraph. The effect would be that it would not be competent for any one to introduce goods into Australia under a trade mark which was held by the trader, agent, or merchant, as the case might be.
– Then one man could register every trade mark, and be sole agent for everything.
– He could do nothing of the kind.
– Not without the authority of the owner of the trade mark.
– Of course. I admit that it is difficult for the leader of the Senate to decide at once as to the acceptance of the two suggestions I have made; but I have sought to make it clear that if he could see his way to accept them, or, after full consideration, promise to recommit the clause, I should be very glad.
– Let the honorable and learned senator put his amendment in print.
– We are now dealing with, the clause, and I am obliged to submit my amendment.
– I agree with all that Senator Best has said as to the words denoting the country of origin. It is well known that the words, “ Made in Germany,” have had rather a good effect on the sale of goods manufactured in that country, and our object is not to advertise foreign goods to the detriment of British goods. At the same time,, if we only have the word “ foreign “ it will not, in my opinion, be enough ; we ought also to have the word “Asiatic” to distinguish such goods from those made in America or Europe. In Australia we have not quite such an antipathy to the “ foreigner “ of Europe or America as we have to the Asiatic “ foreigner.” The difficulty could be met by having all Asiatic-made goods stamped with the word “Asiatic.” That would be some safeguard against those goods being sold here as European.
– I should like to draw honorable senators’ attention to standing order 131,’ which states “that an amendment to a motion before the Senate must for the purposes of record be in writing, and signed by the proposer. I respectfully request honorable members, to comply with that standing order.
– I believe it is the intention of Senator Best to do all he can to make this a perfect measure, but I cannot accept the amendment he has suggested in this instance. I think I shall be able to convince the honorable and learned senator that it will be better and wiser to leave the clause as it is. Paragraph b of clause 12 provides that where a foreign manufacturer, or importer, or any person in any country other than Australia adopts the name or the well-known trademark of a firm in Australia, with or without the consent of the owners of the name or the proprietors of the trade mark, the goods must also bear the name of the country of origin. If, for instance, biscuits are being imported here bearing the name “ Swallow and Ariel,” or other goods bearing the name “ George and George,” or soaps and candles bearing the name of “ Kitchen, “ or the trade marks of any of those firms, paragraph b requires that, in addition to the name .and trade mark, the name of the country of origin, or the place where the goods are manufactured, should also be stated, .and if that is not done, the importation of the goods will be prohibited. I desire to remind honorable senators that if merely the expression “ abroad “ were used, it might have the effect of doing an injustice to some foreign country. It would be detrimental to the best interests of the trade of Australia, of the British Empire, and possibly even of the world, if the expressions “British” or “not British” were used. . I propose to submit to honorable senators one or two instances to show what the intention of the paragraph is. I take, for instance, an article in the glove line. There are gloves known as Ganis de Paris. Suppose a line of gloves is sent out to Australia bearing the name of George and George or Ball and Welch, and labelled’ Ganis de Paris, purchasers in Australia would at once imagine that those gloves were not manufactured in Australia, but in Paris to the . order of George and George or Ball and Welch, and they would believe that they were getting Paris kid gloves. As a matter of fact, it is well known that in the past a great quantity of gloves was manufactured in Germany, and labelled Gants de Paris. If, instead of providing that there should be stated on the article the name of the country of origin, we were merely to provide that the words “ made abroad “ should be branded on them, the people of Australia would’ in such a case believe that they were getting Paris kid gloves, when, as a matter of fact, they were not. I give another instance which more immediately concerns Australia. One of 5 c 2 the late Speakers of the House of Assembly of South Australia, Mr. R. D. Ross, had a vineyard, and manufactured wine to the extent of 30,000 or 40,000 gallons every year, at a place called Highercombe. This wine obtained a very good name, and was very popular in parts of Australia. Mr. Ross sold a quantity of it to Burgoyne, the great wine manipulator, in London. This wine was of such excellent quality and had such a ready sale in England that Burgoyne registered “Highercombe “ as a trade mark or description of the wine. He went to other countries, Spain, France, and Germany, bought wine there, and very probably sold it under the same label, and he actually sent wine out under the same label to South Australia. Would not that be a false trade description under the terms of this Bill?
– The Bill specifically provides against such practices.
– The honorable and learned senator is referring to clause 13, which applies to the names of places in Australia; but I am showing the Committee how the fraudulent use of a name may have an evil effect where the country pf origin is not mentioned. . It would be an injustice to Australia, and particularly to South Australia, if this wine secured by Burgoyne could not be prevented from being imported here with the trade mark of “ Highercombe,” whether it be the name of any individual or place. It would not be fair, either to France, Spain, Portugal, or other countries from which wine might be imported.
– Take Portland cement, for example; it is made in a dozen places.
– If an importer gives the name of “ Portland “ to cement manufactured in Germany, or any other part of Europe, the fraud could be dealt with under clause 14; but suppose, for example, that “ Portland” was the name of an individual, the matter could then be dealt with under paragraph b of clause 12. I am endeavouring to point out that the use of the words “ made abroad “ would not be definite enough, as they would not give the public here any idea of the actual place at which the goods so marked were manufactured. People here might believe that they were buying something that was of French or Spanish manufacture, when it might be of Swedish or Belgium manufacture. An injustice in that way might be done to some foreign countries if the amendment suggested by Senator Best were accepted. I can give honorable senators another instance : A cigar manufacturer here, in Victoria, manufactures a very excellent cigar, which he calls “ Pomeato.’ There would be nothing to prevent him arranging with a firm in Calcutta 01 Hong Kong to manufacture cigars bearing that name, or that might be done without his consent, and when those cigars arrived here, and were distributed amongst the people they would imagine that they were smoking the locally manufactured article. Senator Best suggests that the article should merely be branded “ Made abroad.”
– It would not be “ abroad “ if manufactured in Calcutta.
– It would be “ abroad “ if it were manufactured -at any place outside of Australia.
– Senator Best does not desire that any part of the British Dominions should be considered as “ abroad.”
– That is not what the honorable and learned senator desires in this instance. If these cigars were branded “made abroad,” people might imagine that they came from Havannah or from some other place where very good articles of the same description are manufactured. If they were manufactured in Calcutta or Hong Kong injustice would be done to Australia, as well as to other countries in the world manufacturing similar articles, if the actual place at which they were manufactured was not branded on the article. From these instances Senator Best, with all his desire to make the Bill more perfect, will admit that I have made out a very good case for leaving the clause as it stands. Other honorable senators may be able to bear out what I have said by quoting other instances. I could myself give other instances of the kind, but I think I have said sufficient to convince honorable senators that it will be wise to leave the clause as it is.
Senator BEST (Victoria). - I must confess that I have not been impressed by the arguments of my honorable friend the Vice-President of the Executive Council. The very object of the clause is to allow the Australian public to know when they are consuming goods that are made abroad. I do not think the intention is to give the Australian public to understand where goods are actually made. The object is to simply distinguish goods that are foreign made from goods that are ‘ manufactured here. It appears to me, from the instances Senator McGregor has quoted, that he is more anxious about justice being done to other countries.
– We have a right to consider them also.
– We have a right, first of all, to look after ourselves. That is the object of this clause. The effect of branding goods as having been made in particular countries has been to give those countries an advertisement, and to secure for their goods a preference in the local market. I do not place too much reliance on the statement as to where goods are actually made. People may not choose to inquire so long as they are satisfied that they are made in some foreign place. ..There may be a large importation of goods branded “ Made in Germany,” whilst those goods may never have been seen in Germany. So long as they were branded “Made in Germany,” no inquiry would take place on the part of the Customs here as to where they were actually made.
– But inquiry would take place on the part of other traders.
– The design of the clause can, in my opinion, be best carried out in the way I have suggested. I desire to emphasize the feeling in Great Britain expressed by ‘ the action taken by a member of the British House of Commons in introducing a Bill to remedy this very thing. I submit that in enacting legislation upon this subject we should follow up-to-date ideas. All we seek to achieve, with the least detriment to our own goods, is that the public shall know whether articles have been manufactured abroad without distinguishing any particular place. I do not know whether they receive any support, but if my own views are consulted, I should like to differentiate, in the way in which the Bill proposes, in favour of goods made within the British Dominions, and give them the advantages of this clause. I prefer that, and -will move an amendment in that direction, but I should like to hear a general discussion first. My view is that having regard to the fact that the experience of this provision in Victoria has been that it has never been enforced-
– It should have been.
– Perhaps it should, but the fact remains that it has not, and. the reason is that traders here have felt that goods advertised with the country of origin have been brought into direct competition with locally made goods. We do not make gloves here, but I should like to ask honorable senators what show they think locally made gloves would have against articles of that kind which were branded “ Made in Paris ?” What we are fighting against in this community, and what all young industries have to fight against is the prejudice against the local article.
– That should not exist in a protectionist State.
– To some extent it does. The misfortune is that not only in Victoria, but in other States, the home-made articles which are equal in quality and merit, are actually branded as though they had been made abroad, for the mere purpose of securing a better sale. We should not encourage any proceeding of that kind. We should have regard, not to what justice is to be done to the productions of other countries, which are so much the concern of my honorable friend, but to the consumption, of our own goods. And I urge that they will be more largely consumed,- as. far as experience has proved, if there is a general indication on the goods which have been made abroad. That does not commend itself so much to certain sections as does a specific brand. But, supposing that we were making our own gloves ; could they compete with gloves branded, “ Made in France “? I do not think that they could, because of the unreasoning prejudice against our own articles. If they were simply branded “Made abroad,” we should not feel that prejudice so acutely.
– Does not the honorable and learned senator think that the whole thing is a question of price?
– No.
– The foreign article often brings a higher price than the local article.
– The effect perhaps, is to enable a man here to secure a higher price, as against our own goods, although the quality may not be different. We have to reckon on the prejudice as a factor. Surely the whole case will be met by a broad indication of “foreign manufacture, by using the words “ Made abroad,” or the w.ord “Imported,” instead of ‘the more specific words “ Made in Germany,” or any other place? It is of no use to attempt to fly in the face of actual experience. Does any one mean to suggest to me that British merchants would desire an alteration of this kind if they did not feel the severity of the pressure of foreign goods, when wefind a movement on their part to do away with the mentioning of the place of origin, and the substitution of a broad general term, such as “Made abroad,” or “Foreign made?” That is the experience of the old country, and when we come to Victoria that experience is accentuated, because the Government, on behalf of the mercantile community, say, “We shall not enforce this provision, because we learn by actual experience ‘that the effect is to give a preference to and to advertise the foreign goods.” Do not let us get away from these facts.
– The firms will import the foreign workmen to make the goods for them.
– - I do not care whether they do or not, so long as the industries are established here. If we can obtain higher skill than we can produce there is no objection to importing foreign workmen. That would advantage ourselves, because it would mean the development of industries. There is not an honorable senator who would object to men of higher skill than our own being employed, because it would mean that the standard of work would be increased, and that our men would be taught those departments of industry which hitherto we did not know, or could not execute, so effectively as manufacturers in other parts. With our limited population we cannot hope to supply workmen of experience and skill. I do not regard the objection of my honorable friend as sound. I hope that the Committee will insist on the teaching of practical experience being observed in the Bill. I am about to write out an amendment, but the subject is so large that I am very glad of the opportunity to have a general discussion, because it will probably enable us to evolve something that will be satisfactory all round.
– I think that Senator Best has made out a very good case from his point of view, but I cannot agree with the conclusions at which he has arrived. It seems to me that in these two paragraphs we are endeavouring to legislate, not only for Australia, but also for the British Empire. I Hardly think it is wise to attempt to do so. To that extent I agree with Senator Best, that instead of providing for the name of the country of origin to be attached to goods, it will be sufficient for all the purposes of the Bill to require a statement that the goods, were made abroad. I part company with Senator Best when he wishes to make a distinction between parts of the British Empire and foreign countries, because it will lead us into a most illogical position. When we are going to differentiate for the purposes of trade, the idea we shall have in our mind will be that in some foreign countries there are conditions of work which do not approximate to’ our conditions, and that Ave wish to give the people of Australia a knowledge of that fact. If we apply -that method of reasoning to the British Empire, what conclusion does it lead us to? Are we to give, our people the impression that the goods, on which we do not compel the name of the country of origin to be placed, because they come from some part of the British Empire, are made under conditions which approximate to those existing here? For instance, in Hong Kong, Singapore, India, and South Africa, there is black and Chinese labour, and yet Senator Best proposes to allow those countries to send goods here on the same terms as other parts of the British dominions.
– A free-trader ! This is the finest protectionist argument I have heard for some time.
– I am pointing out how illogical the argument is, from the honorable and learned senator’s stand-point, of differentiating between the British Empire and foreign countries. We shall have a greater diversity of conditions within the Empire than outside. We shall have white, black, and yellow races, and yet, for the sake of the Empire, we are asked to put all those races in one class. For the purpose of foreign nation’s we are to differentiate. The Frenchman must label his goods “ Made in France,” but the Chinaman working in Hong Kong is to be treated equally with the English operative working in Lancashire or Yorkshire. It is an absurd differentiation.
– I am adopting the principle of the Bill.
– The honorable and learned senator proposes to add certain words which attempt to make that differentiation, and he says that his reason is to commence a system of trade preference which he believes in, and which, I am sure, Senator Dobson will actively support. I do not think, however, that Senator Dobson will agree with the honorable and learned senator that this’ is the place at which to start the campaign, or that this is the best way in which to commence to alter our legislation, so as to give a preference to British goods. What is desired is that paragraph b shall be altered, so that, instead of the country in which the goods were made or produced having to be indicated, the fact that the goods were made abroad shall be indicated. If that altera^ tion is made, paragraph c can be omitted, because it would then be unnecessary.
– What about the King’s dominions?
– There is no reason why we should attempt to make a distinction between the King’s dominions and countries abroad, and it would be futile if we did. For instance, could we prove that goods which came here from England were made there?. We know that, owing to the ramifications of commerce, the probabilities are that, although the goods were received from England, they might have been made in Germany or Belgium.
– That shows the folly of the present provision.
– Yes, of paragraph c. I would suggest for the consideration of the Government that all the words after “ indication “ in paragraph b should be omitted with a view to inserting the words “that the goods are made abroad.”
– I was going to move that amendment.
– If the honorable and learned senator will move that amendment I shall support him, on the understanding that paragraph c will be omitted, because I cannot see that this is the proper place to attempt to distinguish between goods made in the dominions of the King and goods made in foreign countries. Knowing that he is a staunch protectionist, I am surprised to hear him admit that the people of his own State, who are supposed to be the staunchest protectionists in Australia, have such a strong prejudice against local articles that thev will not buy them.
– We cannot get away from it.
– I know that, and it only, shows the hollowness of their professions of protection.
– It is the wretched freetraders we have amongst us who do that.
– The honorable and learned senator will admit that there is a majority of free-traders in Victoria. In paragraph c we are attempting to legislate for something that will happen in England. We are attempting to provide that a trader who buys certain goods in England shall label them as originating in a foreign country. How can we compel traders’ to do that? The only man we «an come down upon is the trader in Australia, and he is not responsible. He has to take the word of the British importer who sent the goods out to him that they come from France or Germany, as the case may be. And we may take it that the British trader will put upon those goods the name of the country that he thinks will cause them to sell best in the Australian market. If he knows that gloves made in France sell better than gloves made elsewhere, the British exporter will label his gloves as made 111 France or reputed to be made there.
– Senator Best has referred to the wishes of the British merchants. I understood him to mean that British merchants are favorable to the idea of the words “ Made abroad “ being put upon goods instead of their being labelled as made in the specific country of origin. I do not know how recent Senator Best’s information is, but I would call his attention to a report of the Select Committee appointed by the House of Commons on the 15th February, 1890. It consisted of seventeen members, and was appointed to inquire and report -
Whether any alteration is required, either in the provisions of the Merchandise Marks Act- 1S87, or in its administration, in order to prevent fraud by the use of an indirect indication of origin of imported goods, or their false marking after importation ; and whether there is necessity for fresh legislation for prosecution of offences against the Act.
Without reading extensively from the report, I may quote a couple of paragraphs. The second paragraph says -
Your Committee have examined many witnesses representing various trades, the shipping industry, members of Chambers of Commerce, officials from the Customs Department, and others. As a result, there seems to be a consensus of opinion that the Merchandise Marks Aci r88; has generally been most beneficial to the manufacturing interest of the country, and that the importation of fraudulently marked goods, or of goods bearing a false indication or origin, has materially diminished since the Act came into operation.
Omitting some paragraphs . which are not relevant to the subject before the Chair, the report goes on -
Tour Committee cannot adopt the suggestion made by some witnesses, that the words “ made abroad,” should be substituted for the actualindication of the country of origin, now required by the Act to be placed on goods bearing descriptive or other expressions in the English language. Such an alteration in the Act would nullify one of the leading principles adopted by the Conference at Rome, and again at Madrid, and could not be maintained in any international convention for the purpose of preventing a false indication of origin being applied to goods. The substitution of the words ‘” made abroad,” for the actual indication of the country in which they were made, would be against the interest of individual continental States, which would thus be collectively classified under the words “ made abroad,” or “ foreign.” In support of this view, your Committee would point out that the consumer is just as much defrauded if he buys Swedish goods in the belief that they are German, or French wine in the belief that it is Spanish, as if he buys foreign goods in the belief that they are English. If Great Britain is to press for international arrangements for the discouragement of dishonest trade, her own legislation must be of general, and not particular application. The name of the country, however, might be held to be a sufficient indication of the origin, without in all cases insisting on the name of the particular place in which the goods were made.
– That was in 1890, only three years after the Act had been in operation. I was referring to a Bill “introduced recently by Sir Howard Vincent.
– As that Bill has not been passed, we cannot consider it. I presume that the seventeen members of the House of Commons who served on this Committee were selected for their special fitness. There seems to be an inclination to import free-trade and protectionist arguments into the discussion. This is a Bill to prevent the general body of the public being defrauded by fraudulent trade marks. While I claim to be a good protectionist, I do not think that fiscal considerations should be introduced. Personally, I could not accept Senator Best’s idea that the words “ Not British made “ are preferable to “Made abroad.” Indeed, I do not like the idea of adopting the words “ Made abroad,” in substitution for the name of the country of origin. Our chief desire is that the consumers who buy an article of any kind shall know, as far as we can insure by legislation, where that article is made. For a number of reasons which are palpable to every one certain articles are in particular favour, as having been made in one country rather than in another. This is not the proper time, nor is this the proper measure, in which we should allow considerations, of regret for that fact to have weight. I do not like to differentiate between Great Britain and any other country. This is not a measure into the discussion of which we should import any arguments affecting preferential trade. What we want the public to know is where the goods which they purchase are made, if they are not made in Australia. We can all call to mind particular articles which are in greater favour because they come from some particular country. Kid gloves afford a case in point. Gloves made in other countries, or from kid produced in other countries, may be as good as gloves made in France ; but many people prefer French kid gloves. What ‘ we require, therefore, is to enable people who wish to buy French kid gloves to know that they are getting French kid gloves if they pay for them. In providing for that, we should not allow our fiscal ideas to intervene.
– We cannot keep it out.
– We should endeavour to do so. While I certainly wish that Australian .made goods shall have a preference in the minds of Australian consumers over goods made in any other part of the world, this is not a measure in which considerations of that sort should be allowed to affect our minds. I hope that Senator Best’s amendment will not be carried. I prefer the wording of the Bill as it stands to either of the suggestions which have been made.
– Senator Best seems to have overlooked one consideration affecting this matter. That is, that a large quantity of the imports into Australia come through Great Britain, though they are not manufactured there. While the law of Great Britain absolutely lays it down that those goods shall be labelled with the country of their origin, it would be impossible to give effect to his proposal. Take the most common things that we use - our wooden tobacco pipes. They are labelled as being made in Germany, or in France, or in Switzerland. They are sent from the country of origin to London, stamped as having been made in Germany or France, as the case may be. The man who actually exports them from London to Australia may not have any positive knowledge of the country from which they came. If Senator Best’s proposal were carried, he would have to put another stamp on the goods, in order that they might be admitted into Australia. Senator Best tells us that a proposal has been made in the House of Commons to alter the provisions of the British law. Well,. many propositions have been made to the House of Commons during the last hundred years, and have not been adopted. It is quite enough for us to know what the British Legislature has done, without considering what certain of its members propose. When Great Britain alters her law, it may be feasible for us to alter ours.
– I am aware that large quantities of our imports come through London houses.
– Some goods that are largely imported into this country are marked “ Made in Switzerland.” Such is the case with condensed milk and Swiss watches. -It is evident that th’ey do not come to us in ships direct from Switzerland. Those goods go to London or Liverpool, and are shipped to Australia by British houses. Senator Best’s proposal would be absolutely unworkable unless Great Britain first altered her law.
Senator DE LARGIE (Western Australia). - I am afraid that Senator Guthrie is regarding this matter in rather an impossible light. He speaks of our not being able to legislate until the English law is altered. We have to make laws for the Commonwealth, and not to presume to make laws for the whole Empire. When the British Government choose to legislate on this subject, we may be quite sure that they will not wait until we legislate in any direction. We must look at the subject from the Australian stand-point. As to what has been urged that we should not consider it from any fiscal point of view, I do not see how it is possible to deal with this subject, quite apart from fiscal considerations. The question of preference arises whether we like it or not. If we- are to distinguish between foreign and British goods by the mark that we insist upon having placed upon them, we at once make a preference. What we have to consider, therefore, is the degree of preference which we wish to give the various commodities which come into Australia. Fcir my part I shouldcertainly prefer an article made in Melbourne to an article made in London, just as I should prefer an article made in London to an article made in Berlin, At the same time, I do not think it right that an article from Calcutta or Hong Kong should come here and have preference over an article made in Berlin or Paris. The momentwe propose to brand an article as foreign, the question of preference arises, and apparently it comes down to this - what kind of labour has been employed ? Under the circumstances, the best course is to simply describe goods from European countries or America as “ Foreign,” and goods coming from such places as Hong Kong and Calcutta as “Asiatic.” Unless we do that we shall have articles of “ Asiatic “ manufacture coming into the country unbranded.
– Asiatic goods are also foreign goods.
– Yes; but in a different sense.
– Why not brand all the goods as “ Made abroad.”
– I think there is less prejudice against an article of European origin than against an article of Asiatic origin, and our only way is to show that articles are produced by the two different kinds of labour. I do not think any senator is anxious to put the European workman on the same plane as the Asiatic workman, although the former may be a foreignerfrom our point of view. I hope that Senator Best will be able to frame a provision to meet the requirements of the case.
– The object which Senator Best has in view is one which commends itself to a great many members of the Committee, and his reasons for inserting his suggested amendment are very laudable; but I think that the proposal at this juncture is premature, and out of place. The proposal is premature for the reason given bv Senator Guthrie. We cannot take steps to establish preferential trade relations between our own people and the rest of the Empire simply ‘ ‘ on our own ‘ ‘ ; there must be reciprocal action on the part of the other.
– Apparently, it will be a long time before they start on the other side of the world.
– I am speaking in connexion with this Bill only. We cannot take action in the direction of preferential treatment unless there is reciprocity. I submit that the motion is out of place, because it deals with a class of goods, a large proportion of which, perhaps, come here, after, as Senator Guthrie pointed out, having filtered through the United Kingdom. Senator Best has referred to a Bill introduced in the. House of Commons some time ago, and in the- course of this debate he has quoted from Kerly on Trade Marks. I have here the edition of Kerly, of 1901, and the learned editor, after dealing with section 16 of the English Act, of which the clause before us is substantially a transscript, goes on to say -
This section is a most important part of the scheme of the Act, for it, so far as it is effective, stops at the outset a class of frauds which, according to the evidence given before the Committees of 1862 and 1887, were widely prevalent and continually increasing, to the grave detriment of English manufacturers. Its main provisions are in accordance with the legislation now adopted in most civilized countries, under the International Convention, drawn up at the Conference on the subject of Industrial Property and Merchandise Marks, at Paris, in 1883, and amended at the subsequent Conference at Madrid, in 1899. The terms of the several Conventions are set out in the Appendix, pp. 764-773.
Turning to the appendices we find -
Arrangements between Great Britain, Spain, France, Switzerland, and Tunis, for the prevention of false indications of origin of goods.
Signed at Madrid, April 14, 1891. (Ratification exchanged at Madrid, June 15, 1892.) (Translation) -
The undersigned Plenipotentiaries of the States hereinafter enumerated,
In view of Article XV. of the International Convention of the 20th March,1883, for the protection of industrial property,
Have mutually concluded the following arrangement, subject to ratification : -
I do not propose to read all the articles, but article 1 is as follows: -
Article 1. All goods bearing a false indication of origin, in which one of the contracting States, or a place situated therein, shall be directly or indirectly indicated as being the country or place of origin, shall be seized on importation into any of the said States.
Then there are provisions that in the case of any law of a particular State not allowing seizure to be effected, the goods may be treated as prohibited imports. But we have to bear in mind that article 3 is as follows: -
Article III. The present stipulations are not intended to prevent the vendor from indicating his name or address upon goods coming from a country other than that where the sale takes place; but in such case the address or the name must be accompanied by a clear indication in legible characters of the country or place of manufacture or production.
If a Spanish, French, or Swiss manufacturer chooses to put his name on a particular article which he sends to Great Britain, and which may afterwards be exported, he is empowered by article 3 to do so, and, having done that, he is bound to put the name of the country of origin, according to the agreement between Great Britain and those States. The goods go to Great Britain, and are possibly re-exported to Australia ; and I ask whether it is competent for us to say to Great Britain that if she imports goods from Spain, France, or Switzerland, bearing the name of the maker, and, according to the Madrid Convention, the name of the country of origin, those names must be rubbed out before the goods are re-exported? That would be the effect of -this legislation if it were effective at all.
– We can so provide if we like.
– But are we competent to pass legislation of this kind of an effective character?
– May I point out that the goods so imported into Australia would be accompanied by a definite indication of their place of origin.
– Exactly ; but I take it that what Senator Best means is to wipe out the name of the particular country, and simply have an indication that the goods have been manufactured abroad, or beyond the British Dominions. This he does in order to prevent foreign countries getting, the advertisement which he, in common with others,, does not like to see them get.
– Does Senator Keating assume, with others, that “ made in Germany” reallv advertises an article?
– That is Senator Best’s contention.
– But Senator Keating surelv does not contend that?
– I am not concerned whether or not the contention is correct.
– An opposite effect would be produced on the mind of a protectionist.
– I am not concerned whether or not the contention of Senator Best is correct, but the object of the amendment is to have the name of country removed.
– Does the amendment go so far as that?
– I have not yet moved the amendment.
– I do not know the actual terms of the suggested amendment, but I understand that the object isto have a simple indication that the goods are imported from abroad. According to the Convention to which I have referred, a manufacturer in any one of those countries has the right to have his own name on articles exported to Great Britain, and the name of the country must appear.
– All that is required is an indication that the goods have been made abroad.
– Then what is. the object of the amendment, seeing that “ made in Germany” would be sufficient?
– But suppose no name of the country appears? Some countries, such as the United States, are not parties to the Convention.
– Is it proposed to specially exempt those countries?
– No.
– But that will have to be done if we make a’ general provision that there shall not appear on the article the name of the place of origin.
– That is not proposed.
– All we say is that there should be a definite, indication that the articles are made abroad.
– But if the maker desires he may have his name on the article.
– We do not object to that..
– Then, so far as I can see, the amendment would be absolutely ineffective. The particular article of the Convention says : -
Articleiii. The present stipulations are not intended to prevent the vendor from indicating his name or address upon goods coming f rom a country other than that where the sale takes place; but in such case the address or the name must be accompanied by a clear indication in legible characters of the country or place of manufacture or production.
– That is all we want.
– That is not what is wanted ; what is wanted is a simple indication that an article has been made abroad.
– “ Made abroad “ might mean either European or Asiatic goods.
– The amendment is vague and indefinite, and manufacturers in the countries referred to can defeat its whole object. I submit that this is not the place for the introduction of such a provision, and even if it were the place, it is premature to adopt a proposal which has for its end the establishment of preferential trade treatment where we can have no reciprocity.
Senator BEST (Victoria). - If I consulted my own desire, I should move- an amendment in the direction of exempting the British Dominions. But, as I indicated at the outset, these matters are of such moment that I preferred to hear a discussion. As I cannot, I fear, get much support in that direction, I accept the inevitable and move the amendment, which I indicated as an alternative, namely -
That the words “ of the country in which the goods were made or produced,” lines 14 to 16, be left out with a view to insert in lieu thereof the words “ that such goods are made abroad.”
– What about paragraph c ?
– We will deal with that paragraph when we come to it. I have already dealt at such length with this question, that I shall content myself by making a reference to the statement of Senator Guthrie, and the remarks of Senator Keating. It will be observed that this is a broad amendment to insure that goods shall be branded as having been made abroad. That differentiation has proved desirable, and I have two objects in view. My first object is to minimize the recommendation or advertisement which the place of origin gives to foreign goods. I am aware that in some cases the advertisement cannot altogether be obliterated. 1 am conscious of the fact that a large portion of the goods go to London, where they are subject to the provisions of English legislation, as to their being branded with the place of origin ; and those goods may ultimately come to Australia. As a matter of fact, alterations do take place in this connexion. Labels are rubbed off goods and are otherwise altered, but if it is still found necessary, there is nothing to absolutely prohibit those goods coming here because they bear the name of a particular manufacturer. The effect will be that so far as concerns those countries which send goods here-
– And some are large exporters to Australia.
– That is so, and these particular goods will be branded, not iith the name of the country of origin, but with the broad statement that they are foreign goods.
– What difference would that make in regard to “G.B.D.” pipes?
– Where are those pipes made ?
– In France.
– There is nothing to say that, because those goods bear the name of a French maker, they shall not come into Australia. As .a matter of fact, they will be brought in here, and will bear an indication that they have been made abroad. But as regards goods not so branded when they come in here, they will have to bear some broad intimation that they are foreign or imported goods, which will limit the class of goods imported to a great extent, and minimize the evil to which I have already referred.
– Does the honorable and learned senator by “ abroad “ mean outside Australia?
– Of course, I do. I have no desire to belabour the matter, because I have dealt with it so fully hitherto, but it has been urged by some honorable senators that because Great Britain has entered into this arrangement with some two or three other countries, we should, consequently, be restrained in our action. I do not think that should weigh with us. We have to legislate for ourselves, and to pass the class of legislation which best suits our own conditions. I do not know whether Senator Trenwith was present when I dealt with this aspect of the matter before, but I have no doubt the honorable senator will bear me out when I say that these particu- lar provisions appeared in the Victorian Customs Act, and yet Minister after Minister in Victoria refused to enforce them, because of the objection made by certain sections of the mercantile community that goods branded “ Made in Germany,” or “Made in Paris,” were purchased by certain persons in preference to locally manufactured articles of the same kind. Consequently, these provisions in the Victorian Customs law remained a dead letter.
– They were not a dead letter in the other States; they were enforced, and fines imposed under them. They were enforced in South Australia.
– I have said they were not enforced in Victoria, and what I SuK gest would minimize the evil complained of, whilst there would be a general advantage gained by differentiating between goods imported and goods of local manufacture.
– Honorable senators are getting away from the central idea embodied in this part of the Bill, which deals with the importation of fraudulently or falsely marked goods. The object of the particular paragraph with which we are dealing is not generally to provide for the marking of the place of origin on imported goods, but in cases where a foreign manufacturer adopts the name or trade mark of an Australian firm, for the purpose of making people believe probably that the goods submitted, to them are Australian goods, the goods should bear an indication of the country of origin. Honorable senators are arguing all round it as if this were legislation for the purpose of insuring the marking of all goods that come into Australia with the place of origin.
– Has the honorable senator heard any one doubt what he says?
– This paragraph does not deal with all imported goods, but with imported goods that bear some Australian trade mark or name. It has been suggested that we should strike out the next paragraph, and I desire to warn honorable senators that that paragraph gives no preference to Great Britain or any other place, but merely indicates that if the name of a well-known firm or a trade mark well-known in any of the King’s dominions is adopted by a foreign manufacturer to describe his goods, he must also indicate on them the country where the goods are manufactured. If honorable senators attempt to alter the provision in the way Senator Best proposes-
– I do not propose to alter that paragraph.
– I am quite ‘ aware of that, but the honorable and learned senator proposes to alter exactly the same principle as stated in paragraph b, and applying to goods bearing a wellknown Australian trade mark or name. If foreign manufacturers are allowed to use those names and trade marks, and are required merely to brand their goods “ Made abroad,” the honorable and learned senator will see that that will apply to Great Britain as well as to other countries.
– Of course it will. Senator McGREGOR. - And it will defeat the object which the honorable and learned senator has in view in the next paragraph ; but with that, of course, I have nothing to do. A great deal has been made of the movement in England to have goods brought into England branded with the word “ Imported.” The custom in sending goods into Great Britain was to brand them with the name of some place or firm in Great Britain. That could not be. prevented, but the importers could be compelled to brand them also with the word “ Imported.” I remind honorable senators that the position of England in this matter differs very greatly from the position of Australia. There are in England oldestablished firms that have obtained a world-wide reputation for their goods. We have not reached that happy position yet, though we are rapidly approaching it, and we must legislate in view of the conditions that exist here. If honorable senators care to refer to the proceedings of the Conference which was held in London in 1887 they will find that the remarks made at the Conference by Mr. A. J. Mundella throw a very great deal of light on this question with respect to Great Britain. He stated that it had been the custom to manufacture iron in some of the European countries - Belgium, I think, was mentioned - give it the brand of some English firm, and send it out to India. Foreign manufacturers sent to India the greatest rubbish branded with the name of English firms, and the best articles they could make branded with their own brand, for the purpose of destroying the reputation of the English articles, and raising the reputation of their own. Is not that exactly parallel with the fraud we propose to deal with under this clause - the case of a foreign manufacturer using an Australian name or trade mark, and possibly exporting under it the most inferior stuff in order to damage the reputation of the Australian article? Mr. Mundella stated, amongst other things, that he had met a traveller in the cutlery line, who had a carpet bag full of .the greatest rubbish that could be collected in almost every portion of the world, and it was all branded “Rogers.” There was no indication that those articles were made in Germany, Switzerland, France, or anywhere else, and the intention was to ruin the reputation of British trade. I do not know whether Senator Pearce was present when I mentioned a case of the kind which occurred in South Australia with reference to the Highercombe wine. We have heard it said that wine can be made of every description of vegetable matter, and it became a proverb that one could make wine “out of anything, even out of grapes.” Why should we run the risk of allowing foreign manufacturers to introduce inferior wine by adopting a well-known Australian name?
– Auldana, for instance.
– Yes. Auldana or Seppeltsfield. We could not prevent these wines being imported unless by such legislation as this Bill proposes. If the goods are merely marked “Made abroad,” purchasers may imagine that they were made in Oporto or some of the celebrated wineproducing districts of Europe, and they may be induced to prefer to Australian wine an inferior article, by having associated with it, an Australian brand. Clauses 13 and 14 deal in the same way with the names of places in Australia and in the King’s dominions as clause 12 deals with names of persons and trade marks. I hope honorable senators will consider carefully what they are proposing to do. They desire, no doubt, to do what is best, and they will do that by agreeing to the clause as it stands. They should read these clauses before making their remarks upon them.
– One ob jection I had to the amendment proposed by Senator Best has been removed by the explanation which the honorable and learned senator has made. Still, I am inclined to think that the balance of advantage would be gained by insisting that goods should be branded with the name of the actual country of- origin. In consequence of the legislation recently passed in England, foreign manufacturers have altered their methods j in compliance with the law, and are now j branding their goods with the name of the country in which they are made. Why should we, by our legislation, invite them to brand certain of their goods differently for the Australian market? There is a great deal in the contention of Senator Best, that in many cases - and the honorable and learned senator instances those of goods marked “ Made in Paris “ - the effect on goods was so marked to secure for them a preference over similar goods manufactured locally. But we have to look at the thing from another point of view. Supposing that imported cutlery bore the brand of the coun try of manufacture, would not that give an opportunity to people here, who were not purchasing goods locally made, to get a British article instead of one made in Germany ?
– That will come under paragraph c, not under paragraph b.
– No; paragraph bapplies to any article made outside Australia.
– The honorable and learned senator is speaking of Sheffield cutlery.
– That conies under paragraph c.
– The cutlery might come from abroad - from Great Britain or Germany - and yet bear the name of a trader in Australia. Under the clause, as it stands, that article would be branded so that the purchaser would know whether he was getting a British or German article. Cannot we balance that against the disadvantage which Senator Best has pointed out - that some persons would prefer an article made in France to an article made locally? I think that, on the whole, it is better for us to have as much information as we can with regard’ to the country of origin; and, seeing that foreign countries have, in compliance with British law, adopted the principle of putting on the article the name of the country of manufacture, why should we not fall into line and legislate in similar terms?
– To Senator Best and others who think that we should have a general rather than a specific indication of where goods come from, I would point out that the whole object of the Bill is to give persons an opportunity of knowing that they get exactly what they want. If there are persons who prefer goods that come from France to goods that are- made locally, merely as a matter of prejudice, they have a right to know whether goods do come from France, in order that they may be able to purchase what they .want. My contention is that we should make everything we require; but we deal with that. subject in another measure. We have a Tariff which is, more or less, protective, and if it is found that it is not sufficiently protective we can, when the opportunity arises; deal with the people; who are willing to give vent to their prejudices without regard to the interests of their fellow citizens. It is unwise to try to do two things at once. I take it that, by-and’-by, we shall have a Tariff Bill ; and, however much we may try in this Bill, wecannot secure any substantial advantage from that point of view.
– It is a small beginning.
– But this is not the place to begin.
– Yes it is.
– All we are doing here is to provide for perfect honesty of labels, as far as we can. And in this Bill we have no right to endeavour to coerce persons into using articles that they would not otherwise use, by deceiving them - I do not think that we have a right to do that at any time. At some other time, however, we may have to say “ If you will use French kid in preference to Australian you must pay so much extra for it.” Or, if it turns out that the general feeling is such that French kid should not be used, we can say that -it shall not be imported. But while we do permit things to be imported, we ought to allow persons to know exactly what sorts they are asked to select from. The general term “ Made abroad “ would be no indication, except that they were not made in Australia. ‘ It would appeal to no other instinct than that of prejudice. What we want to do in connexion with trade marks and labels is to give complete and accurate information; and, therefore, I think that the provision in the Bill is very much better than the amendment suggested but not moved, or the amendment now moved. A law on trade marks ought to be perfectly honest in every particular. As we permit the importation of articles - which, in the opinion of some persons, it is inexpedient that any of our people should use- we should allow them to know to the fullest extent what they are. There are persons who prefer chicory to coffee.- It is generally considered that chicory is very injurious. But if we permit persons to injure themselves, at least we should give them a perfect assurance that, they are getting chicory. If they want coffee, we should insist that by the system of labelling that we tolerate they shall know that they can get coffee. If it is desirable that the people should know that the origin of an article which they are asked to buy was not Australian ; if the location of its origin is important, obviously it is more important that it should be absolutely truthful and perfectly detailed. If persons wish to know that a thing was made abroad in contradistinction to being made here, probably they will want to know at what point abroad it was made.
– This is only intended to apply to a case ‘where an Australian’s name is given on an article. ‘
– That does not alter the matter a bit; but only limits it. Let me give some cases in point. In the trade with which I am connected we use a very large variety of leathers. ‘ It is a matter of positive fact that various portions of the world are celebrated for the production of special kinds of leather. France, for instance, produces a leather of one description pre-eminently superior to that of any other part of the world. Again, Germany makes a specific class of leather better than it can be made in France, England, America, or elsewhere. These results are probably climatic. A very wealthy tanning firm in England sought to make a leather equal in durability and flexibility to French calf. To France they sent for the skins and the workmen, and although they spent£10,000, they failed to make leather of that specific character. If only the statement “ Made abroad “ had to be put on an article a person who desired to obtain an article which he knew could be made better in France than elsewhere, would be deprived of the opportunity of having the aid to selection that was embodied in the brand, and it would lead, I think, to the possibility of fraud abroad. Persons who were making some article that was known to be made better in a European country than in England or anywhere else would send that article to Australia with an Australian name, but the indication “ Made abroad “ would mean that the article was made abroad for an Australian firm, and the person buying would say. “ This article is made of very superior excellence in France. ‘ Made abroad ‘ probably means that this comes from France.”
– All he would know about it would be that it bore that brand.
– As “ Made abroad “ would be the only brand on the article, he would know that it was not made in Australia, and that France made it better than it could be made anywhere else.
– We have not, and never have had, the benefit of that aid in Victoria.
– I am pointing’ out that there would be an opening for fraud under this general term that would not exist if the provisions of the Bill were maintained. Where an article assumed an Australian firm’s name for trade purposes, but was not made in Australia, and was not the product of that firm, it should be indicated exactly where it came from. Supposing, for the sake of argument, that it was a patent calf. If it bore a French brand the manufacturer in Australia using that commodity would know if the brand were genuine. If it were not- genuine, that would be a case for prosecution, but if it were genuine, he would know that he had the best article of that kind which could be made in the world. I would strongly urge on Senator Best that no good can be served by his amendment, from the point of view of the object of the Bill. He has in his mind some good that may be served in connexion with the general trade of Australia. I confess that I do not agree with him. I do not think it would be served in that way. The best way to kill the prejudice of which he spoke is to have everything marked clearly and distinctly with the name of the place from which it comes, and to compel Australians to mark their goods made in Australia, because I regret to say that out of a false consideration for a prejudice there are Australian manufacturers who aim at giving to the goods they produce a foreign appearance. They are really pandering to the prejudice, and in some measure developing it. Take, for instance, an article which, considering the few years it has been manufactured, is made remarkably well in this country. In connexion with our Australian-made hats, which I think can hold their own with the manufactures of. any part of the world, there is a desire to pander to a prejudice by making the labels on them look as foreign as possible.
The result is that the free-trader who wants to point the finger at Australian products says: “Where can you buy any Australian made goods?” The protectionist says to him, perhaps, “ I can show you an Australian product; here it is.” ‘ The free-trader says “Oh, that is French, or pretends to be.” The protectionist says, “You are quite mistaken; I know where it was made.” “ Then,” says the other, “ there is no indication upon it that it is Australian; the people who made it must be very anxious to disguise the fact that it was made in Australia.” I think that this Bill will do an immense amount of good in that direction. . It will tend to give to Australian products, many . of which are not capable of being surpassed by the products of any part of the world, the character that belongs to them, instead of allowing them to earn a good name for the products of France, Germany, or some other country. For these reasons I shall support the Bill as it stands. I earnestly hope that those who desire to see honesty in trade ‘will also support it. We have a good deal of reason just now especially to desire to see honesty in trade. We used to think that we had it, but we are coming to believe, in consequence of extraordinary revelations, that we have not got it to any considerable degree, and that in fact we fail in that respect to an extent that is alarming. 1 welcome this Bill, therefore, and shall endeavour to make it as perfect and as complete as it can be made.
Senator GUTHRIE (South Australia). - There is one point that I think has been entirely overlooked. It is this: If one walks down Bourke-street, and looks into the shop windows, one sees quantities of imported goods bearing the names of the local shopkeepers. That remark applies to coats, collars, shirts, neckties, and almost everything else. Is not that practice an imposition upon the persons who buy in the belief that they are purchasing goods manufactured in Melbourne? Is it not absolutely fair to people who purchase, that, in addition to the name of the shopkeeper, goods shall bear -the name of the manufacturer, or the country in which they are manufactured? I know that large orders have been sent from this country for goods which were to have stamped upon them the names of local merchants; and persons purchasing those goods in Australia have been under the impression that they were getting locally-manufactured articles. All that is meant by this provision is that where the name of the seller is placed upon goods the place of origin shall also be placed upon them. I do not think that Senator Best in bringing thismatter forward thought that he was going to create any difficulty. But difficulty would be created if his proposal were carried. It would harass traders. It would be quite impossible for them to conduct business in Australian markets in anything like the way they are doing now. I hope that the clause will be passed as it stands.
Senator PEARCE (Western Australia). - I trust that those honorable senators who are supporting the Vice-President of the Executive Council have listened to the lecture which he has delivered for their benefit. Apparently he intended to direct his remarks to Senator Best and myself, but in effect they applied to those who have spoken subsequently. For instance, Senator Trenwith endeavoured to show that this amendment would in some way operate to the detriment of local articles. Judging from his remarks about hats, the honorable senator must have followed me on one of the occasions when I went in search of an Australian-made hat in Bourke-street. I wanted to buy a hat made at the Denton mills, but I found great difficulty in identifying one for the reason which Senator Trenwith gave. The local hat mills will not put their own brands upon their hats. They put upon them a foreign-looking motto which is calculated to make the purchaser believe that their hats are manufactured in France. But what has that got to do with this clause?
– The honorable senator knows that that was not my argument.
– But Senator Trenwith brought it in to influence ‘ Senator Stewart and other ardent protectionists to support the clause as it stands. To pass the clause, however, would not affect the Denton hats in the slightest degree. lc would not cause the proprietors of the Denton Hat Mills to label their hats as Austral ian -made.
– It would discourage the pandering to a false prejudice.
– There is nothing in this clause which deals with the branding of local manufactures. All that it provides is that, where an article is made abroad, and the seller’s name is placed upon it, the name of the country where the article originated shall also be placed upon it. Senator Best has suggested, and I agree with him, that if it is stated that the article is made abroad, that is all that is necessary ; and that, if we provide that the place where the article is manufactured shall be stated upon it, there is no guarantee that the true place of origin will be stated. If an article is branded as “ Made in France,” what guarantee have we that it is made in France?
– The person whose trade mark is infringed would know, and would prosecute.
– There may be no trade mark upon the article. For instance, in the case of patent leather, does the trader, when he is purchasing, merely look in the corner of the bale to see if it is branded “Made in France?” How would he know that the brand was not put on in the Australian warehouse? He deals with some reputable firm, who he knows will not deceive him, or he imports direct from the manufacturer of such leathers in France. Then take the case of Australian wines mentioned by the Vice-President of the Executive Council. To brand the bottles “Made in Portugal” or “Made in France” would be no guarantee against fraud. Senator McGregor admits that in France, where the best wines are made, rubbish is also manufactured. Have we any guarantee, if Australian wines come back to us labelled “Made in France,” that they are purer than would be the case if they were labelled “Made abroad?” We have none whatever. If we provide generically that all goods coming to Australia shall inform the purchaser - notwithstanding the fact that they bear the seller’s name upon them - that they are “made abroad,” we do all that is necessary.
– In refutation of the statement that if we provide for marking goods with the name of the country of origin, it will be impossible to tell whether the mark is correct or not, I would point out that this provision only applies in cases where the trade mark of some Australian firm has been infringed. The case of the Auldana wines has been referred to. If wine were imported from abroad labelled “Auldana,” would not the proprietor of that vineyard ascertain where that wine was produced, and would he not at once take action so that it would not compete against his own? If the country of origin is placed upon goods, even if our own Customs officers do not find out the deception in a case where the trade mark of some Australian firm has been infringed, that firm will get the necessary information to enable our own authorities to prosecute.
Amendment negatived.
Senator BEST (Victoria).- I have already referred to a new paragraph that I intended to propose, and which is taken from the Victorian Trade Marks Act of 1890. It has been found to be a very useful provision. Section 26 of that Act provides that -
All goods manufactured at any place outside Victoria bearing any name or trade mark being or purporting to be the name or trade mark of any manufacturer, dealer, or trader in Victoria.
It practically means that if a trade mark is registered, in Victoria in respect to certain goods, no goods bearing a similar trade mark can enter Victoria. I do not think that the Vice-President of the Executive Council can see any serious objection to the protection of the proprietor of a trade mark in regard to his goods in this connexion. The provision in the Victorian Act has been very effective, and it is desirable that it should be inserted in this Bill. I therefore move -
That the following new paragraph be inserted : - ” (d) all goods manufactured at any place outside Australia, bearing any name or trade mark being or purporting to be the name or trade mark of any manufacturer, dealer, or trader in Australia.”
– I do not see any serious objection to an amendment of this description ; but I think Senator Best will grant that it would be better to allow the next paragraph to pass. Paragraph b refers to the adoption of the name of a firm in Australia, and paragraph c refers to the name of a place in any portion of the King’s dominions. The two paragraphs are associated, and it would be better to pass them together, and then allow Senator Findley’s suggested amendment to be discussed. The’ amendment of Senator Best would come in with much more propriety afterwards.
– I have no objection to that course, and ask leave to withdraw my amendment temporarily.
Amendment, by leave, withdrawn.
– I move that the following new paragraph be inserted : - ” (d) All goods to which no trade description or trade mark is applied, setting forth correctly the name of the manufacturer or producer of the goods, the material of which the goods are composed, or from which they are derived, and the place or country in which the goods were made or produced. Notwithstanding anything in this Act contained this sub-section shall come into operation on the 1st day of July, 1905.” .
With olher honorable senators, I am of opinion that this question should be dis cussed apart from fiscalism. This measure has nothing to do with either free-trade or protection. If preference is to be given to a manufacturer or trader, it should be given to the honest or scrupulous man as against the dishonest and unscrupulous person. I understand that, under the Constitution, we have full power to deal with importations in order to safeguard the interests of the citizens of the Commonwealth, and in my opinion all importations ought to be labelled. We should then know exactly by whom the goods were made, and in what country. I have named the 1st July next year so as to give importers, traders, and manufacturers the opportunity to become conversant with the measure, anticipating, as I do, that the amendment will be carried. It has been said very frequently that quantities of prison-made goods come into the Commonwealth, and I think that the people have the right to know to what extent.
– Prison-made goods are absolutely prohibited under the Customs Act.
– But it is stated that such . goods are even now imported. However that may be, I believe that the sub-clause I propose would be in the best interests of the Commonwealth. We have no power once goods have passed the Customs to compel traders to attach labels. We have no control whatever over the traders to whom Senator Guthrie referred as exposing goods for sale with labels calculated to deceive. We have, however, so I understand, absolute control over all importations, and in order to safeguard the interests of the citizens of the Commonwealth, and the interests of the individual States, I submit the amendment.
Senator STANIFORTH SMITH (Western Australia). - I am afraid that on investigation this amendment will be found to be impracticable. In the first place, it implies conditions with regard to foreign manufacturers which is not insisted on in regard to our own manufacturers. It seems to be competent for the Australian manufacturer to assume a trade mark or name which is an indication that his goods are made in foreign places. The proposal of Senator Findley would appear to be impossible in many cases. I should say that the legal definition of “ goods “ is very comprehensive, seeing that the word applies to all personal property as distinct from land or real property. To apply this amendment to all personal property that is brought into the Commonwealth seems to me to be passing a law which it would be impossible to enforce. Take, for instance, small articles like beads, pins, needles, glass eyes, or things like that. Would it be possible to place all this information on such articles?
– Are such articles not labelled now when thev are imported?
Senator STANIFORTH SMITH.Certainly not. For instance, would presents, brought by immigrants, be forfeited if they did not bear on them all the information suggested in the amendment?
– A man may bring in furniture.
Senator STANIFORTH SMITH.Yes, or clothing; and if this amendment were applied, an immigrant with all his linen and collars so marked, would be a sort of standing advertisement for some manufacturer. It is not within the scope of this Bill to pass a drastic provision of ‘the kind, which I feel sure is not made in any similar Act in the world. It is of no use our enacting legislation which it is impossible to carry out.
– Why is it impossible ?
Senator STANIFORTH SMITH.It is quite impossible for all goods and personal property which come into Australia to- bear all that information. If a man brought into Australia some nick-nacks as presents, would he have to forfeit them if they were not all branded with this information? I think the Committee will see that an amendment of this character- is absolutely unworkable.
Senator DRAKE (Queensland). - I should like- to know whether the Government proposes to accept this amendment. It is a proposal of great- importance, but I think that it would turn out impracticable. It is entirely foreign to the scheme of the Bill, which is to provide that when a description is put on an. article it shall be a true description. The amendment goes, much further, and requires all manufacturers to put a description on their goods; and the Bill with this provision would be’ of a prohibitive character, because it would keep articles out of Australia. If it had not the effect of keeping articles out, it would compel manufacturers all over the world, who- by any possibility could send goods to Australia, to completely alter their methods of conducting business. When we Bok at the. infinity of articles imported, and the extent to which goods are repacked in England, I do not see how we could enforce such a provision.
Senator BEST (Victoria). - I am in full sympathy with the object that Senator Findley has in view. I hold, moreover, that we have a constitutional right to declare the terms on which goods shall enter our ports. But I must say that I am afraid the amendment goes very far.
– It, is unconstitutional.
– - It is outside the terms of the title of the Bill.
– I think the amendment is constitutional, and as to its being outside the terms of the title, it is competent for us to alter the title.
– Then we would get away from the Constitution.
– I do not think so, because under the Constitution we have the right to declare the terms on which goods shall enter these ports.
– That ought to be done by means of a Customs Bill.
– I shall not discuss that aspect just now. What I am afraid of is that the clause is simply impracticable. There are hundreds and thousands of cases which it would be impossible to open, though it is quite true that if by the invoice a Customs officer has information as to the general character of the goods in- the cases, he may call for a sight entry and inspect them. When I urged the- attainment of the object which Senator Findley has, my view was that it should be attained not by a castiron provision such as is now proposed, but bv vesting, some discretionary power in the Minister of Trade and Customs, or by some regulations which might be enacted ohe day and repealed the next. - If we have a castiron regulation, great difficulty would be experienced in its practical operation. I said I had ‘some fears about drawing a clause of this kind, except in conjunction with the officers who- have this particular duty to perform every day. I can assure Senator Findley that I am with him in this particular object, and if we can make what we desire clear to the officers who have this duty to perform, then, after consultation with those officers, the VicePresident of the Executive Council will probably be able to submit a practicable clause to give effect to- it. Amongst other things which Senator Findley thinks should be stated is “ the material of which the goods are composed.” That is all very well, so far as tweeds and such goods are concerned, which, it may be said, contain a certain percentage of cotton.
– And food-stuffs.
– Yes; and Senator Keating, in discussing the matter, has suggested patent medicines.
– We should have all the local chemists with us in that.
– There might be some objection to the disclosure of all this information on the various bottles of patent medicines.
– It would apply to patents of any kind.
– And the patentees would lose the benefit of their patent rights altogether.
– There is no doubt it would abrogate the patent rights of various patentees. If the leader of the Government in the Senate will take the .’matter into consideration with his officers it is possible that some clause may be prepared to carry out the object aimed at. In connexion with this matter, I desire to bring under the attention of the Government the following letter, which I have received. Fortunately, the term “goods,” in the interpretation clause, is defined to include all things which are the subject of trade, manufacture, or merchandise, and this letter discloses a fraud which is being perpetrated by certain foreign firms : -
Dear Sir, - I would like to draw your attention to a matter which strikes me as being worth while considering when you are dealing with the new Trades Marks Bill. For years past it has been the custom amongst certain people in Melbourne to import Belgium and German girders of the very cheapest character, and selling them without any brand as being equal in strength to similar sized girders of the best Siemens-Martin steel. It is a dangerous practice, which may at any time cause serious accident, the deficiency in strength being as 24 is to 30. I understand that it is necessary to brand most imported goods with the name of the country in which they are made, such as “made in Germany,” &c. Where this is not done the purchaser is misled, and an architect told me only yesterday that he always understood that the girders of a certain firm were of English make, whereas the said firm imports nothing but foreign material. Girders, as you are aware, are the most important part of every building, and upon them depends the whole structure, so that where a deficiency of strength exists, such as I have pointed out, there is an enormous risk to life and property. If it is of importance that things like furniture should be branded, it is of infinitely more importance that steel girders should also be branded, and, as a matter of fact, all other steel too, whether in the form of girders, or in that of angles, tees, steel plates, &c. I take the liberty of drawing your attention to this, and shall be pleased to give you any further information you may require, or call upon you if you wish.
I omitted to state that these common Belgium girders are irregularly branded “ Siemens-Martin steel.”
– That is an argument in favour of my amendment.
– I support the object the honorable senator has in view, and I draw the attention of the Government to frauds that are being perpetrated in this connexion. I trust that, before the amendment is accepted, the Vice-President of the Executive Council will be quite certain as to its practical operation.
Senator KEATING (Tasmania). - . should like to ask Senator Findley to withdraw this amendment, because this is not the proper measure in which to introduce this principle. As Senator Best has pointed out, there is a proper measure in which we might embody any principles of this kind, of which we approve, but we are here concerned merely with a Bill, the object of which is to secure that, when the public ask for a certain class of article, they shall get that class of article, and no other.
– This would be the first guarantee.
– No. We are dealing with trade marks, as applied to certain classes of goods. I suppose that the greatest portion of goods and classes of goods sold in the Commonwealth bear no distinctive mark or brand whatever, and We ar? legislating now only with respect to particular classes of goods which have associated with them a particular trade name or designation. When the public ask for goods associated with a certain trade name or designation, the object of this Bill is to secure that they shall get that particular class of goods - if they ask for “ Star “ starch, they should get “ Star “ starch’, and if for “ Colman’s “ mustard they should get “ Colman’s “ mustard. The object is that the purchaser shall not be prejudiced in any way by the retailer palming off upon him goods purporting to answer the description for which he asks, but which are really not of that description. Senator Findlevs amendment suggests that our legislation on the question of fraudulent trade marks shall be extended far beyond the scope of this Bill. The honorable senator would ask us in this measure to say indirectly that goods shall not be’ imported into
Australia, merely because they are not branded with the name of the manufacturer, place df manufacture, and the materials from which they are made. As I have said, there are many classes of goods which bear no distinctive mark, for the simple reason that as goods they carry on their face true indications of the materials of which they are made, so far as the public mind is concerned. I apprehend that Senator Findley’s object is as far as” possible to prevent the introduction into the Commonwealth of a large class of foods, drugs, and drinks, which in’ many instances contain deleterious ingredients. I again remind the honorable senator that this is not the proper measure in which to do that. He would be going only a part of the way in achieving the object he has in view, because in addition to goods of this class that are imported there is a large class of similar goods manufactured in Australia.
– The States Parliaments can deal with them.
– Certainly not. The authority that deals with the question of deleterious goods being placed in the hands of the public should deal with them once and for all, whether they be imported or (produced in Australia. It would not be for us to deal with only onehalf of the mischief, and to leave to the several States Parliaments, following possibly six divergent systems, to deal with the other half of the work.
– We have no power to interfere with the States Parliaments in that way.
– We have power to deal with trade and commerce throughout the Commonwealth and between State and State; and if deleterious goods are manufactured in one State we can prevent them going beyond that State into another.
– Could we prevent their consumption in the State in which they are manufactured?
– It is questionable how far our power in respect of trade and commerce throughout the Commonwealth to legislate with respect to the manufacture, production, and distribution of this class of goods may extend ; but it is not for us at this stage to deal only with imported goods, and to leave it to the States Parliaments to follow when they please with six possibly different systems to achieve the balance of the work we have begun.
The States Parliaments, if they deal with this matter at all, can deal with it better than we can, because once the imported article is introduced and fails to bear on the outside the particulars which Senator Findley contends it should’ bear, if its importation is not ‘ prohibited, the States would have power to prevent its distribution by legislating so as to secure that no article, whether it be imported or manufactured in the State, which does not bear on the outside the particulars referred to, shall be sold in any- shop in that State.
– The honorable and learned senator is now arguing that, the States Parliaments can pass this legislation.
– I say that they can do it. A State Parliament can, if if choose, legislate to prevent the sale within the borders of the State of articles which do not bear on the face of them the particulars which Senator Findley requires to be stated, irrespective of whether they come from abroad, or are the produce of any State in Australia. The State may in that way deal with the whole of the matter. Senator Findley’s contention is that the Commonwealth can deal only with imported goods, and I say that the States Parliaments, being in a better position to deal at the same time with imported goods and goods locally manufactured, it is their duty, in the interests of the health of the people, to deal with this question. It certainly is not the duty of the Commonwealth Parliament to deal with it in this particular measure, which is designed to regulate dealings between people of the Commonwealth with regard’ to articles which bear upon them some name or trade mark indicating that they are of a- particular character or quality.
– Does the honorable and learned senator claim that Senator Findley’s amendment is ultra vires 1.
– I do not, but I say that this is not the proper Bill in which to deal with the subject. It would be more properly dealt with, so far as we are concerned, in a Bill to restrain the importation of certain goods into the Commonwealth.
– I do not object to these goods being imported, but I desire that they shall be properly labelled. If boots are imported which are made of a material resembling leather, or of cardboard and a material resembling leather. I think they should be so labelled.
– I venture to believe that the major portion of the . goods imported into the Commonwealth do not require any particular brand or trade mark or anything of the nature referred to in this Bill. In this Bill we are dealing with articles which have a’ peculiar and distinctive characteristic, as evidenced by their association with some maker’s name or trade mark. With respect to Senator Dawson’s question, it is suggested that there is a divided authority - that the Commonwealth can legislate for the prevention of the introduction of goods deleterious to health; but so far as locally-produced goods are concerned, the States Parliaments must legislate to prevent them going into consumption. What I point out is that if it is a case of divided authority, it is far better that the one authority that has jurisdiction over the imported article and the locally-produced article should legislate on the subject than that we ‘ should do half the work and let the States Parliaments dc the other half. I have pointed out that the States Parliaments can legislate with regard to both imported and locallyproduced goods, by preventing their being passed into’ consumption by any retailer, unless they bear on the outside the information, referred to in Senator Findley’s amendment. I think it is ‘ within their province to do it, seeing that the ambit of their jurisdiction is wider than that possessed by the Commonwealth Parliament.
– I have a serious doubt as to whether the proposed amendment is relevant , to the subject-matter of the Bill. The Vice-President of the Executive Council obtained leave to introduce -
A Bill relating to Fraudulent Trade Marks.
Standing order 179 says -
The title shall agree with the order of leave, and no clause shall be inserted in’ any such Bill foreign to its title.
Then standing order 194 says -
Any amendment may be made to any part . of the Bill, provided the same be relevant to the subject-matter of the. Bill.
The Bill deals with fraudulent trade marks, but the amendment appears to me to compel persons to put marks on their goods. Before giving a ruling I should be glad to Hear any honorable senator on the point of order.
– Like Senator Best, I’ am in entire sympathy with the object that Senator Findley has in view. I would point out to Senators Smith and Keating that, so far as the amendment of Senator Findley is concerned, the mark might never appear on any package, because it is only to be put on goods which have no. other trade description. If a provision of this kind came within the scope of the Bill, and were enacted, no foreign manufacturer, knowing that it existed, would send out goods without giving a trade description. I would point out to Senator Keating, too, that . the Bill is not confined to marks on merchandise, but to the description of goods, and as at the . end of the.. interpretation clause we. are told that a Customs entry is to be taken as a trade description, no difficulty could arise if the amendment were enacted, because the traders would give a trade description. That would make it unnecessary to apply the provision. But I have a doubt as to whether it is within the scope of the Bill. In’ order to avoid any unnecessary delay in debating the point of order, 1 would ask Senator Findley to withdraw the amendment, and, afterwards. I shall consult the Government officers and see if it can be introduced in another form. I recognise that the Government should ask Parliament to legislate for the purpose’ of protecting, not only the consumers here, by preventing marked goods from coming in, but also the producers and manufacturers of this country by compelling them to label their goods going outside its shores. Seeing that there is an objection to the amendment as not being within the ‘ title of the Bill, I hope that Senator Findley will withdraw it for the present, and endeavour to accomplish the object later on, or in some other way.
Senator FINDLEY (Victoria). - In deference to the wish of the Vice-President of the Executive Council, and on the promise given by him that it will receive consideration at a later period, . I desire leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Progress reported.
page 2797
Motion (by Senator Pearce) agreed to-
That the Select Committee have leave to extend the time for bringing up the report to this day fortnight.
page 2798
Motion (by Senator Higgs) agreed to -
That the Select Committee have leave to extend the time for bringing up the report to this day month.
Senate adjourned at 10.9 p.m.
Cite as: Australia, Senate, Debates, 29 June 1904, viewed 22 October 2017, <http://historichansard.net/senate/1904/19040629_senate_2_20/>.