2nd Parliament · 1st Session
The President took the chair at 2.30 p.m., and read prayers.
page 3989
– I wish, to ask the Vice-President of the Executive Council, without notice, . the following question : -
– Senator Matheson kindly intimated to me this morning that he intended to ask these questions, and so gave me an opportunity to obtain the necessary information. The reply to the first question is, Yes ; but I may add that the Government have had no official information, although it was understood that the picture was to be presented to the King. The Government have seen the intimation in the newspapers. To the second question
I have also to answer, Yes ; but the picture was so presented to the Commonwealth on the understanding that it was to be given by the Commonwealth to His Majesty on behalf of the nation. With respect to. the third question, I may state that the picture was presented on the authority of the late Government.
page 3990
Assent to the following Bills reported: -
Supply Bill (No. 2).
Further Supplementary Appropriation Bill (1902-3).
page 3990
MINISTERS laid upon the table the following papers: -
Despatch from the Secretary of State for the Colonies, relating to the employment of Chinese labour in the Transvaal.
Amendment of Statutory Rules, 1904, Nos. 4 and 41, governing the Military Forces.
The Clerk laid . upon the table the following paper : -
Return to an Order of the Senate of 28th July, 1904, relating to the field guns in each State.
page 3990
Bill read a third time.
page 3990
In Committee (Consideration resumed from 28th July, vide page 3664) :
Clause 4, as amended, agreed to.
Clauses 5 and 6 agreed to.
Clause 7 - .
Senator KEATING (Tasmania).- In this Bill we provide a term of fourteen years during which a trade mark shall be registered, giving power to the holder’ to re-register. . In the case of most of the States this provision will work equitably, but in the case of New South Wales there is no limit whatever upon the term for which a trade mark now is and in the past has been registered. There are a number of trade marks which are registered in New South Wales, and which will consequently, under this provision, run out absolutely at the end of fourteen years. So that, if the clause, is passed as it stands, at the expiration of fourteen years from the passing of this measure the registration of those trade marks will cease.
Provided that this section shall not prejudicially affect any right, privilege, obligation, or liability acquired, accrued, or incurred under the law of any State before the commencement of this Act.
In clause 6 we provide that a State Trade Marks Act, under which a trade mark is registered, shall continue to apply -
So long as the registration under that Act remains in force.
Every trade ‘mark that is registered in New South Wales under the law of that State is perpetual, but in clause 7 we provide that at the expiration of fourteen years, from the commencement of this measure, the registration of a trade mark under a State Trade Marks Act shall- cease. Those provisions are diametrically opposed to one another, so far as this measure applies to the State of New South Wales. There is, perhaps, no conflict with regard to the other States. Persons who have registered trade marks have a perpetual right in them according to the State law of New South Wales. But this Bill steps in and- says that at the expiration of fourteen years all trade marks registered under the State law shall cease. Our object being to preserve, as far as possible, existing and accrued rights under the trade marks legislation of the States, I should say that if we pass the clause as it stands there will in many instances . be a bar to registration at the end of fourteen years. There will be many persons who, when they apply to the Commonwealth office for the registration -of a trade mark, will find that their application is resisted by persons in, perhaps, Western - Australia, Queensland, or elsewhere.’ Is it ‘ the intention of the Government to absolutely deprive those who are .registered under the Trade Marks Act of New South Wales, at the end of fourteen years, of their right to use their trade marks?
– It will be noticed from clause 5, that the intention of the Bill is that any rights that are possessed by those who have registered trade marks will still continue.
– They ought not to be prejudicially affected by the Commonwealth law.
– I do not think there is any great probability of difficulties arising, because, as soon as this measure becomes an Act, the great majority of those persons who have trade marks registered, and who are doing business in Australia, will register under the Commonwealth law. Senator Keating will see that the rights possessed by persons who have registered trade marks in New South Wales apply only to New South Wales. I do not think that those rights would be of sufficient value to them to prevent them from registering under the Commonwealth law. I see no objection to the clause, because everything will be clone to protect existing rights. I feel sure that people who are interested will be perfectly satisfied. If persons in New South Wales, possessing- trade marks rights, attempt to register under the Commonwealth law, and1 are opposed by some one in Queensland or Western Australia, my opinion i?, that, when the machinery of this legislation is set in motion, we can trust the officers to see that justice is done.
– My opinion is that clause 7 is one of the most valuable provisions of the Bill. While it is quite true that in New South Wales, so far as the limits of that State are concerned, the proprietors of trade marks have perpetual rights, yet at the same time the very object, and design, of this Bill, as of all Federal legislation, is uniformity. It would be quite impossible to obtain uniformity did not this clause exist in its present shape. If any serious hardship were done, we should give attention to it, but practically I do not think that any hardship will accrue. First of all, the registered proprietors of trade marks in New South Wales will now have the advantage of registration throughout the Commonwealth.
– That is, if they take advantage of clause 8.
– Precisely.
– They may not be able to take advantage of it.
– I think that they would have no difficulty in taking advantage of the Bill. Their rights are largely conserved by clause 27, because a tra’de mark, which it was sought to have renewed, could only be opposed by somebody who had been honestly using the same trade mark in some other portion of _ Australia. Clause 27 says that-
In case of honest concurrent user, or of special circumstances, the Court may, in its discretion, permit the registration of the same trade mark, or of nearly identical trade marks, for the same goods by more than one proprietor, subject to such conditions and limitations as to mode or place of user, or otherwise, as it thinks fit to impose.
So that complete discretion is given to the Court under special circumstances to do what the merits of the case demand. In addition to which, I would observe that when clause 27 is reached I intend to ask that the same discretion shall be extended to the Registrar, and to the law officer. If clause 27 is amended in that direction I do not think there will be much room for the apprehensions of my honorable and learned friend.
– Look at the last paragraph of clause 23.
– I think that provision ought to be amended also. Sub-clause 2 of clause 23 provides that-
The fact that a mark is publicly used by more than three persons as a mark on or in connexion with similar goods, shall be treated as conclusive evidence that it is common to the trade.
When ‘we reach that clause I intend to ask that it should be amended so as to read -
The fact that a mark is publicly used by more than three persons in any one State - As the clause stands it would certainly work very serious injustice, because the fact remains that the same trade mark is registered by various persons in several States, and the rights of all those persons have to be conserved. But in regard to the point immediately under notice, the objection is, I think, first of all met by clause 27, particularly if it is amended in the way I have suggested ; and secondly, if my honorable and learned friend thought it wise to insert in that portion of the Bill relating to renewals of trade marks a few words to the effect that special regard should be paid to registration under State Acts, such a provision might be useful. Personally, I do not consider it necessary, and I do not conceive that any injustice will arise under the clause in its present form.
Senator KEATING (Tasmania).- The answer given to me by the Vice-President of the Executive Council has hardly covered the whole of the ground with which I dealt. Clause 5 refers only to the application of .the common law to our trade marks law in Australia. I am not sure that there are not analogous cases in Queensland, but under the New South Wales law there are trademarks in force in that State which were registered forty years ago, and the holders of which have never been, and would never be required to re-register. The position in other States Kas been that the term for which registration has been effective has been fourteen years, and if a man, at the expiration of that time, desires to re-register his trade mark, he is entitled to do so under certain conditions. The holder of a registered trade mark in New South Wales has rights in respect of that trade mark, which are perpetual ; but in this Bill it is provided that a trade mark registered under a State Act shall cease, at the expiration of fourteen years from the commencement of the operation of this law, or from its last registration or reregistration under the State law. It is in that way that I say we are not, in this Bill, conserving rights which have already accrued and are in existence. That that is not the object of this Bill is indicated by paragraph a of clause 6, under which it is provided that the State Act under which a trade mark is registered, shall -continue to apply to that trade mark, so long as the registration under that Act remains in force. All these registrations in New South Wales will remain in force, even though it should be forty years since the trade marks were registered. They would remain in force under the New South Wales law perpetually, because the rights acquired by registration under that law are perpetual. The only solution ‘of the difficulty which has been suggested by the Vice-President of the Executive Council is that it will be competent for persons who desire to continue to hold the benefit derived from the registration of a trade mark to re-register under this Bill. What I desire to point out is that as the Bill stands at present, and unless some amendments are made later on, an applicant desirous of renewing his right may find that some essential part of his trade mark has, not in New South Wales, but in other parts of Australia, come to be publicly used by more than three persons, and under clause 23 that is to be treated as conclusive evidence that it is common to the trade. And though he has secured perpetual rights in New South Wales under the law there, his application for the registration of his trade mark in the Commonwealth under this Bill may be blocked on that account. Unless there is an understanding that some alteration of clauses 23 and 27 will be considered, this clause should not be allowed to pass without comment. If it were sought subsequently to amend those clauses, it might be said that the matter should have been raised on this clause. Having called attention to the question, I am satisfied that the Vice-President of the Executive Council will consider with his officers the advisability of modelling the Bill somewhat differently in order to meet the circumstances to which I have referred.
– I personally think, and the officers of the Commonwealth also think, that the Bill as it stands meets all the requirements of the people of Australia. There may be some difficulty with respect to New South Wales, but when I was referring to clause 5 I said that I thought the application of the common law provided for in that clause to secure existing rights, would protect those existing rights in all circumstances. I do not think that any difficulty will arise, such as the honorable and learned senator has suggested, but when we come to consider clause 23 I shall have no objection to an amendment requiring that a trade mark must have been used by three persons in one State before it can be considered common to the trade. I admit that there might be four users of a trade mark, one in each of four States, and in such a -case it would be a hardship upon the holder of a trade mark in New South Wales, if, on such grounds, it were decided, under clause 23, that the trade mark was common to the trade. If such an amendment as I have suggested is made, the risk which might be run by holders of registered trade marks in New South Wales will be avoided. I have no doubt that the Commonwealth officers, when drafting the measure, had the existing law in New South Wales, as well as in every other State, in view.
– I think not. Under clause 52, a person cannot re-register within fourteen years from the date of his first registration.
– I am taking a note of every objection raised, and will bring them all before , the officers responsible for the drafting of the Bill. Senator Keating can rely upon it that justice will be done, so far as it is possible, in this legislation.
Clause agreed to.
Clauses 8 and 9 agreed to.
Clause 10 (Registrar).
– When we were considering the definition clause, I moved an amendment upon the definition of “ The Registrar,” but had to withdraw it, and I omitted to bring the question up again. I shall, therefore, have to ask the Vice-President of the Executive Council later on to recommit the clause. I have risen now to ask whether there is not in this clause a departure in the language which is used in giving the DeputyRegistrar, provided for in the clause, certain powers “ subject to the control of the Registrar.” Hitherto, in Acts which we have passed, we have given the Governor-General in Council, or the chief officer concerned, power to depute or assign to a deputy such of his powers as he might think fit. It occurs tome that that is a better way of dealing with the matter than to provide, as under this clause, for the appointment of a Deputy-Registrar, upon whom the powers of the Registrar are conferred “ subject to the control of the Registrar.” The Deputy-Registrar may give some decision which the Registrar may hold to be slightly outside of his functions. Hemay think that the Deputy-Registrar has made a mistake, and he may then begin to exercise his control. When we have to deal with judicial functions, the word “control” is, in my opinion, a rather dangerous word -to use. I ask the Vice-President of the Executive Council whether the language here used is not a new departure, and whether he thinks it would not be better to provide that the Governor-General in Council or the Registrar might assign to a deputy such of his powers as he thinks desirable.
– I do not see that any difficulty is likely to arise under the clause. The honorable and learned senator will notice, in connexion with the form of this Bill, that the same principle is being carried out as was adopted in the Patents Bill. I am not aware that any difficulty has arisen under that measure.
– What is the’ meaning of “control,” as used here? Will the
Registrar be able to set aside or modify a decision of the Deputy-Registrar?
– I cannot see the difficulty the honorable and learned senator raises.
Clause agreed to.
Clauses 11 to 14 agreed to.
Clause 15 -
The essential particulars of a registrable trade mark shall be one or more of the following particulars : -
A name of an individual or firm printed, impressed, or woven in some particular and distinctive manner; or
A written signature or copy of a written signature of the individual or firm applying for registration thereof as a trade mark ; or
A distinctive device, mark, brand, heading, label, or ticket ; or
An invented word or invented words; or
A word or words having no reference to the character or quality of the goods and not being a geographical name used or likely to be understood in a geographical sense.
– I think it will be found desirable to make a number of alterations in this clause, which is a very important provision of the Bill. The expression “ individual or firm “ in paragraph a is’ obviously too limited. Mr. Moulton, upon whom the Vice-President of the Executive Council has relied to some extent, amplifies the expression in this way : In clause 5 of his Bill of 1902’ he provides -
That for the purposes of this Act a trade mark must consist of or contain at least one of the following essential particulars : -
The name of an individual, firm, or limitedor other company or corporation, or his. or their trade name or style, printed, impressed, or woven in some particular and. distinctive manner.
– Have we not dealt with that in the definition clause?
– No; but I point out that we may take a short cut in dealing with the matter by substituting the word “ person “ for the words “ individual or firm “ in paragraph a, because a person, according to the Acts Interpretation Act, includes a corporation, and by the amendment made at my instance in this Bill “ person and applicant “ include a body corporate and firm. The ground, therefore, would be largely covered by such an amendment as I suggest. In this connexion I point out, however, that the substitution of the word “ person “ for “ individual or firm” would still be a limitation, because we should not thus include any trade name or style. To some extent, a trade name or style may be included in the word “ firm,” but Mr. Moulton, who is a great authority on the subject, evidently does not think so, because he uses not only the word “ firm,” but also the words “ limited or other company or corporation, or his or their trading name or style.” I shall have to draw attention to other (amendments necessary later in the clause, but in the meantime I suggest to the leader of the Senate that he should leave out the words “ individual or firm “ and substitute for them the word “ person.”
– Is it necessary to substitute anything at all ? Paragraph a would be absolutely free from any ambiguity if it stopped at the word “name.”
– I think it is necessary, because a name might be the name of an animal.
– We have the names of animals already - “Bulldog” stout, for instance.
– Yes; but I point out that we are here dealing with the proprietors of trade marks. This clause deals with the essential particulars of a trade mark, and the trade mark must be registered by a person.
– I see no objection still to what I have suggested.
– The honorable and learned senator might register a trade mark as’ that of the “ Lightning Soap Company.”
– The designation of” the trade mark itself does not touch the point with which I am now dealing. Mr. John Smith might register as a trade mark “ The Lightning Soap Company,” or “The Bulldog brand” for any particular class of goods. It will be observed that other paragraphs of this clause contemplate other things with which I shall deal when we come to them, but the intention of paragraph a is that in the registration of a trade mark certain essential particulars shall appear, and what is contemplated is the name of the person or corporation. I move -
That the words “ individual or firm,” line 4, be lef t out, with a view to insert in lieu thereof the word “ person.”
– T wish the Committee to consider which of the suggestions made by Senator Best would be most beneficial - whether we should multiply the terms in the way he has indicated as appearing in Mr. Moulton’s Bill, or use the word “ person.” The Government have no objection to either amendment ; their desire is merely to make the Bill as perfect as possible, and they are receiving the benefit of the assistance of Senators Best, Keating, and other honorable senators in their endeavours to that end. Personally I think it would be sufficient in this case to substitute the word “ person “ for the words “ individual or firm.” The object of the officers who drafted this Bill was to make it as short and comprehensive as possible. I should like to hear the views of other honorable senators. I am willing to accept the amendment, because I think it would be an improvement. It will be noticed that paragraph a applies only to something which has been printed, impressed, woven, or stamped on goods.
– While I agree with what Senator Best has said, I cannot see that there would be any danger in simply leaving out the words “of an individual or firm.” What is essential in paragraph a is that a name shall be printed, impressed, or woven. There is nothing essential about the words “of an individual or firm.” I think it will be perfectly safe to omit the words ; but I shall object to their being replaced with other words.
– This clause deals with, the essential particulars of a registrable- trade mark, and has nothing to do with firms, limited liability companies, corporations, or individuals. If these words were left out, it would entitle an individual firm, a limited company, or a corporation to register any name that it chose. Senator Best suggested that if the words were ‘omitted, the name of an animal might be registered. But why should not that be allowed ? We have several cases of the names of animals being registered as trade marks.
– That is provided for in paragraph c.
– I think that by leaving out these words we shall simplify the definition, and cover the ground as effectively as the honorable and learned senator desires. I shall vote against the insertion of other words, because, in my opinion, they are not necessary.
– I wish to draw attention to certain words which appear to be in their wrong place. Ought not the words “ printed, impressed, or woven “ in paragraph a to be placed at the end of the clause in order to qualify other forms of trade marks ? As it stands now, it is only the name of an individual or firm which is qualified by those words. But surely it would be more correct to put the words at the end of the provision in order to make them qualify all classes of trade marks.
Senator GIVENS (Queensland). - I would point out to Senator Millen that the words to which he refers are necessary in paragraph a, but not in the other paragraphs. There might be a similarity of names at any time, and the essential thing in paragraph a is that the name shall be printed in a particular and distinctive manner. Suppose, for instance, that the words “ John Smith “ were to be registered as a trade mark. The trade mark would not consist in the name “ John Smith “ only, because if it did that would deprive other persons of that name of the right to use it. The registrable fact would be that the name is printed in a particular and distinctive manner. In the case of paragraph b a written signature does not need to be printed, certainly not in a particular and distinctive manner, because the very signature provides the particular and distinctive manner. Again under paragraph c there is no necessity to have a distinctive device or ticket printed in a particular and distinctive manner. If we provided that a distinctive device should be printed in a distinctive manner, and a firm selling the goods wished to advertise them in all parts of the world, that would prevent anybody from printing the device. What necessity is there to print an invented word in a distinctive manner? The fact that an invented word is registered would prevent any one else from using it, and the invented word becomes a distinctive trade mark. ‘I submit that it is only in paragraph a that it is necessary to use the words - printed, impressed, or woven in some particular and distinctive manner.
– After hearing Senator Givens emphasize how necessary it is that the trade mark must be distinctive in some way or other, I am sur- prised to find that he is prepared to support the omission of the words “ of an individual or firm,” because that is the one thing which gives the quality of distinction to a particular trade mark coming under paragraph a. The object of the whole clause is to make the essential particulars something absolutely distinctive, so that there shall be nothing about a trade mark that will come under this head, which will rob the rest of the trading community of the right to use it. If we omit those words, will the name be that of a place, or of a man, or of a body? Supposing that a man were to take the name of an article and brand “table” in a distinctive way, how far would another man be entitled to use that in connexion with his mark? How far would it be regarded as being a mark in which the person registering it had some right of user ? What we wish to secure under this clause is that the essential portion of the trade mark shall be as far as possible separated from the additional matter. I doubt whether a person could register a simple shield in respect of goods. There would have to be about the shield something else which might be additional matter.
– In New South Wales a shield with a lion across it is registered.
– The simple branding of the lion on the shield creates a distinctive label. It is the association of added matter with a simple device which gives the trade mark its distinctiveness. Then you can separate easily and accurately the added matter from the essential portion which comes1 under this clause; but if the words “ of an individual or firm “ are omitted from paragraph a, the term “ name” is so extensive that it does not qualify it at all.
– Might it not open the door to fraud if “name” were left out ?
– My objection is that’ if we simply say “a name” we do not qualify it by saying what the subject is.
– Why should we?
– A man cannot register an ordinary word. .
– Under paragraph e I could register the “ Table “ brand of boots.
– I am not dealing with that paragraph. ‘ The whole position . here is that the name has to be printed, impressed, or woven, as particularly as possible, and limited to a certain class of subjects. That has been the tendency in the. legislation, not only of the States, but of England. We know that decisions have been given in regard to each and every one of these paragraphs to which we expect to look for guidance.
Senator CLEMONS (Tasmania). - I do not think that Senator Keating quite grasps the full import of this clause. To my mind it presents a series of alternatives, and nothing else. Senator Givens and I are encouraged to omit the words “ of an individual or firm” by paragraph e. It has been contended that a mere name is not sufficient, and that there should be added to the name something to connect it with an individual or firm or corporation. If honorable senators will refer to paragraph e they will see that a far wider scope is offered there in the registration of a trade mark. There is one limitation only. What it practically says is, “ In making your trade mark, and applying for its registration, you can use any word, but you must use a word if you use a name.” Subject only to this limitation it does not refer to the character or quality of the goods, or have a geographical bearing. We can all recollect a hundred and one different words which are registered as trade marks, and which do not refer to the character or quality of the goods, and which have no geographical bearing. It is quite obvious that in paragraph a what is essential is that a name shall be printed, impressed, or woven. If a person were to propose to register a trade mark an inquiry would be held to ascertain whether the trade mark came under any one of the limitations in this clause. If it happened to be a name printed, impressed, or woven in a particular and distinctive manner, it would be accepted at once, because it complied with paragraph a. It has not to comply with all the limitations, but only with one. I see no reason for the omission of that paragraph. Why should we not facilitate the registration of trade marks ? I would point out to Senator McGregor that the essential part of paragraph a is not a name, and an indication of an individual or firm, but the operation of printing, impressing, or weaving. I can conceive it quite possible that it might be absolutely necessary for a trade mark to be woven into or impressed- or printed on certain articles. We have the authority for this provision in the English Act.
– Does the honorable and learned senator wish to leave out the word “ of “ before thu words “ an individual “ ?
– I thought it had been done. I shall move to strike out all the words in paragraph a after the words “A name.”
Senator BEST (Victoria). - I shall be only too pleased to withdraw my amendment, for the purpose of enabling Senator Clemons to move his amendment, but I think the Committee would make a mistake if it yielded to his suggestion. It has been laid down that paragraphs a, b, c, d, and e are to be read independently, and not conjunctively. That was the subject of a dispute for many years, but ultimately it was decided that they were to be read independently. Therefore, in dealing with this matter, we have to look at the object of the clause. It has been held in English legislation that in connexion with trade marks, a word or words having no reference to the quality or type of the goods can be used. It is, therefore, necessary that, in dealing with this amendment, we should make paragraph a apply to the name of an individual or of a corporation or firm. If we alter paragraph a in the manner suggested by my honorable and learned friend, it would be quite competent to register as a trade mark the name of an article itself - such as rice, boots, or any other commodity which it was proposed to sell.
– No, because that would be in conflict with paragraph e.
– My honorable and learned friend has admitted that the provisions are to be’ read independently, not. conjunctively. If so, it would be competent to register as a trade mark “rice” or “boots.”
– It would never be held so.
– My honorable and learned friend cannot get away from the proposition. In fact, it has been laid down in the Solio case that these provisions can be read independently.
– That case decided that they can be read independently, but not that they must be read independently.
– They must be read independently. It was said ,that Solio in reference to photographic paper, referred to the quality of that paper, and consequently it was held that that name could not be used. Ultimately it was held that it could be used, and the general principle was laid down, as a matter of fixed law, that these provisions were to be read independently, and not conjunctively. Even in British legislation, we have it laid down as a principle of trade marks law, that it is undesirable that any ‘ word or words should be used which have any bearing or reference to the quality or character of the goods. If that is a sound principle, as laid down in paragraph e, it is unwise, under paragraph a, to enable the character and quality of the goods to be shown by a trade mark. As I have already pointed out, if the words “ person or corporation or trading concern “ are not inserted in the way I have suggested, it would be quite possible to register “easy walking boots” as a trade mark.
– No; it would not.
– I am absolutely certain on that point.
– That would be applying a decision under one Act to a totally different Act.
– No, it would not, indeed. All it would be necessary to say would be, “ I want to have impressed on a particular portion of my goods the words, Easy Walking Boots.’ “
– That is not a name.
– “Boots” is a name. “ Rice “ and “ fish “ are names. They describe the character and quality of goods by name. That is what the result would be, and, consequently, I see very serious objections to the alteration. I think the proper course would be to strike out the words “ individual or firm,” and substitute the words “ a person.” That would be more in consonance with British legislation, and with sound principles of trade marks law.
Amendment, by leave, withdrawn.
Amendment (by Senator Clemons) proposed -
That the word “ of,” line 4, be left out.
– I think we are losing sight of the real object of paragraph a. That object is distinct from the object of every other paragraph of this clause. I would suggest to Senator Best that we should leave out the word “ individual,” and substitute the word “ person,” leaving in the word “firm.” He will recognise that tha word “ person “ has a very wide meaning under the Acts Interpretation Act, and that it will fulfil the whole object of the paragraph. I will show the object of it. Suppose there are a number of persons carrying on business. They may be named William Jones, John Jones, and Andrew Jones. Or there may be two or three persons named John Jones carrying on business in a particular part of Australia. They may all wish to register their names as their trade marks. Paragraph a provides that the name of a person or firm can be registered if it is printed, impressed, or woven in some particular and distinctive manner upon the goods sold. If the name “ John Jones “ were to be registered without being im pressed in a distinctive manner upon the goods, the name would not be a trade mark. In that case, there would be nothing to particularize John Jones, of Swanston-street, from John Jones, of Footscray. But the clause provides that any number of persons or firms can register their names or the name of a firm, rio matter if it is the name of any other person or firm, so long as it is printed, impressed, or woven in a distinctive manner upon the goods. That is the whole principle of ‘ the provision. The object is to make the matter so clear that the public will not confound Thomas Brown, of one place, with Thomas Brown, of another. It is a necessary provision in a Bill of this description. If we substitute the word “ person. “ for the word “individual” it will, I believe, include a firm. But we must retain the paragraph. The other paragraphs would have no effect without it.
Senator CLEMONS (Tasmania).- I have just been reminded that an amendment has been made in the definition clause, of which I was not aware. My difficulty was as to whether the words “individual or firm” would be sufficiently comprehensive from a legal point of view. But since Senator Best has informed me that we have already passed an amendment in the definition clause which gives to the term “ person “ the fullest possible definition that can be thought desirable, my chief objection to these words has disappeared. I therefore ask leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Senator BEST (Victoria). - I move -
That the words “ an individual or firm,” line 4, be left out, with a view to insert in lieu thereof the words “ a person.”
Honorable senators are aware that we have already altered the definition of the word “ person,” so that it not only comprises a corporation, but also a firm. I think that the words “person, corporation, or firm” pretty well cover the whole case, though Mr. Moulton, in his Bill, uses the words “ an individual, or firm, or limited or other com-, pany or corporation.”
– I think that if we wish to make the definition more comprehensive, the terms used by Mr. Moulton in his Bill are better than those which we propose to use. I am not quite sure whether the word “ person “ will be quite so comprehensive as the terms which Mr. Moulton has used. I do not like to interfere with the drafting of a Bill in Committee, but we should know exactly what we are doing, and I doubt whether the word “ person “ is sufficiently comprehensive to cover all that it is desired to cover.
Amendment agreed to.
Senator BEST (Victoria). - I now intend to ask the Committee to strike out the whole of paragraph c, with the object of substituting Mr. Moulton’s provision, which is an infinitely better one. His provision is as follows : -
The original signature or copy of the original signature of an individual, being either his own name or that under which he bond fide carries on his business or businesses, or of a firm being the bond fide trading name or style under which they carry on their business or businesses applying for registration thereof as a trade mark.
I have also seen the last Bill drawn up by Mr. Moulton, and in it he makes a very important alteration, which certainly should appear. The provision there reads -
The signature or in the case of a corporation or company the name written in some distinctive manner of the individual or corporation applying for the registration, or the predecessor in the business.
I am quite indifferent as to which of these is accepted ; but I suggest that the VicePresident of the Executive Council should accept one or the other, because, as the clause at present stands, it would not be competent for a man to register a trade mark bearing the name of the predecessor in the business. We know that in connexion with many old-established businesses the name of the old firm has been adopted for years. The clause provides, as an essential particular -
A written signature or copy of a written signature of the individual or firm applying for registration thereof.
And it says nothing whatever about a power to register the name of a predecessor.
– I suggest” as a short way out of the difficulty the leaving out of the words “individual or firm,” and the insertion of the word “ person “ as we have done in paragraph a. That would cover everything.
– The honorable senator will see that it would not, because that might not include a predecessor in a business.
– Yes it would, if the business was being carried on in his name, sign, or title. Such an amendment would make the clause consistent throughout.
– I think it would be wiser to have the name of the individual applying or the predecessor. In the preceding paragraph we have provided for the name of the person being printed or interwoven or impressed in some particular and distinctive manner, but in this paragraph what is contemplated is the written signature of the applicant. I believe that the paragraph as it stands does not go far enough, and it should include the name of the predecessor in the business. I move1 -
That paragraph * be left out, with a view to insert in lieu thereof the following paragraph : -
A written signature, or a copy of a written signature, of the individual, being either his own name or that under which he bond fide carries on his business or businesses, or of the firm, being the bond fide trading name or style under which they carry on their business or businesses, applying for a registration thereof as a trade mark.
I admit that if I had a little time I could possibly cut down this paragraph to some extent.
– Why not have the amendment printed for the benefit of honorable .senators ?
– This is merely a verbal alteration, proposed on recognised authority.
– I do not think that such an alteration is really necessary. The more definite we make our legislation, the less trouble there will be in administering it. The object of this paragraph is simply to enable an individual, or firm, to register his or their name - that is, the written name, or a copy of the written name. That is the distinctive feature of this paragraph. The essential particular in this instance, is the written signature of the individual or firm. With respect to the difficulty pointed out by Senator Best - and I am sure members of the Committee are indebted to the honorable and learned senator for the trouble he is taking in connexion with this legislation - if a firm is trading under the title of Johnstone, Jones, and Co., those particular persons may have been dead a long time, and the firm may be in the hands of Young and Brown, who are carrying on the business in the name of Johnstone, Jones, and Co. They would, of course, have a perfect right under this paragraph to register the written signature of the firm of Johnstone, Jones, and Co.. or a copy of it. I think it would be far better to leave the paragraph as it is. The draftsman has, in this instance very much simplified the matter. I believe the paragraph carries out all that is required, and I hope honorable senators will pass it as it stands.
Senator BEST (Victoria). - I have no desire to unduly embarrass the leader of the Government in the Senate.
– I quite understand that the honorable and learned senator is doing his best to improve the Bill.
– In my amendment I have adopted the words of Mr. Moulton. because he is such a recognised authority. Senator Givens has suggested the leaving out of the words “ individual or firm,” with a view to substituting the word “ person.” That would be an improvement upon the paragraph as it stands, but the objection f> that lies in -the fact that what is required here is trie written signature or copy of the written signature of the person, and as “person” includes a corporation, and a corporation has no written signature, but a seal, the result might be to restrict the meaning of the word “ person “ to some extent. If Senator McGregor lias any objection to the wording of my “amendment, I suggest another alteration of the paragraph, which would be very simple, and readily followed. It is that the word “ person “ be substituted for the words “ individual or firm,” and that, after the word “ thereof,” the words “ or his predecessor in business “ be inserted.
– I am prepared :o agree to that.
Amendment, by leave, withdrawn.
Amendments (by Senator Best) agreed to-
That the words “ individual or firm,” line S, be left out, with a view to insert in lieu therof the word “ person.”
That after the word “thereof,” line g, the words “or his predecessor in business” be inserted.
Senator BEST (Victoria). - I desire now to draw the attention of the Committee to a matter to which I referred very fully when speaking on the second reading of the Bill, and to submit a further amendment. The object is to preserve old trade marks that are not registered. In this connexion, I am following the principles laid, down in British legislation on the subject. I move -
That the following new paragraph be added - “ (/) Provided, however, that any word or words, letter, figure, or combination of letters or figures used as a trade mark before the first day of January, 1901, may be registered as a trade mark under this Act.”
A somewhat similar provision was inserted in British legislation on this subject, for the preservation of old trade marks which had been in existence, I was about to say, almost for centuries, but at all events for a great many years. The date fixed in the English statute was some day in the year 1875, and what was provided was that trade marks in existence prior to that were not to be prejudiced by the Act. I submit this amendment on the same lines, in order to preserve a number of our old trade marks, and there are hundreds of wellrecognised brands and trade marks in use in Australia, that are not registered. Only in the last day of meeting of the Senate an honorable senator mentioned to me a case which had come under- his notice professionally, where a trade mark had been in existence for twenty or thirty years, and under the law of South Australia the actual proprietors of it were unable to register if, because some of the essential particulars required under the State law prevented that being done. I contend that if a man has, by his enterprise, given great value to a particular trade mark, and by the expenditure of money has increased the reputation of his goods upon the market, and those goods are known to the public as meritorious, he should continue to have the benefit of his trade mark, and should not be prejudiced by our legislation. I am not in this matter introducing any novel principle, but endeavouring to follow practically the terms of British legislation on the. subject. I may be asked why I fix the date as the 1 st day of January, 190 1. It is necessary to fix some date, and as the Commonwealth came into existence on the 1st January, 1901, that was the date from which our legislation must start- it certainly could ‘ not go behind that date. I therefore suggest that that is a very proper date to insert in this instance. I believe that the adoption of this amendment would but do justice to a number of enterprising men who are the proprietors of well-established trade marks.
– The honorable and learned senator is referring to trade marks, registered before the 1st January, 1901 ?
– No; to trade marks that have not been registered. I remind the honorable senator that if they had been registered they would be protected under this Bill.
– The proprietors could not have valued the trade marks very much if they have not registered them.
– I point out to the honorable senator that, by reason of the requirements of the State laws with respect to the essential particulars of a trade mark, it may not have been possible to register the trade marks to which I refer. It is my desire that the rights of the owners in these trade marks should be preserved by this Bill. I am not wedded to the ist day of January, 1901 ; I should be content if honorable senators decided to go ten years back; but I think that the1st day of January, 1901, would be a date consonant with the Commonwealth legislation.
Senator KEATING (Tasmania).- It has been judicially decided that a mere combination of letters that do not in themselves form a word would not come within paragraph c of this clause. There are some marks, the essential particulars of which, not from the legal or statutory point of view, but from the commerical point of view, consist merely of letters used in combination. We hear, for instance of “ G.B.D.,” “C.B.B.,” and other combinations of that kind applied to particular classes of goods. We know as a matter of fact that it is only by reason of the fact that they are used in ‘association with some simple device, which may be a circle, a wreath, or an oval-shaped device, that they have been registered as trade marks.
– They are generally the initials of a firm.
– There is the combination “I.X.L.”
– They are generally the initials of a firm, and they are used in association with some such device as I have mentioned. A difficulty is that it is competent for other persons to use these combinations of letters when separated from the particular device. There have been one or two instances in Australia where people have claimed to use particular combinations of letters, which, from the commercial, if not from the legal or statutory point of view, form the essential particulars of trade marks ; and persons who have gained credit for a particular brand of goods having a certain trade mark, have thereby been defrauded. I am disposed to believe that the amendment moved by Senator Best will meet that difficulty, and probably the honorable and learned senator intended that it should. I had intended myself to move the addition of a new paragraph to the following effect:
Any combination of letters not forming a word or of figures, or such letters and figures combined together.
But I think that Senator Best’s amendment will effectively deal with the matter..
– It will deal with any recognised old trade mark.
– If Senator Best has that in contemplation, I have very much pleasure in supporting the amendment he has moved.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 16 agreed to.
Clause 17 -
Except in the case of a trade mark properly registered in any State under a State Trade Marks Act, 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 ; or
a representation of the King, the Queen, or any member of the Royal Family.
– I cannot see the necessity for striking out of a trade mark such words as are mentioned in this clause. If a thing is bond fide registered as a trade mark, and anything on its face indicates that fact, that gives further assurance to the public. What the clause means is that in future it shall not be competent for a merchant to use the words ‘ ‘ trade mark,” “ registered design,” “copyright,” and “ entered at Stationers’ Hall,” in a trade mark. I am quite aware that the trade mark regulations of Great Britain contain this particular provision, but so far I have not been able to discover why it should exist. I would suggest to Senator McGregor that the words “trade mark,” “ registered,” “ registered design,” and “ copyright “ should be omitted. I can well understand a representation of the King or the Queen, or otheT members of the Royal Family being excluded.
– I . am informed that this clause embodies the practice in England. In the absence of the provision, it might be found that those who had not registered trade marks might have written or printed the words “ registered trade mark “ or the word “ registered.” If they were to simply use the word “ registered “ it would not be a false description under the Fraudulent Marks Act, and no prosecution could take place. The object of the provision is to prevent the use of these words in unregistered trade marks.
– Why not leave out the clause?
– It is far better to accept the clause, especially when it is remembered that we are only going on the lines followed in the old country.
– We are not exactly following those lines, because this clause is really taken from the regulations made under the British Act. Clause 70 of this Bill reserves to the GovernorGeneral in Council the power to make regulations, and for many reasons it would be desirable to leave out this clause, and, if necessary, to deal with the subject by regulation. If it is dealt with in a special clause, it will be a limitation of the power contained in clause 70. It will be much better to leave the whole question to be dealt with by regulations. In these circumstances it will not do any harm if we omit the clause.
Question - That the clause stand part of the Bill - put. The Committee divided.
AYES: 10
NOES: 9
Majority …. … 1
AYES
NOES
Question so resolved in the affirmative.
Clause agreed to.
Clauses 18 to 21 agreed to.
Clause 22 -
A trade mark must be registered in respect of particular goods or classes of goods as prescribed.
– I hope that Senator McGregor will see his way to embody in the Bill, at a future stage, the regulations which have been in use for many years in Great Britain and the several States. These have been approved by user so long that he will make the measure more complete by including them in a schedule. There will be no difficulty in complying with my suggestion, because I learn that regulations have been prepared, I suppose, in anticipation of the Bill coming into operation at an early period. I have spoken to some business men on this subject, and they all say that it would facilitate operations to have the regulations embodied in the Act. I shall ask my honorable friend to allow me to move in that direction at a later stage, if he should not see his way to take that course.
– I am aware that regulations have been drafted to classify the goods to which trade marks shall be applied, but I am not so clear that the readiest way to transact business would be to bring down an immense schedule, containing nearly all the goods which are dealt with in the Commonwealth. When the regulations are laid upon the table in accordance with the Act, every honorable senator will have an opportunity to examine them, and to move for the amendment of any objectionable regulation. We are living in a progressive age, and we can never tell when a new article of food or clothing may be invented. It is much easier to deal with a case of that kind by regulation than by a special Bill. But out of deference to Senator Best, I shall refer the matter to the officers concerned, and get an expression of opinion from those who have been responsible for the drafting of the Bill.
Clause agreed to.
Clause 23 -
If a trade mark -
Provided always that no such disclaimer shall affect any rights of the proprietor of the trade mark except such as depend upon its registration.
– The first alteration I desire to suggest in this clause is the insertion of the words “ in his or its discretion “ after the word “ may “ in subclause 1. That word is sometimes read as “ shall,” and it would be a fatal thing in many instances were it read as “ shall.” It will be noticed that if a trade mark contains a matter common to the trade it may be rejected from the registry, or that if it is the case of an application for a trade mark in these circumstances it may be rejected. That would be manifestly unfair, because hitherto a particular brand or trade mark, such as the Lion brand or trade mark, has been registered by six different proprietors in six different States. And under sub-clause 2 of this clause most serious hardships might be worked. The second suggestion I have to make is that after the word “ persons “ the words “in any one State” ought to be inserted. I understand that, the Vice-President of the Executive Council will agree to this amendment, and, therefore, I move -
That after the word “ may,” line 8, the words “in his or its discretion” be inserted.
In this amendment I am following the principle laid down in clause 27, which has to be read in conjunction with the present provision.
Amendment agreed to. ‘
Amendment (by Senator Best) agreed to-
That after the word “persons,” line 22, the words “in any one State” be inserted.
Clause, as amended, agreed to.
Clause 24 -
Except by order of the Court, the Registrar shall not register in respect of the same goods a trade mark identical with one belonging to a different proprietor which is already on the register in respect of such goods, or so nearly resembling such. a trade mark as to be likely to deceive.
– I should like to draw attention to the verbiage in this and one or two other clauses on the same page. The amendment which I intend to move does not in any way affect the principle of the clause. According to clause 22 a trade mark may be “ registered in respect of particular goods or classes of goods as prescribed,” and I suggest that in clause 24 similar terms should be used, so as to prevent any doubt in construction. The goods can . only be like goods or like classes of goods ; and, therefore, I move -
That the words “ the same,” line 2, be left out.
– I think the amendment ‘submitted is an improvement, and, therefore, I have no hesitation in accepting it.
Amendment agreed to.
Amendments (by Senator Keating) agreed to -
That the word “ such,” line 5, be left out, with a view to insert in lieu thereof the words “ the like.”
That after ‘ the word goods,” line 5, the words “ or class of goods “ be inserted.
Clause, as amended, agreed to.
Clause 25 agreed to.
Clause 26 consequentially amended and agreed to.
Clause 27 -
In case of honest concurrent user , or of special circumstances the Court may, in its discretion, permit the registration of the same trade mark or of nearly identical trade marks for the same goods. . . .
– It will be observed thai according to clause 23 the Registrar or the Law Officer or the Court, in deciding whether a trade mark shall be entered or remain on the register, may require a disclaimer, and I think it would be wise to make a similar provision in the clause before us. I move -
That after the word “ the,” line 2, the words “ Registrar, Law Officer, or the “ be inserted.
The amendment will give the Law Officer power to do what the clause now permits only to the Court. There are many simple cases which it would be almost harsh for people to have to take to Court, when they could be dealt with efficiently by the Registrar or Law Officer. Keeping in view that there are separate registrations in the different States, and the difficulties which may arise therefrom, I submit this amendment with a view to simplicity and economy.
– I agree with Senator Best that it is a desirable amendment. There are many cases which the Registrar or Law Officer might be able to settle without putting the parties to the trouble, to say nothing of the expense, of going before the Court. If any injustice is done by the Registrar or Law Officer an appeal may be made to the Court.
Amendment agreed to.
Clause further consequentially amended and agreed to.
Clause 28 agreed to.
Clause 29 -
Where under the provisions of this Act user of a registered trade mark is required to be proved for any purpose, the Registrar or the Court . . . may …. accept user of an associated registered trade mark . . .
– Is there any reason why the Law Officer should not have power to deal with such matters as are contemplated by this clause, or has there been an omission in the draftsmanship? I should think that if the Registrar has the power the Law Officer should also have the power. I move -
That after the word “ Registrar,” line 3, the words “ Law Officer “ be inserted.
Amendment agreed to.
Clause further consequentially amended, and agreed to.
Clause 30 agreed to.
Clause 31 -
The application must be made in the form prescribed and must -
Senator BEST (Victoria).- I do not think that the words “ as an address for service “ are sufficiently wide to cover service of a legal process. No doubt they would be sufficient for the purpose of service of any notice in connexion with an application. I see that Mr. Moulton, in his draft Bill, uses the words -
The address so furnished, or any address subsequently furnished, shall be a sufficient address for the service of any notice or any legal or other proceeding in connexion with a trade mark, the subject of such application.
I suggest the striking out of the words “ an address for service,” and the insertion of words based upon those used in Mr. Moulton’s Bill.
– Surely a trader’s address would be known to the Postal authorities.
– The amendment is intended to facilitate the working of the office. The officials cannot search over Australia for the owner of a particular trade mark. He must leave his address with the office, and must understand that service at that address is sufficient. That is a valid and good principle. I move -
That the words “ as an address for service” be left out with a view to insert in lieu thereof the words “ The address so furnished, or any address in Australia subsequently furnished shall be a sufficient address for the service of any notice or any legal or other proceeding in connexion with the trade mark, the subject of such application.”
Amendment agreed to.
Clause also consequentially amended, and agreed to.
Clause 32 -
SenatorBEST (Victoria).- I suggest that in connexion with this clause we should follow what was done in the Patents Act. The clause provides that every application must be lodged at the Trade Marks Office. I wish to provide that the application upon being lodged shall be forthwith referred by the Registrar to an examiner who shall search the register, and ascertain and report whether a previous trade mark has already been granted, and as to the desirability or otherwise of limiting the grant to one or more States. That is in consonance with section 39 of the Patents Act, which provides that -
Every application and specification shall forthwith be” referred by the Commissioner to an examiner, who shall ascertain and report as to -
Whether the title has been stated as ‘prescribed ;
whether the invention has been described as prescribed ; and
whether the application and specification are as prescribed.
I wish to have due regard paid to trade marks which have already been issued in other States. By that means we shall ultimately obtain a system of trade marks that will be applicable in all the States as far as possible.
– There is a very wide difference between the Patents Office and a Trade Marks Office.
– They are to be the same office.
– In the case of a patent, a man comes along with a novelty ; but a trade mark is simply a coloured design.
– No. It may be a device or a distinctive symbol of some character. My suggestion is that care shall be exercised in the issue of Commonwealth trade marks to see that they do not infringe trade marks already issued.
– I agree with that.
– That is my whole object. I move -
That after the word “office,” line 2, the following new sub-clause be inserted - “1a. Such application shall be forthwith referred by the Registrar to an examiner, who shall search the register herein provided for, and also the various State registers, and ascertain and report whether the proposed mark has been already wholly or partially appropriated, and the desirability or otherwise of limiting the grant To one or more States.”
Amendment agreed to.
Clause, as amended, agreed to.
Clause 33 -
– I think that in this case there should also be an ultimate appeal to the Court.
– There is.
– The honorable and learned senator will pardon me, there is not. It is somewhat anomalous, but it is only in cases where there is opposition that the applicant can appeal to the Court under clause 42, which provides -
In order that the Bill might be made symmetrical, an ultimate appeal to the Court should be allowed in this case also.
– Would not that be tautology. ‘Under clause 42 any party aggrieved by the decision of the Law Officer may appeal to the Court.
– I remind the honorable senator that clause 42 refers only to opposed applications. I desire to have the same principle applied where the Registrar or Law Officer refuses applications which are not opposed.
– I desire to take the sense of the Committee with regard to these appeals. In my opinion, we have rather too many of them. In connexion with this clause, there is only one appeal from the Registrar to the Law Officer, but Senator Best desires that there should be a second appeal from the Law Officer to the Court. In respect of applications, which are opposed, the. Bill already provides for two appeals. I think we might well cut out one of these appeals. I ask whether it is constitutional or .right to have an appeal from the Registrar to the Law Officer. The Law Officer will’ be the Attorney-General, or the SolicitorGeneral, and I can scarcely conceive, of a case in which any legal question may be involved, where the Registrar will not seek the advice of the Law Officer. In the circumstances, the Attorney-General, having the administration of the law, will not desire to have anything to do with its judicial features.
– It is specifically stated in the Bill that the law is to be administered by the Minister of Trade and Customs, or other Minister administering that Department.
– If the Registrar is in doubt in connexion with any application, he will no doubt seek the assistance and advice of the Law Officer before he gives his decision, and in such circumstances of what use is it to give the applicant an appeal to the Law Officer when he will already have had that officer’s opinion in the decision given by the Registrar ? In such a case it might be necessary to give the applicant an appeal to the Court, but there should be no necessity for an appeal to the Law Officer. In many of these matters we do not permit an appeal at all. I understand that under the Conciliation and Arbitration Bill it is proposed that the award of one Judge, which may settle questions of momentous importance, and involving thousands of pounds, is to be final. Why there should be two appeals given in this case I am at a loss to understand.
– In the case of opposed applications there may be only one appeal to the Court, under clause 43.
– I am aware of that,, but the applicant if he chooses may have two shots. He may appeal from the Registrar to the Law Officer, and from the Law Officer to the Court. I think it is not wise to allow two appeals. In order to test the matter, I move -
That the words “ Law Officer,” line r, be left out with a view to insert in lieu thereof the word “ Court.”
Senator BEST (Victoria). - I quite realize that there is some force in the argument of Senator ‘ Dobson, but we are incorporating nothing new in these provisions.; As a matter of fact, in the experience of the States, it has proved to be very convenient to be able to go to the Law Officer, whose decisions have, as a rule, been very satisfactory. If the applicant is to be obliged to go to the Court, that will simply mean increasing the expense which he will have to incur. So far as the Attorney-General is concerned, when he knows that it may be , his duty to adjudicate on trade marks matters, he will be most careful not to advise, and consequently the Registrar could not go to him for- advice.
– I say that he should be able to go to him for advice.
– Under the Victorian law he would go to the Crown Solicitor, but the “Law Officer,” according to the definition in this Bill, is the AttorneyGeneral or Crown Solicitor of the Commonwealth. The principle introduced in this Bill is consonant with the legislation in the States; but, of course, it does not necessarily follow on that account that it is right.
When we can add that the provision has . worked well in several of the States, there can be little reason for any serious apprehension, such as that entertained by Senator Dobson. I think that, on the whole, the public will be benefited by the provision as it stands, because, if applicants are obliged to go to the Court they will be put to additional expense.
– The honorable and learned senator is suggesting that they should have the right to appeal to the Court, after appealing to the Law Officer.
– Senator Best is giving the power to appeal to the Court, if they think they do not get fair play from the Law Officer.
– As to the other objection raised by Senator Dobson, if the Registrar could not get the advice of the AttorneyGeneral, he would have to do as is done in the States in innumerable instances - he would have to get the advice of a Crown Prosecutor, or one of the other legal officers associated with Crown Departments, and, in the last resort, he could consult outside professional opinion.
– With regard to the apprehension of Senator Dobson that, in some cases, the Registrar may be cut off from the legal advice of the Law Officer of the Commonwealth, I point out that, in such” a case, possibly what the honorable and learned senator desires would be given effect to, and there would be a direct appeal from the Registrar to the Court. If the Registrar consulted the AttorneyGeneral as Law Officer- of the Commonwealth in a doubtful case, and he refused an application, and if the applicant desired to appeal against that refusal, it is not likely that the Attorney-General would agree to sit in a judicial capacity to review a decision for which he was himself responsible. Under clause 43, if both parlies consent, an appeal may be made direct from the Registrar to the Court. If we provide that, in the case of unopposed applications, an appeal may be made by both parties direct to the Court, I am satisfied that in every such case as is contemplated by Senator Dobson, all parties having, as they would, a sense of decency would agree to a direct appeal to the Court. The Attorney-General would not care to review his own decision, and certainly the Registrar would not ask the appellant to go with him before the Law Officer, who had already advised him to refuse the application. If we were to re-insert the clause, we might rely upon it that in every case where the Law Officer had been consulted the appeal would be from the Registrar direct to the Court.
Senator DOBSON (Tasmania).- Senator Best tells us that the present practice is incorporated in the Bill, and has worked very well, and that applicants have found that it is an inexpensive way of appealing to the Law Officer. But Senator Keating says that if the Law Officer were consulted, and had a hand in guiding the decision of the Registrar, he would, as a matter of course, refuse to take the appeal. I take it that if the Act entitled the applicant to appeal to the Law Officer the latter could not refuse to take the appeal, and he would not advise the Registrar in such a way as to make himself judicially and officially responsible for the advice given. On the contrary, they would have a friendly talk over the matter, the Law Officer would advise the Registrar, though not so fully and thoroughly as he would’ do when appealed to, and a decision would be given. An appeal would then lie to the Law Officer, and, as a matter of course, it would have to be accepted. I am inclined to think that Senator Keating is wrong, but still I contend that we are unnecessarily giving the right of appeal to the applicants.
Senator KEATING (Tasmania). - I shall oppose the amendment, because we are dealing with the whole class of cases, and we cannot legislate for a whole class by reference to individual cases. If we compel every individual whose application is refused by the Registrar to go to the Court we shall act wrongly. This is not a case where the rights of others are necessarily involved. It is the case of an application which has been duly notified, and to which there has been no opposition, but for some reason or other the Registrar has declined to register the trade mark. It is proposed to compel that man to go straight to the Court, when he might be allowed to appeal in a quick, simple, and inexpensive way.
– By seeing a member of- Parliament ?
– No; by going to the Attorney-General. The matter would have to be heard by that Law Officer in a judicial capacity. This provision is inserted in the Bill because in many of these instances the Law Officer , is quite competent to decide whether the Registrar had or had not made a mistake, and to decide the point more expeditiously and less expensively to the party concerned than could the Court. If we were to take away that right, and compel him to appeal to the Court, he would not feel inclined to go to all that expense and bother. If, in a knotty case, the Registrar did consult the Attorney-General or the Crown Solicitor, and, acting on his advice, refused the application, the good sense and decency of the Registrar and Law Officer, and the demand of- the applicant himself, would combine to cause any appeal from that decision to be made, not to the Law Officer, but to the Court, if provision be made that by consent the parties can go direct to the Court. But a large number of the unopposed applications will, I take it, be refused by the Registrar, acting on his own sense of what is right and wrong, without reference to the latter officer. It would be entirely wrong in these cases to require a man, in order to assert his rights, to go to the expense of resorting to the Court. We ought to give him a simple, cheap, and expeditious mode of getting the matter settled by a competent officer, who may be called upon to act judicially in a matter which is outside his own Department.
Senator BEST (Victoria). - I would appeal to Senator Dobson to withdraw his amendment. I know that he is animated by a desire to consult the best interests of the public, but I- fear that he is not doing so in this instance. We cannot afford to ignore our actual experience. At the present time, when an application is refused by the Registrar, the applicant has only to walk to the office of the AttorneyGeneral, and lay the case before him, at very little expense, to get a settlement. If in such cases an applicant were compelled to appeal to the Court, it would prevent a number of very deserving persons from getting their just rights.
Senator DOBSON (Tasmania). - I am hardly convinced by my honorable friends. I think that there are too many appeals’ provided for. Senator Best, who has asked me to withdraw my amendment, desires to add another appeal against a refusal to accept an application; but the Registrar would not reject an application unless it was perfectly plain that the applicant had no status. I shall be quite content to take the sense of the Committee on the amendment.
– I would also ask Senator Dobson to withdraw the amendment, because throughout the Bill the Law
Officer is put in a similar position to the Registrar. It will be much better for the applicants if they can get the opinion of the Law Officer before they are obliged to go to the Court. Senator Dobson knows that if there is no opposition to an application for the registration of a trade mark, and it is found, to comply with all the provisions of the. law, it will not be refused. The reason for an application not being granted by the Registrar might be an intimation of some opposition. If an injustice were done to an applicant, or an opponent of an application, by either the Registrar or the Law Officer, he could go to the Court. In my opinion, it would be time enough for him to go to the Court when . the injustice was done. It is very wise to afford the public an opportunity of exhausting every means of settling their difficulties before they appeal to the Court. I have- no fear of any political or other influence being brought to bear on the Registrar or Law Officer. Those officers would know that the applicant could still appeal to the Court, and that knowledge would keep them on the straight track. Amendment negatived.
Amendment (by Senator Best) agreed to-
That the following new sub-clauses be added : - 3-. Any party aggrieved by. the decision of the Law Officer may, in the time and in the manner prescribed, appeal to the Court.
The Court shall hear the applicant arid the Registrar or Law Officer, or both, and determine whether the application ought to be refused or ought to be granted, with or without any modifications or conditions.
Clause, as amended, agreed to.
Amendment (by Senator Best) proposed -
That the following new clause be inserted - “ 33A. If the applicant and the Registrar consent, an appeal shall lie direct from the Registrar to the Court without any appeal to the Law Officer.”
Senator DOBSON (Tasmania). - I should like to hear what the Minister in charge of the Bill has tq say to this proposal, which appears to me to be bad legislation. One can quite understand that where an application is opposed, both parties may consent to a certain appeal ; but when it is desired to appeal against the decision of the Registrar, why should the consent of the latter have to be obtained by the applicant ? Personally, I must say, I do not like the proposal. If -an applicant chooses to avail himself of the more skilled, capable, and experienced tribunal, he ought not to be required to get the consent of the Registrar.
– The Bill would be better without the proposed new clause. Even if such a provision were inserted, it ought to be as a sub-clause of clause 33, which should deal with the whole matter. The case contemplated is where there is an application for registration, and there is no opposition except by the Registrar. If the applicant is not satisfied, he has the option to go to the Law Officer, and if he be dissatisfied with the decision of both Registrar and Law Officer, he may go to the Court. I do not see any necessity to give either the Registrar or the applicant the option of going to Court, without any reference to the Law Officer.
– If both consent, what does it matter?
– There is proper machinery provided by the Bill, and if the parties ultimately find it necessary to go to the Court, that’ machinery is available. I agree with Senator Dobson, that there seems no reason, why an applicant, even in the absence of the Law Officer, should have to ask the consent of the Registrar to go to the Court, to which, in any case, he ultimately has the power to appeal.
– The first words of the proposed new clause might be struck out.
– But I do not think that the new clause is necessary ; the machinery in clause 33 is quite sufficient.
Senator BEST (Victoria).- In the proposed new clause, I merely adopt the machinery which is provided in clause 43, which says -
If both parties consent - that is to say, the Registrar and the applicant - an appeal shall lie direct from the Registrar to the Court without any appeal to the Law Officer.
– That applies to cases where there are two parties.
– But there are two parties in the case contemplated by the proposed new clause, and the same two parties that are referred to in clause 43, the Registrar being really the opponent. If Senator McGregor has any objection to the proposed new clause, as it stands, I am perfectly willing to make it read as follows : -
If the applicant so desires, an appeal shall lie direct from the Registrar to the Court, without any appeal to the Law Officer.
Proposed new clause amended accordingly, and agreed to.
Clauses 34 and 35 agreed to.
Clause 36 -
Any person may, within three months . . . lodge at the Trade Marks Office a notice of opposition . . .
– In Victoria the time allowed for lodging notice of opposition is one month, and I suggest that in this case, two months might be adopted as a compromise.
– This is a Bill which embraces the whole Commonwealth; and while a period of one month might be reasonable in a single State like Victoria, it would prove totally inadequate when it was desired to give an opportunity to persons residing in Western Australia or Queensland to give notice of opposition. If Senator Best had moved that the notice be extended to six months, I should not have objected.
Clause agreed to.
Clause 37 consequentially amended, and agreed to.
Clause 38 agreed to.
Clause 39 -
– I am told that one month is quite insufficient for the lodging of notice of opposition. I therefore suggest that the term should be made three months, and likewise that the two months for which the time may be extended should be made three months. I think that the Vice-President of the Executive Council has himself suggested the very best reasons why the time should be extended. My attention has been drawn to this matter by one or two gentlemen who have had very great experience in connexion with trade marks, and they assure me that the time allowed by the Bill is not sufficient.
– I accept the amendments.
– I move-
That the words “one month,” line1, be left out, with a view to insert in lieu thereof the words “three months”; that the word “two,” line 3, be left out, with a view to insert in lieu thereof the word “three”; and that the words “one month,” line 4, be left out, with a view to insert in lieu thereof the words “the first-mentioned three months.”
Amendments agreed to.
Clause, as amended, agreed to.
Clauses 40 to 43 agreed to.
Clause 44 consequentially amended and agreed to.
Clause 45 -
When an application for registration has been accepted and has not been opposed, and the time for notice of opposition has expired, or has been opposed, and the opposition has been decided in favour of the applicant, the Registrar shall’ register the trade mark as on the date of the lodging of the application. . . .
– I draw attention to the drafting of this clause. The words “the opposition has been decided in favour of the applicant “ are curious as a form of drafting. We often hear of objections being made to an application, and the objection is heard, and the objection is decided in favour of the applicant. In clause 40 it is provided that the Registrar shall fix a day for the hearing, and shall decide - whether the application is to be refused or whether it is to be granted.
In clause 42 it is provided that the Court shall hear the applicant and the opponent and determine whether the application ought to be refused or ought to be granted.
Everywhere else, when reference is made to the hearing of an application the language used is “ whether the application shall be refused or granted,” and not whether the “ opposition shall be decided in favour of “ the applicant or opponent. I suggest that we should adhere to the language used in clause 42, and I move -
That the words “the opposition has been decided in favour of the applicant” be left out, with a view to insert in lieu thereof the words “ has been granted.”
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 46 to 51 agreed to.
Clause 52 -
The Registrar may, on application made by the registered proprietor of a trade mark in the prescribed manner, at any date not later than fourteen years from the date of the original registration or the last renewal of registration, as the case may be (in this division termed “ the date of the last registration “), renew the registration of the trade mark for a period of fourteen years from the date of the expiry of the period of the last registration.
– This clause applies to trade marks that are registered in the Commonwealth, and it is stated that the Registrar may, on the application of the registered proprietor of a trade mark, “ at any date not later than fourteen years from the date of the original registration “ renew the registration. Does that mean a State registration?
– Both State and Commonwealth registrations are included.
– What I have already said earlier to-day will go to show that there is a necessity for an amendment. If the proprietor of a trade mark is to be limited to fourteen years from the date of the original registration for a renewal of the registration, obviously there will be many people in New South Wales - and I think some in Queensland - who will be unable to reregister trade marks. It is thirty-five or forty years since many of these people obtained registration, and the rights they obtained as the registered proprietor of trade marks are not to be regarded if this clause passes as it stands. It seems to me that there should be some provision to enable the proprietor of a trade mark registered in New South Wales with a perpetual right under the State law, instead of merely a right for fourteen years, to obtain re-registration as from some other date under this Bill.
– That would come under clause 50. I think that fourteen years is a fairly long term.
– It may be, but the rights under the New South Wales law are perpetual, and they exist at the present time. There should be some modification of this clause to meet such cases. I hope that even though the clause should be passed in its present form, the VicePresident of the Executive Council will consider an amendment to meet these special cases before we finally dispose of the Bill.
– We might give priority to an application for a renewal of registration in such cases.
– If the clause is agreed to now, and the Bill reported, I will see that the position in this respect, as put to the Committee, will be laid before the officers who drafted the Bill. If they cannot give valid reasons why the clause should remain as it is, I shall have no objection to the recommital of the Bill to enable such, an amendment to be moved as Senator Keating thinks necessary.
Clause agreed to.
Clause53 agreed to.
– I move-
That the following new clause be inserted : - 53A. Where a trade mark has been removed from the register for non-payment of the prescribed fee, the Registrar may, within three months from such removal, if satisfied that it is just so to do, restore such trade mark to the register on payment of the prescribed additional fee for renewal.”
It will be noticed that clause 53 provides for the removal of a trade mark from the register if the fee is not paid. I desire here to incorporate a provision taken from the Victorian ‘ Act enabling the Registrar, where the default arises from some mistake, to restore the trade mark to the register on payment of a prescribed additional fee within a certain period.
– That is really a provision for a fine for non-payment of the fee?
– Yes, the applicant would, of course, be fined in such a case.
Proposed new -clause agreed to.
Clauses 54 to 57 agreed to.
Clause 58 -
There shall be kept at the Trade Marks Office a register of trade marks wherein shall be entered particulars of -
all registered trade marks, with the names and addresses of their proprietors;
notifications of assignments and transmissions, and disclaimers; and
any other matters relating to registered trade marks which are prescribed.
– Under clause 53 the Registrar is required to send notice in the prescribed manner to the registered proprietor of the date at which the existing registration will expire. That is a very important provision, and if the register is to be complete, one of the paragraphs of clause 58 should provide that the register must contain the date of registration and the date at which it expires. I therefore move -
That after the word “ proprietors,” line 5, the following words be inserted, “ together with the date of registration and expiry thereof.”
– That is covered by paragraph c.
– It is true that under paragraph c we could get in anything. But we can have no register worthy of the name unless there is an entry of the date of registration and the date of expiry thereof.
– The date of expiry is shown by the Bill to be fourteen years from the date of registration.
– It would be more complete if the register contained an entry of the date of registration, and the date of expiry thereof.
– Senator Dobson’s amendment will not, I think, do either good or harm. As Senator Playford has said, the Bill provides that the date of expiration shall be fourteen years after the date of registration, but if Senator Dobson believes that there ought to be an entry in some place in the register of the date of registration, and the date of the expiry thereof, there can be no objection to it.
– In hundreds of cases the date of expiration will be at irregular intervals, because a part of the term of registration will have passed under the States laws.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 59 to 67 agreed to.
Clause 68 -
– A prominent merchant of Melbourne has written to me a letter, in which he says that two years is too short a period to fix. Perhaps I had better read the letter to the Committee : -
With reference to clause 68, page 13, the opinion of mercantile houses interested in trade marks is that the consecutive period should not be less than five years, instead of two years, as proposed. Changes of fashion, the failure of markets and the inability to procure the raw materials, also the endeavour on the part of a manufacturer to supersede an article bearing a certain trade mark by another of a different brand, reserving the right to go back to the original trade mark if thought desirable, and many other arguments may be adduced in favour of a lengthened period. i have my doubts whether the clause is necessary at all, because it is hardly likely that a manufacturer of standing would care to use a trade mark which had been employed for a similar article by another firm, but it might give an opportunity to unscrupulous people to avail themselves of the established reputation of a mark in the event of a temporary cessation of its use.
In my opinion the position would be fairly met by substituting three years fortwo years. Therefore, I move -
That the word “ two,” line 4, be left out, with a view to insert in lieu thereof the word “ three.”
– I am quite willing that this amendment should be made, because in Australia circumstances might happen which would make it almost impossible for a man to do business with the article for which he had registered a trade mark. In South Australia, for instance, a dairy factory or company might register, a trade mark in connexion with butter. If a drought were to come for two or three years, it would be impossible to produce the article, and when prosperous times did return the company might find that somebody else had registered their trade mark. I think that three years is a very fair compromise, and therefore I ‘accept the amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 69 agreed to.
– I desire to introduce a new part, dealing with trades union marks, and to that end, the law officers have drafted for me a number of clauses. I move -
That the following new clause be inserted : -
Part VIa. - Trade Union Marks. 69A. In this part of this Act - “ Trade union “ means any trade union registered as such under the law of any State or any organization or association of workmen or employes registered under any law of the Commonwealth or of a State relating to conciliation or arbitration for the prevention or settlement of industrial disputes ; and “ Trade union mark “ means a distinctive mark or device adopted by a trade union for the purpose of designating the products of the labour of the members thereof.
This subject was intrdduced by myself on a former occasion in an attempt to alter the definition of “applicant.” It was then pointed out, however, that the proposal would necessitate the alteration of a number of clauses, and that any slight difference between this particular kind of trade mark- and others, might lead to some confusion. On the whole, it was thought better, if the object desired had to be attained, to propose a new part, containing the necessary clauses. The new clauses, the first of which I have moved, are intended to enable a tra’de union to. register a label or a trade mark, to be used for the purpose of showing that goods have been produced under fair conditions. This is by no means new legislation, so far as other countries are concerned. Several of the State Parliaments in the United States have passed Acts of a similar character, though legislation of the kind is somewhat new in the British Empire. In Western Australia, however, in the case of the Bootmakers’ Union, the provisions of the State Trade Mark Act were availed of to register a label, which was lent out to employers who worked their factories under fair conditions, and who used it to mark their goods. It was thought by the union that they had power to prosecute any person who used the label without authority, but the matter was never tested in the Law Courts. I am told by some of the legal members of the Senate, that if a union did register such a label under the Western Australian Act, such registration would not stand the test of law. Whether that be so or not, I am not in a position to say ; but, at any rate, the same object is gained in the United States under separate laws providing for the registration of labels, brands, or marks used by labour organizations. I have here the Act passed in the 120th session of the New York Legislature in 1897, which practically carries out the intention of the clauses which I now submit to the Committee.
– Are the clauses now proposed founded on the provisions of the New York Act ?
– The clauses are based on the New York legislation, although quite different wording is used ; the same end is arrived at by similar machinery. There is provision for a union to register and be the proprietor of a device, mark, or label, and for a penalty for the illegal use of such label.
– Under the New York law, is anybody at liberty to use the label who manufactures under trade union conditions ?
– Any manufacturer who carries on his factory under trade union or fair conditions may apply to’ the secretary of a union for leave to use the label.
– Who is to be the judge of the fairness of’ the conditions ?
– Senator Pearce had better simply speak of trade union conditions.
– A trade union has no power to compel an employer to use a label; that is left as a matter of arrangement. It may be to the advantage of an employer, who works his factory under trade union conditions, to have h’is goods marked with the brand of the union; and the public could have no better guarantee that the goods are produced under fair conditions.
– Do I understand that a non-unionist employer, although he manufactured the same goods under trade union conditions, would not be entitled to use the label ?
– If the union cared to refuse the use of the label, certainly not.
– That is unionist preference all over again.
– No, it is not. The object of the label is to give the buyer an opportunity to know that the goods which he purchases are produced under fair conditions, and the trade unionist is concerned in seeing t&at those conditions are observed. In Western Australia there were boot factories, which were largely non-union, but which, because they were worked under agreement drawn up between employers and employed, were allowed to use the label.
– Then a trade union may do as it likes, in that connexion ?
– Certainly; and in what other manner could the matter be dealt with? There’ must be some responsible body ; and there is nothing to prevent a small body of non-unionists forming a union. But the arbiters in that case would be the great body of the public. There are no means of compelling the general public to buy these goods, and if the employer finds that the great body of the public do not like the label he will not use it. The employer depends upon the great body of the public to buy his goods.
– What about a State like Victoria,- where the Wages Boards determine the conditions of labour?
– Thev determine the wages and conditions in Melbourne, but not in the country districts. It might be an additional inducement to the general public to buy goods if they knew that they were made under fair conditions. Consequently, its use might be an advantage to the manufacturers. I admit that the great body of the public, who are the great body of the consumers, .are not trade unionists, but I believe that the great body of the public are desirous to purchase goods made under fair conditions, whether trade union conditions or any other. Hence the advantage to the public of using a trade union mark. In no case in Western Australia did the trade unions ever attempt to force the mark on any employer. Usually, the employers were glad to have an opportunity to use the mark to show the public that their goods were produced under fair conditions, as against goods which were produced under unfair conditions.
– Not necessarily.
– I am speaking of a case where I know that some goods were necessarily produced under unfair conditions. An amicable arrangement was made between employers and employes, and all the goods produced under those conditions could be stamped with the trade union label. Some employers, however, did not adopt those conditions, and did not have the advantage of using the label. The label was an advantage both to employers and employes as well as to the general public, who were able to say when they purchased goods - “ Here is a mark which denotes that this boot was made under fair conditions.” This legislation will enable those who are the best judges to have an opportunity of registering, and becoming the proprietors of a mark.
– I understood the honorable senator to say that the existence of Wages Boards’ in Victoria would obviate the necessity of having trade union labels in this State. Does not that show that this is a State, not a Commonwealth, matter?
– While all the goods manufactured in Victoria may be made under fair conditions, there still remains the import trade. I can. imagine Victorian employers saying that they would like to have the use of this mark to show the public that the goods which they placed upon the .market were made under fair conditions, as compared with imported goods.
– That would be very unfair.
– It is not more unfair than to enable a man to say, by means of a mark, that certain butter is Victorian, not New Zealand butter.
– It is unfair against other manufacturers.
– Where is there any unfairness when all are equally entitled to the use of the label ?
– They would not all be entitled ; it is for the trade unions to say who shall use the label.
– The unions may allow the use of labels to as many employers as care to apply for them.
– They may, if they like.
– They would naturally do so. Honorable senators are looking at this matter as if the labels would be used by the trade unions in a hostile spirit. Their object in using them would be to encourage employers to produce their goods under fair conditions. To say that they would endeavour to constitute a monopoly is not reasonable. Is it not the object of trade unions to have a majority of the employers conducting their factories under fair conditions? That being so, they would naturally concede the use of a label to every manufacturer who cared to apply for it.
– There may be a factory worked by non-unionists, but, under the same terms as a factory worked with union labour. The label might be refused to the non-union factory. A union might say that they would not grant its use to non-union factories.
– I do not believe that, there is a State in Australia where that would be possible. That would be the worst policy that’ the trade unions could adopt. Their policy would naturally be to grant the use of the label to all employers who were working their factories under fair conditions.
– Would the honorable senator consent to a clause compelling the unions to do so?
– I would not consent to compulsion with regard to unions any more than I would consent to compel any manufacturer to grant the use of his trade mark to other persons. I say that this is a- proper provision. The label would be the property of the trade union tha,t registered it, and they would have a perfect right to refuse the use of it to those who did not observe the conditions under which the use of the label was given.
– The clauses do not say that.
– In practice that would be the result.
– We can look only to what the clauses provide.
– Honorable senators seem to be under a misapprehension in thinking that a union would endeavour to make a monopoly of the use of a label. It would be madness for it to do so.
– We are entitled to draw that conclusion from recent events.
– I do not think so. It is to the interest of the unions to have the majority of the factories working under fair conditions, and it would be illogical and foolish for them to grant the use of labels to a minority only.
– The clause would enable a union to force the employers to adopt conditions which it dictated.
– It would not dictate any conditions to the employers, but would say, “ If you adopt suchandsuch conditions we are willing to let you use our label as an indication to the public that you have adopted those conditions.” After all that is a power which should belong to any union or any employer. If the label served as an encouragement to buy goods, it would be an encouragement to manufacturers to conduct their factories under fair conditions. If the use of a label served as a discouragement to buy, the employers would disregard it. I am aware that it may be said that I am bringing forward something which is new so far as English legislation is concerned. But, nevertheless, the proposal is not to be condemned simply because of its novelty. It may be said, perhaps, by some of the legal senators that we are stretching very widely the interpretation of a trade mark. The old idea of a trade mark has been very much attenuated by some of the decisions which I have seen in reading the literature of this subject. We find that goods which have passed through a number of hands are finally branded with a trade mark by a person who had nothing to do with their origin. Here are goods in the manufactured state. The present owner of them had nothing to do with their manufacture. Yet we find them bearing a trade mark designating the name of a person who had nothing to do with their origin. The man who puts his trade mark upon them is little more than an agent. He has not added a single penny to their value, nor has he added a single process to their manufacture. That shows that the argument that a trade mark must denote the origin of the goods has been very much attenuated by legal decisions.
– Is not the honorable senator talking of a trade description?
– No, I am talking of a trade mark, and I am answering the arguments. ‘used against my proposal when I first submitted it. A trade mark does not necessarily denote property in goods.
– It does as applied to certain goods, and it also incidentally relates to the good-will.
-I have here Stroud’s Judicial Dictionary, which gives the following definition of a trade mark : -
A trade mark is -
A mark lawfully used by any’ person to denote any chattel to be an’ article or thing of the manufacture, workmanship, production, or merchandise of such person, or to be an article or thing of any peculiar or particular description made or sold by such person ;
Any mark or sign which, in pursuance of any statute in force for the time being relating to registered designs, is to be put or placed upon or attached to any chattel or article during the existence or continuance of any copyright or other sole right acquired under the provision of such statutes or any of them.
The ‘Constitution gives us power to legislate in regard to trade marks, and I should think that it gives us power to step out of the groove, and does not bind us down to model our laws entirely on English or State laws. I admit that my proposal is somewhat different from the old idea of a trade mark. It is an extension of the principle. But I contend that it serves the same purpose, inasmuch as a trade union mark is a mark which indicates to the buyer of the goods something concerning their origin.
– What does it guarantee ?
– It guarantees that the goods were made under fair conditions.
– Made under conditions which the men consider to be fair.
– Made under conditions which the owner of the trade mark considers to be fair ; and he has a right to say that the goods are made under fair conditions. If a union were to exercise its power in a tyrannical and suicidal manner, and made the majority of the factories hostile to it, only a minority of the goods sold would bear the union mark. That would be so much the worse for the union. Their object from a selfish point of view is not to induce the minority of the factories to use their mark, or to have a minority of the goods sold bearing that mark, but to get the majority of the employers to use it and the majority of the goods sold to bear it.
– In other words, to spread trade unionism.
– Not necessarily, but the spreading of the conditions which trade unionism stands for, that is, fair conditions.
– But apart from that, the honorable senator does not propose to give an opportunity to non-unionists working on the same conditions, to go to the Registrar, or anybody else, and insist upon being equally provided for.
– Yes. Nonunionists will have an equal right to come together as a trade union, to register under the Trade Union Act, or under the Conciliation and Arbitration Act, and then avail themselves of these provisions.
– Why should they? What has this to do with fair wages?
– It has everything to do with the provisions of this Bill. I have to say, in answer to the interjection made by Senator Best, that the provisions do not confer a monopoly upon any person. They will give a right to the use of a trade mark, but they will give the same right to any other body of persons in the community. If non-unionists consider themselves aggrieved by these provisions it is open to them, by adopting similar machinery, to become possessed of a trade mark, which can be attached to all goods manufactured under their conditions.
– Without joining a union ?
– Certainly, they would have to join a union to do this. If they object to a trade union being allowed to register a trade mark, the alternative is for them to form a union of their own.
– They cannot do so; there can only be one union in each trade.
– Where does the honorable and learned senator get that idea from?
– From the practice in New South Wales.
– The honorable and learned senator is altogether wrong. Even in his own State, there is more than one union in the same trade. He must know that there are two shearers’ unions in the same trade.
-Two registered unions?
– I am not sure’ that they are both registered.
– The honorable senator must know that only one of the shearers’ unions is registered?
– I can tell Senator Millen that while there may be only one of the unions registered, under the Conciliation and Arbitration Law, they are both registered under the Trade Union Law.
– Fifty unions in the same trade may be registered under the Trade Union Act.
– That is so; there is no limit to the number of unions in the same trade that may be registered Under the Trade Union Law, which is in existence in every State of the Commonwealth. It is, therefore, idle for honorable senators to say that the men to whom they have referred would have no redress. I notice that some of my honorable friends opposite are eager to seize these provisions as a red rag; but I trust that they will not allow any prejudice, which may exist in their minds, as the result of the last few years of press education on trade unionism, to influence their opinions upon this question; nor will they allow the fact that these provisions are not to be found in English law to determine their vote upon these clauses.
– I hope, before I sit down, to convince even Senator Pearce, that I have no desire to approach the discussion of this new clause in that spirit of antagonism which is supposed to mark the bull at the appearance of a red rag. I desire to point out what appears to me to be an extremely . serious defect in the proposal submitted to/ the Committee. The honorable senator! has affirmed, and the clause indicates it,l that the object of this proposal is to enable/ trade unions to register for themselves! a trade mark, and, having registered itf tb permit employers who employ union labour to use it. The honorable senator referred to those who employ labour under* fair conditions, and I asked him, by inter,jection once or twice, who was to be, the’ judge of fair conditions. His reply was that the union which was the proprietor of the trade mark would be the judge. I am not now speaking against the general principle of these clauses, but I desire to point out a possible condition of affairs which I think would constitute a very gross injustice to probably a very large number of employers. Let me submit to Senator Pearce a case in which, acting under a common rule, approved by the Arbitration Court of New South Wales, an employer was employing union labour under conditions which the Arbitration Court had said wert fair. Some little dispute arises between the men and their employer, in connexion with some minor matter, outside the award of the Arbitration Court, and they take the dispute before their union. The result is that the union says to the employer, “ Although you are employing union labour, we shall not allow you to use our trade mark.”
– If the mark is registered, how can the union do that?
– Because the union that registers the trade mark becomes the ‘ proprietor of it, and will be able to refuse to allow a particular employer to use it, although he may be employing only union labour.
– What inducement would the union have to do so foolish a tiling as that?
– The inducement might be to force an employer to make some concession other than that required by the Arbitration Court. The honorable senator has frequently referred to the fact that it might be an advantage to an employer to be able to satisfy the purchasers of his goods that they were made by trade union labour. I admit that there is a great deal in that contention, but it is just because of that advantage that the trade union proprietor of the trade mark would be able to exercise a process of leverage on the employer. If the honorable senator ^ would provide that any employer or manufacturer who employs union labour shall be entitled to use the trade union trade mark, my objection to the clauses would be very largely minimized. If his sole object is to have goods manufactured by union labour so branded, I am unable to see how the honorable senator can object to the. suggestion I now make, that all employers :r manufacturing goods by union labour shall rjL.be entitled to use the trade union mark. Senator Pearce. - I could not conceive of a union refusing so reasonable a request.
– Then the honorable senator has no objection to what I suggest?
– There must be a property in the trade mark.
– I remind honorable senators that what we are dealing with now is not the practice which may spring up under the law, but the shaping of the law itself, and the practice to be developed will be in accordance with the way in which we shape the law. Senator Pearce says that he cannot conceive of a trade union refusing to any one employing trade union labour the right to use the union trade mark; but I still submit that a case may arise in which an employer, employing only union labour, might be refused the use of the union trade mark, because of some conflict on minor matters between himself and the unionists in his employ. Senator Pearce; when asked who is to judge whether the conditions of labour are fair, in order that a trade union may decide whether the use of its trade mark is to be permitted to a certain employer, tells us that it is the very men who are concerned who must be the judges in their own case. If the) honorable senator would agree that any employer working in the Commonwealth with union labour, should have the right to the union trade mark, my objection to his proposal would largely disappear. But I cannot give a vote in support of a proposal which appears to me to place in the hands of a trade union a power beyond anything ever attempted by any Arbitration Court, or any arbitration law, of which we have had any knowledge yet. I put it to the honorable senator to say whether the object he has in view would not be met by what I have suggested ?
– I have said that I can conceive of no case ‘ such as that referred to by the honorable senator, where a tra’de union would refuse the use of the union trade mark.
– I can. The honorable senator need only look down the list of cases awaiting adjudication by the Arbitration Court of New South Wales, and he will find that two or three score of employers, who are carrying out the decisions of the Court, and employing union labour, are cited before the Court because of minor grievances with their employes.
– Because they have infringed the awards of the Court.
– No, because of minor differences with employes. The honorable senator has, however, given me my answer when he says that the trade union concerned is to be the judge in this matter, and not the Arbitration Court.
– How would the honorable senator make the Arbitration Court a judge of trade union labour? The honorable senator is aware, also, that, so far. there is not an Arbitration Court established for the Commonwealth, and that there are no factory laws or Wages Boards in operation in Tasmania.
– I take the cases with which I am dealing under the Arbitration law in New South Wales, and I say that I can mention many instances where men are employing trade unionists, and in all fairness they should be entitled to the use of the union trade mark. Does the honorable senator propose to take from those employers of? trades unionists the right to stamp on their goods the fact that they were made by trade unionists?If his object is merely to provide that goods made by trade unionists shall be so marked, there can be little objection to the proposal. But if he intends to leave it to certain people to say that certain goods made by trade unionists may be stamped with the union trade mark, whilst other goods also made bv trade unionists shall not be so marked, I must say that I am entirely opposed to his proposal.
- Senator Pearce will remember that when I first heard of these amendments I expressed my doubts as to whether they were constitutional. I regret to say that my doubts on the subject have not yet been removed, and the honorable senator has himself rather shirked the point. He has said that the existence of Wages Boards in Victoria renders it unnecessary for trade unions in this State to apply for a union trade mark.
– The honorable senator did -not say anything of the kind.
– But he got out of the difficulty by saying that there was an import trade. We have nothing to do in this Bill with the putting of labels on imports.
– Imports would not be eligible, so I could never have said anything of the sort.
– The honorable senator has admitted that, because there are Factories Acts and Wages Boards in Victoria, these provisions would not be wanted in that State.
– I never admitted anything of the sort.
– I understood the honorable senator to admit that ; if he did not, I withdraw what I have said; but I am under the impression that his admission went nearly to that extent.- I think that the honorable senator has himself shown that this is a State matter, and’ not a Commonwealth matter. We know there have been motions submitted in another place, by which it has been sought to have the industrial life of Australia brought under Commonwealth law, instead of the workmen of each State being subject to their own local laws. That has not yet been accomplished. This is, to my mind, a purely trade union and industrial matter, and has no connexion whatever with the question of trade marks. If the honorable senator will look at the last two lines of the last new clause he proposes, he will find that he absolutely prevents these trade union marks from beingtrade marks at all. One of the essential qualifications of a trade mark is that it is property which can be assigned, and dealt with, and which passes with the good-will. In the last new clause which Senator Pearce proposes, he provides that -
A trade union mark shall not be assigned so long as its registration continues.
The very wording of the clauses before us cuts the ground from under the honorable senator’s feet.
– Would it not be possible for us to make that provision with respect to an ordinary trade mark?
– Certainly not. An ordinary trade mark has a common law meaning and common law rights attached to it, and rights in every State of the Commonwealth. It has a distinctive meaning. Senator Pearce has said thai what he wants is a trade union label to be attached to goods made under what he considers to be fair conditions, but we could not call a label of that sort a trade union trade mark. Supposing that one bootmaker had his window filled with boots bearing the label, “These goods are made under fair conditions,” and that the bootmaker in the next shop had his window filled with boots bearing no label, and supposing that the boots in each shop were offered at exactly the same price. On Saturday night the wives of working men would naturally go to-the shop in which the boots were labelled as I have described. I think it would be grossly unfair to give these labels a kind of legal sanction, and to imagine that other unions who made similar goods under fair conditions had not a right to label, them with those words. I cannot vote for these clauses, and the clause before the Committee will not become law with my consent. Let the wording of these labels be confined to the fact that the goods were made under trade union conditions, or under arbitration conditions, or under the award of an Arbitration Court. But it is not proper to give to any section an exclusive right to the use of the expression “ fair conditions.”
Lel the labels state the conditions under which the goods were made, and leave inquiring persons to see the award of the Arbitration Court or the trade union rules. We ought not to give to any set of men the right to use the words “ fair conditions “ when other men who are equally entitled to use those words do not get the privilege because they do not come forward and employ an agent to register their trade union mark. The fact that several efforts have been made to vest this Parliament with the right to pass industrial legislation ought to show Senator Pearce that his clauses are ultra ‘vires. It cannot be contended for a moment that they deal with the subject of trade marks, on which the Constitution empowers us to legislate. On the contrary, they simply deal with trade union labels, which ought to be dealt with by the States in Factories Acts.
– I think that the objections to the proposal of Senator Pearce have no foundation in fact. Senator Dobson sees the danger of some persons being clothed by this provision, if passed, with the authority to use the words “These goods are made under fair conditions.” I do not see any provision in the new clause which would grant that power. Apparently, what is sought is that trade unions, which are held by many, persons to be institutions of very great advantage to the public weal, should have the power to indicate, and give the right to traders to indicate, that certain goods were made under the conditions they prescribed.
– It is limited under this clause to trade unions.
– That is different from the point which was raised by Senator Dobson, and which I aim dealing with. I take it that if the case assumed by Senator Millen could arise no injustice would be done, because the device could only have a moral value. It could have no positive value unless what was behind it impressed itself on the minds of intending purchasers. That is the great point to be considered. If we assume, for argument’s sake, that a trade union would damage the value of its mark by doing the extremely illogical thing which the honorable senator .indicates is possible–
– Will the honorable senator admit that it is possible under the clause ?
– I should say that it would be possible for a trade union to decide to sell the use of its registered mark to a single individual, but that is so improbable as to be practically impossible, for the reason that directly it so acted, that fact would be advertised, and the mark instead of being an advantage in the eye of the intending purchaser would be a disadvantage. Therefore, no injury would be done in that case, except to the unfortunate person who had bought the right to use the mark.
– The honorable senator is going to an extreme that I never suggested.
– I admit; .that very often it is only by taking an extreme case that one can show the rectitude of one’s argument. But if a trade union were to do the lesser thing, which the honorable senator indicated, that is to refuse the use of the mark to an employer who was complying with all the conditions prescribed by the trade union-
– No, by the Arbitration Court.
– I confess, at once, that the awards of Arbitration1 Courts are not covered by the provision, and I do not agree with Senator Pearce when he says that trade unions in this State would think the registration of a mark unnecessary. I think it is quite likely that they would. There might be in connexion with trade unions some conditions which the public would approve, but which had not yet received the sanction of the Legislature, and therefore a trade union mark might be of great advantage to a trade union, and to those who desired to purchase the products of trade unionists. I prefer to keep out of the discussion of the question of fair or unfair conditions. Of course, we started properly with the assumption that trade unions are organized for the purpose of obtaining fair conditions for their members. And it is a reasonable assumption that goods which are made under the rules prescribed by trade unions are more likely to be made under fair conditions than goods not so made - at any rate, fair to the trade unions. Of course, I know it is arguable . that trade unions may prescribe conditions that are unfavorable to the employer. But that is a question in connexion with the trade mark which rests entirely with the public. For the purpose of securing custom, trade marks are affixed to goods having specific qualities preferred by the public. I think that a very large majority of the people in the Commonwealth prefer trade union conditions, and would like to see them generally observed. There are many reasons why persons who approve most heartily of trade unions are not trade unionists. There are many avocations in which the difficulties of organizing are so great that persons who approve of . trade unions, and would, if they could, be members of trade unions, find that they cannot be trade unionists, but would be very glad to know’ how they could purchase goods which were marked as having been made by trade unionists, and thereby ba assured that, in connexion with their production, conditions were observed of which they approved. I cannot see how any injury could be done to any person by allowing A, B, or C, to register a device, and say, “ These are the goods that we make.” I can see at once an objection to allowing them to say, “These goods are made under fair conditions,” and so deprive others of the right to publish that statement. That I admit at once might be a verv serious injustice, but it could be no injustice to any one to allow A, B, or C to say, “ These are the goods which we make.”
– A, B, or C might be making the goods, and might still be refused the right to use this mark.
– That, while possible, is so improbable as to be practically impossible; and, while possible, if done, would frustrate the end that the person had in view in doing it, and, therefore, it would work its own cure.
– It is not done, perhaps, in one case out of fifty.
– That is a bare possibility, and I do not like to strain an argument. It is highly improbable that a trade union would so act - to me so improbable as to be impossible; but if it did so act, the person injured thereby would at once take the opportunity of advertising the fact in such a way as to turn it to his account. It would be so suicidal an act on the part of the trade union that I, with Senator Pearce, cannot conceive that it would be done. I see a difficulty in compelling a trade union to grant the right to employers employing union men. I see the possibility of a man employing ten union men and ten non-union men. In that case the employer could conscientiously say that he employed union men. But what this mark is intended to indicate is that the goods are made entirely under trade union conditions, and, therefore, a man who employed union men to half the extent of his establishment - : -
– And who paid nonunion men the same wages.
– That is unimportant for the present. Supposing, for argument sake, that there was a very strong desire in the public mind for the goods which were produced by red-haired men, and that the latter desired to register a trade mark. There might be blackhaired men who were producing a splendid article and paying the same rate of wages. It seems to me that there would be no injustice done to anybody by providing the means by which the public could be assured of the fulfilment of that desire. Therefore, I shall support the amendment of Senator Pearce. I should be glad, of course, if any practical guarantee against even the shadow of injustice could be afforded ; at any rate, I feel quite sure that Senator Pearce does not desire to do any injustice. It is generally known that this legislation does not prevail in other parts of the world to any great extent, for the reason that trade unionists in the past have had very little voice in the making of the laws. Class legislation, which is now complained of, but does not exist, did exist in the past to a great extent. The term “ governing class” had a distinct meaning ; and in many parts of the world, it has a distinct meaning still, namely, that the government is exercised by a very small minority, who control the whole of the people.
– Is the honorable senator referring to present circumstances in the Commonwealth?
– If the honorable and learned senator desires, I shall refer to present circumstances. What I say is that in the past the term “ governing class “ had a distinct meaning in the mother country, but as the governing class became extended, legislation was controlled by larger numbers of people, until, as in Australia, the whole people came to govern, greater security was afforded. In countries where such legislation does prevail, the franchise is extremely broad, and, as in Australia, the whole people govern instead of the few. I feel that no injustice is likely to rise out of these clauses. In view of legislation we have already achieved, to a considerable extent, .and which we are achieving from day to day, I question whether the same necessity exists for such provisions as has existed in the past. They can, however, do no harm, and in many instances will do good. At any rate, people will be afforded the opportunity to give expression to their views on this question in the course of their daily trade. We may adopt Senator Pearce’s proposals, feeling sure that, wherever a union is so unwise as to adopt the course suggested by Senator Millen, the injury, instead of happening to the individual, will happen to the organization, probably with advantage to the individual.
– I do not think there is any possibility of our finishing this discussion to-night, and I suggest that progress be reported.
Progress reported.
page 4018
Bill returned from the House of Representatives, with amendments.
In Committee:
Clause 2 (Determination of Seat of Government) -
House of Representatives’ Amendment. - Omit “ that portion of New South Wales bounded on the north by a direct line running from the town of Pambula to the town of Cooma, thence due west to the border of the State of Victoria, and within fifty miles of Bombala “ and insert “ seventeen miles of Dalgety.”
– Considerable time was occupied on a previous occasion in discussing the merits and demerits of the various proposed sites. The Bill has since been considered, also at considerable length, by the House of Representatives; and yet the amendments made by that Chamber are so much in conformity with what was decided in the Senate, that I do not think we ought to have much difficulty in coming to an agreement. I move -
That the amendment be agreed to.
– I am sorry I cannot compliment the Government on its conduct of business either in Committee or in the House. Progress was reported on the Trade Marks Bill, on the plea that we could not conclude its consideration to-night ; and yet, at a moment’s notice, we find ourselves in Committee on another measure. Such a course cannot, I think, inspire much confidence in the conduct of the business by the Government.
– I thought that the honorable senator was in a hurry to fix the Capital site.
– Senator McGregor always appears to find us in a hurry when he desires us to fall in with his wishes. There is a fair and reasonable way of doing business which is generally followed by Governments. To pass from one Committee to another when there is no urgency, but with a possible object in view, is not a proceeding which commends itself to me. So far as the amendment is concerned, I want to very briefly state my position. I quite recognise ‘ that, in my opinions on this question, I am in a hopeless minority in the Senate ; and that being so, I have no intention of wearying honorable senators bv reiterating the objections which I feel to locating the Capital in the Monaro district. At the same time, I wish once more to place on record my opinion - of course I am in a minority, and must bow to the majority - that a serious mistake is being made - serious, not only as regards the interests of my own State, but also as regards the interests of the Commonwealth. A large portion of the session of the Federal Parliament must be during the winter months, owing to the date on which the Senatorial elections take place, and for that reason I think we are making a serious mistake when we place the Federal Capital at an elevation of 2,500 feet in one of the coldest districts of New South Wales.
– Do not dis-‘ cuss the merits of the sites.
– I do not propose to do so. The majority of members in another place hold a different opinion, and I believe that I am correct in assuming that the majority of honorable senators will agree with the decision arrived at elsewhere. It only remains for me, as a representative of New South Wales - to which State the Dalgety site is distinctly distasteful - speaking from my knowledge of the district, to once more express the opinion that a serious mistake is being made in regard to the interests of Parliament itself.
– Is the Dalgety site distasteful to New South Wales, or distasteful to Sydney ?
– I am more intimately connected with the country districts than with the metropolis, and I think I may fairly claim to speak for New South Wales. I merely refer to that, however, as a second count. I believe that in the interests of Parliament itself, and of the members of the Parliament - in the interests of the satisfactory conduct of business - we are making a great mistake.
– I, like Senator Millen, bow to the wisdom of the majority.
– Not to the wisdom, but to the numbers.
– I desire to place once more on record my opinion that the best proposed site was Tumut. That site is approached by railway communication, and is half-way between Melbourne and Sydney, while it possesses a climate which would, at all events, suit our friends from north of the tropic of. Capricorn. Dalgety will be very cold in winter, and I find Melbourne quite cold enough for me. It is enough to freeze one’s blood to think of spending the winter months in a place swept by cold westerly’ winds from the snowcapped mountains. Although I lived in Scotland in my youth, I spent twenty-five years in Queensland, so that I can well appreciate the difference between the climate of one site and another. However that may be, this Government will, I think, have the honour of settling this question, provided they are reasonable, and do not ask New South Wales for an area of anything like 900 square miles. Dalgety is admitted to have the best water supply amongst the sites proposed, and that is a great advantage. But, unfortunately, judging by the appearance of the country, it will be a long time before there are any decent-sized trees there. There are certainly some magnificent granite boulders, but, I fear, rather poor soil. I hope that we shall not ultimately regret the selection we may make. I give my adherence to Dalgety as probably the second best site, but I do not depart from my preference for Tumut.
– I agree with Senator Millen that this is scarcely a seemly way of treating an important measure. I say that, because it is an extraordinary state of things that we should rush out of Committee upon another Bill, in the belief that the subject under consideration cannot be exhausted this evening, and then rush into Committee to discuss the Seat of Government Bill.
– The circumstances are different; this Bill has been before the Senate previously.
– And it comes back, with a message, asking us to reverse our previous decision.
– No.
– In my opinion, it does to a considerable extent. The Senate, as we all know, decided upon the site of Bombala.
– No.
– I was present, and know what we decided. I will put it in another way. I am aware that certain honorable senators think that the Capital site should have access to the sea. I suppose that Senator Mulcahy agrees with me with regard to that. I am also aware that certain honorable senators voted in favour of a site in the Monaro district, because they considered that it gave us access to the sea. The selection originally made by the Senate has been considerably changed ; and while the Vice-President of the Executive Council is apparently inducing honorable senators to believe that the site selected will have access to a port, and that the decision of the Senate in that respect is not. in any way interfered with by the amendments which have been sent up from the other House, I say that the position is considerably changed. I shall probably be told to look at clause 3, and that I shall find it stated there that the territory to be granted should contain not less than 900 square miles, and have access to the sea. I believe that some honorable senators are sufficiently gullible to imagine that the Bill, as it stands, gives us that right. But I say without the slightest hesitation that it does not. If we have a sufficiently large area to include Eden, of course, we have the same access to the sea that we originally desired. But the words which have been inserted in clause 3 do not give us what we desire.
– Suppose we had an area large enough to give us access to a navigable river. Should we not then have access to the sea?
– If we have a sufficiently large area to carry the Federal territory down to Twofold Bay, we shall have access to the sea. But the clause, as it stands, does not give us that access. Personally, I am not very much concerned with that aspect of the question, and am not going to quarrel with the House of Representatives. But I think it is a perfectly fair thing to point out what the meaning of the Bill is. The words which have been added to clause 3 are not worth anything at all, and if any honorable senators desire to insist upon the point of accessibility to the sea, they should not accept the third amendment.
– The words added to clause 3 must have some meaning.
– Any one may have access to the sea, no matter where he may be. But the words which have been added mean nothing whatever. They are worth nothing.
– The words are only an affirmation.
– The matter is put in this form, because the Federal Government have no absolute power to compel New South Wales to concede any territory. It is only an expression of opinion, and as such it is an extraordinary thing to appear in an Act of Parliament. But the circumstances are unprecedented. The only justification 1 can find for h is that the Bill itself is absolutely unprecedented. We have no possible parallel to it in the whole history of legisation. We are practically creating a new precedent, and I suppose that is a justification for the insertion of words which do not ordinarily appear in an Act of Parliament. I do not wish to deal with the question at any greater length, but if I have created any doubts in the minds of honorable senators, I can only say that while I am prepared to support the Bill, and while I am glad to see that the whole question is now practically settled, at the same time I think it is somewhat unfair to some honorable senators who are not present, and who have had no opportunity of knowing that a final decision upon the question is to be arrived at in the Senate to-night, that the Bill should be taken at this hour. I think it is a mistake, under these circumstances, that the Vice-President of the Executive Council should have projected this measure into the Senate at this time. So far as I am personally concerned, however, I have no objection to what. is being done.
– There seems to be some misunderstanding concerning the amendment which another place has inserted in the Bill. I do not know whether there are two or more Dalgetys within the Commonwealth, or whether there is only one place of that name. I know that there -are several places in Australia the names of which are duplicated.
The Bill, as amended,” as I understand, provides that the Capital site shall be at Dalgety.
– It must be in the State of New South Wales.
– If that point is clear, I have no objection to make. I trust that the Committee will unanimously agree to the amendments which have been made by another place, because, as has been pointed out, the territory which has been chosen by the House of Representatives includes the territory which the Senate favoured. As the House of Representatives are practically agreeing with us, and have simply fixed the site more definitely, there is no reason why we should not agree with them. We have been told by Senator Walker and Senator Millen that the choice is a very unwise one. Considering that we have been dealing with the matter for nearly four years, and have had an enormous amount of information concerning the different sites, I do not see how we could arrive at any wiser decision if the selection were delayed. I place no reliance upon the evidence of interested people. I place little reliance upon the objections of Senator Walker. In some cases, in order to defeat legislation to which he is opposed, he points out that one-half of the Commonwealth is unfit for habitation by white people, owing to the climate being too hot. On this occasion, with the object of defeating another provision to which he is opposed, he tells us that the place which has been selected is too cold for white people. But the race -from -which we have sprung is not a tropical race by any means. There are several honorable senators who come from the northern portion of the British Empire - from the mountainous districts of Scotland. Those who come from the colder regions are amongst the healthiest and most vigorous people we have amongst us. It may be that it will prove to be an advantage to the Commonwealth to fix the Capital site in a part of Australia where we shall be able to rear a hardy and vigorous race.
– Where we shall have a race of Highlanders.
– Probably we shall be able to rear a race of people who will go about with bare knees, looking exceedingly picturesque. I think that Dalgety is about as good a place as could have been chosen. I have seen all the sites which are favoured by considerable numbers of honorable senators, with the exception of Tooma. Bombala has some advantages over Dalgety, but at the same time Dalgety has very considerable advantages which Bombala does not possess, notably, in respect of the magnificent water supply, which is sufficient for a very large population, and at the same time ogives us an opportunity of generating almost unlimited electric power of the very cheapest kind, by the utilization of the powerful streams of water which flow in the vicinity. Therefore, I shall vote with the very greatest pleasure for the final selection of Dalgety, as the site for the Federal Capital, and I hope that the time is not far listant when the Senate will be sitting there and enjoying the benefits which will accrue to us from the magnificent climate of that district.
– I must extend my sympathy to my New South Wales friends in their sorrow at seeing this measure rushed through in thi manner now proposed. After the many protests which the New South Wales senator. have entered against the slow manner in which the Government have dealt with the selection of the Capital site, they must have undergone a considerable transformation, since to-day we find them joining Senator Dobson in protesting against undue haste. Considering that they have never been pleased at the speed which has hitherto been manifested in dealing with this question, and that they are now protesting against haste, we must arrive at the conclusion that this Bill has been responsible for a most remarkable change in their minds. With regard to Senator Clemons’ protest against the adoption of the amendments of the House of Representatives, I would point out to him that practically what has happened is that the other House has come into line with the Senate. We have always been in favour of the selection of a site in the Monaro district,, with, a port. In the last Parliament the Senate declared itself almost unanimously in favour of the Monaro district. At the elections a large majority of honorable senators who favoured that district were returned, proving conclusively that the people of Australia are in favour of fixing the site there. It is also a fact- that the majority of the Senate was of opinion that Dalgety was the best site in the Monaro locality. Therefore, the House of Representatives has practically come round to our view. I claim this Bill as the product of the Senate.
– Does the honorable senator consider that accessibility to a port is an essential ?
– We consider that this Bill secures that advantage.
– Was not that the reason why Bombala was first inserted?
– No; because Senator Smith pointed out that a radius of fifty miles would include Dalgety.
– Did not the question of acquiring the port cif Eden weigh in the selection?
– Certainly ; but that was only one of the many advantages which
Ave believed that the Southern Monaro sites possessed. I consider that New South Wales has much to thank the present Government for. They have grappled with the question from the outset, and have lost no opportunity of pushing it forward ; and they have to-night given the Senate an early opportunity of putting its final imprimatur upon the Bill. I shall cause no further delay, than to say that the choice made by the House of Representatives meets with my full approval.
– There is just one matter to which I think reference ought to be made. Senator Clemons has said that the expression in clause 3, “ and have access to the sea,” means nothing. Perhaps if we were dealing with an Act of Parliament, which should be interpreted entirely upon its verbiage, the honorable and learned senator would be right. But it happens that we are dealing with a measure which is properly an expression of opinion in connexion with the matters with which it is concerned. The only affirmation in it that is positive is, that the Federal Capital site must be within a certain area. The amount of land that is to be acquired is a matter for negotiation.
– Is it? There is a limit even to that.
– It is true that the Federal Parliament proposes to say that the area should not be less, but it has not said that it shall be more than 900 square miles.
– But it may be 9,000 square miles. Does the honorable senator contend that?
– Speaking for myself, I should be delighted if it were, but I do not contend that. I contend that the two Houses of the Federal Parliament are united in declaring that the Federal territory should ‘Comprise an area of 900 square miles.
– And by that the honorable senator means 900 square miles, or thereabouts ; a little more or less.
– I should say that if it happened that we could not get 900 square miles exactly - say, within a couple of inches, we should not quarrel about the couple of inches.
– The honorable senator means up to 905 square miles, about?
– I mean what I am saying, that the Federal Parliament thinks that the area should be 900 square miles.
– Would that take us from Dalgety to Twofold Bay?
– If it were narrow enough it would take us there and bring us back again. The honorable and learned senator has said that the expression “ and have access to the sea ‘ ‘ means nothing, but I say that, in view of the fact that this Bill will be considered, together with the discussion that took place in passing it, it is largely an expression of opinion for the purpose of future negotiations between two independent Parliaments. There is not the slightest doubt that these words “access to the sea,” will be interpreted not as Senator Clemons has suggested, to mean that we should have access to the sea over some one else’s territory, but that we should have access to the sea through Federal territory. Therefore, for all practical purposes, that clause is as definite as it need be. It is as definite as it could be made for practical purposes. Clearly, the object of Parliament in saying that we should have access to the sea is, that we shall have that access through Federal territory the whole way.
– It is an instruction to the Government.
– Certainly ; and for that purpose it is sufficiently definite. But I do not desire that it should go forth that it was not clearly indicated that the access to the sea should be all the way. through Federal territory. If that impression were to go forth it might then be argued in the negotiations that the Federal Parliament recognised that the expression did not mean anything more than that there should be some route by which we could get to the sea, and not necessarily through Federal territory.
– The honorable senator has strengthened my argument in the same direction, and has completely created that impression.
– Great minds often run together. I regret the amendment which practically shuts out Bombala, because I think it would have been better to have retained the widest possible range of choice within the area we had described. My own view is that Dalgety is the better site, but I am still sorry that the amendment to which I refer has been made. However, I do not think it of vital importance, or that we should lose the Bill because of it. It is, however, of very great importance that we should settle this question, and .that a perplexing, vexing, and disuniting bone of contention should be removed. I feel now that there will be a more rapid .approach to the proper Federal spirit that should exist, and does very largely exist, and which I believe will in the near future be complete and entire. In my opinion, this question while hung up had more influence than any other I can think of in keeping apart in sentiment and mind at least two, and possibly more, of the States of Australia. When this Bill is passed we shall not necessarily proceed immediately to this place, which Senator Walker has said is too cold for white men. but a cause of dissension will have been removed, and we shall be able to settle down to the consideration of the next question which presents itself to us - the question of ways and means. We cannot erect the Federal Capital without funds.
– We are not likely to get there in a hurry
– That is quite likely ; but a year or two, or three or four years, are nothing in the life and history of a Commonwealth such as ours! I think, however, that it is of importance that the question of the location of the Capital should be settled, in view of the fact that such a strong feeling has existed in the minds of many persons on the question. Though we are in splendid temper this evening, I could not but deprecate the slightly sneering, or perhaps I should say the bantering tone of Senator Pearce when he got up to congratulate the representatives of New South Wales. I think that we should, so far as possible, forget that we represent New South Wales, Victoria, or any other State, and should always feel that we represent Australia. The removal of this question will probably do more than anything else to bring about that very desirable feeling amongst honorable senators.
– It appears to me that throughout our discussions there is too much feeling shown and too little business done ; too much prejudice in the assertion of rights, and too little states’manship. Senator Millen has said that in the expression of his views he feels that he is in a hopeless minority, and I am greatly in sympathy with the honorable senator. I have much the same feeling with regard to my views when inside this chamber, but I have the satisfaction of knowing that a very large majority of the people outside agree with me in believing that we are considering this matter about a generation before its time.
– That is a consolation which the representatives of minorities always have.
– Although Senator Trenwith has put his point nicely and clearly about the passage of this Bill doing away with feelings of hostility, I do not quite agree with the honorable senator. I should like to remind him that we may give way a little too much to these feelings. If we are going to treat the transcontinental railway in the way in which we have treated this question, honorable -senators from Western Australia will only have to sing loud enough to secure the construction of that line. They will tell us it is necessary in order to maintain the Federal and national feeling which should follow the adoption of the Constitution.
– Hear, hear.
– I hope that Senator Matheson does not think that I believe in any such nonsense as that?
– I know that the honorable and learned senator believes in ths Federal feeling.
– I do, but. it is not going to be brought about by honorable senators on one side clamouring for something as if they ought to get it at once, and the rest of us, like a parcel of children, giving in to the clamour. I do not propose to decide any question in such a way. I have yet to be shown that the choice of a Capital site, at which half the members of the Committee are sneering, will allay the feeling which is said to exist in New South Wales. I have yet to see whether the pledge, if it was a pledge, made by the Prime Minister is to be carried out. That honorable gentleman said that any one who would advocate the building “of the Federal Capital at an early date would be guilty of the grossest extravagance. I remind honorable senators that in the opinion of the Prime Minister the Federal Capital will not be built for twenty years to come.
– Has the Prime Minister said that?
– I have yet to learn that the indecent haste with which we are now proceeding with this matter will allay any feeling whatever, or bring about any broader or more Federal spirit. I do not agree that Ministers are to be congratulated upon the undue haste with which they have asked us to deal with this matter. We have on three occasions busied ourselves with the Trade Marks Bill, and have three times considered the clauses submitted by Senator Pearce, and now when we have got them well into our heads the debate upon them has been adjourned, and we have been asked to consider the question of the Capital site. Many honorable senators who have taken a great interest in the settlement of this question are not present, and there is not one absent who could have had the slightest idea that this matter would come on for discussion this evening. Ministers have no right to ask us to enter upon the consideration of this question at this time of the night. I have an amendment to propose, but before I move it I should like to say that I recognise that a large majority of honorable senators will probably be against me. Personally, I should be glad if the Committee did not consent to the amendments made in the Bill in another place. Honorable members in another place have restricted our choice to a site within seventeen miles of Dalgety. It is possible that Dalgety is preferable to Bombala, but by adopting the amendment of another place we shall be restricting our choice and restricting the choice of the experts who, with their instruments and levels, will have to decide on the best place for the Capital. If the words of the clause as passed by the Senate, “within fifty miles of Bombala,” take in Dalgety, and the port of Eden. I should prefer that those words should be retained. I can see no reason why we should be. asked to accept the amendment, except that it is thought we should deal with this matter with undue haste, or that possibly Ministers are expecting an early political death, and they desire to have the credit of passing this Bill.
– The honorable and learned senator might give us a chance to make our will.
– I do not begrudge Ministers any credit to which they are entitled. They are entitled to much credit on many points, but they are not entitled to credit for postponing the consideration of the Trade Marks Bill in order that we might proceed to consider this Bill. The point referred to by Senator Clemons has not been quite disposed of by Senator Trenwith. I am inclined to believe that if the High Court had to construe the words referred to, it would possibly give them the interpretation which Senator Trenwith has indicated. But why should there be any doubt on the subject? It is a matter of very great importance, because I do not hesitate to say that Southern Monaro or Dalgety was chosen by the Senate and by the House of Representatives simply because it was felt that a selection in that district would give us access to a port. Surely it is a right thing for us to see that . we get that access. But I am not quite certain that we shall get it. The words used are -
Not less than 900 square miles, and have access to the sea.
That may mean by a strip of land one chain or twenty chains wide - one mile or two miles wide.
– Does the honorable and learned senator mean an increase of the area in order to get a port ?
– There might not be territory sufficient to take us to the port, except by a very narrow strip indeed. I should like my honorable friends to consider whether it is wise to limit the choice of a site in the territory by the -experts. I believe that a majority of the Senate favour Dalgety now more than Bombala. But why should we not have a radius of fifty miles in’ which to choose the site for a Capital instead of a smaller area?
– What is the suggestion of. the honorable and learned senator?
– My suggestion is that we should disagree with the amendment of the other House, because the clause, as it left the Senate, would give a wider choice to the experts. I would ask honorable senators to consider how we have wobbled about in. this matter, how on every occasion we have started before we were ready, and how at the last moment a site has come to the front which many of us have never seen and none of us had heard of until the last few weeks. Tooma secured almost as many votes as Lyndhurst. Let it be borne in mind that when a number of us travelled by coach and visited Dalgety not one of us saw with the skilled eye of Sir John Forrest that it was a good site, or dreamed a few months ago that it was preferable to Bombala. We did not take sufficiently into account the question of water supply - the potentialities of the Snowy River which runs through the territory. We did not attach sufficient importance to the enormous electric power which could be generated by means of that water. We have made all these mistakes by proceeding with undue haste, and without that expert evidence which is necessary. We have now chosen the site, although one expert, who was expressly sent” to make an official report, told us that we ought not to choose Southern Monaro without making a more thorough and exhaustive inquiry into the climate. At Bombala I was told by at least a dozen persons that in a severe winter the snow lies on the ground -for three or four days together, and that when the winter is not severe it lies on the ground for about six hours. But I was pleased with Southern Monaro. At the same time, our experts tell us that we ought not to make a choice until we have made further inquiries.
– London is a pretty fair sized town, with something like the same snow conditions.
– I am quite aware of that fact; but my honorable friend knows that most persons who can get out of London in the winter time go.
– Generally about 5,000,000 stay.
– I have heard from a relative that a great many persons can stand two winters, but not a third winter.
– The honorable and learned senator wishes to put the Bill on the shelf for a while.
– I desire the Bill to be considered in a statesmanlike and exhaustive manner. I do not desire, like my honorable friend, to pass the amendments of another place without consideration, and then go into Committee on another Bill.
– The honorable and learned senator has had four years in which to consider this Bill. 6 y
– Every time we have been asked to consider0 this question we have not been furnished with the necessary information. My honorable friends may think that they are doing the right thing tonight. They may pride themselves on the fact that they are in a majority here, but I believe they are in a hopeless minority outside.
– I do not agree with the sentiments which have fallen from my honorable and learned colleague. I hope that we shall not make any alteration in the Bill, though I should like to see clause 3 eliminated. If we wish to give an expression of opinion to our Government the proper way for each House to proceed is by resolution. In that way we could ha’ve given the Government some definite expressions of opinion. Senator Dawson. - Does the honorable senator object to the Government negotiating with New South Wales?
– I object to loading the Bill with a mere expression of opinion. I do not think it will reflect on our legislative wisdom if we make a mere expression of opinion the subject of an enactment. While I strongly support the selection of a site, and believe that practically the best site has been selected by- the Houses, I do not consider that by assenting to these amendments I am necessarily committing myself to any large expenditure. I think that we should be acting directly in opposition to the wishes of the people of Tasmania generally, and of all sensible people throughout the Commonwealth, if we were to indulge immediately in any very large expenditure. It is a consolation to me to know that the disposition of this Parliament is not to borrow. I recognise that if the money has to be provided out of the annual revenue we shall proceed cautiously enough.
Motion agreed to.
Clause 3 -
The territory to be granted to or acquired by the Commonwealth, within which the Seat of Government shall be, shall be within the area mentioned in section 2, and shall contain an area not less than nine hundred square miles.
House of Representatives’ Amendment. - Omit “ shall be within the area mentioned in section 2, and shall,” and insert “ should.”
– After the lengthy discussion on the previous amendment, I expect that this amendment, by reason of its simplicity, will be accepted with very little loss of time. When the previous amendment was being considered I felt tempted on several occasions to rise and express my opinions in opposition to the views of some honorable senators, but I was so anxious to see this Bill carried that I refrained from exercising my privilege. I move -
That the amendment be agreed to.
– I wish to once more record my objection to the insertion of the word “ should “ in this clause.
– It is only done out of deference to New South Wales.
– Exactly. On a previous occasion when an attempt was made by some honorable senators to insert the word it was pointed out that we could not use the word “ shall,” because Ft did” not rest entirely with this Parliament to ultimately decide the actual extent of territory.
– Did not a previous Government consent to the use of the word “should”?
– The members of the present Government resisted the use of that word, as I did. It was decided by the Senate, to send the Bill down to the other House, with the word “ shall “ in this clause, trusting, however, to the good sense of the Government of New South Wales, to recognise that there was no attempt on the part of this Parliament to coerce that State, or to usurp any legislative rights, but that it merely wished to adhere to a legislative word, which should be used in such circumstances. Last night another place was asked to again exhibit deference to New South Wales, by substituting “should” for “shall.” I agree with Senator Mulcahy, that this clause is an affirmation of something which should not be found in a legislative enactment. It is not an enactment, but a mere recommendation, or an expression of a pious wish, and its proper place would be in a resolution passed by each House, as an instruction to the Government, that when they approached the Government of New South Wales, they could say just as easily as they can say now, and with far better grace, “We come to you with this Bill, and these instructions, which express the will of our Parliament, so far as it can be . given legislative form, and beyond these instructions we are not to go in negotiating with you in those matters which must be dealt with by* us, as a matter of contract or bargain.” However, the clause is there, and the object of those who are considering the interests of Australia generally, and not the interests of the few, whom Senator Dobson seems to, is to see that this Bill is dealt with as speedily as possible. As soon as it has been dealt with, and our Government can proceed to negotiate with New South Wales, no doubt a great deal of the present irritation and friction will disappear. I, for one, feel that, although we shall have passed the Bill, yet, even if our Government succeed in selecting a site ultimately, neither this nor a succeeding Parliament will launch out upon extravagant expenditure, as so many persons, who are opposed to the selection of a site for the Capital, are so fond of telling the ‘people. I am confident that we shall proceed cautiously and slowly, that we shall cut our coat according to our cloth, and that the Capital, though its construction be entered upon early, will not be completed before a generation or two has passed. I trust that we shall take such steps as are necessary, under present circumstances, to establish a territory in that portion of New South Wales which will ultimately be decided upon, which shall not belong to the people of any State, but shall be the common property and heritage of the citizens of Australia for all time, and that we shall gradually, as the years go by, make a centre which shall be worthy of this Commonwealth.
– I believe that it was a great mistake for us to insist upon using the word “shall,” because we had no constitutional right to do so. We must bear in mind that, until the territory “ shall have been granted or acquired “ by the Commonwealth, and vested in and belong to the Commonwealth, we have no right to fix on a site. We are passing an Act of Parliament, but really it is merely a means of informing the State of New South Wales what our desire is. According to the Constitution the area shall not be less than 100 square miles ; but does any man in his senses believe that the High Court would decide that we could take 200 square miles without the consent of New South Wales?
– Yes, if that area were required for the Capital.
– All theCommonwealth can do is. to express a wish for a larger area chan that mentioned in the Constitution; and in such an expression I quite agree. I trust that New South Wales will’ accede to any request of the Commonwealth in that direction ; but, at the same time, we have no power to force that State to hand over 900 square miles.
-Our wish should be expressed by resolution.
– Why not express ourselves in language that is intelligible ?
– An Act of Parliament is not a vehicle for the expression of wishes.
– This is a most exceptional measure ; though I admit it might have been better to convey our wishes by a joint resolution of the two Houses, I am entirely in agreement with the choice which has been made. Though I have never seen the territory myself, I think I am able to judge of its merits from the reports of intelligent people who have visited it; I can read the details as to the temperature, the rainfall, and the quality of the soil.
– Rainfall in a poor country is not much good.
– But no rainfall in a poor country is worse. Very rich country with very little rainfall is not half so good as poor country with a heavy rainfall. ‘ I have judged this site from the reports of others, and have paid _ special attention to the report given by Sir John Forrest. That gentleman was in no way interested in any particular site, but made his investigation with an open mind. He was at one time a surveyor, and, with his full knowledge of land, gave his opinion unmistakably in favour of Dalgety. Personally I should have liked the site to be nearer Twofold Bay, because it is important that the Federal Capital should be connected with a port. But we cannot get everything we desire ; and we know that at Dalgety there is sufficient water power to generate electricity for railways and for manufactures within a certain distance, at the least possible cost. . As to climate, I prefer cold to heat, as I think the majority of people do. Those who come from the north, and have been enervated to a certain extent by tropical conditions, will at Dalgety be braced up for future usefulness. As to the necessary expenditure, my idea is that no money should be borrowed in connexion with the Federal Capital ; that all expenditure necessary for pro.viding accommodation for Parliament ought to be met out of the revenue. We have lately heard a great deal about Socialism, and have been told how inadvisable it would be to establish anything like socialistic conditions on the Federal Territory. All I have to say is that if the Commonwealth Government, when they acquire the land, are foolish enough to part with the fee simple, the people of Australia will curse them in the future, because no greater mistake could be committed. We know what the result of parting with the fee simple has been in other parts of the world.’ In the city of Adelaide I know of acres which originally sold for , £5 or £10, but which, on their unimproved value, are now assessed at£20,000. I was never more struck in my life with the importance of not parting with the fee simple as I was during a visit I paid to Singapore. I called upon the Governor, and, speaking of the magnificent buildings I had noticed in the town, I asked him on what tenure the land was held. He informed me that it was leased by the Government for fifty years or ninety-nine years, there being a clause stipulating for certain improvements; and the result of the system is that in the course of time the whole of the property will.. fall into the hands of. the Government. Very little taxation is required there at present, and the possession of this property will render taxation unnecessary in the future.
– Singapore is a Crown Colony ?
– Yes ; some’ extremely socialistic plans are tried in Crown Colonies, very often with a considerable amount of wisdom. I am exceedingly glad that the House of Representatives has practically come to the same conclusion as has the Senate in regard to the site for the Federal Capital. I was afraid, from what had taken place previously, that there might be considerable difficulty ; and it is exceedingly gratifying that the result is so good, so far as we have proceeded.
– Some remarks which have been made this evening may create a feeling approaching alarm amongst the people of the district in which the proposed Federal territory is situated. It has been affirmed that after the passage of the Bill there is no intention to borrow money for the purpose of carrying its provision into effect. I wish to point out that once the Federal territory is acquired it will be absolutely necessary for the Commonwealth to borrow an amount sufficient” to pay for private property . which it may be necessary to take over.
– But not to compensate the owners.
– Having assumed this territory, we cannot allow it tq remain for the periods which have been mentioned - periods ranging from four to twenty years, or from one to two generations - without paying for the property which is claimed. The remarks as to the delay which will take place before any money is expended or borrowed apply only to the building of the Capital, and not to the compensation of those whose private property may be interfered with.
Motion’ agreed to.
House of Representatives’ Amendment. - At end of clause add “ and have access to the sea.”
– No argument is, [ think, necessary to impress on the minds of honorable senators the importance of this amendment. I believe a large majority of honorable senators recognise the advisability of having access from the Federal Capital to the seaboard, and for that reason I shall not occupy time in recommending this amendment. I move -
That the amendment be agreed to.
Motion agreed to.
Resolutions reported; report adopted.
page 4028
Motion (by Senator Pearce) agreed to -
That the Select Committee on Tobacco Monopoly have leave to extend the time for bringing up their report to this day four weeks.
Senate adjourned at 10 p.m.
Cite as: Australia, Senate, Debates, 10 August 1904, viewed 22 October 2017, <http://historichansard.net/senate/1904/19040810_senate_2_21/>.