4th Parliament · 3rd Session
The President took the chair at 3 p.m., and read prayers.
– Will the Minister of Defence be good enough to lay upon the table of the Library the papers in connexion with the appointment of a manager for the saddlery and harness factory ?
– In response to a similar request from a member of another place, the papers will be laid on the table of the Library to-day.
MINISTERS laid upon the table the following papers : -
Commonwealth Woollen Factory - Report on Sites by the Manager, Mr. James Smail.
Electoral Act - Tentative Recommendation in relation to Divisions of Herbert and Kennedy, State of Queensland, by Mr. W. H. Graham, one of the Commissioners appointed for the purpose of redistributing the State of Queensland into Electoral Divisions, accompanied by maps.
Excise Act 1901 -Cancellation of Provisional Regulation relative to payment of overtime. - Statutory Rules 1912, No. 138.
Land Tax Assessment Act 1910-1911 - Summary of Remissions of Penalty granted, under section 50, up to the 30th June, 1912, in respect of Assessments for 1910-11.
Papua - Ordinance of1912, No. 3 - Supplementary Appropriation of 1911-12, No. 3.
Public Service Act 1902-1911 - Promotion of D. R. McLean to the position of Clerk, 4th Class, Chief Accountant’s Branch, Central Staff, Postmaster-General’s Department.
Universal Training - Report of the Minister for Defence on Progress made to 30th June, 1912.
asked the Minister representing the Postmaster-General, upon notice -
Is the Minister aware that -
Great discontent is manifested by the people of Tasmania in the fact that the s.s. Rotomahana is being used by the contractors in the present winter mail service to Tasmania?
The Rotomahana is unsuitable, antiquated,
And out of date, being unable to maintain a satisfactory time-table between Melbourne and Launceston?
If such is the case, will the PostmasterGeneral afford Tasmanian senators and members a full opportunity of offering suggestions before tenders are accepted for the next mail contract commencing on 1st October, 1912?
– The answers to’ the honorable senator’s questions are -
The Postmaster-General will be glad to receive any suggestions which Tasmanian senators or members desire to make before tenders for a new contract are accepted.
– Does the Minister consider that his answer covers the question of the suitability of this boat for the particular river trade in which she is employed?
– According to the answer supplied to me by the PostmasterGeneral and the Department, the Rotomahana is considered suitable for the trade and the work which she is doing.
– Did Did I understand the Minister to say that the answer to the third part of the first question was “ No,” because, if so, it is rather funny?
– The question asked by Senator Ready affirmed that the Rotomahana is nearly forty years of age, and that her engines have broken down no less than four times during the present winter running.
– No, the question is prefaced with the words, “ Is the Minister aware that “
– The answer to the question is, “ No. See answer to question 2,” which reads as follows -
The Postmaster-General is informed that while the Rotomahana was built in1879, she was re-boilered and engines re-fitted a few vears ago, and has been kept on Lloyd’s Classification (the highest in the world), and has undergone the necessary surveys, and is now running under a certificate obtained from the Melbourne Marine Board on 18th April,1912.
– T - That is a most unsatisfactory answer.
– And, therefore, her engines did not break down, and she was never near the Hebe Reef.
asked the VicePresident of the Executive Council, upon notice -
– The answer is- 1 and 2. If the honorable senatorpaid a little more attention to the study of geography he would know that Canada comprises a very large portion of America, and that a person born in Canada is just as much an American as if born in New York, and is just as much a British subject as if born in Australia.
– Arising out of the answer, I should like to know where the Minister of Home Affairs was born?
– The answer I gave to the question implied that Mr. O’Malley was born in Canada.
– Arising out of the answer given by the Minister in regard to my geography, I should like to ask whether it is consistent with the constitutional relations of a Minister to the Crown to proclaim himself as an American?
– This is rather an abstruse question for me to answer without notice. If the honorable senator will give notice of the question for tomorrow a reply will be furnished.
asked the VicePresident of the Executive Council, upon notice -
If it is the intention of the Government to bring in a Bill to provide for the proposed grant to the State of Tasmania, or will the matter be dealt with in the Estimates, and be subject to the annual review of Parliament?
– The Government will introduce a Bill.
Bill received from the House of Representatives, and (on motion by Senator Pearce) read a first time.
– I move -
That the Senate approves of the distribution of the State of Victoria into electoral divisions as proposed by Messrs. R. C. Oldham, J. M. Reed, and J. Molloy, the Commissioners for the purpose of distributing the said State into divisions, in their report laid before Parliament on the 19th day of June,1912, and that the names of the divisions suggested in the report and indicated on the map referred to therein be adopted, except that the name “ Henty “ be substituted for “ Caulfield.”
A similar motion has been agreed to in the House of Representatives, and, in order to comply with the Electoral Act, it is necessary that the Senate should be asked to affirm the same principle. According to section 24 of the Constitution -
The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner : -
But notwithstanding anythingin this section, five members at least shall be chosen in each original State.
In the Representation Act of 1905 provision is made for determining every five years the number of members for the House of Representatives to be chosen by each State, and for that purpose enumeration days are appointed on which the number of the people of the States has to be ascertained, and the number of members to represent each State has to be determined by the method set out in section 24 of the Constitution. The day on which the census is taken every ten years is, by that Act, determined to be an enumeration day, so that there is one enumeration day between one census and another, because the period is five years, and the census day itself is an enumeration day. That has been done because, by the census,we get an accurate numbering of the people of the Commonwealth. A census of Australia was taken on 3rd April, 191 1, which was, therefore, an enumeration day. In a return which was tabled on 6th December last, the Chief Electoral Officer certified that he had, in the manner prescribed in the Representation Act, ascertained the number of the people of the Commonwealth and of the several States as on the then preceding enumeration day, and that they were as follows: - New South Wales, 1,646,734; Victoria, 1,31,551 Queensland, 594,514; South Australia, 408,558; Western Australia, 274,841 ; and Tasmania, 191,211; making a total of 4,431,409. In a further return, tabled on the same day, this officer notified that lie had determined the number of members of the House of Representatives to be chosen in the several States to be as follows:New South Wales, 27; Victoria, 21; Queensland, 10; South Australia, 7; “Western Australia,, 5 ; and Tasmania, 5. The effect of this determination is that Queensland gains, one member, and Victoria loses one member. It is, therefore, necessary to distribute Victoria into twenty-one divisions, instead of twenty-two, and Queensland into ten divisions, instead of nine. The namesof the Commissioners appointed to distribute Victoria are mentioned in the motion. I only need to direct attention to the factors which have to govern Commissioners in determining their distribution. They are - “ The Commissioners shall give due consideration to -
The number of electors in the State of Victoria was ascertained to be 727,601; and the quota, therefore, was 34,648. The margin allowance of one-fifth, more or less, accordingly made the minimum number of electors in any division 27,718, and the maximum number 41,578. The number of electors enrolled for each of the existing divisions at the time of the last redistribution of Victoria in 1906, and immediately prior to the present redistribution, was as follows -
Incidentally those figures indicate a rather regrettable fact - that the country electorates are not keeping pace with the increased population in the metropolitan centres. They show that the nine metropolitan divisions have increased by 80,398, or 30.4 per cent., while the thirteen country divisions have increased by 35,859, or 10.2 per cent. Further, the average number of electors in the nine metropolitan divisions is 38,318, while the average in the country divisions, is 29,441 only.
– What is the difference?
– Roughly, 9,000.
– In favour of the metropolitan divisions ?
– In favour of the metropolitan divisions.
– Then the allotment of membership is in favour of the country electorates ?
– Those are the figures on the present enrolment, according to the old boundaries. I am quoting them to show the necessity for a re-arrangement of boundaries. The number of members in each of the proposed new divisions, together with the extent to which those numbers differ from the quota, is shown in the following figures : Metropolitan electorates - Balaclava, 1,763 below the quota; Batman, 1,181 above the quota; Bourke, 225 below the quota; Caulfield, 2,111 below the quota; Fawkner, 805 above the quota; Kooyong, 313 below the quota; Maribyrnong, 553 below the quota; Melbourne, 2,110 above the quota; Melbourne Ports, 1,925 above the quota ; Yarra, 2,366 above the quota. Country electorates - Ballarat, 1,363 above the quota; Bendigo, 309 above the quota ; Corangamite, 36 below the quota ; Corio, 730 below the quota ; Echuca, 148 above the quota ; Flinders, 1,330 below the quota; Gippsland, 93 below the quota; Grampians, 749 above the quota; Indi, 753 below the quota; Wannon, 890 below the quota; Wimmera,2,166 below the quota. Under the proposed redistribution the average number of electors in each of the ten metropolitan divisions will be 34,990, while the average in each of the eleven country divisions will be 34,336. I do not know that I need add any more. Honorable senators will, I think, recognise that a redistribution is needed. Apparently the Commissioners have adhered to the provisions of the Act in making their scheme of redistribution. It now becomes the duty of Parliament to say whether it will or will not accept the proposals of the Commissioners; and I move the motion standing in my name in order that the Senate may give its assent to the proposal.
Question resolved in the affirmative.
– I wish to ask leave to withdraw the notice of motion standing in my name in regard to the electoral divisions of Queensland.
– I have no other desire than to expedite the business before the Senate, but I understand that there is some doubt as to whether a motion carried last night in the other. House does dispose of the question as to the electoral divisions of Queensland. I suggest, if the Minister will take a suggestion from me, that this motion should be postponed for the present.
Motion (by Senator Pearce) agreed to -
That notices of motion Nos. 2 and 3, Government business, be postponed until after the consideration of orders of the day, Government business.
– I move-
That, in the opinion of the Senate, 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 regret very much that there seemed to be some necessity, in the view of some honorable senators, for delaying this matter last week. In my opinion, it might have been allowed to be dealt with as a formal matter. That, however, was not done, and consequently we are called upon to discuss the motion this afternoon. It is desirable in the interests of the Commonwealth that such an opinion should be expressed ; but whether it was necessary to take action in this form is another question, seeing that action had already been taken by the Government some time previously. The Government, when they first saw the intimation in the press that differential treatment was to be given to American shipping using the Panama Canal, communicated with the only authority with which they had any right or power to communicate, namely, the Imperial Government. They pointed out the desirableness of taking action in this matter, and also that what was proposed was a violation of the arrangement made at one of The Hague Conferences. They intimated that the United States of America, if the reports circulated were correct, was proposing to do what, in the opinion of the Government of Australia, and also they hoped in the opinion of the Imperial Government, would be a wrong thing. We quite admit that the United States has a right to do anything it pleases, within its own territory, as long as its action does not seriously affect the national interests of other countries. But the Panama Canal is being constructed outside the territory of the United States.
– No. The United States Government have acquired the territory.
– My statement is correct, that the Canal is outside the territory of the United States, although the United States Government have acquired eights in another country. We contend that lithe powers assumed are in violation of an arrangement or agreement made at the Conference I have already mentioned. Reports inform us that the United States Governmnent are prepared to give substantial preference - I might almost say freedom - to vessels owned in the United States when passing through the Canal, whilst vessels belonging to any other country in the world are to be charged at the rate of 6s. per ton on goods carried through the Canal. . I am sure that, we should not presume to advise the Government of the United States as to how they should conduct their business, but we have a right to express an opinion on such a matter as this. The Government -of the United States would have a perfect right to say that the people of that country or of any favoured nation might pass over the railways of the United States if those railways belonged to the Government, as at present they do not. They would have a tight to give any privilege they pleased to their own people or to the people of any favoured nation, whilst denying the same rights to any foreigners. They would have an equal right to compel foreigners to pay different rates for passing over the railways of the United States than those paid by their own people.
– Another case of preference to unionists.
– There are unionists who deserve preference, and there are some unionists who are not worthy of consideration.
– Not worthy of the marne.
– There are some who are not worthy of the name of unionists, and a political union when it becomes a “ fusion “ is not entitled to any preference.
– The Labour party had an alliance at one time.
– The honorable senator knows very well that the statement fae is making is not altogether in accordance with facts. He knows that supporting a poor, weak party is not forming a Fusion. Consequently, the Labour party cannot be charged with having formed a Fusion with any other party in the Commonwealth. But, leaving that aside, I think that, seeing that in the very near future, when this Panama waterway is completed, we may presume that a large portion of the trade and commerce of Australia to and from other parts of the world will make use of that channel, it is rather alarming to the people of this country to learn that our goods are to be charged at the rate of 6s. per ton, whilst goods carried on ships belonging to the United States are to be carried free. We have a right to conserve our commercial interests, and the present Government take great care to secure the protection of all interests in the Commonwealth. They do riot confine themselves to preference to unionists, but consider every interest in the Commonwealth, believing that if any be injured the injury will be reflected upon the whole of the people. Consequently action was taken by the Government to make representations to the Imperial authorities, which will be likely to result in something being done to secure that fair play should be shown, not only to the people of Australia, but of all other parts of the world, in connexion with this matter. We are, of course, chiefly interested in our own affairs, but we hope that the people of all other parts of the world will also be treated fairly, so far as the use of this great waterway is concerned. I have, therefore, very much pleasure in submitting the motion, which I hope will be carried unanimously.
Senator Sir JOSIAH SYMON (South Australia) [3.43]. - The Vice-President of the Executive Council deprecated being drawn aside from the subject in hand by an interjection from this side. I think it is rather a pity that he should have allowed himself to be diverted from his purpose by any interjection, because this is a motion which should enable us to rise above the ordinary recrimination of party politics. Whatever view we may take of the desirability of carrying this motion, its subject-matter should raise us into a very much higher arena than that of the ordinary business of the Senate, however important it may be. *
– This is certainly not a party question.
– It is not a party question in any way whatever ; it is a great national question. The justification for a motion of this character is first of ali that it may indicate the national feeling of Australia to the Imperial authorities, who have the sole responsibility of dealing diplomatically with matters of this kind. The motion is one which should be carried, if at all, with absolute unanimity. It has another advantage which I may be permitted to point out. It emphasizes and brings before us one of the great benefits arising from the Federation of Australia.
If the circumstances which have given rise to it had occurred some twelve years ago a motion of this kind would have been practically impossible. Tt would have been necessary to have brought it before six different Parliaments. The New South Wales Parliament, being deeply concerned in the trade of the Pacific, would, no doubt, have been greatly interested in the matter. It might have received a colder reception from the Parliament of Victoria, owing to the natural and, perhaps, reasonable trade rivalry that exists between the two States. In the State of Western Australia it might have been viewed with less interest than in any of the other States, because Western Australia is 2,000 miles away from the Pacific, and her interests are more directly concerned with commerce from the west and crossing the Indian Ocean. But here we are in a National Parliament, representing the trading and commercial interests of Australia as a whole, and we are able, with a force and influence which could not otherwise be demonstrated, to express our views, which, for the reasons I have indicated, ought to have more weight in the quarters to which they will be conveyed than we could expect under other circumstances. That is not a small matter. Although I am sure we do not wish international differences to arise between countries, still it is not an unmixed evil if they do arise, and we are given an opportunity on occasion to rise above the ordinary work to which our minds are directed, important though it is, and to consider these great international questions and their influence upon us. I should have been pleased if the Vice-President of the Executive Council, in submitting the motion, had referred to the present position of the negotiations in connexion with this matter. We are all aware that there have been negotiations proceeding between the Imperial Government and the Government of the United States. We know that the Secretary of State for Foreign Affairs has communicated with the State Department of the United States, and asked that the decision of this matter should be postponed until the British Ambassador has returned to his duties, and it can be fully discussed. Since then various cablegrams have been received, and I am a little uncertain as to whether there has not been a definite arrangement made, and if not a complete settlement, at least an approximation to a settlement, of the question between the Imperial authorities and the United States authorities. It would have been of interest to the Senate, and would have assisted honorable senatorsin dealing with the motion, if the VicePresident of the Executive Council had been in a position to tell us the actual position of affairs. Of course, if the matter has been settled this motion is unnecessary.
– The Vice-President pf the Executive Council would not have moved the motion if the matter had beer* settled.
– I should, perhaps, remind Senator Needham that the motion did not proceed originally from the Government. It was submitted in another place by a member of the Opposition, and the Government have very properly taken it up here.
– Yes, but the Government had previously taken steps.
- Senator Needham’s interjection was not directed! to that aspect of the question. This motion emanated from a member of the Opposition in another place, and the Government; have very properly taken it up and- submitted it to the Senate. In order that wemay be able to decide whether it is worth while proceeding with the motion- it is desirable that we should be made acquainted’’ with the progress of the negotiations towhich I have referred, and the presentposition of the matter. If it is settled this*motion is superfluous. If it is approaching settlement it may be, as is very oftenthe case, that an untimely interference orexpression of opinion will not be of diplomatic service.
– As a Presidential” election is going on in the United Statesit is not very likely that the question- is. settled.
– Thehonorable senator may be much more familiar than I am with the progress of political movements in the United States, and ‘ I am not going to venture upon a prophecy as to what the effect of the communicationof a motion of this kind to the United” States authorities would be. I merely saythat sometimes an interference, howeverslight and well intentioned, has not so conciliatory an effect as we might hope for it, if it is made at a time when two contending parties are approaching a friendly adjustment of their differences. If the VicePresident of the Executive Council has- any information on the subject of the actual position of affairs in this matter, I am sure the Senate will be glad to hear it. If the matter is still unsettled, there can be no two opinions as to the desirability of passing some such motion as’ this, first of all in order to indicate the feeling with which Australia regards the attitude of the Imperial Government in communicating with the United States, a country which is, I think, friendly to, and has great trade relations with Australia. We may be detrimentally affected by such proposals as have teen made with a view to giving preference to the shipping of the United States passing through the Panama Canal. It is certainly desirable that some such motion should be passed for these reasons, and because of the great and vital importance of the question to the commerce of Australia, and to Australian interests in the Pacific. Without going into details at all, the proposals which have been made, if given effect, would, in my opinion, make the eastern Pacific an American lake. We know what the shipping policy of the United States is in relation to their coastal trade. They are at liberty, as we are, and as we seem inclined to insist in our Navigation Bill, to make what regulations they please regarding their coastal trade. Of course, two can play at that game; but this particular matter involves a great deal more than the protection of coastal trade, and the proposals made would establish a discrimination in favour of American shipping, and a barrier against the shipping of all the rest of the world, in respect of trade conducted from the Atlantic to the Pacific. This alone, it seems to me, in view of our great interests in the Pacific, and trade with the islands of the Pacific, would justify us in being on the alert to give all the sympathy and support we possibly could to the Empire of which we are a part, and to those in authority in the Old Country, whose duty it is, on behalf of the centre of the Empire, as well as on our behalf, as one of the greatest of the outlying Dominions, in their endeavours to secure the interests of the whole of our trade. But I think an improvement might be made upon the terms of the motion, and I propose to submit an amendment which, I think, will make it more comprehensive and satisfactory. It reads -
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.
It seems to me that we ought not to descend to particulars of that kind in such a motion. The United States is perfectly justified, and has complete authority to give whatever bonuses and rebates it pleases. Honorable senators may have noticed in some of the recent cablegrams that it was suggested that whilst observing all the terms of the Hay-Pauncefote treaty of 1901, and leaving the Canal open to the whole trade of the world without preference or restriction, there was nothing whatever to prevent the United States giving to American shipping passing through the Canal a bonus or rebate at least equivalent to the charges made. That is a detail, and what we really desire to prevent, if we can, putting it in its mildest form, is preferential treatment generally. We might possibly give offence by a motion directed specifically against something which the United States Government have a perfect right to do. I therefore move -
That the words “bonus or rebate of canal dues” be left out, with a view to insert in lieu thereof the words “ preferential treatment.’”
Preferential treatment might be given to American shipping by other methods than the payment of bonuses or the allowance of rebates. The object of the British Foreign Office, and our object, I take it, is to secure absolute equality of treatment for the shipping of all nations using the Panama Canal. It seems to me that we should frame nur motion in this way in order to avoid particularizing action which the United States Government have a perfect right to take under their constitutional and municipal laws. Not only so, but if I recollect lightly, the Hay-Pauncefote treaty makes use of the words “ preferential treatment,” or words having a similar effect.
-Colonel Sir Albert Gould. - “ Discrimination “ is the word used in the treaty.
– With these observations, and unless the VicePresident of the Executive Council is able to say that the matter has already been satisfactorily adjusted, I shall generally support the motion.
– It is refreshing at times to get away from party questions in the Senate. The most ardent party fighter becomes somewhat tired of continual wrangling over party matters. This is a question into which the party element should not enter in the slightest degree. I agree with all that Senator Symon has said in that connexion.
I am inclined, also,, to agree with the i amendment he has submitted. The more closely we adopt the phraseology of the Hay-Pauncefote treaty, the more secure our position will be. It provides for equality of treatment being meted out to the commerce and shipping of both nations in the use of the Panama Canal. That treaty was entered into between Great Britain and the United States, and there can be no doubt whatever as to what the intention of the parties to it were. It is explicitly stated that the treatment to be meted out shall be equal, and that there shall be no discrimination shown to the shipping of any one country. If our protest were made more closely in accord with the terms of the treaty we should be on safer ground. I do not know how far we can alter the terms of the resolution in which we are asked to concur, but I certainly hope that the wording of the protest will be materially altered in that regard. It is laid down in the Hay.Pauncefote treaty that not only ships of commerce, but also ships of war, may use the Canal on equal conditions with the vessels of the United States. We know that as regards the coasting trade every country has the right to so frame its law as to suit its own shipping, but that question is not involved in this motion, because Panama is not part of the United States coast.
– The strip in which the Canal is being constructed is United
– I think that it remains part of the Republic of Panama.
– No, it is part of the United States territory.
– I ‘hope that the honorable senator will be able to furnish proof in support of his statement.
– It is not necessary to furnish proof for such an obvious fact.
– It is not at all an obvious fact. 1 have yet to learn, unless it is of recent occurrence, that Panama is territory of the United States. A treaty between the United States and the Republic of Panama granted, on an annual payment of 250,000 dollars, the use of a zone nf 5 miles on each side of the Canal. The United States has police and sanitary control within this zone, but the cities of Panama and Colon are controlled by the laws of Panama. I think it will be found tint the United States acquired the concession which was granted to a French company. If we go back we shall find that seve ral schemes were propounded by the United States for building a canal across this neck of’ land, but while a number of European countries, and also the United States, acquired concessions, no real practical work was undertaken until after the Suez Canal had become an accomplished fact. It was then that the famous engineer de Lesseps acquired a concession from a French company which was formed some years before.
-Colonel Sir Albert Gould. - Yes, but many things have happened since then.
– If I were Senator de Largie I would not argue the matter.
– I understand that this part of the Panama territory hasbeen merely acquired by the United States for the purpose of building a canal. I hope that when Senator Givens returns to the chamber he will bring proofs in support of his statement.
– Suppose that a crime were committed by a person employed on the Canal works, under what law would he be tried - the law of America or that of Panama ?
– Under the concession and treaty I have referred to, the United States Government acquired the right to police the zone across’ the Isthmus, but Panama is still the Republic of Panama. The first French company was formed to build the Canal under the guidance of Lieutenant Wyse, of the French Navy. The company formed by de Lesseps acquired that concession from Lieutenant Wyse, because the first French company became insolvent, I think in the early eighties, and the second French company which was formed and went on with the work also came to financial grief. It was then the United States Government came into the Panama scheme. After an investigation, the United States Government discovered that the route adopted by America, viz., the Nicaragua route, would not be nearly so cheap or so good as that of the Panama route. The French company, which, as I said, was financially involved, sold out to the United States Government, which dropped the scheme under progress, as it would have meant a longer canal, involving greater engineering difficulties, and also requiring a much larger capital. Seeing that the Canal scheme has been in the hands of several nations, more 01 less, it may reasonably be termed an international concern. No’ one nation can say that the Canal is its work, because quite a number of countries have undertaken the task. Many countries surveyed various routes, and several companies were formed to carry out the project, but none of them has succeeded - even the United States Government have not yet succeeded, because the Canal is not yet an accomplished fact, although I think it will be before very long. Spain surveyed a route, as afterwards did Holland j but it was not until de Lesseps had finished the Suez Canal and undertaken to build a canal through Panama that any real work was undertaken. This is truly an international work. I would point out that, whilst it is the same canal which de Lesseps undertook to build, it is being constructed on an entirely different engineering policy. He started to build a sealevel canal, without locks, which, of course, meant a very large expenditure, and involved greater engineering difficulties than would a canal with locks. The highlevel canal, with locks, was undertaken because of the enormous expense which was going to be incurred if the low level was to be maintained right across the neck of land. The enormous cutting which had’ to be made through the hills required such a large amount of capital that it practically brought two French companies into a state of insolvency. I am not going to say that there was not corruption in other ways in connexion with those companies. It will be remembered that when de Lesseps came to grief with the second French company, there was very corrupt administration of the Canal work. That has had a great deal to do with discrediting the famous engineer. It was seen then that to build a sea-level canal would require a great deal more money than the French company had to spend, and so it was agreed that they should undertake a less expensive proposition, in the shape of a lock canal. The United States Government acquired the concession -granted to the French company, and that is the concession which is being operated upon at the present time. Whilst the United States have had the work in hand for a considerable number of years, they have had very serious difficulties to encounter, and a number of engineers have had to resign from one cause or another. No less than three engineers-in-chief have been appointed to carry out this work under the United States Government. I think that if I quote a few passages from the
Encyclopedia Britannica it will prove beyond doubt the international character of the Canal, and show that we can properly claim a right to a voice in the matter without interfering with the internal politics of a country, or dabbling in questions with which we have no concern. The first quotation I shall read appears on page 667 of Vol. 20 -
In May. 1879, an International Congress, composed of 135 delegates from various nations - some from Great Britain, United States, and Germany, but the majority from France - was convened in Paris, under the auspices of Ferdinand de Lesseps, to consider the best situation for, and the plan of, a canal. After a session of two weeks, the Congress decided that the canal should be at the sea-level, and at Panama. Immediately after the adjournment of the Congress the Panama Canal Company was organized under a general law of France, with Lesseps as President, and it purchased the Wyse concession at the price of 10,000,000 francs. An attempt to float this company in August, 1879. failed, but a second attempt, made in December, 18S8, was fully successful, 6,000,000 shares of 500 francs each being sold. The next two years were devoted to surveys and examinations, and preliminary work upon the canal. The plan adopted was for a sea-level canal, having a depth of 29^ feet, and bottom width of 72 feet, involving excavation estimated at 157,000,000 cubic yards. The cost was estimated by Lesseps, in 1880, at 658,000,000 francs, and the time required at eight years.
The next quotation is taken from page 670 of the same volume-
In connexion with the re-organization of the commission a board of consulting engineers, five being nominated by European Governments, was appointed in June, 1905, to consider the question, which so far had not been settled, whether the canal should be made at sea-level, without locks (at least except tidal regulating locks at or near the Pacific terminus), or should rise to some elevation above sea-level, with locks. The board reported in January, 1906. The majority, (eight members out of thirteen) declared in favour of a sea-level canal as the only plan “’ giving reasonable assurance of safe and uninterrupted navigation ; and they considered that such a canal could be constructed in twelve or thirteen years’ time, that the cost would be less than $250,000,000, and that it would endure for all time. The minority recommended a lock canal, rising to an elevation of 85 feet above mean sea-level, on the grounds that it would cost about $100,000,000 less than the proposed sea-level canal, that it could be built in much less time, that it would afford a better navigation, that it would be adequate for all its uses for a longer time, and that it could be enlarged if need should arise with greater facility and less cost. The chief engineer, Mr. Stevens, also favoured the lock or high-level scheme for the reasons, amongst others, that it would provide as safe and a quicker passage for ships, and therefore would be of greater capacity ; that it would provide, beyond question, the best solution of the vital problem how safely to care for the flood waters of the Chagres and other streams, that provision was made for enlarging its capacity to almost any extent at very much less expense of time and money than could be provided for by any sea-level plan; that its cost of operation, maintenance, and fixed charges would be very much less than those of any sealevel canal ; and that the time and cost of its construction would be not more than one-half that of a canal of the sea-level type. These conflicting reports were then submitted to the Isthmian Canal Commission for consideration, with the result that on the 5th of February it reported, one member only dissenting, in favour of the lock canal recommended by the minority of the board of consulting engineers. Finally this plan was adopted by Congress in June, 406. Later in the same year tenders were invited from contractors who were prepared to undertake the construction of the canal. These were opened in January, 1907, but none of them was regarded as entirely satisfactory, and President Roosevelt decided that it would be best for the Government to continue the work, which was placed under the more immediate control of the U.S.A. Corps of Engineers. At the same time the Isthmian Canal Commission was re-organized. Major G. W. Goethals, of the Corps of Engineers, becoming engineer-in-chief and chairman, in succession to Mr. J. F. Stevens, who, after succeeding Mr. T. P. Shonts as chairman, himself resigned on the 1st April.
It will be seen, I think, that the Canal is undoubtedly an international work. If we were to allow our shipping to be handicapped by any breach of the HayPauncefote treaty, we could be rightly charged with having neglected our duty. If there were anything in our competition which was unfair to the United States - if, for instance, this were a. cheap-labour country - the United States might, possibly, find some reason for discriminating in favour of its own shipping. But it is well known that the shipping from. Australia to other countries is by no means manned by cheap labour. Our labour is as well paid as is American labour, and, therefore, our rates cannot be said to be unfair to America. From the trade stand-point, it cannot be urged that we desire to take any undue or unfair privilege or advantage over the shipping of that country. Having read the treaties very recently, I hold that the proposed discrimination is a breach of our rights under, not only the HayPauncetote treaty, but also under the ClaytonBulwer treaty, which was passed sixty years ago when the Nicaragua canal was mooted, and which also provided for the fair and equal treatment of the shipping of the two countries. The more recent Hay-Pauncefote treaty is a mere repetition of the earlier treaty. This shows that it was considered before the United States acquired the controlling influence that it was right that this international highway should be open to the shipping of all countries on equal terms. In view of the fact that the United States Government, as we are informed, is proposing to give preference to their own shipping, there can be no manner of doubt that we are acting wisely in stepping in before any harm is done, and before Congress has actually passed legislation and fixed charges. We recognise that negotiations with America at present are likely to be at a stand-still, because a Presidential election is in progress. Perhaps - I do not say that it is actually so - the reports which we have heard in connexion with the Canal may be of the usual electioneering character, and may have very little foundation. But, whether they are well founded or not - whether they are mere electioneering rumours or not - I think we are acting wisely in entering our protest in time. I feel quite sure that the United States Government will give every consideration to it. There is an excellent feeling between Australia and the United States. It would be remarkable if there were not a good understanding, and it would be a pity indeed if anything were done to injure such a feeling in any .shape or form. We have much in common with the United States. The people of that country are sprung from the same stock as ourselves ; we speak a common language, and in many ways they are in closer unity with us than any other country outside the British Empire. I consider, therefore, that anything which we may do to keep up that good feeling, and anything that may tend to cement an even better feeling, if possible, will receive full consideration from the people of the United States. Therefore, I support the motion, whilst thinking that the wording of it might be improved.
– Do not be too sure.
– I hope the Vice-President of the Executive Council will be able to meet the wishes of the Senate in expressing our feeling in more general terms than the present motion does. However, I quite agree that we ought, as far as possible, to enter into an agreement with the United States Government before they do anything to prescribe charges for shipping which may be detrimental to the interests of Australia.
– May I inquire whether the Minister is prepared to accept the amendment suggested?
– I cannot see my way to accept it.
– I desire merely to call the attention of the Senate to one or two considerations in connexion with this matter, because I think that any proposition upon which we may determine at the present moment ought not to go beyond the bounds of the fair criticism to which we may be subjected. The amendment suggested by Senator Symon is well worthy of consideration by the Government. Whatever is done by this branch of the Legislature should be done as far as possible unanimously, if not without debate. As to whether the United States owns territorially, or has the disposition or control of, the particular portion of Panama through which the Canal passes, I think any one who knows anything about the question will say that we in Australia are not qualified or competent to judge. I mean to say that, internationally, the United States stands before all other countries in the world as the country that has the control and disposition of that particular piece of territory. The Canal is being constructed. That its construction involves great advantages to commerce no one will deny. Everybody must realize that the bringing together of the Atlantic and Pacific, and the different countries bordering upon both oceans, constitutes an era in commercial enterprise that was scarcely anticipated, or even realizable, a generation ago. The United States is doing this work. All that we wish to affirm - all that we wish to ask - is that, so far as we are concerned, there should be no differential treatment which would give an advantage to American coastwise or other shipping over shipping that we have authority to regulate or control. That is all that we can ask.
– And we base that request not on anything which may be contained in a treaty, but merely on the ground that differential treatment may be detrimental to our interests.
– Exactly j we are not in a position to question or dispute the authority of the United States over the Panama Canal.
– She has a right to do as she likes.
– In the community of nations there is an understanding as to rights and obligations. We in Australia are not a nation from the point of view of international law at all, and we have no right to question or dispute any claim that may be made by a nation with regard to any territory in the world, unless it impinges upon our own sovereignty in Australia itself. As far as the United States is concerned, we will pass that by. The United States claims and asserts a right. We are not concerned as to whether the Government of that country is right or wrong. Great Britain will look after that. We can be perfectly sure that, so far as the dependencies and dominions of the Crown are concerned, Great Britain will look after any attempted usurpation of right on the part of any foreign Power. All that Australia asks, as Senator Millen has reminded me, is that we shall not be placed in any disadvantageous position. Let us, therefore, see that, whatever motion we pass, we do not in any way attempt to question the right of the United States to do what it is doing. She is doing this work.
– Or question her right to give bonuses or rebates.
– Or question her right to give differential treatment. If we once do such a thing as that, we raise at once amongst a certain portion of the representatives of the United States the idea that Australia is attempting to dictate to them as to what they shall do in their own affairs. How should we resent it - and properly so - if such a communication was sent to us from the United States? We have to take the fact that the Panama Canal is being constructed ; that the United States is responsible for it, and that the United States is going to regulate it. All that we want to do - all that we wish to say to the United States - is, “ We do not consider that you ought to resort to any differential treatment that will affect us to our disadvantage.” I do sincerely hope that, whatever may be the outcome of this debate, the true position of the United States in this matter will be regarded by the Senate in the same spirit of seriousness and sacredness in which we should expect the United States to respect any position which we ourselves asserted in regard to our rights in the Pacific Ocean.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [4.31].- It would appear from the speech of Senator Keating as if he almost regarded the passing of this motion as an attempt on our. part to send a message dictating to the United
Stales with regard to her control of the Panama Canal. All that the other House has done in passing the resolution which is now before us is to place on record its feeling that differential charges would be detrimental to the interests of Australia. I do not ‘know, however, whether any arrangement is being made even for the transmission of the resolution to any other country, or to the Secretary of State for the Colonies.
– How is the control of the Canal going to be detrimental to the interests of Australia?
– I will answer that question before I conclude. I assume that a motion of this kind, if carried by both Houses of the Federal Parliament, would be regarded as a public expression of opinion of which notice would be taken by the Imperial Government, and that our action would support them in making any representations which they saw fit to make to the United States Government. It might be pointed out that, amongst other protests, there was a protest from Australia indicating that it would be detrimental to the interests of this country if any discrimination were made against British trade through the Panama Canal. I think we have a perfect right, as a portion of the British nation, to say what our treaty obligations - the treaty obligations as between Great Britain and the United States - with regard to the construction of the Canal are. The Hay-Pauncefote treaty lays it down that -
The Canal shall be free and open to the vessels of all nations, including ships of war, on terms of entire equality, so that there shall be no discrimination against any such nation, or its citizens, or its subjects, in respect of the conditions or charges of traffic or otherwise. Such conditions and charges of traffic shall be just and reasonable.
While that treaty remains in existence, it appears to me that the United States would be guilty of a very serious breach if an attempt were made to carry out differential treatment. But we may, I think, rely on the good sense and patriotism of the representatives of both nations to see that treaty carried out fairly and honestly ; unless, of course, any good reason should arise for denouncing the treaty, or for making a fresh one. I think that if we point out that, in our opinion, differential treatment will certainly be detrimental to our interests, the Home Government will regard our resolution as one reason for insisting upon compliance with the terms of the treaty. It has been asked by Senator Guthrie in what way differential charges would be detrimental to our interests. We know perfectly well that, at the present time, the Suez Canal is very largely used by shipping, and that enormous sums of money have to be paid for its use. All the money that is paid for the use of the Canal practically comes out of the pockets of the producers or travellers who make use of it.
– The money goes into British coffers.
– A portion of it does.
– A large portion.
– A large portion; but that is beside the question. Our object is to insure that whatever trade there may be between Australia and the United States, or between Australia and England, any of that trade which’ may be facilitated by the utilization of the Panama Canal, shall not be placed in an unfair position as compared with’ the trade of any other nation which also uses the Canal. We desire that trade shall be conducted on fair and equitable terms. We hope that, in the future, the trade between Australia and the United States may become very much larger than it is at present. Consequently, all the facilities granted to us in the use of the Canal will be greatly to the advantage of our producers. Australia can produce many of the things which are required in the United States, and that country will, I am satisfied, be disposed to take increasing quantities of goods from us. The cheaper we can supply those goods, the larger, we may depend upon it, will our trade be, and that increase in our trade will increase the prosperity of our country. I do not think it is open to question that a special charge upon our shipping of 6s. per ton in excess of charges made on American ships will be to our detriment. It is only a matter of common prudence that we should attempt to point this out, and, at the same time, endeavour’ to insure to our shippers and producers that they shall be able to trade on the same terms as the shippers and producers of any other nation - even of the United States, lt must be borne in mind that the Canal is not being constructed through the territory of the United States itself. It is true that a zone in Panama has been granted to the United States of America for the purpose of the construction of the Canal. I hold in my hand The Statesman’s Y car-Book for 1912. On reference to page 1096, under the heading “ Panama,” I find it stated-
On November 18th, 1903, a treaty between the United States and Panama was signed, providing facilities for the construction and maintenance of the inter-oceanic canal. In this treaty, Panama grants in perpetuity the use of a zone (Canal Zone) five miles wide on each side of the Canal route, and within this zone the exclusive control for police, judicial, sanitary, and other purposes. For subsidiary canals other territory is ceded, and for the defence of the canal the coast-line of the zone and the islands in Panama Bay are also conceded.
– They become the territory of the United States.
– In a way they do, although the cities of Panama and Colon remain under the jurisdiction of the Government of Panama. This authority says -
The cities of Panama and Colon remain under the authority of the new State, but complete jurisdiction is granted to the United States in both the cities and in their harbors in all that relates to sanitation and quarantine.
In return for that the United States Government paid a certain sum of money - $10,000,000 - and they are to pay $250,000 yearly, beginning after nine years.
– Of course, that territory has no representation in Congress.
– No representation in Congress whatever. It it pointed out further -
According to this agreement the city of Panama is, for all practical purposes, left without a seaport for foreign commerce, as the anchorage of vessels at Flamenco Island and the wharf at Balboa, now called “ Port Ancon,” SO far as ocean-going vessels are concerned, both lie within the territory of the zone.
So that it is perfectly clear that this territory is, to all intents and purposes, the property of the United States in respect of a width of 10 miles. The United States has power to deal as it pleases with this particular area.
– Subject to the HayPauncefote treaty.
– That treaty, I understand, remains in existence, though the United States may say that the circumstances are so entirely different now from what they were when the treaty was negotiated that its terms can no longer apply. At that time the United States had not had this territory ceded, although they had obtained the title which the French people had when they began the Canal. In view of the fact that the United States contemplated building the Canal, the Imperial Government proposed and entered into the Hay-Pauncefote treaty. If honorable senators take the trouble to read the history of Colombia, they will find that there was a revolution there, as the result of which the independent State of Panama was created. There is a very strong suspicion that the United States Government was behind that revolution.
– They had their warships there.
– That is so; and after the revolution they recognised the independence of Panama, and, as a consequence, certain rights were ceded to the United States Government. Although promises had been made by the Colombian Government for many years before, they had always been evaded in some way, and it became a practical necessity that there should be an independent State of Panama under the protection of the United States if difficulty were to be avoided in the construction of the Canal.
– We cannot help our position by attacking the United States.
– We are not in any way attacking the United States, but, as the Parliament of the Commonwealth, are making respectful representations that we believe our interests will be injuriously affected if a certain course of action be adopted by the United States Government.
– How is the injury to arise ? That is what I should like the honorable senator to point out.
– I have endeavoured to do so. As a producing country, we are surely interested in promoting trade and commerce with the rest of the world, and it must be better for us to conduct our trade and commerce with our own ships rather than with American ships. lt should not require much argument to convince any one that the preferential treatment of American shipping using the Canal would be detrimental to the interests of Australian trade. It is my intention to support the amendment, but if it is not adopted, I shall support the motion as submitted by the Government. If amended as Senator Symon has proposed, the motion will make, perfectly clear what we desire should be known.
– We do not’ wish to interfere with the right of the
United States to provide for bonuses or rebates.
-Colonel Sir ALBERT GOULD. - We do not wish to interfere in that matter ; but I am bound to say that if bonuses and rebates are allowed to American shipping, a great deal of difficulty will arise ; and it appears to me that they would be a breach of the treaty of 1901 if it is still in existence. That is a matter, however, which may be dealt with later on. It does not now arise for consideration. The fact that the motion, if amended, will not be in exactly the same terms as that passed in another place should not prevent us from amending it. It is within our competence to invite another place to concur in our amendment of the motion if it be carried.
– I do not know whether the VicePresident of the Executive Council is prepared to accept the amendment.
– How can we be a unanimous Parliament if we bandy a motion about between the two Houses for the sake of an amendment that makes no difference ?
– The amendment may be an improvement upon the motion, and, personally, I think it is. I agree with what Senator Keating said just now. We in Australia are not a nation. We are a part of the British Empire. It may be asked what business it is of ours to be passing motions of this kind. In this connexion I wish to suggest to the VicePresident of the Executive Council the addition to the motion of the words “ as part of the British Empire.” By adopting such an amendment we should make it plain that our desire is to back up the Imperial authorities in the action they have taken.
– We should say, at the same time, that it is not detrimental to the Commonwealth except as a portion of the British Empire.
– I do not say that it is not detrimental to Australia. If what is proposed in the United States increases the cost of freight on Australian commerce, it must be detrimental to our interests. If it should mean that all shipping going through the Canal between Australia and the United States must pay higher charges than American ships, the result must be detrimental to Australia.
– How much freight will there be ? Who is going to take freight 4,000 miles more than is necessary?
– I do not dispute the knowledge and authority of Senator Guthrie on deep-sea matters, but I can quite see that it might be detrimental to the interests of Australia and to British shipping if preferential treatment were extended to American shipping. If we add to the motion the words I have suggested, we shall be backing up the action of the British Government. By adopting Senator Symon’s amendment and extending the motion in the way I have suggested we should add to its force and influence, and should assume our proper position, not as a nation protesting to the United States, but as a part of the British Empire backing up the Imperial Government.
– I wish to say a word or two on the motion, because I was the senator who objected to its going through as formal. If we expect the motion to carry any weight, it should not go through as a purely formal motion, and I regretted to hear the VicePresident of the Executive Council say that he was surprised that any one should call “ Not formal “ to the motion.
– I did not wish the motion to be carried as a formal motion, but that it should be proceeded with forthwith.
– The honorable senator desired that is should be carried very hurriedly, and with but a few senatorspresent. I join entirely with the Government in the intention underlying the motion. I agree with Senator Vardon that the form of the motion might be improved. We should not say merely that we objectto preferential rates on the Canal because they would be injurious to Australia. That, in my opinion, would be placing the matter on much too low a level. I had an amendment in mind which I shall not propose, because the last thing I should like todo would be to create the impression that the Australian Parliament is divided in opinion on this subject. If Senator Symon’s amendment be carried, it will give the Government an opportunity to recast the motion so that it may appear that we are protesting against the imposition of differential’ rates as injurious to the interests of theBritish Empire, including Australia.
– Let us speak for ourselves ; the British Empire can speak for itself.
– That is about the most contemptible thing I have heard. from a Minister sworn to allegiance to the British Crown.
– We can only speak to the British Empire; we cannot speak to America.
– There is nothing in the motion as submitted to assist the protest made by the Imperial Government in this matter. I take it that what honorable senators desire to do is not to say to the United States Government, “We in Australia think we shall be hurt by differential rates.” What we desire to do is to emphasize the contention put forward by the Imperial Government.
– There is no harm in our saying that preferential treatment will injure the interests of Australia.
– I think that that should be included. There is another matter which I think should be emphasized, if not in the motion, at least in our speeches. We have a Navigation Bill before this Parliament which provides for what might be called coastal preference.
– The United States of America have a similar law.
– The honorable senator is stealing my thunder. It is true that the United States of America have an exactly similar law. What I wish to point out is that, in carrying this motion, we are not asking that the United States of America should alter their law with respect to their coastal trade. We are asking that they should not impose differential rates on what is going to be an international highway. I take, for instance, the portion of Torres Straits between Thursday Island and the mainland, lt might be argued that, as a number of rocks in those Straits should be removed, and it is an expensive highway to keep open, we should be justified in charging dues on vessels going through the Straits.
– So we do ; we charge light dues.
– But we make no differential charges as between our own ships and foreign ships.
– Yes, we have differential light dues.
– I have travelled on all kinds of steamers through the Straits, and I never discovered from anybody that differential light dues had to be paid, except, possibly, according to the different tonnage of vessels. I presume that the Government will not transmit this resolution to the Imperial authorities without an accom panying letter, and my point is that it should be made clear that we do not protest against the preferential legislation of the United States of America with respect to their coastal trade; otherwise,- in view of our navigation proposals, we should place ourselves in a false position.
– The Panama Canal is not in a part of the United States of America, so that the coastal trade is not brought into the question.
– It is all very well for the honorable senator to say so ; but, under the Hay-Pauncefote treaty, the United States of America was given the right to do all the necessary work in connexion with the Canal, and to control and defend it. So far as one can judge from the best English newspapers, the United States of America was given the right, under that treaty, to rob Colombia or Panama of as much land as it pleased, so long as it made the Canal, and left it open to the shipping of the world1 on an equal footing. I am entirely with the object of the motion, though I may disagree with the wording of it. I think we should make it clear that our object is to back up the British protest, and that we do not recognise that the trade through the Canal should be treated as coastal trade of the United States of America.
– I do not think that the coastal trade laws of the United States of America will apply to the Panama Canal.
– The honorable senator may not think so. He may be right, and a number of constitutional lawyers who think differently may be wrong; but 1 am trying to explain the manner in which I think we should put our views before the British authorities.
– I have very much pleasure in supporting the motion. It is possible for lawyers, as well as laymen, familiar with the complicated interests with which the motion deals, to differ as to the best form to adopt for the message which we desire should be sent. It is part of our duty as promoters and guardians of the interests of Australian shipping to express strongly our view that this is a matter of vital interest to the shipping of Australia, which forms part of the trade and commerce of the Empire. So far as Australia is concerned, there cannot be the slightest doubt that it is of vital importance to us that the highway of the Panama Canal should be as free as possible for our trade. I support the motion in the form in which it has been submitted, because I think it accords with the distinct understanding entered into between the United States Government and the Imperial Government under the HayPauncefote treaty. It was then recognised that the cutting of the Panama Canal would be equal in its influence upon trade to the cutting of the Suez Canal. It was in anticipation of that that the Imperial Government, in their wisdom, entered into diplomatic negotiations with the United States Government to bring about, in connexion with the Panama Canal, the conditions existing in connexion with the Suez Canal. All the nations of the world using the Suez Canal have been placed upon an equal footing, and it was understood and expressed in the Hay-Pauncefote treaty that the -course followed by Great Britain in connexion with the Suez Canal should be followed by the United States of America in connexion with the Panama Canal upon “its completion.
– If any country proposed to give a rebate of the Canal dues, would that be an infringement of any treaty ?
– That is a very difficult point to deal with.
– I do not think that we can dictate to a country as to how it shall dispose of its funds.
– Suppose that England gave a rebate to its ships, how would we like America to protest against that act?
– Is it, after all, necessary to discuss that point? I do not see that the amendment will do anything further than save us from a snub which the United States Government may address to us through, perhaps, the defective wording of the motion. The object -of the motion must be clear to every honorable senator.
– I think that the principle of granting a rebate infringes the spirit of the treaty.
– That may be so. Whilst the United States Government might, through the Imperial Government, call attention to the defective wording of the resolution, I am not quite sure that they would not, possibly, be placing themselves in a more delicate position than we should if we placed the resolution before them in its present form. With regard to the wording, as with regard to other things, there will always be room for dispute; but I cannot get away from the fact that the object of the motion is to strengthen the hands of the Imperial Government. I.t may be argued that the United States Government might reply to us that, as they have complete control over any system of bonus or rebate of Canal dues in the territory through which the Canal passes, any Government, including not only the Imperial Government, but the Government of Australia, who send a message in that form, are intruding upon a sphere in which they are supreme. I am’ not quite sure whether such a reply would not be in worse form, and produce a worse effect, than if we were to allow the motion to go as it is, notwithstanding that, technically and verbally, its form might be improved. I have much pleasure, from another point of view, in supporting the motion. As regards the use of the Suez Canal, the shipping of the world is placed on an equality, and there is no discrimination or preference shown with regard to the trade of any country. Surely the United States Government must see that the Panama Canal is in the same relation to the trade of the whole world as is the Suez Canal. Suppose that the Imperial Government, with regard to its dominant position over the trade of the Suez Canal, were to seek to give preferential treatment to British trade, all the world would complain against that Government for taking that advantage of their position. All that the Imperial Government, it seems to. me, ask for is that, in the matter of international trade and commerce, the Panama Canal shall be open to the shipping of the world on, if not the same terms, at least on the same principle, as is the Suez Canal. I agree straight away with the form of the amendment which Senator Symon has proposed. We ought to remember that in communications from one Government to another it is necessary to be careful with the wording. I should say that a verbal amendment from that point of view would be an improvement ; but, seeing that it has been carefully considered by the House of Representatives, and has received the approval of the Prime Minister, I think that, rather than make a mere verbal distinction, which really would not amount to much, except as an act of diplomatic courtesy, we should agree to the motion in the form in which it is submitted. It might raise one of the most fruitless of discussions as to the better form of words to be used if we were to send the resolution back to the other House. I hope that Senator Symon will not persist with his amendment. I think he will agree that, while the wording of the resolution might be improved, no such opening will be availed of, in case our communication is technically open to attack. Our desire is that the United States Government shall not impose any differential or preferential restrictions on that part of our trade which passes through the Panama Canal, and which is certain to increase as we become a more populous nation. We also express the view that the intention of this Parliament is that international shipping should not be subject to differential treatment. Apart from the form in which we convey our request, it is highly desirable, in the interests of the Australian trade, that, through the Imperial Government, we should strongly and courteously express our opinon that we, as partners in international trade, should be placed on an equality with other countries in the use of the Canal.
– If no other senator desires to make any comments, I shall offer a few words in reply.
– The honorable senator is, I take it, speaking to the amendment ?
– That has never been the custom here, sir, I think. I was going to speak in reply, and so close the debate.
– The custom has always been that the Minister in charge of a motion can speak to an amendment, and, if the motion is further debated, have the right of reply.
– Tha That is only extending my privilege, sir, and, therefore, I shall speak to the amendment. I hope, though, that in doing so it will not be out Qf order to refer to the motion, because the mover of the amendment asked for certain information from the Government. So far as I can gather, this question has not been dealt with by the . Imperial Government and the United States Government. There is no evidence yet that the former have communicated with the latter. The Senate is asked to concur in a resolution to be sent, not to the United States Government, but to the Imperial Government; and, of course, we have no right of communication with the former, so far as negotia tions are concerned. The only evidence of anything transpiring in the direction indicated in the resolution has been gathered from the press. Whether, as Senator de Largie has remarked, the press rumours are merely the outcome of electioneering tactics in the United States, I do not think that anybody in Australia can say. In consequence of the ‘reports in the press, the Government have already communicated with the Imperial Government, and pointed out the inconvenience, and, in fact, the injustice which would accrue to the trade of Australia and other parts of the world if a system of differential treatment were adopted in connexion with the use of the Panama Canal. We have received no reply yet. We do not know whether the matter will g0 any farther; but reports are still being published in the press. In another place this motion was proposed and passed in its present form. That is why I say that, although an honorable senator might suggest improvements, if the motion were materially altered, it would show a want of unanimity as far as this Parliament was concerned.
– Not if the other House agreed to the alteration.
– When a proposal has to go f.rom, one House to the other several times, it is shown that we are not unanimous regarding it. It is only when a proposition is passed by both Houses without a difference of opinion that we can be said to have arrived at a unanimous verdict. That is what I want to secure in this instance. The honorable member who introduced this proposal in another place mentioned that comments had been repeatedly made in the press with respect to the relationship which, as far as trade possibilities were concerned, might arise between the United States, Great Britain, and other countries, and which would also affect Australia. It has beenasked what difference would it make to the people of Australia if the United States Government, having control over the Panama Canal, charged 5s. or 6s. a ton to all vessels which use the Canal, and, by a system of rebate or bonus, paid the money back to the owners of American vessels? Would not that be just as bad as if the United States Government were to charge 5s. or 6s. a ton to the ships from other parts of the world, and toallow American vessels to have the free use of the Canal ? There would be no difference in effect.
– Not from a commercial point of view; but it would be a breach of the treaty.
– In Australia we are a practical people, and look at the matter from the commercial point of view. This motion was passed in another place by honorable members who were imbued with the same idea as its mover, namely, that any bonus or rebate equal to the amount of the Canal due would be just as detrimental as if a direct preference were given to American ships.
– Suppose they adopted some other form of preference than a bonus ?
– It does not matter what kind of preference is adopted ; all forms are included.
– This resolution will be practically a message to the parent Government of the Empire. We are laying our point of view before the Imperial Government, which may be strengthened by the knowledge that we in Australia are with them in the action which they may take.
– Will the Imperial Government present our protest in the same way as we make it?
– There is a proper diplomatic method of expressing an opinion to the Government of the United States. It is not the words that we transmit to the Imperial Government that that Government will adopt in its communication with the United States.
– Why, then, cavil at the amendment suggested?
– Hear, hear.
– If the honorable senator had paid attention to my remarks in the beginning, he would know that I am not cavilling at the amendment. My point is that this amendment, if adopted, would show to the rest of the world - to the Imperial Government and to the Government of the United States - that the Commonwealth Parliament itself is not unanimous with respect to the form of words that should be sent. We want to show our own unanimity first.
– That has yet to be determined.
– We cannot be unanimous if we adopt an amendment upon a resolution that came up to us from another place. We cannot have a unanimous Parliament under those circumstances. We cannot be unanimous in the Senate if a divi sion takes place, and there are thirteen votes on the one side and fourteen on the other. There is nothing in the terms of the motion itself to prevent any honorable senator from voting for it. Even those who are prepared to accept Senator- Symon’s amendment - and 1 am, not cavilling at him for moving it; he has acted from the best of motives - are quite ready to accept the original motion if the amendment be not agreed to. Senator Symon himself will vote for my motion if his amendment be rejected. Why, then, not be unanimous as to the motion ? I object to the amendment first, because, if adopted, it would show a want of unanimity on the part of the Senate ; and, secondly, because it would seem to indicate that the object we had in view might be evaded. A good deal of history has been gone into in respect of this subject.
– Order ! I remind the Vice-President of the Executive Council that he is speaking to the amendment. I have previously pointed out to him that after the amendment is disposed of he will have an opportunity of replying on the main question.
– I understood that, but I also suggested that if it were not out of order I might be allowed to make my full reply now. There will then be no necessity for me to reply later on.
Question - That the words proposed to be left out be left out- - put. The Senate divided.
Question so resolved in the negative.
Original question resolved in the affirmative.
Motion (by Senator McGregor) agreed to-
That a message be sent to the House of Representatives informing that House that the Senate has concurred in the resolution.
Debate resumed from 19th July (vide page 1049),on motion by Senator McGregor -
That this Bill be now read a second time.
– I do not think it is necessary to speak at great length upon the proposition now before the Senate. I echo the sentiments expressed by the Vice-President of the Executive Council in introducing this” “Bill, and share his hopes that it may speedily become law. He directed our attention to the fact that most of the amendments of thelaw proposed to be made are rather of the character called in the legal profession “ amendments of verbiage “ than amendments of substance. The intention is to place the Trade Marks Act of the Commonwealth upon the same level as the English Act. Reference has been made to the trade marks legislation of England, and to amendments in the law proposed by Lord Justice Fletcher Moulton. Perhaps, as a lawyer, I may be permitted to express the opinion that we now have the advantage in Australia of benefiting from, the decisions that have been given by different Courts in Great Britain upon corresponding legislation there. There are honorable senators here who have both literary and juristic qualifications. They will be interested in having attention drawn to some of the main features of this Bill. I think Senator Symon will bear me out when I say that in this measure we have adopted a phraseology which is practically new to the legal profession. Whether it may be adopted, experimentally, with advantage or otherwise, I do not know. Let me take clause11 of the Bill by way of example. It provides that -
Section 27 of the Principal Act is repealed, and the following section inserted in its stead : -
Where each of several persons claims to be the proprietor of the same trade mark, or of nearly identical trade marks, in respect of the same goods or description of goods, and to be registered as such proprietor, the Registrar may refuse to register any of them until their rights have been determined by the Court, or have been settled by agreement in a manner approved by him or (on appeal) by the Law Officer or the Court.
The original Act was to the same effect, but the words used in it were different. They read -
Where each of several persons claims to be proprietor of the same trade mark, or of nearlyidentical trade marks, in respect of the same goods.
Here the amending Bill, with a tremendous amount of verbiage, provides - “ or description of goods,” instead of merely saying “ the same goods.” I am not quarrelling with what is proposed, or suggesting that we are doing a wrong thing in amending our law in this way. In fact, 1 think any lawyer would say that we are doing a right and proper thing in amending our law so as to bring it into accord with the English law, in order that we may get the benefit of decisions given by Courts in the Old Country. If honorable senators will go through the Bill they will find that the largest portion of it is concerned with amendments of that character. Taken in the bulk, the Bill simply substitutes different verbiage. I am anxious to congratulate the Government on bringing “our law into line with the English enactment, in order that, not only the legal profession, but persons commercially interested in trade marks, may have the advantage of the decisions of the English Judges. There is one other point to which I should like to draw attention. I am rather sorry that the Vice-President of the Executive Council is not present.
– I am making notes for him.
– We shall be perfectly safe in adopting the Bill as it stands. I have gone through it very carefully, and other honorable senators who have done so will agree with me that there is nothing in it to which exception can be taken. It does not involve any question of policy. I wish to refer to some remarks made by the VicePresident of the Executive Council in introducing the measure, and I hope I shall be given the opportunity afforded the honorable senator to touch upon a matter which he was probably induced to refer to by interjections from this side, for which I free myself of all responsibility. In introducing this Bill, the honorable senator referred to the fact that the High Court of Australia had held that certain legislation passed by this Parliament with regard to trade marks was unconstitutional. That is an undoubted fact. This Bill, amongst other things, provides for the deliberate legislative repeal of that legislation. That was not necessary ; but I believe it is properly proposed in this Bill. In discussing the attitude of the High Court towards certain legislation passed by this Parliament, the Vice-President of the Executive Coun-. cil made the remark that he could scarcely understand why the creation of this Parliament should have the same powers as the Parliament itself. I was moved at the time to interject that both this Parliament and the High Court were alike the creation of the people of Australia. They were established contemporaneously. I am not referring to this matter for the purpose of provoking discussion, but I do think that we ought to realize that this Parliament is neither more nor less the creation and establishment of the people than is the High Court of the Commonwealth.
– S - Surely it is more.
– Why ?
– B - Because the people created this Parliament, and this Parliament created the High Court.
– That is just the statement to which I am objecting.
– T - This Parliament is at least responsible for thepersonnel of the High Court.
– My honorable friend, who represents Tasmania excellently at all times, should remember that the powers of this Parliament are determined by the Constitution.
– To be literally accurate, this Parliament has nothing to say with regard to appointments to the High Court.
– I was just coming to that. I feel sure that the VicePresident of the Executive Council is as true an Australian, and as sensible to every feeling which our Constitution should evoke, as any other man we could meet, but I ask him to remember that some attention should be paid to our Constitution. Let me read what is provided by section 71 of the Constitution -
The judicial power of the Commonwealth - not of the Parliament - shall be vested -
There is no question as to whether it may or may not be vested-
– I - If there had not been a Parliament there would not have been a High Court created.
– The Constitution says that this Parliament shall come into existence, and that the High Court shall come into existence. If it had not been for the Constitution, this Parliament would not have come into existence.
– P - Parliament might have delayed indefinitely the creation of the High Court.
– My honorable friend is trying to put himself on one of the horns of a dilemma.
– I - I have stated a fact. The Parliament might have delayed indefinitely the creation of the High Court.
– Does the honorable senator desire that I should take him back to the genesis of this Parliament? I have quoted from the Constitution. It provides that there shall be a Senate.
– And that there shall be an Inter-State Commission.
– And it has not been appointed yet. Who is on the horns of the dilemma now?
– I think my honorable friend is. The Vice-President of the Executive Council is now present, and let me repeat what I have said.
– I was not absent for more than three minutes.
– I did not express disapproval of the honorable senator’s absence. I proposed to extend to him the courtesy of repeating an argument which he had not an opportunity of hearing. The honorable senator will not dispute the fact that, in introducing this Bill - which, I admit, is not a party measure - he said he regretted the fact that the High Court had the right and responsibility of determining our powers, and that the Parliament should itself have the right to determine what was or was not within its powers.
– No; I said that the creation of the Parliament should not have more power than the Parliament itself. I say so still.
– And the honorable senator suggested that the High Court was the creation of the Parliament.
– If the VicePresident of the Executive Council will consult Hansard, he will find that it was at that stage of his speech that I interjected that the High Court is just as much the creation of the people of Australia as is this Parliament.
– So is the Inter-State Commission, and it has not been established yet.
– I do not blame the honorable senator for that, and he should thank me for not blaming him. It is desirable that honorable senators opposite should realize the exact status of the High Court. It is just as much the creation of the people as is this Parliament. On the motion with which we have just dealt the interest of Senator Symon and other honorable senators might have been excited on the question of the relative capacity of the United States and the newJy-formed State of Panama; but any State, to be complete, must have three capacities full and complete - that is to say, its legislative, judicial, and administrative capacities. In our Constitution, Chapter III. deals with “ The Judicature,” and section 71, the first section of that chapter, provides that -
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia.
We have no voice as a Parliament even in deciding what the Court shall be called - and in such other federal courts as the Parliament creates.
– The honorable senator should read the whole of the section, and also section 72.
– I shall read the whole chapter if the honorable senator pleases, and if he cares to have it interpreted, I shall interpret it according to my ability. Section 7 1 further provides - and in such other courts as it invests with Federal jurisdiction.
There is no doubt whatever as to the obligation to establish ai High Court.
– - Who appointed the High Court Bench ?
– Not the Parliament. ‘
– The Government of the day?
– Exactly, as is done in the United Kingdom and in every other country. But there is a constitutional obligation upon the Commonwealth to erect and establish its High Court. Senator Needham surely does net assume that the justices of the High Court took up their positions by chance? Some one had to assume the responsibility of appointing them, but it was not this Parliament.
– Who was it?
– The Government of the day.
– Who are they but the mouthpiece of Parliament?
– The High Court is not the creation of Parliament.
– It says so ‘ in the Constitution.
– Let me read the section for the honorable senator again -
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia.
– I - If there were no Government and no Parliament, where would the High Court be?
– We are considering the Trade Marks Bill.
– Perhaps I have gone away from the subject of the Bill, but I do hope that honorable senators opposite will not regard the High Court as the creation or establishment of this Parliament.
– Admitting, for the sake of argument, that Parliament created the High Court, the Court does not derive its powers in virtue of that appointment, but through the Constitution.
– I admit that.
– Let me say, in re* ply, that it is absolutely provided in the Constitution that the High Court must exist, just as completely as it is provided that this Parliament must exist. The Parliament has the power of investing the High Court with jurisdiction in certain matters, but whether it exercises that power or not, and whether it abrogates its power in that respect, under the Constitution the High Court must still exist. To talk of the High Court as the creation of this Parliament is to reduce it to a position of contempt.
– Who created the High Court?
– The people of Australia, just as they created the honorable senator and myself, and delegated to us certain powers. We had no authority as a Parliament to establish the High Court. It was established by the Constitution.
– S - Suppose it had not been established up to the present time, where would the honorable senator’s argument be then?
– I may be allowed to remind the honorable senator that the men who drafted the Constitution, and especially those who drafted Chapter III., dealing with the Judicature, looked far ahead, and made provision for more conditions than some honorable senators dream of. Power is given by the Constitution to invest State Courts with Federal jurisdiction. The honorable senator must be aware that, under our Customs Act and other Acts, State Courts exercise Federal jurisdiction, and I may inform him that the next Order of the Day on the business-paper concerns a measure to extend Federal jurisdiction to some of the most insignificant of the State Courts. If the High Court had not been established, what would have been the position? The Government would have been recreant to its responsibilities. We ought to be very careful in our references to the High Court. It is just as much a duty on our part to be jealous of the position which it occupies as it is our duty to be jealous of what the Senate does. When we are presenting our front to the world we should feel, at any rate, that we have the backing of the sentiment and the feeling of the people.
– I am a supporter of the High Court, but you are a worshipper of it. That is the difference between us.
– I am very glad to hear the Minister say that he is a supporter of the High Court.
– Yes ; but I am not an idolater.
– I am thrown back on the famous French maxim that a man who excuses himself accuses himself. I do not ask for my honorable friend’s support.’ The High Court will exist whether he is here to-day or to-morrow, because it is part and parcel of the Constitution.
– I hope that the honorable senator will not pursue that line of argument on account of a remark which fell from, the Vice-President of the Executive Council in his second-reading speech.
– It is a remark, sir, which took several inches of space to report.
– To get back to the Trade Marks Bill, there is not very much of a controversial character to engage our attention. Senator McGregor should take my reference to his remarks about the High Court in a spirit of friendly criticism, because, as he is well aware, I was a strong supporter of the very provisions which the High Court declared were unconstitutional. We owe respect to the occupants of the High Court Bench. It is quite possible that there may be men of equal ability, equal training, and equal learning, who would give a different decision.
– Hear, hear ! That is what I said.
– I believe that were the principles on which that decision was based given complete effect to, we should have no more right to interfere with matters of wireless telegraphy than has the ordinary citizen in the street, because the substance and the basis of the decision was that the conception of the term “ trade mark,” as understood at the time we federated, was such that the workers’ trade mark was never thought of. At the time we established the Commonwealth wireless telegraphy was not thought of. I put before the Senate reasons which seemed to me to be convincing that we had the right, and, further than that, we had the political obligation, to provide for workers’ trade marks. The High Court decided against that view ; and the Vice-President and I are bound to respect its decision. At the same time, it is quite possible that an equal number of equally intellectual, able, trained, skilled gentlemen might have the same arguments presented to them, and arrive at the directly opposite conclusion. I do not blame the Vice-President of the Executive Council for what he said”. He strayed into the matter of criticising the High Court, and expressed his sorrow that it had more power than its creator. With the exception of the substitution of “ the same “ for “the like,” there is practically nothing in the Bill which should not receive the support of every honorable senator. Two or three things I noted merely suggest a difference in verbiage. We shall have the advantage of getting judicial decisions on them. I would like the Minister to give an assurance, before the Bill leaves the Senate, that, in substituting “ the same “ for “ the like,” it is merely adopting the words which are used in the English Act. I have not had an opportunity of making a comparison. The Government have been very considerate in supplying us with a memorandum showing the amendments which are proposed. Clause 5 repeals section 16 of the Act, and substitutes another provision, but the only alteration it makes of our existing law ‘ on that point is that it uses the words, “ the name of a company, individual, or firm’ represented in a special or particular manner.” There is a little alteration of verbiage. Paragraph e of this provision sets out what a trade mark must consist of. It reads -
Any other distinctive mark, but a name, signature, or word or words, other than such as fall within the descriptions in the above paragraphs (a), (4), (c), and (d) shall not, except by order of the Registrar, Law Officer, or Court, be deemed a distinctive mark.
If the Minister can give the Senate an assurance that this alteration is taken from the English Act, we shall get, for the benefit of the public, the decisions which may be given at Home in respect to the interpretation of these words.
– Hear, hear ! That is the intention.
– There is one provision to which I think the honorable senator might ask his officers to give some attention. Clause 10 amends section 25 of the Act by omitting the words “ Except by order of the Court,” and substituting the words, “ Subject to this Act.” The words “ Subject to this Act “ are used frequently, I notice, in Sir Fletcher Moulton’s latest edition of the Trade Marks Act. 1 invite the Minister to consider whether or not the use of these words is desirable in Australia? The system of government and administration in Great Britain is a unitary system ; but here we are working under a Federal system, and the use of the words “ Subject to this Act “ in our legislation, though adopted it may be somewhat lightly by the draftsman, may have in Australia an effect which we can hardly foresee.
– I cannot conceive of that when the provision has to be interpreted by the Court.
– Yes ; but will the Minister bear in mind that, whereas in England the provision will probably be interpreted by the Court of King’s Bench, in Australia it will probably be interpreted by the High Court, after six Supreme Courts have separately interpreted it? In our Trade Marks Act of 1905, we included a provision to protect those who had registered trade marks under State laws. Clause 7 of this Bill repeals section 18 of the Act, and substitutes another provision, which begins with the words -
Subject to the regulations, the Registrar may refuse to register any trade mark which contains any of the following words or matters -
The words or matters are then set out in seven paragraphs. Amongst other words to which this provision applies are the words “Royal,” “By Royal Letters Patent,” Registered,” and “Registered Design.”
Section 18 of the Act which this clause repeals excepted any trade mark which was already registered in a State under its law. Suppose, for instance, that under the Trade Marks Act oi Queensland a person had registered a trade mark thirty, or twenty, or fifteen years ago, and that it included one or other of the words contained in proposed new section 18. He could not use that trade mark if this Bill were passed. Under the Act, a trade mark of that kind is excepted from section 18. We ought, I think, to continue pre-existing rights under the system of State registration.
– Would you apply that to the whole of the Commonwealth, or only to the State where the trade mark was registered? You see you are conferring a concession.
– My honorable friend knows that the Trade Marks Act contains a provision which enables a trade mark to be used only under certain conditions. I suggest that whatever rights or powers the original owner of a trade mark may have had by virtue of its registration under the State law should be continued to him. These rights are gradually expiring; there cannot be very many of them in existence. But, as a matter of justice, equity, and duty, we ought not to interfere with anything which has been acquired bond fide under State legislation. There is another provision which perhaps will appeal to the Minister much more forcibly. Section 18 defines the things which a trade mark must not embrace. For instance, paragraph a provides that a registrable trade mark must not contain - the words “ Trade Mark,” “ Registered,” “ Registered Design,” “ Copyright,” “ Entered at Stationers’ Hall,” “ To counterfeit this is Forgery,” or words to the like effect.
So it goes on. But there is one thing which, in re-enacting the original’ provision in better form,, the Government have overlooked. The original Act provided that a person might not incorporate in a trade mark the representation of any living person without his consent.
– Are the Government proposing to allow that to be done now ?
– They are actually allowing it, but they have omitted to reenact the prohibitory provision.
– Perhaps they are looking to that as a short road to immortality.
– I think the provision should be re-enacted, because it is not a fair thing that persons who happen to be prominent in public life should have their portraits used for the purpose of advertising goods. It is a matter that might be considered in relation to clause 7 of the Bill. It is desirable that nobody’s “counterfeit presentment” should be utilized by any tradesman without his consent. The omission of the provision from the Bill is, I think, an accidental hiatus.
– How does the honorable senator know that it is accidental ?
– I think it is. The other provisions of the Bill claim our cordial’ support, and we should be prepared to pass them.. I do not think that there are features of a controversial character other than those I have pointed out.
– I think the honorable senator will find that the last point mentioned has been provided for in clause 26. The Registrar can require the consent of an individual.
– Clause 26 does not touch my point.
– Probably I should not have spoken on this Bill except for the very extraordinary doctrines enunciated by the VicePresident of the Executive Council in introducing it. The honorable senator commenced with a declaration that the common-sense of Parliament was quite competent, without a Court of Judges, to interpret the Constitution. When I first read that statement in his speech, I thought it must have been made in a spirit of jocularity. But when I read further on, and found the idea hammered in to the extent of occupying several inches in the Hansard report, I came to the conclusion that the honorable senator had been putting forward a view which, from his position in the public life of the country, he would endeavour later on to give effect to. That would not have been so serious, however, except that the Vice-President of the Executive Council made the distinct affirmation that the Judges were subject, in decisions which they gave, to prejudices, conscious or unconscious; and he followed that up with the declaration that they had given an in dication, where they had the misfortune to differ from himself, of interpreting the Constitution in the narrowest possible way. I should not like to misinterpret the honorable senator’s position, and to show that I am doing him what he shrinks most from - full justice - I shall quote a few lines from the report of his speech. He said -
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.
He went on to say -
Does the honorable senator imagine for one moment -
The allusion was to that arch-offender Senator St. Ledger - 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.
– Is not that true?
– The honorable senator said it was, and I am going to found an argument upon his statement. He followed that up by saying -
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 1905 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.
When I first read that, as I have said, 1 thought that the Minister must have been speaking in a spirit of jocularity.
– Not at all. 1 would not give place to the best of Judges on such a matter.
– The honorable senator almost forces me to use words that I do not like to use concerning him - that this is an example of egotism.
– That may be.
– When an individual who has had no special training claims for himself that he is as competent to deal with a technical matter as are those who have special claims, I venture to say that he is laying himself open to a charge- of egotism. Let me put the matter in this way : Supposing there were an engineering problem to solve. Would Senator McGregor contend that he was as competent to solve that problem as a band of experienced engineers specially trained and capable of expressing opinions on such problems ?
– More practical experience is required in dealing with engineering matters than in dealing with constitutional points which are determined by Judges.
– It is one of the most curious facts that one can meet with that, whilst in regard to the ordinary avocations of life, a man who has had special training is supposed to possess special qualifications for expresing an opinion, when you come to deal with a matter of law, persons who have had no training seem to think themselves as competent to express their views as men who have devoted a lifetime to a study of the subject.
Sitting suspended from 6.30 to8 p.m.
– Before the adjournment, I was directing attention to certain remarks of the Vice-President of the Executive Council, wherein he affirmed that, in his opinion. Parliament was more competent to interpret the Constitution - and I presume any other written instrument - than a Court composed of specially trained lawyers.
– I did not say anything about competency. I said that Parliament had as much right, if not more right. It is not a question of competency, but of right.
– The honorable senator said -
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.
– Hear, hear !
– I note that the Vice-President of the Executive Council re-affirms the statement, and that it is cheered by some of his supporters.
– That is not a question of competency.
– Then I do not know what the honorable senator means by being “in as good a position.” Surely the question of competency is covered by that phrase?
– I cannot conceive that the honorable senator is in “ as good a position “ to doctor me if I am ill, as a specially-trained physician. He may attempt to tone down his words as much as he likes. I have quoted them, and leave them to the judgment of honorable senators as to whether they are capable of the interpretation that I have given to them. What the Vice-President of the Executive Council wants is not that this Parliament should have the right to interpret the Constitution, but that it should have the right to tear the Constitution up. He wants to free Parliament from any restraint whatever - to leave it, as is the Parliament of Great Britain, absolutely free to pass any law it likes. That is the only construction we. can place upon his remarks.
– Does the honorable senator think that that is bad for Great Britain ?
– No; but does my honorable friend advocate it for Australia ? I do not regard it as bad for any unified country to have an unified Constitution, but I do regard it as being opposed to the very idea of Federation that we should have here the system which prevails in Great Britain.
– Would the system which prevails in Canada, or the one in existence in South Africa, suit the honorable senator?
– I have no great fault to find with the system under which we are living to-day. I wish to direct attention to other remarks made by the VicePresident of the Executive Council which appear to me to be a direct challenge to the Federal character of our Constitution. He went on to say -
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.
He appeared to get a little bolder as he went along, and I am afraid that he had the approval of honorable senators opposite for the observations that he made a little later -
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.
If that be so, then I say it means tearing up the Constitution. If we are going to leave to this Parliament the decision as to what laws it shall pass, and what laws it shall permit the States to pass, that means the deathknell of the Federal system under which we are living to-day. The honorable senator surely forgets that the Constitution itself was not the creation of this Parliament. The Federal Constitution guaranteed to the States the Constitutions under which they were living, and specifically left certain powers to them. The very essence of the Constitution lay in. the division of those powers ; and, the division of powers having taken place, it was imperative, if we were to maintain th« Federal character of our Constitution, that some body placed outside the conflicting Parliaments should be called upon to determine where one dr the other Parliament, Federal or State, broke through the barrier by which they were separated. Let us see whether this Parliament is, or can be, the proper body to deal with matters which are purely judicial. On one occasion this Parliament declared that it was not competent to deal with matters into which political prejudices might enter. I am alluding to our electoral laws. Parliament recognised that it was not the proper tribunal to decide matters as’ to which members might be influenced by their political views. It, therefore, called in this very Court which the Vice-President of the Executive Council states is the creature of this Parliament; because it recognised that the High Court was a betterequipped body to deal with matters in dispute than Parliament could ever hope to be. I wish to make another quotation from the honorable senator’s speech, because these passages appear to me to throw a very strong light indeed upon the objects of the party opposite with regard to our Constitution. When they sought to amend the Constitution, and there was controversy with regard to their proposals, they frequently denied that they were seeking to bring about unification. In view of these remarks of the Vice-President of the Executive Council, it seems to me that that denial ought to be withdrawn.
– What has this to do with the Trade Marks Bill?
– I am replying to the speech of the Vice-President of the Executive Council. The remarks to which 1 am alluding were not a casual interjection. They occupy some 9 or 10 inches in the Hansard report. Further on in his speech, the honorable senator said - 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.
I take the opportunity of questioning it now. I say that every Federalist in Australia must question it. It is just as well that this protest should be made, and it ought to be emphasized, because we ought to recollect that, according to the GovernorGeneral’s Speech, we shall be asked very shortly to pass in review a renewed attempt on the part of this .Government to destroy what is, in the mind of every Federalist, the distinctive feature of a Federal Constitution. I do not desire to do more than emphasize this very plain and frank declaration of the Vice-President of the Executive Council, that he is seeking to destroy the High Court so far as it is the creation of the Constitution, and to remove that guardian of the rights of the States so as to place in the hands of this Parliament, as the honorable senator evidently wishes to do, full power to modify the Constitution if it pleases. To all intents and purposes, the honorable senator would be prepared to remove the Constitution as a written instrument, and to leave this Parliament and its successors absolutely free to pass any law it likes, whether or not power to pass that law is embraced within the ambit of the Constitution itself. There are sections in the Constitution which preserve to the States their distinct rights. Is it reasonable to suppose that this Parliament could adjudicate equitably between the claims of the Federal Parliament and the claims of the State Parliaments? Thereis only one course which can be taken if that view is once adopted, and that is the course which the honorable senator clearly has in view when he asks that this Parliament should be the sole and final arbiter of the Constitution itself.
– The final arbiter is the people.
– I quite agree with the honorable senator there.
– But the people have appointed the High Court to arbitrate upon constitutional questions.
– I was just going to say that.
– Neither this Parliament, nor any State Parliament, nor the High Court, has any rights except those which the people have conceded.
– It is the people themselves who have, denied to Parliament the right to interpret the Constitution. It was the people themselves who declared,, and recognised more clearly than honorable senators opposite do, that only a judicial tribunal could fairly, honestly, and impartially interpret our Constitution. They, therefore, removed the interpretation of it from the fighting arena, and declared that it should be a judicial matter. That, in my judgment, is the most important of the functions which the High Court has to discharge. It has to see that the rights of the States are not trespassed upon by any Acts of a mere passing Parliament such as this. I suggest to my honorable friends opposite that if they are desirous of changing this system, they should plainly propose to amend the Constitution, and bring about Unification.
– Order ! The debate is taking a line which does not touch the Bill which the Senate is supposed to be discussing. We are dealing with the Trade Marks Bill. It is true that the Vice-President of the Executive Council, in his second-reading speech, did give utterance to some statements which have been referred to by Senator Millen. But the whole debate seems now to have taken that particular direction. Honorable senators must confine themselves to the Trade Marks Bill.
– I have no desire, sir, to trespass upon the rules of the Senate, or your indulgence, in dealing with this matter. My excuse for speaking as I have done is the lengthy statement which you admit the Vice-President of the Executive Council made on the same subject.
– lt all bore upon the question of workers’ trade marks.
– The honorable senator’s statements had no more bearing upon the question of workers’ trade marks than mine had. I am thankful, sir, that you have allowed me to go so far, and I repeat that my excuse is that I thought I was fairly commenting upon remarks made by the Vice-President of the Executive Council. I have no desire to say anything further on that point. With regard to the Bill itself, I should like to ask the VicePresident of the Executive Council a question. I am at a loss to understand whether some of its clauses are included for the purpose of bringing our law into conformity with the Imperial legislation, or whether there are not some that are quite foreign to that legislation. I have been induced to entertain a doubt upon the matter by these remarks of the honorable senator -
The next alteration proposed is to bring the law more into conformity with Imperial legislation, and to make it more beneficial for those who are applying, or intend to apply, for the registration of trade marks.
The honorable senator proceeded to enumerate a number of amendments for the simpification of applications, for protection against infringements, and the use of similar names, and followed that up with this statement -
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.
This latter statement would almost suggest that the previous amendments proposed in the Bill are not in conformity with Imperial legislation.
– We wish to make a number of amendments, and I referred to alterations consequential upon them, which will bring this measure still more into conformity with British legislation.
– My doubt arose from the use of the word “ then “ in the last remarks I have quoted from the honorable senator. I understand him now to say that the amendments proposed, which are generally entitled to be approved of by trie Senate, and other amendments of the existing law made by this Bill, are designed with a view to bring our legislation into conformity with that of the Imperial Parliament. I attach a good deal of importance to this, because we must recognise, when science is doing so much to eliminate distance, that, with the increase of trade between Great Britain and Australia, there will be an increase of common interest in shaping our legislation, as far as possible, on similar lines. I am pleased, therefore, to have the assurance of the Minister that the principle amendments of the existing law proposed by this Bill are designed with that end in view.
Senator Sir JOSIAH SYMON (South Australia) [8.15]. - So far as the Bill itself is concerned, 1 do not think that it requires very much discussion on the second reading, though it may require some analysis, criticism, and improvement when we deal with it in Committee. I hope that there will be no delay in the measure becoming law in its most effective form. The intention is to bring our trade marks law into conformity with the trade marks law as it exists in the ‘ United Kingdom, and1 has been finally established by the Imperial Act of Parliament passed last year. The Bill is not very important in respect of what it proposes to enact, but it. is significant in what it proposes to repeal. It is the repealing part of it that has given rise to the discussion which, I think, not been irrelevant, but peculiarly relevant to the measure: lt is proposed in this Bill to repeal the whole of Part VII. of the principal Act relating to workers’ trade marks, including the sections from section 74 to section 77, dealing with what is known as: the union label. That is significant in this way : When the Bill of 1905 was passing through Parliament, there was a strong body of opinion that the provisions for the union trade mark would be found to be ultra vires of the Constitution. Naturally,, at the very earliest possible moment, it. was decided to test the matter by appeal to the tribunal which exists in this Federal community for the purpose of determining questions of that kind. We may, or may not, have founded the Constitution on right lines. But we have adopted certain lines, and the people of this country, and not this Parliament, delegated to a disinterested and elevated tribunal the duty of determining whether we legislate within the ambit and powers of the Constitution, or exceed them. At the earliest possible moment, the question of the constitutionality of the union trade mark was brought under the notice of the High Court of Australia for determination. That was the proper course to take. When the Government sought to enforce the law with regard to combines, they had recourse to exactly the same tribunal. Why should they seek to cast reflections upon it in connexion with one ca’se, when the decision of the Court was not to their liking, and applaud it in another in which they got a decision iii their favour? The remarkable thing is that a decision having been given, and the union trade mark provisions declared to be beyond the constitutional powers of the Parliament, though it was quite unnecessary, the Government now bring down a Bill to de- clare that that was a righteous and just decision by repealing the obnoxious provisions -in the sense that they are opposed to our powers - which .we included in the Act of 1905. That is what we are asked to do by the repealing clauses of this Bill. We are asked to declare that the decision of the High Court which is being criticised - T will not say maligned - is a proper decision . and one which this Parliament is bound under the Constitution to recognise r.y wiping the provisions objected to out of the existing Act. That is the situation, and it is because of it that this discussion upon the High Court arose, which otherwise would be hopelessly irrelevant to this Bill. It does arise under the repealing clauses of the Bill, and the Vice-President of the Executive Council was not going beyond what he might fairly submit to the Senate when, in order to save the face of. his party, he said, while advocating the repeal of certain sections of the existing Act, he deprecated the decision which made it inevitable that they should be repealed. I do not know that I should have risen to say anything after the forceful remarks which have already been made on the point, but I think that some of the criticisms of the VicePresident of the Executive Council in the passages quoted from his speech, and some which he made by way of interjection when Senator Keating was speaking, show a most appalling - I will not say ignorance, because that would not be proper or courteous -but a most appalling misconception of the Constitution under which this country is at present governed. We are, of course, entitled to disagree with decisions of the High Court if we please. We may criticise them fairly and honestly, but we are not entitled to say that the High Court of Australia is created by, or is the creature of, the Parliament. It is nothing of the kind. Our Federal Constitution itself creates three coordinate bodies. One is the Parliament, another is the Executive Government, and the third is the Judiciary. These three are absolutely co-ordinate within their respective spheres.
– What about the Inter-State Commission ?
– The Inter-State Commission is not in the same position at all. There is a mandate in the Constitution to “create an Inter-State Commission under the commerce sections ; but it is expressed in totally different language,’ and from a totally different motive and intent, from those which govern the three constituent elements of the governing body of the country. The High Court is not superior to Parliament, nor is Parliament superior to the High Court. It must he understood that they are co-ordinate - coequal within the limits of their respective powers. It is a gross reflection, not upon the Judiciary, but upon the people of this country, to say that they intended that the High Court which they established by the Constitution should be regarded as a creature, something held in the hollow of the hand of the Parliament which they also created. If honorable senators only remembered what the
Constitution really is, they would be protected against themselves from the utterance nf many of the foolish things they say in regard to the position of the three constituent elements of our Constitution.
– Does the honorable senator contend that the Executive is independent of Parliament?
-The Executive is co-ordinate with the Parliament within its particular sphere, but under our system of responsible government, the personnel of the Executive is not independent of the Parliament. The Executive Government, as a part of the supreme machinery of Government is co-ordinate with Parliament. I think it is desirable that, at the earliest opportunity, these misconceptions should be removed. If we wish to change the Constitution, let us do so in a proper way. If we are going to plunge into the unified system of the United Kingdom, -we shall be dealing with a very large question, which should not be dealt with in this way. So long as we continue under our present Constitution, Ministers, above all others, should pay proper respect to every element of it. The position will be better understood if we consider for a moment the position _of the United States of America. I mention this because Senator Givens was good enough to direct special attention to it. The Executive Government in the United States of America is entirely independent of Congress. Our system of Federal union follows, as closely as possible, the Federal system of the United States of America in preference to that of Canada, which was thought not to be so satisfactory a Federal system, with only this difference in regard to the Executive, that we ha.ve tried to fit the British system of responsible government into the American Federal system. That is the whole situation. I, therefore, hope that the VicePresident of the Executive Council will withdraw his remarks about the High Court being the creature or creation of Parliament, that the creator ought to have larger powers than the creature, and all that sort of rubbish. It is rubbish, and no other1 word will properly describe it.
– The honorable senator may say what he likes, but let him read the Constitution:
– My honorable friend is like the preacher who does not apply to himself his own teaching. If he would read the Constitution with some intelligence, he would arrive at conclusions which would prevent the absurd ad caftandum interjections which he so frequently makes, and which have no bearing whatever upon the question under discussion. If, in addition to directing his studies to the Constitution, the honorable senator also studied the Judiciary Act, he would find that there is not a syllable in it creating the High Court. It recognises the existence of the High Court.
– Who passed the Judiciary Act ?
– The honorable senator assisted to do so ; but that Act nowhere says “ the High Court of Australia is hereby created.” It does not say “the Parliament of Australia hereby creates the High Court of Australia,” because that was done by the Constitution.
– Will the honorable senator read section 72 of the Constitution?
– I shall read it, and the honorable senator will see that it plainly says that the High Court of Australia is not created by this Parliament, but that there are other Courts which may be created by the Parliament.
– Oh !
– Let the honorable senator answer me if he can ; but he should not make ejaculations which are not respectful to me, much less to the Senate. The section to which, the honorable senator refers me speaks of the Justices of the High Court, and “ of the other Courts created by Parliament.” Parliament is given power to create other Courts, but not the High Court of Australia. I remind the honorable senator that .section 7 1 provides that -
The judicial power of the Commonwealth shall be vested in the Federal Supreme Court, to be called the High Court of Australia.
That is what created ‘the High Court.
– Who removes the Judges of the High Court if they misbehave themselves?
– This Parliament does; but this Parliament cannot remove them unless upon proved misbehaviour and incapacity. It is not left to the mere will of Parliament, but it must be upon “ proved “ misbehaviour and incapacity.
– Hear, hear ! A man is not guilty until he is proved to be guilty.
– Here rs a Solomon come to judgment ! I was going to say that the word “ proved “ was inserted in order to protect the High Court against Parliament by one of the greatest Democrats who ever lived in this country. I allude to the late Mr. Kingston. He said, “ We will not have Parliament lightly interfering with the tenure of office of the Judges of the High Court.” This Parliament cannot remove a single Judge of the High Court unless upon proved misbehaviour and incapacity.
– Could there have been, a High Court if there had not been a Parliament?
– I do not forget that point. This power of removal shows exactly what the position was, and the only power which we, as a Parliament, had under the Constitution was to say how many Judges the High Court should consist of in the first instance, and what the remuneration and the procedure should be. The High Court is just as much and as solidly one of the fundamental elements of the Constitution as is Parliament itself. The three bodies which I have enumerated are under our Federal system co-ordinate each within its own’ sphere, namely, the Parliament to legislate,’ the Executive Government to carry into effect, and the Judiciary to decide. The concern - if I may use that expression of a great instrument of government - cannot go on if any one of the three disappears. The judicial power of the Commonwealth, which is vested in the High Court, exists irrespective of that tribunal, and it was the judicial power of the Commonwealth, by whomsoever exercised, which arrived at the decision under which these provisions are to be repealed. Honorable senators who were here in 1902 will remember that, pending the passing of the Judiciary Act, which could not be dealt with in the first session, we were obliged to pass a Claims Against the Commonwealth Act, to vest the judicial power of the Commonwealth temporarily - for twelve months, I think - in the Supreme Courts of the States to enable such claims to be determined. If there were such claims brought before the Supreme Courts of the States during that period, and they involved any constitutional question in connexion with the laws we had passed, those Courts would have had to decide the questions just as the High Court has decided the question of the union, label and several other matters. That is all that need be said as regards the basis on which these provisions of the Trade
Marks Act were held to be ultra vires, and are now being wiped out by clause 24 of this Bill. Whilst I should be the very last to say that in a free country we are not entitled to offer criticisms, or to hold our own opinions with regard to judgments that may be given on constitutional or other matters by the High Court, or other tribunal, still there are limits to the exercise of that right; and if I may say so, with all possible good feeling, and appreciation of the difficulties in which Senator McGregor found himself in seeking to ask the Senate to pass a Bill giving effect to a judgment of the High Court. I venture to think that he did overstep “the limits, certainly in the quotations which Senator Millen read. The conventions of public life hold that criticisms and animadversions upon judgments pronounced by the constituted Courts, such as some of those which I am sure were inadvertently made by Senator McGregor, ought not to be made on the floor of the Senate, unless, of course, in moving for the removal of the Judges.
– I made no animadversions.
– Yes, my honorable friend did in roundabout language, which I have read with great regret.
– Have you never animadverted on High Court Judges on the floor of the Senate?
– Yes ; but I have never suggested that their judgments were given under the influence of, or coloured by, political partisanship. Senator McGregor said -
Some of these gentlemen were brought up under the shadow of political conditions which have influenced them for the rest of their lives.
– That is quite correct.
– It is not correct in the application which my honorable friend was making of the remark. He has no right to say that of any body of Judges.
– Are you a judge now of the application which was intended by the Vice-President of the Executive Council ?
– We have the whole of the Minister’s observations here condemning the decision which the Judges arrived at in regard to the trade union provisions.
– He did not condemn the Judges, although he condemned their decision.
– The Minister condemned the Judges, and insinuated - which is worse than a straightout statement - that their conclusion was arrived at because of the colour of their political opinions. We are quite entitled to say that we differ with their decision in a matter, but we are not entitled to say 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.
And then to connect that with this insinuation in the same paragraph as ia sort of excuse for them -
Some of these ‘gentlemen were brought up under the shadow of political convictions which have influenced them during the rest of their lives.
I find that under the Judiciary Act the oath which the Judges take reads as follows -
I … do swear that I will well and truly serve our Sovereign Lord the King in the office of a justice of the High Court of Australia, and I will do right to all manner of people according to law without fear 01 favour, affection, or ill-will : So help me God. 1 hope that my honorable friend’s reference to the Judges will be expunged from Hansard. I have no desire to defend their decision in this or anything else; this is not the place to do that; this is not a Court of appeal against the decisions of the High Court. I think that expressions of that kind, which, even if not intended, may possibly, by the unthinking, be read as reflections coming from the highest quarter - the Executive Government - on the uprightness and integrity of the High Court Judges, their ability to withstand the influences of their political training, ought not to be used, or, if they are used, they might very well-
– Their integrity is not in the slightest way attacked.
– Order ! I think that there should be some reference to the principles of the Bill which are supposed to be under discussion. The whole of the debate has centered round a few remarks of the Vice-President of the Executive Council, which had some connexion with the Bill, but which, perhaps, were to some extent, irrelevant.
– In deference to you, sir, I will say no more about that. I will return to the repealing clauses, and again point out that the re: peal is practically an affirmance by this Parliament of the decision of the High Court. So long as the Federal system exists, that is the only tribunal which can possibly determine a question of that kind. We are doing right, it seems to me, to recognise that position by passing the Bill in this form.
– In moving the second reading of the Bill the Vice-President of the Executive Council made some remarks which were, I thought, irrelevant and uncalled for, and which led me to make one or two interjections. Their nature and purpose were fully revealed at the time, and have now been fully criticised and exposed for the benefit of this Parliament and the people .of Australia. I wish to state my reasons for pointedly drawing the attention of the Senate to the irrelevancy and the dangerous nature of the Minister’s introductory remarks. I remember that, in 1910, when a Bill was brought in here to amend the Conciliation and Arbitration Act, I drew the attention of the Government to the nature of a clause comprising about a line and a-half. They treated my remarks with a certain amount of contempt. I took a course of action, supported, I think, by every honorable member on this side, and, in consequence of that, the debate was sustained until 2 or 3 o’clock in the morning. I took that step in order that the Government of the day should be careful in future about the constitutional nature of any amendments which they submitted. Late last session a Bill of two clauses was brought here to amend the Conciliation and Arbitration Act. One of them would strike those who had carefully followed the decision of the High Court as being brimful of debatable constitutional points, but the other clause, occupying a line and a-half, struck me at once as being palpably unconstitutional. In a very brief speech I drew attention to this apparently innocent clause, and again my criticism was unheeded. The point to which I then drew the attention of the Government has recently been raised in the High Court. Counsel for the appellant drew attention to this very provision of the last amending measure, and it was,- I believe, without argument, and almost unanimously, ruled out as unconstitutional. It therefore becomes necessary for those who are familiar with the Constitution to closely and carefully watch amending Bills: It was’ with a recollection, of these two remarkable instances, and of my criticisms -on .the amending Bills, that I at once drew attention to the apparent irrelevancy and danger of the remarks which the Minister made in introducing this Bill. It seemed to me that in almost a surreptitious way this Bill might contain some provision which would follow and be on all-fours with amendments which have been distinctly ruled by the High Court to be unconstitutional, and which the Government must have known to be absolutely unconstitutional when they submitted them to the Senate. That is why I made the interjections I did. This Bill, so far from attempting to do anything unconstitutional, repeals several of the provisions which were declared by the High Court to be unconstitutional. From that point of view, 1 think we may hail the measure with satisfaction, because it will, not only be constitutional, but will bring our legislation into line with Imperial legislation. I have as much pleasure in saying that as I had reluctance and regret in interjecting when the Vice-President of the Executive Council was making his irrelevant remarks.
– And as much pleasure in making the remarks about the bonus at Ballarat last week when you slandered the women of Australia.
– If I chose to take advantage of that interjection, I could raise some other questions. I do not say that what I said there was gospel, or was all that I ought to have said or done, but this is neither the time nor the place for me to defend it, nor for the honorable senator to make an interjection of that kind. One other remark which I should like to make is this: The. Vice-President of the Executive Council has assured us that the amendments made in the law by this Bill are intended to bring our legislation into conformity with a new Act passed by the Imperial Parliament. I believe we may take that to be the intention. But when measures of this kind ;u-e brought before the Senate, I think we ought to be furnished with references to- tile legislation upon which they are modelled. If the amendments in the law made by this Bill follow die course of Imperial legislation, references to that legislation ought to be cited. I will conclude with a few words about a remark that has been made concerning the High Court. It is quite true that Parliament may possibly be able to remove a Judge on a cause proved to the satisfaction* df both Houses. But that does not involve the proposition that this Parlia-ment has any direct control over the High Court. The High Court is part of the Constitution. It is as much the creature of the Constitution as this Parliament is. It is equally true that every piece of legislation which we frame .is subject to the Constitution, which must be interpreted by the High Court.
[8-53l- - I feel rather hopeful with respect to the passage of this measure, because up to the present time no honorable senator has applied himself to showing that there is anything of an objectionable character in it. I am very sorry that any of my remarks should have hurt the feelings of any one regarding the High Court or any other institution in Australia.
– That was only a beating of the big drum.
– I believe that there was a good deal of make-believe in connexion with the very wordy objections raised on the Opposition benches. I still maintain that I, in common with every other honorable senator here, have a perfect right to express an opinion, not only as to the actions of the High Court, but as to any other Court in this country. As long as we are prepared to abide by the law we are fulfilling our obligations in carrying out the Constitution. It has been said by some of the learned gentlemen here that I have made statements of which I ought to be ashamed. Well, I have never said anything here or elsewhere that I have need to feel ashamed of. As to the High Court’s interpretation of the workers’ trade marks provision, I may say this : Even Senator Keating, who is a believer in the Constitution and the High Court, admitted that five men just as independent, just as upright, just as intelligent, and with just as good intentions as the present occupants of the High Court Bench, might come to a different decision. That is all that I said. I argue that it would have been quite possible for other Judges to ‘come to a different decision. As for opinions being influenced by the political or other conditions under which one is brought up, I have to say that there is no Judge, either of the High Court or of any other Court, who is less human than the rest of the community, and Judges are influenced in just the same way as are other people.
– 1 do not think anything of the kind. I think that the Executive Council, in making all appointments, does the very best it can in the interests of the community, and that was all that was done in the appointment of those gentlemen who declared the workers’ trade mark to be ultra vires. Senator Symon was very anxious to know why we were confirming the decision .of the High Court hy proposing to repeal the workers’ trade mark sections of the principal Act. If the honorable senator had been present when j made my second- reading speech, or if he had read what I said, he would have understood the reason that has actuated the Government, and the reason which I had in my mind. Honorable senators know very well the consequences that have followed from certain decisions which have been given. A notable instance was in connexion with the Seamen’s Compensation Act. A certain section was declared ‘not separable,” and rendered the whole Act ultra vires. ‘ Why should we leave anything in our trade marks legislation that would give any future Court the right to say that it was ultra vires ¥
– Once or twice the party opposite have put things in Federal Acts that were distinctly unconstitutional.
– We should not have known that the workers’ trade marks sections would be ruled out of court by three or four Judges if we had not put the sections in an Act of Parliament. Some of the most prominent politicians in Australia have assisted in putting things in Commonwealth Acts of Parliament which have afterwards been declared by the High . Court to be ultra vires. . Would men like the late C. C. Kingston, or the present Mr. Justice Isaacs, or Mr. Deakin have put things into Acts of Parliament which have since been held to be unconstitutional, had they not been of opinion that they were constitutional provisions? They believed that those sections would be upheld by the High Court. Mr. Kingston was, I believe, as good a lawyer as Senator St. Ledger is, and I am quite sure that Mr. Justice Isaacs is regarded by the legal profession as being just as reliable as Senator St. Ledger, to say the least of it. These gentlemen held similar opinions to
– Moore does not make that statement.
– Let the honorable senator read the book for himself, and he will find whether my statement is true.
– Members of the Opposition party are day after day denouncing Mr. Justice Higgins as a biased Judge.
– I shall hot refer at greater length to anything, of that kind. I return to the Bill itself. It has been suggested by Senators Chataway, St. Ledger, and others that the Government are going to do something to override the decisions of the High Court.
– That was suggested by the Minister’s opening, remarks.
– That observation only shows that the honorable senator has not read the Bill. I would advise him when any measure is brought before the Senate, whether by the present Government or any other Ministry, to read it before he speaks about it.
– Twice before I pointed this out, and the honorable senator took no notice.
-.- The honorable senator has been in the wrong more than twice. I- hope that in Committee we shall receive the fair treatment which has been promised by those who have found no fault with the measure itself, but have confined their criticism to certain remarks which I made.
Question resolved in the affirmative.
Bill read a second time.
In Committee :
Clauses 1 to 3 agreed to.
Clause 4 (Extension of Act to Papua).
– In what relation does the Northern Territory stand to this measure?
– The Northern Territory is part of the Commonwealth.
Clause agreed to.
Clauses 5 to 16 agreed to.
Clause 17 -
Section 47 of the principal Act is amended by inserting after thewords “the Registrar” the words “ unless otherwise prescribed by the regulations.”
– The original section, 47, provides that when an application for registration has been accepted, and has not been opposed, and the time for opposition has expired, or when an application has been opposed, and has been granted, the Registrar shall register the trade mark. The amendment now sought to be made is that the Registrar, “ unless otherwise prescribed’ by the regulations,” shall register the trade mark. I take it that the reason for the amendment is that the Registrar has been hampered in giving effect to registration by the Act: as it stood, and that this is intended to givehim full facilities under regulations to be framed. If that be so, I have no serious objection to raise, except that many honorable senators are somewhat dubious about the growing evil of legislation by regulation. The clause as I understand it is intended to give the Registrar further powers than he had before. Possibly it may be defended on the ground that patents and trade marks are of a highly technical nature, and that our responsible officers must be trusted to exercise a large amount of discretion. But I should like to have some reason for this further enlargement of the powers of the Registrar under the circumstances mentioned.
– Senator St. Ledger has now shown himself to be right for a third time ! I am glad to find him agreeing with what is attempted to be done. Under ordinary circumstances the Registrar is bound to register an application. Circumstances might arise in which it would be inadvisable to register, and it is only right, as has been found in Great Britain, that some discretionary power should be placed in the hands of the Registrar. That can only be provided for by regulation, and I can assure the honorable senator that all this is done in the interests of the public.
Clause agreed to.
Clause 18 agreed to.
Clause 19 (Rights of registered proprietor;.
– Under the existing Act the registration of a trade mark for five years is prima facie evidence of its validity, and the onus of proof of its invalidity is then thrown upon any person wishing to dispute it. I notice that this clause proposes to increase the period referred to to seven years. Possibly this is another amendment intended to bring this Bill into conformity with the latest Imperial Act.
– That is exactly the position.
– Then I am right for the fourth time ; and as I believe in following in the footsteps of the Imperial Parliament in many directions, I have no objection to the proposal.
Clause agreed to.
Clauses 20 to 24 agreed to.
Clause 25 -
After section eighty-seven of the Principal Act, the following section is inserted : - “ 87a. Where any person is convicted of any offence against section eighty-six or section eighty-seven of this Act he shall be liable, in addition to the punishment provided by those sections, to forfeit to the King every chattel, article, instrument, or thing by means of or in relation to which, the offence was committed.”
Amendments (by Senator Findley) agreed to -
That the words “section is” be left out, with a view to insert in lieu thereof the words “ sections are.”
That the following words be added to the clause : - “ 87b. - (1.) Where upon information of an offence against section eighty-six or section eighty- , seven of this Act, a Justice of the Peace has issued either a summons requiring the defendant to appear to answer the charge or a warrant for the arrest of the defendant, and either the said Justice, on or after issuing the summons or warrant, or any other Justice of the Peace, is satisfied by information on oath that there is reasonable cause to suspect that any goods or things by means of or in relation to which the offence was committed are in any house or premises of the defendant, or otherwise in his possession or under his control in any place, such Justice may issue a warrant under his hand by virtue of which it shall be lawful for any constable named or referred to in the warrant to enter the house, premises, or place at any reasonable time by day, and to search there for and seize and take away those goods or things ; and any goods or things seized under the warrant shall be brought before a court of summary jurisdiction for the purpose of its being determined whether they are or are not liable to forfeiture under this Act. “ (2.) If the owner of any goods or things which, if the owner thereof had been convicted; would be liable to forfeiture under this Act, is unknown or cannot be found, an information or complaint may be laid for the purpose only of enforcing the forfeiture of the goods or things, and a court of summary jurisdiction may cause notice to be advertised stating that, un- less cause is shown to the contrary at the time and place named in the notice, the goods or things will be forfeited, and at the time and place the court, unless the owner or any person on his behalf, or other person interested in the goods or things, shows cause to the contrary, may order the goods or things or any of them to be forfeited. “ (3.) Any goods or things forfeited under this section may be destroyed or otherwise disposed of in such manner as the court of summary jurisdiction by which they are forfeited directs, and the court may, out of any proceeds which are realized by the disposition of the goods (all trade marks and trade descriptions being first obliterated), award to any innocent party any loss he has innocently sustained in dealing with the goods.”
Clause, as amended, agreed to.
Clause 26 -
Section ninety of the Principal Act is amended -
by adding to sub-section (1.) the following paragraph : - ” (c) All goods manufactured at any place outside Australia and having applied to them any name purporting to be the name of any manufacturer dealer or trader in Australia, unless the name is accompanied by a definite indication of the country in which the goods were made or produced.”
– I take it that paragraph c of this clause is intended to protect Australian trade marks from outside infringements by marks of a similar character. I should like the Vice-President of the Executive Council to give us some indication of the object of this paragraph, unless I have hit the nail on the head again.
– The honorable senator must be in a proper frame of mind this evening, because he has again interpreted correctly the object of the clause. It is to protect Australians from being used as the catspaws of persons who may wish to impose upon the people of the Commonwealth. That is why we propose to regard as prohibited goods goods imported with an Australian name upon them, unless there is also clearly stated on them the place of origin.
Clause agreed to.
Clause 27 agreed to.
Clause 28 (Search warrant).
– I ask honorable senators to negative this clause. It should properly appear in another place, and we have just included it as an amendment to clause 25.
Clause 29 agreed to.
Clause 30 verbally amended and agreed to.
Title agreed to.
Bill reported with amendments.
Motion ‘(by Senator McGregor) proposed -
That the Senate do now adjourn.
– On the 18th July, Senator Blakey asked me some questions in regard to the contract for material for the Flinders Naval Base, and during the discussion which arose upon the question Senator Millen said -
Arising out of the question, may I ask if the Department has received delivery of the goods referred to in itemr?
I may say that one of the reasons gives by the Department for the acceptance of the tenders was that there was to be immediate delivery, I replied to Senator Millen-
I cannot say. I ask the honorable senator to give notice of the question.
Senator Millen then said
A lot depends upon what the word “ immediate “ means.
The honorable senator was too late then to give notice of the question, and I promised to get the information and give it to the Senate. The reply of the Department is that the material was received at the Flinders Naval Base on the 9th July, which was immediately after the specified time.
– In the debate on the Defence Billthe other day, general complaints were made by honorable senators as to the action of area officers and others in charge of cadets. The Minister stated that if specific cases were submitted, he would have inquiries made. I desire to bring forward a specific case, which is explained in the following letter to a Sydney newspaper: -
Now that the attention of the public has been drawn to our compulsory training system, I would be obliged if you would insert the following ifi the defence of parents who, although doing their best, are in many cases undeservedly fined by the law, as recently.
In my own case, I patriotically gave my lad for training - notwithstanding the fact that the doctor had pronounced the lad a weakling and in need of care.
To-night, as I write this letter, in my indignation, 1 not only feel hurt in my nalive pride, but also grossly offended.
In weather as wehave now, not fit for a dog to be out in, we have the officer in charge of Ultimo dragging our lads out to parade ! On my protest, he advised me to “place my boy in a plass-case.” I retorted that he ought to have better sense. This “ shortage “ in his number of drills will later bring a fine.
I ask you to insert this, Mr. Editor, to point nut to what capable, and brainy men we have left the important work of building our new army. I only want to add that this particulnr officer, in the hearing of a friend and myself, left it to the judgment of the boys whether the weather was suitable or not. There is no need to mention what the lads said to their officer. I also remarked that he was well protected himself for any emergency.
What colossal brains we have for the moulding of our future defence ! - Yours, &c,
Robert Campbell. 414 Harris-street, Ultimo, July 15th, 1912.
On a very wet night last week I went down to this parade ground, and found the lads waiting for the area officer to come along and say whether ornot there would be a parade. I think it is wholly unjust and unfair that the lads should be asked on wet nights to go to the place to parade, and, certainly, if they dp not attend, they should not be charged with neglect of drill. I hope that the Minister will have inquiries made into the case, and that the language used by the area officer will meet with a reprimand.
– Some time ago a statement was made here by Senator Givens to the effect that Mr. H. B. Marks, of Townsville, had been made an area officer, and that he was “ a poliitica’l parasite.” I ask the Minister if he will look into the matter and find out whether it is not correct thatMr. Marks resigned all connexion withany political organization six months before he was appointed by the Department as an area officer. The statement of Senator ‘Givens appears to me tb be rather unfair to Mr. Marks, and likely’ to prejudice him in the performance of his . work as an’area officer’. I askthe Minister to give the Senate, later, an assurance that at the timeMr. Marks was appointed an area officer he Wa’s not a “ politicalparasite,”even if he had tieen one prior tothatevent.
-Can you not get the Women’s National League to give you a leaflet on the matter?
– Now that the Minister has chosen to make a remark of that sort, I am going to say things. Mr. Marks happens to live at a place in north Queensland where there is no such body as a Women’s National League. To my knowledge, he separated himself from all political work, about twelve months before he was made an area officer. Yet he is charged with being a “ political parasite “ now.I da not know anything about the gentleman. 1 wrote to him and asked whether it was he or his son who had been made an area officer ; but I am assured that more than six: months prior to his appointment he had resigned all connexion with any local political league. I again ask the Minister to look into the matter, and ascertain whether the statement made by Senator Givens was correct or not.
– I have known Mr. Marks for a long time. I think it is scarcely proper for an honorable senator to use the Senate to attack a man in any way, especially a man who cannot answer for himself, and in respect of a matter with which the Parliament is not concerned. In point of character and ability, Mr. Marks is above reproach.No person who has come in contact with him as a citizen, apart from hisposition as’ an officer of a political association - neither friend nor enemy - could take exception to his integrity, his ability. and his honour. Though we may differ here in regard to our opinions, I think we should always try to be fair just, and. impartial when we are making: comments on a. private individual. If it be . a fault to be connected with a political organization on the other side, then Mr. Marks isguilty of that fault ; but in every other respect I’ do not know of any gentleman of my acquaintance of whom, apart from politics, Ihave a higher opinion. I believe that everybody, friend or foe politically, who has come in contact with hims hasthe same opinion of him, personally anyway.
– As I happened to.be in the Library looking up a matter in connexion with the Trade Marks Bill, I was not present when Senator St. Ledger began his speech; but I understand that he has referred to what I said on the motion for adjournment, after Senator Millen had spoken to the AddressinReply. It will be remembered that, on that occasion, Senator Millen made a very strong attack upon the . Government for their alleged favouritism in appointing certain men, who were said to have Labour proclivities, to- positions, in: the Public Service of the Commonwealth. I retorted, that for every one appointment of a man with Labour sympathies by the present Government, . 1 could . cite at least twenty-five men representing the opposite shades of political opinion whom they had appointed, without, a single word having been said by honorable senators opposite.
– Yes, I interjected “ What about Mr. Higgs’ appointment in Sydney ?”
– I could have gone very . much farther . than that if I had chosen, because 1 could have pointed out, in reply to Senator Millen,- that this Government, immediately after they came into office, appointed some men belonging to the party on the opposite side, and who had been defeated candidates at the election, to positions in the Public Service of the Commonwealth, and that we had never heard a complaint from them about the ap1 pointments. In the course of my remarks, T instanced one man for whom, I believe) Senator St. Ledger has taken up the cudgels to-night, and that was the case of Mr. Marks, who was appointed by the Government as area officer in Townsville. Face to face with the Minister who made the apjiointment, I say that a more improper appointment was never made. Everybody knows that Mr. Marks was, as I accurately described him, a political parasite of the purest kind.
– All the members of your organization are political parasites If he is one.
– What is the use ot appointing Mr. Marks an area officer in “Townsville? The majority of the townspeople are Labour supporters, who will have to send their boys to be drilled and’ ordered about by this man, for whom every one in Townsville has absolute contempt. The men up there rightly complained to me that they should not he subjected to such humiliation ‘ by’ a Labour Minister- of Defence, and I quite agTee with them. I -did not say a word against Mr. Marks which is not known to everybody in Townsville - in fact, in Queensland - and- that is that he was a mere hanger-on of the political party with which he was associated.I do not believe that he holds any political opinions, but. his servility., made him hang on to the party, which he thought bad most to give him. He was a twopennyhalfpenny commission agent and a political parasite, who became secretary of and. organizer for the political so-called National Association. ‘ ‘ I am satisfied that, at any time I -wanted him’, I could purchase, him and his political opinions for a few pounds.
– You would . not say that outside’ the House.
– If the honorable senator. and his associate will come outside the chamber how-, I will make the statement to the two or them-, and I will make it to Mr. . Marks at any’ time.
– It is an unfair thing to say about the man.
– Neither ‘ Senator Chataway nor Senator St. Ledger had the courtesy to inform’ me - a courtesy which is usually extended from one side to the other - that it was intended to bring this matter forward to-night.
– You never tell me of anything which you intend to bring forward.
– If I am going to attack the honorable senator, or to make a statement affecting him, I have not. the slightest hesitation in telling him.
– You may not have any hesitation, but, for all that, you have never told me.
– Because I have. not made an attack upon the honorable -senator, or upon anything which he has done in the. Senate.
– You made ‘ an attack upon my wife, anyhow,, and you’ did not tell me that you intended to do.. so.
– I never, did anything of the kind. The honorable senator made that mistake once before, and I think that he had occasion to be sorry for it.
– I never have.
– I have never ‘made an attack upon Mrs. Chataway.
– What ‘about /your speech in Cairns? Did all the newspapers misreport you? Did your own ‘ paper, - the Trinity Times’,- misreport you?’
-No, it did, not.
– Then yon did make the attack ?
– I did not make the attack, but the Trinity times did. It happens that two gentlemen addressed one meeting, ‘and that newspaper attributed the remarks made by one speaker to the other. That is exactly what happened.
– I cannot help the misreporting.
– I am willing to give the honorable senator, at any time and in any place, all the satisfaction he likes to demand from me, as regards anything I have said about him, or any one belonging to him. I did not bring this matter forward to-night. No one was more astonished than I was when I entered the chamber and heard that it was being discussed. I have not a single word to withdraw. Every word I said about Mr. Marks I can maintain anywhere. My statement was absolutely true. A more improper appointment to the position of area officer than that of Mr. Marks was never made by the Government.
Question resolved in the affirmative.
Senate adjourned at 9.45 p.m.
Cite as: Australia, Senate, Debates, 24 July 1912, viewed 22 October 2017, <http://historichansard.net/senate/1912/19120724_SENATE_4_64/>.