4th Parliament · 3rd Session
The President took the chair at 10.30 a.m., and read prayers.
Motion (by Senator Henderson) agreed to-
That the report from the Printing Committee, presented to the Senate on the 18th July, 1912, be adopted.
In Committee (Consideration resumed from 18th July, vide page 972).
Clause 8 -
Section one hundred and thirty-five of the Principal Act is amended -
by omitting from sub-section(1.) the words “ and not less than Five pounds”;
by adding thereto after sub-section (1.) the following sub-section : - “ (1a.) Every person who, being a person liable to training under this Part-
fails, without lawful excuse,to attend a compulsory drill or
commits a breach of discipline while on parade, shall be guilty of an offence and shall, in addition to any liability under section one hundred and thirty three of this Act, be liable to a penalty not exceeding Five pounds “ ;
by inserting in sub-section (4.) after the words “ the custody of any prescribed authority” the wordsfor such time not exceeding twenty days, as it thinks fit; or”; and
by adding thereto the following subsection : - “ 8. A person liable to be trained under the provisions of paragraphs (a) and (b) of section one hundred and twenty-five of this Act shall not be committed to gaol in default of payment of a pecuniary penalty imposed for an offence against the provisions of thissection.”
Upon which Senator Sayers had moved -
That the words “ Five pounds “ line20, be left out, with a view to insert in lieu thereof the words “two hours extra drill for. each hour he has failed to serve.”
– When this clause was before the Committee yesterday, sir, I moved an amendment which, according to your ruling, does not carry out exactly what I desire. I ask leave to alter the amendment by omitting the word “extra.”
Amendment amended accordingly.
– I think that the amendment in the altered form ought to meet the views of the Committee and of the people of this country, because if it is carried, there will be no discrimination whatever. The reason why I objected to a fine of £5, or no fine at all, was that too much discretion was left to the magistrates, who might be accused of showing favoritism in some cases. Under my proposal, the offending cadet, whether he be the son of the Chief Justice of Australia, or the son of the Chief Justice of a State, will be subjected to the same punishment as the son of the poorest man in the land, and there can be no discrimination. I have noticed that in a great number of the cases brought before the Courts an order for 10s. costs has been made. If this amendment be passed, no costs will be ordered.
– Yes, the costs of the summons.
– If the amendment be made law, cannot the Minister or the area officer enforce it?
– He will have to, prove the offence.
– I am sorry to find that there will still be’ some expense to be borne. Under my proposal there could be no favoritism shown to any person. If a boy failed to attend three hours’ drill, he would have to serve six hours in all. If we call ourselves a democratic community, let us do away with any opening for favoritism, and let each cadet know that if he fails to do his duty the same punishment will be meted out to him as to any other boy. I feel certain that the amendment will meet with the approval of a large number of the parents. I trust that the Minister will see his way to accept it, or some other amendment embodying the same principle. I do not care in what form it is framed so long as it is enacted. I am aware that the Departments do not like a measure to be altered at the instance of a private senator once it has left the hands of the draftsman, but I hope that that objection will not be taken in this case.
– I am convinced that, so far from making the punishment for non-attendance at drill more equal, the amendment would make it more unequal. The honorable senator spoke of the fine being a greater hardship to the poor man than to the rich man, but I would remind him that the sons of the rich man are not at work between the ages of fourteen, and eighteen years.
– Plenty of them are.
– No, they are at school. It would mean no sacrifice at all to such parents to have their boys committed to a place of detention for a certain number of days. The sons of the poor are at work between those ages, and contributing to the support of the home, and the detention which the honorable senator suggests would mean a greater sacrifice to them than would a fine. . There might have been some force in his contention if we were keeping the ^5 as the minimum fine, but we are not doing that. We are making ^5 the maximum, and the fine may be only 2s. 6d., or 5s., or 10s. The magistrate is to be instructed to take into consideration], in inflicting the penalty, the circumstances of the parents. If the Committee pass the amendment, it will inflict a greater hardship on the sons of poor men than the Bill does. We know that if a lad is taken away from his employment at frequent, or even at infrequent, intervals, it does damage to his chance of securing constant employment and getting on with his employer. One of the objections to the whole system of compulsory training is the disturbance of industrial conditions. We ought to take no action which is likely to increase the disturbance. On the contrary, we should endeavour to disturb industry as little as possible. For these reasons, I trust that the Committee will not accept the amendment.
– We are all satisfied, I think, that Senator Sayers is endeavouring to improve the clause. He has been extremely industrious, and has made a variety of proposals. I am afraid that his fluctuating frame of mind prevents him from arriving at a definite conclusion. He has submitted a host of proposals, one against the other, and he still seems to be in doubt as to which is the better one.
– No, I am satisfied as to which is the better one.
– I agree that if we could abolish resort to the Police Court it would be much better for the service. We all recognise the danger, and possibly the stigma, which may attach to a lad who is taken to a Police Court, or even to a
Children’s Court. The remarks of Senator Sayers suggest to my _ mind that he wants to avoid that possibility as far as it can be done, and also to remove the possibility of any discrimination being shown by a magistrate between one boy and another. The only method which I can see for achieving that object is, not the one which he has proposed, but a fixed scale of fees or penalties to suit the offences. That would certainly obviate the necessity of going to a Court at all.
– Oh, no. This clause cannot be carried out without going to a Court.
– I think I can show how it can be done without going to a Court. If an area officer has clear proof that certain lads have failed to attend one or two or more drills, the charge the lad was called upon to answer would at once be known, and he might be fined or compelled to do a certain . amount of additional drill because of his neglect. There would be no need in such a case to bring him before any Court at all.
– Under existing conditions area officers have the power, and exercise it, to call upon a lad who has missed one statutory parade to make up for it by attending two voluntary parades. But if a lad refuses to attend statutory or voluntary parades, we must have some power to enforce a penalty.
– I think I made it clear yesterday that I intend to stand by the proposal brought forward by the Minister. I was just now endeavouring to assist Senator Sayers. I have confidence that the officers of the Department, who are much more familiar with the conditions than we can pretend to be, are able to suggest a way out of the difficulty. The maximum fine is to be .reduced from £100 to ,£5, and, in the circumstances, no very severe penalty can be imposed in any case. I think Senator Sayers would be well advised to withdraw his amendment.
– It is evident that my amendment does not meet with the approval of the majority of the Committee. As the two honorable senators who spoke in favour of it last night are not present this morning, it would be useless for me to divide the Committee upon it, and I therefore ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment (by Senator MCDOUGALL) proposed -
That the following words he added to the clause .-“ (e) By adding thereto the following sub-section : -
In places where Children’s Courts exist offences against this section committed by cadets under the age of sixteen years shall be prosecuted in such Courts as far as is reasonably practicable.”
– I doubt whether it is advisable to transfer cases of infringement by, cadets of the regulations prescribing the amount of drill to the Children’s Courts. In the Children’s Courts cases of a certain character are investigated with a certain and quite proper seclusion.
– There is no seclusion about the Children’s Courts.
– I am aware that any one who insists upon doing so may enter a Children’s Court, but the feeling of the Court and public opinion generally is decidedly in favour of a certain amount of seclusion. L wish to say that if cadet cases are brought before these Courts, pending the trial of them the lads may hear some most undesirable things. I admit that it is possible that they may hear things that are undesirable .in the ordinary magistrates’ Courts ; but I think these cases should be left to the jurisdiction of the ordinary Courts.
– Since this suggestion was mentioned by Senator McDougall, I. have had an opportunity to bring it under the notice of the Secretary to the Attorney-General’s Department, who is familiar with the constitution of Children’s Courts in the various States. He assured me that he can see no objection to the amendment from a legal or departmental point of view. On the question of principle, I think it is far better that these cases should continue to be heard, as they are at present, in the Children’s Courts. I do not think it is necessary to embody this in the law because it is the practice now being followed, but if honorable senators think that it should be laid down by law, I have no objection to the amendment.
– What are the powers of the Children’s Court?
– They have all the powers of an ordinary State Court of limited jurisdiction, and I am informed that they are in the same category as the ordinary Courts in regard to their power to enforce the laws of the Commonwealth. They are covered by our constitutional provision conferring Commonwealth jurisdiction on State Courts.
– The amendment will cover many cadets between the ages of fourteen and sixteen. I have some knowledge of Children’s Courts in Tasmania, and I can assure the Minister that they were intended to. deal with the petty offences of very small children. I can speak only for my own State, but I think that there has, so far, been no case in which any form of punishment by imprisonment has been imposed by a Children’s Court in that State. They are intended to provide an opportunity for something like a formal chiding and reproof of children of very tender years.
– They sometimes exercise the power of sending offenders to a reformatory.
– I speak from memory, but I believe I am quite accurate when I say that there never has been a case in Tasmania where a Children’s Court has imposed any sentence of imprisonment. It is true that, in cases which have been regarded as very grave, there has been some question of the advisability of sending a child, for it is only children who are dealt with in these Courts, to a reformatory. I am afraid that we shall do the cadet movement a certain amount of injury if we place these offences against the Defence Act on a level with minor offences committed by very small children. One of the chief objects of the institution of Children’s “Courts in Tasmania was to avoid publicity. The procedure there has always been the same, and no name of an offender brought before those Courts has ever been mentioned in the press. The offences are regarded as petty, and it is felt that it is not desirable that public attention should be directed to them. I think it would be a mistake to bring a cadet between the age of fourteen and sixteen years into such a court. I do not know of any cases of children as old as fourteen or fifteen years being brought before the Children’s Courts in Tasmania.
– Children of that age have been brought before Children’s Courts in other States.
– I can speak only of the practice in my own State. If the
Minister will make inquiries as to the class of offences which are generally brought be- . fore Children’s Courts he will, I think, agree that offences committed, at any rate by senior cadets, ought not to be tried in those Courts.
– There seems to be some misapprehension on the part of Senator Clemons regarding the constitution of Children’s Courts, at least so far as New South Wales is concerned. These Courts are exactly like the ordinary Police Court, and in them I have seen youths of sixteen years of age who stood 6 feet high charged with i various offences. In New South Wales, if two lads are summoned for practically the same offence, if one is over sixteen years of age he is tried in the Police Court, whereas the other, if he is under that age, is tried in the Children’s Court.
– Is publicity given to the names of those who are brought before the Children’s Court?
– No. My desire is to avoid that publicity and to prevent the members of our Cadet Force from being dragged before the Police Court, which is practically a Criminal Court. A way out of the difficulty was suggested by Senator Cameron yesterday, namely, that a magistrate should attend at the Military Barracks to dispose of these cases. But I know that such a proposal would not be acceptable to the Committee.
– Why not limit the operation of the amendment to the junior cadets ?
– If I had the power I would have the whole of the lads who are charged with having failed to attend the statutory number of drills brought before a Children’s Court.
– Our Defence Act distinguishes between junior and senior cadets.
– Only yesterday Senator Rae showed me an extract from the Sydney Evening News, which was headed “ Cadets fined. Suicide the only escape.”
– That was a foolish statement which was made by one of the solicitors appearing for the defence.
– Exactly. But had there been a Children’s Court before which these lads could have been tried, the solicitor would not have been there to make that silly statement, and the reporter would not have been present to publish it. My desire is to insure that no youth under sixteen years of age shall be haled before a Police Court where he will have to rub shoulders with criminals.
– 1 am somewhat perplexed as to the attitude which I should assume towards this amendment. I have no desire to tarnish the reputation of any young lad. But I was under the impression that this Bill was brought forward to enable Parliament to give legislative, sanction to something which would ease the penalties prescribed by the principal Act for certain offences, and which at the same time would act as a deterrent to those who were inclined to defy the law. Now I have some knowledge of the. Children’s Courts which are conducted in my own State. There, the only publicity given’ to their proceedings takes the form of a paragraph in the morning newspaper, which states that a number of children were dealt with before the Children’s Court. No names are given, and no mention is made of the offences with which they were charged. If the same procedure be applied to cadets who fail, to observe their obligations, to the Commonwealth, will it act as a deterrent to those who are anxious- to evade the law ?
– It’ would make a senior cadet laugh.
– He would snap his fingers at constituted authority when the ‘proceedings were over’. I think it is just a’s’ well that we should retain the clause in its present form. If some of our cadets; ‘continue to evade the law they will the’n~ have to appear before an ordinary Police Court. -.’Senator McDougall. - That is where murderers are tried.
– But nobody would brand a boy who neglects to attend the statutory number of drills, or his parents, as criminals.
– Before to-day some of the lads have Seen put into “ Black Maria “’ with criminals and taken to gaol.
– I am sorry for that:
– The authorities have a right to do it.
– Then I hope that such a thing will never occur again. I know of no case in which cadets have been put into “ Black Maria “ and taken away as’ if they were guilty of some heinous crime. I shall vote against the amendmentarid support the clause as it stands.
. -There is another reason why the Committee should retain the clause in itspresent form. We all know that lads of fourteen and fifteen years of age are often ill-behaved - not through any inherent, wickedness but rather as the result of wildness. That is why public opinion demands that for offences against our Defence Act they shall only be brought before a Children’s Court. But, after they have, atrtained sixteen years of age, when they become senior cadets, they are more or less amenable to military discipline, and neglect of their military duties becomes rather a serious offence. We must recollect that our senior cadets are the recruiting ground for our soldiers, and hence it is necessary that,, after the age of sixteen or seventeen years,, they, should take a serious view of their military responsibilities. If we treat their offences too lightly we shall not conduce tothe maintenance of proper discipline. Whilst there is some warrant for dealing, leniently with offences against the Act oil the part of boys of fourteen or fifteen years of age, in the case of senior cadets the position is quite different. I think that some distinction ought to be drawn - as wassuggested by Senator Clemons - between, the treatment which is meted out to junior and that which is accorded to senior cadets.. If we drag all lads who fail to discharge their duties to the Commonwealth before Children’s Courts we may seriously impair that discipline, the preservation of which is so essential in our Cadet Force just as itis throughout our entire military service.
’. - The whole trend of this: debate suggests that we should treat all offences by members of our Cadet Force as minor offences - that we should distinguish between the hearing of such charges and ordinary Police Court trials. The more thismatter is ventilated the more convinced I am of the necessity for the adoption of the- proposa.1 of Senator McDougall. After all. what are our cadets? They are mere children.
– Some of them think that they know a lot.
– Yes. When we were eighteen years of age. possibly we used” to think that we knew more than our elders. But most lads of eighteen years of age are mere children, and we ought not to associate them with a Police Court, which, after all, is a Criminal Court. As Senator McDougall . stated by interjection, some of these lads have been put into “ Black Maria “ with criminals and taken to gaol. We want to prevent that. I would suggest that the Minister should ascertain whether it is not possible to have all lads who are proceeded against for breaches of our Defence Act, irrespective of whether or not they are over sixteen years of age, tried before a Children’s Court. After all, non-attendance at military drills is merely equivalent to truancy from school. My desire is to prevent these youths from being haled before a Police Court. Even in those States in which Children’s Courts do not try children over the age of sixteen years, an extension of the age limit to eighteen years would, I think, be a step in the right direction. I support the amendment, and do not think that it should be weakened in any way.
– There appears to be considerable variation with regard to the powers of Children’s Courts in the different States. In South Australia they have larger powers than in Tasmania, dealing with offences with regard to boarded-out children and toys and girls in reformatories. In South Australia, therefore, the Children’s Courts are able to deal with offences committed by cadets under the Defence Act. I certainly think that where such Courts can deal with such offences they should do so, because. I do not like the idea of taking lads, who are often not inherently bad, but merely thoughtless, and mixing them up with a lot of drunks and criminals.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 9 agreed to.
Clause 10 (Amendment of section 142).
– The effect of this amendment of the law will be that the record-book will be a protection to the cadet. At the present time the area officer keeps records in which the attendances of each cadet are entered up to the end of each year. The intention here is that when a parade is held a roll will be kept, and the cadet may have entered up into his recordbook an account of the drills attended by him. This will be some protection to him against negligence in the entering up of the records, and will also be an evidence to his employer or parent that he went to the drill. The clause also provides for a company roll, which the cadet will be able to see at any time to insure thathis drills have been entered up.
Clause agreed to.
Title agreed to.
Bill reported with amendments.
The PRESIDENT announced the receipt of a message from the House of Representatives asking the concurrence of the Senate in the following resolution : -
That in the opinion of this House any system of bonus or rebate of canal dues to American shipping using the Panama Canal would be detrimental to the interests of Australia.
– I move -
That the message be received and dealt with forthwith.
The Government are of opinion that so im portant a matter should be settled without delay.
– Is it the pleasure of the Senate that the message be dealt with forthwith?
– Objection being taken the message cannot be dealt with without notice.
Motion (by Senator McGregor) agreed to -
That consideration of the message be an order of the day for Wednesday next.
– I suppose this illustrates the policy of the anti-Labour party.
– It is unreasonable to ask for an important subject like this to be dealt with right away.
– It should be dealt with right away.
– I move -
That this Bill be now read a second time .
I need scarcely remind honorable senators of the debate which took place in 1905 with respect to the original Trade Marks Bill passed’ by the Commonwealth Parliament. We then availed ourselves of the experience of Great Britain and other countries, as embodied in the British Consolidated Act passed in 1883, and, I think, amended in 1888. At that very time, a more comprehensive measure was being dealt with in
England ; but we had not then the advantage of knowing what would be done regarding it. Consequently, we find that to-day there is in operation, in what some of our friends are pleased to term the heart of the Empire, a more comprehensive, and, I may say, a more liberal Trade Marks Act than we have. Every one knows the value attached by manufacturers and others to trade marks which they have registered and are accustomed to put upon their productions. Every manufacturer or company that produces an article for human use or consumption is desirous of earning as good a name as possible for the things produced; and when the patronage of the public has been obtained with regard to a particular class of goods, it is only right that some protection should be afforded to their makers. Under our present system of civilization, the only way of securing that protection is by marking the goods in some particular fashion, and registering the mark ; which is then an indication that (hose goods are produced by a particular individual or firm, and is a guarantee of quality to the public. Therefore, we must all recognise the importance of legislation dealing with -marks of that description. The only amendment that has been made in the trade marks legislation of the Commonwealth since it was passed, was iti 1910, when the administration was transferred from the Minister of Trade and Customs to the AttorneyGeneral. That amendment did not affect the terms and conditions of the Act in any way. It was merely a transferring measure. At the last Imperial Conference, a resolution was unanimously carried to the effect that, as far as possible, legislation throughout the Empire with respect to patents, trade marks, and designs should be uniform. In pursuance of that resolution, it has become the duty of the Government to introduce a Bill to make the Commonwealth law relating to trade marks as nearly as possible similar to that existing in Great Britain; always, of course, having due regard to the particular conditions existing in this part of the Empire. The amendments which are proposed by the Bill are not very numerous. Some of them are very important, and others may be considered by certain honorable senators as not being of such great consequence. It will be recollected that, in 1905, it was thought advisable, by a very large number of honorable senators, and even of members of another place, that the workers of Australia should have the benefit which might be gained from the protection of their different industries through the adoption of some mark. Consequently, a portion of the Trade Marks Bill was applied to the purpose of bringing into existence workers’ trade marks; it was carried by a majority of both Houses, and became law, and, of course, the workers began to avail themselves of what they considered an opportunity to protect their own, interests. The union label has been heard of in other countries than Australia, and the workers have taken a very great interest in it.
– Is this Bill intended to give constitutional effect to what the High Court has decided is unconstitutional ?
– The Bill hasbeen before the Senate for some time. Before an honorable senator with such legal ability and acumen as my honorable friend” possesses begins to ask questions, lie ought to look at the Bill and see what it contains. If he had a case before the High Court, or a Supreme Court, and began to ask questions without knowing anything about the case, he would be ridiculed out of the Court.
– No, my question arose out of your remark.
– The honorable senator is so impetuous that, if I were reading the Lord’s Prayer, he would want toknow what I was driving at. If he will only possess his soul in patience for a few minutes, I shall endeavour, in my own way, to explain the position to him and otherhonorable senators. But I do not think, just because it enters the mind of any honorable senator that the Government isgoing to attempt to subvert justice as laid down by the High Court or any otherCourt, that they should assume that from anything I have said up to the present time.
– Very well, I accept it. Let the fault be mine.
– Can the Ministertell us whether any more memoranda on this Bill are going to be provided? I have* received three.
-Does the honorable senator object to getting as. much information as possible?
– I want to know if any more memoranda will be circulated?-
– Instead of talking in that manner, the honorable senator ought to welcome the memoranda and appreciate the thoughtfulness of the Government in providing all the information that can possibly be obtained.
– I do.
– Instead of appreciating our actions, the honorable ‘senator objects.
– I did not object at all. I asked if there were any more memoranda to be provided.
– If the honorable senator will give us an idea of what he wants, and it is possible and reasonable to provide the information, it will be obtained for him.
– I am much obliged.
– We have an honorable senator sitting alongside him who has all the information that Senator Chataway possesses, but does not seem to know anything about the subject yet.
– Do not blame him for sitting alongside me.
– I do not imagine that the honorable senator suffers anything from sitting alongside Senator Chataway, and I do not suppose that we would welcome him to this side. He was very nearly related to the Labour party on one occasion. We had a very narrow escape from his society, and, consequently, ‘we have no desire that he should ever shift from the other side of the chamber unless it be to shift out altogether. When I was interrupted, I was referring to the workers’ trade mark, or the union, label, which was carried in 1905 by a substantial, and *an intelligent, majority in both branches of the Legislature. I have mentioned that the workers began in their own interests to adopt labels, or trade marks, or designs, and put them on the goods which were the product of their brains and labour, and that they were going to get some recognition from the public; but their jubilation or happiness was very short-lived. The brewery workers in New South Wales adopted a workers’ trade mark. It was opposed by the Attorney-General of the State, and brought before the High Court. In my parliamentary life, I have never cast a reflection upon the judgment of any Court in Australia. The High Court decided by a majority that we had not the constitutional power to give the workers an opportunity of adopting any mark of this description. The Court declared that it was not the intention of the framers of the Constitution that the workers should have any such right. Since my entry into this Parliament, I have studied the Constitution pretty diligently. I have read paragraph 18 of section 51, and I cannot see any limitations there with respect to legislation on trade marks, patents, designs, or copyrights.
– You differ from the High Court?
– Yes j but that is not a reflection on the High Court. Greater men than I differ from the High Court. I have heard even the honorable senator express opinions at variance with those expressed by the Judges in the High Court.
– Very seldom, I think.
– That does not matter. ‘ So long as the honorable senator has been dissatisfied, and expressed contrary opinions, I am. sure that I, in common with every other citizen, have the right to express an opinion with respect to any legislation or any judgment of which there is a possibility for a difference of opinion to arise? The High Court is not infallible. The fact that the High Court was divided on this question shows that it was a case in which there was room for a difference of opinion. No honorable senator will question the ability of the Judges, but we find that, in nearly every instance where the High Court has been called upon to interpret the Constitution with respect to legislation, it has put upon it the narrowest interpretation which any man in Australia could do.
– Is not that a reflection on the Court?
– Certainly not. I say that those gentlemen in the High Court were quite justified in expressing their opinions.
– Are you not saying that the minority put a wide interpretation on the Constitution, and1 the majority a narrow one?
– Yes ; but that is no reflection, it is a fact. I would not blame the honorable senator if he were a member of the High Court Bench for any decision he came to. He could only decide according to his judgment, his ability, his conscious or unconscious prejudices.
– According to his knowledge or his ignorance.
– Does the honorable senator imagine, for one moment, that the Judges of the High Court have not their particular prejudices, whether conscious or unconscious? They know that they have been brought up under certain circumstances in Australia - under certain conditions - overshadowed by certain political opinions.
– What ! The members of the High Court Bench overshadowed by their political environment.
– I say that they have been brought up under certain conditions. The honorable senator is like an angler, he seems to be fishing for any kind of mis-statement or lapse that I may make ; but I am making none. Some of these gentlemen were brought up under the shadow of political conditions which have influenced them for the rest of their lives. If the honorable senator were a man of discrimination, he would be prepared to acknowledge that straight away. I do not blame the Judges for that; I do not say that as a reflection on their ability or their intelligence, but it is a fact that the majority- of the’ Court, whenever they have had the chance, have put upon the Constitution the narrowest construction which could possibly be put upon it by any man, or, for that matter, by any woman, in Australia.
– If you are not over the line, you are very near it.
– I can walk the chalk-line probably as straight as the honorable senator can. I can come just up to the line and retreat as gracefully as he can. I am stating now a fact. The majority of those who were elected by the people of Australia believed that they had the power to put into the Trade Marks Bill of X905 a part dealing with workers’ trade marks. They had read and studied the Constitution, and they came to that conclusion, after lengthy debate, and long argument. This Parliament is in .as good a position to express an opinion with respect to the correct interpretation of the Constitution as is any Court in Australia. I hope the day will come when the Parliament of the Commonwealth will have a greater say in the interpretation of the Constitution than it appears to have had up to the present time.
– Would the honorable senator abolish the High Court?
– I would not. There are a great many purposes, for -which the High Court is useful and necessary besides the interpretation of the Constitution ; but the Parliament of the country is the place in which the Constitution should be interpreted.
– It should .be interpreted by the people of Australia, and not by the Parliament.
– When I speak of the Parliament, I speak of the representatives of the people of Australia. I hope it will be the people of Australia who will interpret certain sections of the Constitution which have been limited by the power placed in the hands of the High Court. According to that Court, we have no power to carry out the principles adopted by this Parliament in 1905.
– Is this Bill intended to give power to do what the High Court has said we have not power to do?
– It is not. If the honorable senator, has read the Bill, and does not know that, I cannot give him much credit for intelligence. The High Court decided that the workers’ trade mark for which we provided is not constitutional. If that be so, the Act is overloaded. The High Court may, at some future time, decide that this unconstitutional provision is not severable from the rest of the Act, and such a decision may destroy the value of the whole Act. Consequently, for the purpose of safety, it is advisable that this part of the Trade Marks Act should be repealed. Does Senator St. Ledger now understand the intentions of the Government ?
– “I clearly understand them now.
– And is not what I have said stated plainly in the Bill, which the honorable senator has had in his hands for several days past? If he had not read the Bill he should have waited until I finished my speech. If he was not satisfied with what I had to say, he could read the Bill, and would then be able to take part in ‘the discussion of it. I still maintain that it was within the power of the High Court to put a .broader interpretation upon legislation of this description. I have as much right to my opinion as has any member of the High Court. The only question that arises is as to whether I have as much- experience as have the Judges of the High Court.
– No, the question is whether the honorable senator has as much power.
– I have not as much power, nor, apparently, has this Parliament, but I hope the time will come when Parliament will have as much power as, and a little more, than any institution that is the creation of Parliament. No instrument of legislation in any part of the world, and no institution the creation of a Legislature, should have greater power than the Legislature that brought it into existence. That is my opinion, and I feel sure that no honorable senator opposite will question a statement of that kind.
– The High Court is created by the Constitution, and not by Parliament.
– Honorable senators opposite are always thirsting for information. I believe that they sometimes make statements which they know to be incorrect merely in order to elicit information. The Constitution gave Parliament the power, or the instruction, to institute a High Court.
– No ; the Constitution says there shall be a High Court.
– The High Court could not have been brought into existence without an Act of. this Parliament.
– The people of Australia made the Constitution.
– The honorable senate has just said that the Constitution made the High Court.
– Decidedly it did.
– I say it did not.
The Constitution that was adopted by the people gave the Parliament of the Commonwealth the power, if not an instruction, to bring the High Court into existence.
– No; it established the Judicial power, and imposed the duty upon Parliament.
– What is the difference? If I were to instruct the honorable senator, and had the power to instruct him, would that not be the same as imposing a duty upon him? Honorable senators opposite must have been hunting up dictionaries and encyclopedias for the purpose of tripping people up ; but they cannot do it. I hope that the day will come when the Parliament of the Commonwealth will be able to give every section of the workers of Australia the powerto register a trade mark for themselves. Senator Keating is aware that in some of the
States workers’ trade marks were established by State legislation. Our legislation establishing a workers’ trade mark was carried because the statement was made, and proved, that in some of the States workers had trade marks of their own. If inany of the States it was possible for workers to register a trade mark, seeing that the powers of the States with respect to trade marks, copyright, and designs were handed over to the Commonwealth, it was a natural assumption that the Commonwealth Parliament could do what it was competent for the State Parliaments to do under the powers taken’ from them and vested in the Commonwealth Parliament. There is nothing unreasonable in such an assumption. I am satisfied that the Judges of the High Court exercised their functions according to their knowledge. I believe they were honest in the views to which they gave expression. I have never suggested that they did other than what they believed to be right. But their beliefs and actions have not, in my opinion, conserved the best interests of the people of Australia. In all these circumstances, it has been decided to ask Parliament to repeal that part of the Trade Marks Act providing for workers’ trade marks. The next amendment that is proposed by this Bill is the extension of the operations of our trade marks legislation. So far as patents are concerned, that legislation has already been extended to the Territory of Papua. This Bill, if passed, will extend our trade marks legislation also to that Territory. Some persons have asked, though honorable senators would surely not do so, whether this legislation should not also be extended to the Northern Territory. As the Northern Territory is part of- the Commonwealth of Australia our legislation is already in force there, and there is consequently no necessity for an amendment of the law in that respect. The next alteration proposed is to bring the law more into conformity’ with Imperial legislation, and to make it more beneficial to those who are applying, or intend to apply, for the registration of trade marks. We propose to make applications much simpler than they are at present, particularly in relation to additional matter. If, under our existing legislation, a man desires to have additional matter in a trade mark as well as the essential particulars of the mark, a good deal of trouble is involved in making his application. Under this Bill there need be no difficulty in making his application. So long as the mark contains the essential particulars, it will be eligible for registration. Honorable senators are aware that a trade mark may consist of a mark, letter, word, or design, but if a word other than an invented word is used, it must not be a word directly connected with the article to which it is to be applied. For instance, if I desired to register a trade mark for cheese, butter, or condensed milk, I should not be allowed to register a design of a cow, a churn, or anything connected with the article I wished to protect. The trade mark must be different from the article to which it is applied. Difficulties arise every day in connexion with the application for the registration of trade marks on this account. If one man registered a silver star for starch, and another attempted to register a golden star for another kind of starch, there would very likely be some trouble. But a man might register a silver star as a trade mark for something not included in the same class of goods as starch. All these things have to be considered in dealing with trade marks registered for the benefit of manufacturers. We must see that no one is allowed to infringe the rights of any one else by imitation. Trade marks must have their essential particulars, but they must differ if applied to the same .class of goods. The next amendment of any consequence which it is proposed to make in the existing law has reference to the names which may be applied to the trade marks relating to particular goods. There may be persons in other parts of the world who are not so honest and scrupulous as are the traders in Australia. The former may desire to cut out our honest traders, and to this end may send here goods bearing a similar name to that of a manufacturer in the Commonwealth. In this Bill we lay it down that any goods thus forwarded, and bearing names resembling those of our own traders, shall be treated as prohibited imports. Now, it is a very serious thing for a trader in another part of the world to have his goods seized as prohibited imports.
– How will the traders in other parts of the world know what names are applied to particular goods here?
– They will have to find out. Of course, if a trade mark is registered in Great Britain before it is registered here, the person registering it will receive priority. It is only when an attempt is made to commit what Senator Rae would regard as a fraud that this legislation will come into operation. We have a right to protect our own people in the matter of trade marks and designs, as in all other things. Then it will be recognised that goods sometimes reach our ports in a very mysterious manner. In the future, if any goods are found to infringe the rights of the citizens of Australia, and if, as a result, they are seized as prohibited imports, the Comptroller-General of Customs will have power to compel the importer of those goods to disclose the names of the consignee and consignor, so that they may be dealt- with by Commonwealth legislation. Honorable senators will, therefore, see that we have endeavoured to make the Bill as comprehensive as possible. In the past some difficulty has been experienced in respect of search warrants. Seeing that under this Bill we have provided for prohibited imports, and have created various offences, we ought to take every precaution to insure that effect is given to this legislation. Consequently, we propose to authorize justices of the peace to issue search warrants, so as to enable prohibited imports to be followed into every possible place where there is a chance that they may be discovered. If they are discovered they will be dealt with in accordance with the next amendment. The amendments which we propose in connexion with the infringement of a name will necessitate what may be termed consequential amendments. The amendment consequential on the alteration of the law with which I have been dealing, provides for the forfeiture of prohibited imports to the King. Very little argument is necessary in connexion with these consequential amendments. Then we propose generally to amend the Act so as to bring it into conformity with the legislation which is embodied in the Imperial Act. If honorable senators will study the Bill and the memoranda which have been circulated for their information, they will see that we have done all in our power to put them in possession of data likely to be of service to them. In the absence of that information, they might have justly complained of laxity on the part of the Government or of the Department in which this legislation originated. Everything has been done to obviate that difficulty, and when the second reading of the measure has been passed, I have no doubt that very little difficulty will be experienced in dealing with it in Committee in such a way as to bring our legislation in respect of trade marks more into conformity with the trade mark legislation which exists in other parts of the world. The Imperial Act of 1905 was drafted by Mr. Fletcher Moulton, who has since been elevated to the Bench; and who is now Lord Justice Fletcher Moulton. He is regarded as one of those men who has had the greatest experience, and possesses the most extensive knowledge, of trade mark legislation. Seeing that a gentleman of such distinguished ability has taken the trouble to bring about complete trade mark legislation in connexion with Imperial affairs, I am sure that we are doing a wise thing when we follow as closely as possible the example which he has set. Further, when this Bill becomes law, the Commonwealth Courts will’ have the advantage of all the decisions which have, been arrived at by the higher Courts in the centre of the Empire. I hope that the Bill will be dealt with in as liberal a manner as possible.
Debate (on motion by Senator Keating) adjourned.
[12. 1 2 j. - I move -
That this Bill be now read a second time.
This measure will be admitted, particularly by members of the legal profession on the opposite side of the chamber, to be one of a very technical character. The legislation which we have enacted on former occasions in connexion with the subject-matter of this Bill has been found to be rather incomplete. I have heard serious complaints from honorable senators in that connexion. It has been urged that persons who have committed fraud in one State have been able to step over the border into another State, and that such difficulties have been experienced in bringing them to justice that amending legislation is required to effect a remedy. It has also been affirmed that men who have taken on the responsibility of matrimony, and who have not found it to their taste, have levanted to other parts of Australia, leaving their poor wives and families without that support to which they were entitled. Difficulties have been experienced in dealing with delinquents of that description - so much so that an amendment of existing legislation is imperative. The most essential feature of the Bill relates to the service of writs. It has been found that a great diversity in procedure exists in the ‘different States in regard to the issue of writs. Sometimes when an individual has obtained a warrant for the issue of a writ, he has found that the justice by whom it was issued had no jurisdiction, and that, consequently, it was of no use. In this legislation we propose, to some extent, to vest in an ordinary magistrate the power that is possessed by a Court of Record. In the past a Court of Record could issue a writ which might be executed in another State. But if a magistrate, where a Court of Record was not available, issued a warrant in some of the States, the party on whom that writ was served was in a position to laugh at it. But here we make it impossible for any one to escape in that way ; because if a writ is not issued by a Court of Record, but by a magistrate, the writ can legally be served in another State. I think that in future the same difficulty will not be felt as has been experienced in the past by those endeavouring to obtain justice. There has also been a difficulty in connexion with the time for the service of writs. The time has been considered too long. The minimum has been thirty days from the issue of the writ. We are proposing to reduce the time to twenty days so far as concerns the capital cities in the Eastern States. If a writ is_ issued in Sydney it must be executed within twenty days in Melbourne, Adelaide, Brisbane, Hobart, or any other city in an Eastern State. In Western Australia the term* has been forty-five days, and under this Bill that term remains so far as concerns that State. That is to say, if a writ is issued in Melbourne it must be executed within a minimum of forty-five days in Perth or Fremantle. But if issued in Perth or Fremantle for service in the Eastern States the minimum proposed is thirty days. The very same kind of amendment ‘ is necessary in connexion with summonses for wife desertion. Senator Chataway on a former occasion brought this matter forward, and it was generally agreed that something ought to be done. In the past, in some States, summonses for wife desertion were not recognised. . This Bill puts the offence of wife desertion on the’ same plane as an indictable offence, or one punishable on summary conviction. By that means women who have been deserted will be able to issue summonses against husbands who have left them to fight thenown battle, and in many instances the- battles of their families also. There are other matters in connexion with the desertion of families or dependents which are included in the Bill, and are worthy of consideration by the Senate. This legislation will be found beneficial to those who have been unjustly treated in the past. Honorable senators will find that everything possible has been done for the purpose of making this legislation more effective than it has hitherto been I have noticed that recently some of the State Parliaments have been taking action in connexion with the same question. We have not the power under the Constitution to do certain things which they propose to do, but we are taking such action as the Constitution permits to give every one an opportunity of obtaining justice. In relation to interest on judgments, the law previously was that when a judgment was registered in another State, interest could only be obtained from the date of registration. But under this new legislation we propose to permit interest on a judgment to run from the moment when the judgment is given. Honorable senators who belong to the legal profession will, 1 am sure, give me and the Government every assistance in making this legislation as perfect as possible in the interests of those who have been unable to obtain justice in the past. We are making an honest attempt to frame legislation so that no culprit can escape by any technicality or subterfuge.
Debate (on motion by Senator Keating) adjourned.
Motion (by Senator McGregor) pro posed -
That the Senate do now adjourn.
– I have noticed in the Parliamentary Library bound copies of statutory rules published in connexion with the Commonwealth Acts. Something like 872 statutory rules have been issued during the last six years. These are bound up in volumes and indexed. But the bound copies are not distributed amongst members of Parliament. I do not suggest that they need be bound in calf like the copy in the Library, but they might be put up in cloth bindings and distributed.
– Would not that be a very expensive matter?
– I do not think that it would cost the Commonwealth more than £15 a year to carry out my suggestion. The rules are alreadyin type, printed on octavo paper, and can very easily be put in cheap cloth covers and circulated.
– Does not the honorable senator get enough literature now?
– These things are very useful. I am making the suggestion in all good faith. Senator Clemons. and Senator Symon have brought the matter up before. I have just come from a meeting of the Printing Committee where we have had a quantity of statutory rules before us, and I have been impressed with the desirableness of having them bound and distributed to honorable senators.
.- I understand that the Government does not bind up the volume’s of statutory rules to which Senator Chataway has referred. Ilearn thatthe bound copies in the Library are a private compilation obtained from a firm of law booksellers. I agree, however, that it would be very convenient to honorable senators if bound copies of statutory rules were circulated. They are already in print, but it is troublesome to get at them at present. If they were indexed and bound together in one collection the cost would not be great. They might even be fastened together in a paper cover like the numbers of Hansard. I will make inquiries with respect to the matter, and if anything can be done in a reasonable way I dare say we shall be able to meet the honorable senator’s wishes.
Question resolved in the affirmative.
Senate adjourned at 12.27 p.m.
Cite as: Australia, Senate, Debates, 19 July 1912, viewed 22 October 2017, <http://historichansard.net/senate/1912/19120719_senate_4_64/>.