2nd Parliament · 2nd Session
The President took the chair at 2.30 p.m., and read prayers.
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– I desire to ask the leader of the Senate, without notice, whether the Government will, arrange to have the Queen’s Hail thrown open to the general public during such hours on Saturdays and Sundays as will give all sections of the community who may so desire, an opportunity to inspect the picture of the opening of the first Commonwealth Parliament?
– I may say that an arrangement will be made for the opening of the Queen’s Hall on Saturdays, Sun-, days, and Mondays.
– I understand that the picture is exhibited in the Queen’s Hall so that it may be viewed by members of Parliament, and that, subsequently, it will1 Le sent to the National Art Gallery, where it can be seen by the public. Of course, the President and Mr. Speaker can make an arrangement for the picture, to be seen in the Queen’s. Hall on the days mentioned by the honorable senator.
– In further answer to the question I would say that I have ‘received from the Prime Minister a letter to the effect that the picture will only remain in the Queen’s Hall for fourteen days, and that during that period an arrangement will be made so that the public cart see it on Saturdays and -Mondays.
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– I desire to ask Senator Keating, without notice, when an opportunity will be given to continue the discussion on the classification of the Public Service. I understand that he stated previously that every opportunity would be afforded to honorable senators to give full expression to their views.
– I would like the honorable senator to give notice of the question.
– Do I understand that the discussion -is to be resumed on a date far ahead, and that the Commissioner will not have the benefit: - if it is a benefit - of the Views’ of those honorable senators who have not yet spoken oh the subject?
– It was anticipated that the time given on Friday last for the discussion of the subject would be sufficient. As I intimated previously, it is not the desire of Ministers to prevent a complete discussion of the scheme, and if before to-morrow I can ascertain with any degree of certainty whether there are a number of honorable-senators who will be ready to continue the discussion at an early date,, I shall inform the Senate then what steps we intend to take to meet their wishes. -
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MINISTERS laid upon the table the following papers : -
Notifications of the acquisition of land for defence purposes at Randwick, New South Wales, and, by exchange, of a site for a post-office at Murrin Murrin, Western Australia.
Memorandum by the Minister of Defence on the Defence Estimates for the financial year 1905-6.
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Assent reported.
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Assent reported.
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Assent reported.
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The PRESIDENT reported the receipt of a message from the House of Representatives stating that it had agreed to the amendment made by the Senate in this Bill.
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asked the Minister representing the Postmaster-General, upon notice -
– The answers to the honorable senator’s questions are as follow : -
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asked the Minister representing the Postmaster-General,upon notice -
In reference to the replies given by the Minister to the questions asked by Senator the Hon. H. Dobson on Thursday, 24th “August, relative to Commonwealth public servants interviewing or writing to members of Parliament ; does the Minister consider it to be a breach of the regulations referred to if -
A public servant acting as an official representative of a public servants’ organization interviews a member or members of Parliament?
A public servant acting as aforesaid writes to members of Parliament on matters affecting the service?
– The answers to the honorable senator’s questions are as follow : -
The answers given had reference to the individual cases. The regulation is as follows : - “ Officers are prohibited from seeking the influence or interest of any person in order to obtain promotion, removal, or other advantage. Any officer who considers that his claims for promotion or consideration have been overlooked may write a statement of his claims to the chief officer, who shall forward without delay such statement with any remarks he has to make thereon to the permanent head, who shall transmit it to the Commissioner for consideration.”
What actually constitutes a breach must depend upon the circumstances of each case. It would, however, be a breach of the regulation for any public servant acting individually or as an official representative of a public servants’ organization, whether by interview or letter, to seek “ the influence or interest of any person in order to obtain promotion, removal, or other advantage.” The above regulation provides a procedure for redress.
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Motion (by Senator- Matheson) agreed to -
That a return be laid on the table of the Senate showing the annual revenue collected by the Tarcoola Post-office from telegraphic business since it was opened.
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– I move -
That the report of the Standing Orders Committee relating to Lapsed Bills be adopted.
If honorable senators will look at the present standing order on this subject they will find that the principal alteration which has been recommended by the joint committee of the Houses is that when a Bill, originated in say, the Senate, and forwarded to the House of Representatives has not been finally dealt with there when the Parliament is prorogued that House cannot in the following session resume its consideration without a resolution from the Senate requesting it to do so. Precisely the same procedure is recommended when a Bill, originated in the House of Representatives is pending in the Senate when the Parliament is prorogued. Therefore, under the proposed new standing orders one House cannot proceed with the consideration of a lapsed Bill without the consent of the originating House. All the other recommendations are simply made to replace the present standing order, but in a more complete form.
– This report involves one or two considerations, which I think we ought not to overlook. We ought not to adopt this motion as a matter of form. One very grave element, as I think, should have direct consideration from us before we do anything. The present standing order enables a Bill, whose progress was interrupted by the close of the previous session, to be resumed on a resolution of the Senate or the other House - because the same practice prevails in either branch - at the point it had reached at the time of prorogation. The effect of that was to withdraw entirely from the House in which the measure originated, and from which it passed, all further opportunity of interference with that Bill, unless, of course, some amendment was made which required consideration at the hands of the other branch of the Legislature. So that, in point of fact, no opportunitywas given for any possible change of opinion or reconsideration by the other Chamber, the necessity for which might have arisen in the interval between the prorogation and the resumption of the proceedings of Parliament. Then, again, it was a matter for debate whether a’ principle which was certainly at variance with the long course of Parliament Government in England, upon which our proceedings are founded, should be adopted. There can be no doubt whatever that some provision of this kind is very useful as facilitating legislation and saving, in many cases, a great deal of time.
– Waste of time.
– I am not sure that we should call it altogether waste of time, because I am one of those who do not believe in hasty legislation ; and the more opportunities are given for tha consideration of important measures by Parliament the better. Such reiterated consideration does not by any means necessarily involve waste of time.
– It often prevents the. necessity for amending legislation.
– I do not sympathize with those who constantly criticise and clamour against the proceedings of Parliament as a waste of time. I think that the best things are done very often, not on first, but on second thoughts. Therefore it is not an idle thing to say that we should not adopt, as a matter of course, any procedure that will unduly cut short the consideration of any measure. But while holding that view as a matter of principle, I freely admit that in regard to a large number of measures which are more or less uncontroversial, such a standing order is exceedingly desirable. In measures that involve matters of controversy it may also be desirable ; but I gravely doubt, and always have doubted, whether a provision such as exists in our present Standing Orders was desirable, or ought to be applied generally to all Bills, and particularly to Bills of a highly controversial character. Although we do not allow our standing order relating to lapsed Bills 1o apply where an election has intervened, there are occasions, and there are Bills to which, perhaps, it might not be equally applicable. Take, for instance, changes of Government. You have, say, a Bill introduced in one House, and even passed ‘through that House, under the leadership of a Government, some members of which may disagree with the Bill as a matter of policy, but may, nevertheless, from a natural feeling, prefer to let things take their course, the Bill being in the other Chamber; or, to use a common phrase, to “let sleeping’ dogs lie.” They may prefer to let the Bill go through without feeling that they are taking that
Ministerial responsibility in respect to it which they ought to take. The old standing order, it seems to me, did not remove the disadvantages of the course to which I have referred, and was objectionable in many respects. It was objectionable in regard to the point which I have already casually indicated, that it deprived the House in which the Bill originated of any opportunity for reconsideration, and of saying whether or not they were ^prepared to take the same course in regard to the measure as they took in the previous session. The new standing order which is recommended by the Joint Standing Orders Committee is a distinct and great improvement from that point of view. If honorable senators will look at the report of the Committee they will find that the position is changed. The House in which a Bill originated, and from which it had gone to the other branch of the Legislature, will have an opportunity, not in the ordinary way of dealing with Bills but by resolution, to say whether it desires that the Bill should be proceeded with! from the point which it had reached in the previous session. That gets rid of the inconvenience - of the disability, in fact- - thrown upon the House where the Bill originated, by the old standing order ; it leaves the House sti-Il in possession of the power to say whether or not it wishes the Bill to be proceeded with at the point which it had reached at the time of the prorogation, and to declare if it does not wish to have, it proceeded with in that way, that it shall be reintroduced. There is no doubt whatever that a very- great improvement is made to that extent. But there is one class of Bills which I think we ought to have fully in our minds before we adopt this report without qualification. I refer to Bills for the appropriation of revenue or moneys. If Parliament desires that this procedure shall apply equally to Bills appropriating revenue or moneys, as well as to all other Bills, that ought to be distinctly in our minds now. The point should be raised, as I propose to raise it, whether it ought so to apply; so that at some future time it may not, when a concrete instance occurs, be raised as a point of order whether the standing order ought to extend to measures of that character. I think that it is a matter for congratulation that, through the good services of the Standing Orders Committee, we are able to discuss the matter quite irrespective of any measure, just now pending; that we are able to deal with it as a question concrete as regards procedure, but abstract in that it does not concern any measure upon which feeling or judgment may run one way or the other. The point that I wish to bring under the notice of honorable senators is whether we are at liberty, by a standing order, to deal with such Bills in this way, having in view section 56 of the Constitution. The point was raised by Senator Turley some time ago in connexion with a Bill that was then in the hands of the Senate. My point is not whether we should not make Standing Orders regulating our own procedure, but whether we may by these Standing Orders, affect - either by way of repeal or by way of conflict - a provision of the Constitution, such as section 56. We must remember that the Constitution is an Imperial (Act of Parliament. It is an Act of Parliament, above all others, in the first instance, approved by the people of Australia, so far as regards its substance, its provisions, and its form. But it receives its validity as a piece of legislation from the Imperial Legislature. When it’ was passed, there was, of course, no such standing order in our books of procedure as that which we are now considering. Such a standing order was not in contemplation by the Imperial Legislature. What was contemplated when our Constitution was passed, was that the passage of a Bill appropriating revenue or moneys should take place in’ one session. There was no other procedure in view. There was nothing to qualify or modify that parliamentary situation one whit. Section 56 embodies what, so far as the Imperial Parliament is concerned, was really a standing order. But it is no standing order of ours. It is a part of our Constitution. That is what creates the difference. In Todd’s Parliamentary Government, volume 1, page 765, I find this statement as to the origin of messages regarding the appropriation of revenue : - .
Hitherto it has been customary to permit Bills of this description to be introduced by private members, without reference to the Government; hut this practice led to so much irregularity that, in the session of 1866, a new standing order was adopted, requiring the recommendation of the Crown to be given before the House will entertain any motion that will involve a charge upon the public revenue whether direct or out of moneys to be provided by Parliament- This order is intended to place the responsibility for such Bills, if not their initiation, in the hands of the Government.
That was the origin of the standing order as it exists in the House of Commons ; and although in form, of course, a message: from the Crown is a recommendation from, the Crown for the appropriation of revenue, it really is a means by which theExecutive Government exercises its responsibility. In this sense it is a remnant of the constitutional doctrine that when the Crown wants money it has to come to Parliament, so to speak, cap in hand, and ask for it. It is not a reflection upon Parliament, nor does it involve any lowering of the powers and position of Parliament. It is rather a recognition of the control of Parliament, and the control of the Executive in regard to the voting and expenditure of public money. Thus no member of Parliament, in his private capacity, is entitled to ask Parliament to vote money without the authority of the Executive Government. This section of our Constitution really is an embodiment of a principle, which, so far as I am aware, is not embodied in any other constitutional instrument of like standing and power. The same principle is embodied there, and the same idea that was intended to be given effect to, namely, that there should be a message before a Bill of that character is passed - that is, passed by either House. Before it is passed by the House of Representatives there must be a message. Then, after it leaves the House of Representatives and comes to the Senate, if it comes during the same session, the message received in the House of Representatives, in which the measure originated, holds good for both Houses, and there is a message antecedent to the passing of the Bill in each House, which satisfies the terms of section 56 of the Constitution. But if we apply the standing orders proposed to Bills involving the appropriation of public revenue or moneys, we shall require two messages in different sessions. I am not concerned to say whether two messages for one appropriation would be illegal, unconstitutional, or anything of the kind, but honorable senators will see that the fact that in such circumstances we should require two messages, which are not contemplated by section 56, shows that the proposed standing orders are in conflict with the object of that provision of the Constitution. It is quite clear from section 56 that only one message is contemplated. It is quite clear from that section, and from the history of similar provisions, that it is contemplated that such Bills as these shall pass through Parliament in one session.
– Some of the States of Australia have legislated in a different direction, and probably the members of the Convention, in framing the section in question, had that legislation in their mind.
– Perhaps my honorable friend will tell me what he is alluding to.
– The Lapsed Bills Act of South Australia, for instance.
– That has nothing to do with this. If section 56 of the Constitution is infringed in any way by our Standing Orders it would be equally so by provisions such as are contained in the Act of Parliament to which the honorable senator refers. We cannot alter the Constitution.
– If a money Bill were reintroduced it would require another messagr;, and what is the difference.
– Yes, but it would be a new Bill.
– It would be just the same old Bill.
– My honorable friend must see that, while the purpose might be the same, it would be a new Bill, and as a new Bill it would go through all its stages in the ordinary way. The simple question for us is - Does this provision about Lapsed Bills come in conflict in any way with section 56 of the Constitution, or is it inconsistent with the spirit and intention of that section ? If it is. are we entitled to give effect to the standing order as applied to Bills contemplated by that section ? In my viewevery Bill appropriating revenue or moneys ought to be introduced with its message in the ordinary coursebefore passing in the House of Representatives if it is introduced there, and should be passed through all its stages during the same session, and the standing orders before us ought not to be made applicable to Bills of that character.. As a member of the Standing Orders Committee. I do not wish it to go abroad,, or to be supposed for a moment that I agree that the new standing orders proposed are not inconsistent with the provisions of section 56 of the Constitution. I think they are. I should: hesitate very much even if these standing orders were passed in vot ing for a Bill involving the appropriation of revenue or moneys in another session from that in which it was introduced in the other branch of the Legislature or here. We should certainly deal with the matter with our eyes open, and should not leave the difficulty to be a matter of the construction put on these standing orders. Therefore, in order that the question may be discussed I move -
That after the word “ Bills,” the following words be inserted : - “ except a Bill for the appropriation of revenue or moneys.”
Amendment not seconded.
– In reference to “this question, I wish to make a few remarks, not as President, but as Chairman of the Joint Standing Orders Committee. With respect to the point raised by Senator Symon,we should always bear in mind the intention and object of section 56 of the Constitution. That section takes away powers from Parliament, and increases the prerogatives of the Crown, by providing that Parliament cannot pass certain measures unless the Crown consents. I quite agree that is it a good section, and I am not saying anything against its object, because it gives to the Ministry of the day power over the expenditure of the Commonwealth. They are responsible for seeing that revenue and expenditure balance. I am, therefore, quite willing to admit that they ought to have the power given to them by section 56. But we must always bear in mind that that section is a curtailment of the powers of Parliament, and that being so, I do not think we should further curtail the powers of Parliament, except as provided by that section. Senator Symon has moved an amendment which has not been seconded, but the honorable and learned senator’s speech is to the effect that we ought to except from the provision of the proposed new standing orders Bills for the appropriation of revenue or moneys. I gather from his speech that Senator Symon desires to provide that one House of Parliament shall not, under a lapsed Bills standing order, discuss a Bill’ introduced in the other House of Parliament in a former session.
– Only in that particular case.
– In that particular case, of course. I admit atonce that I am not in sympathy with these standing orders concerning lapsed Bills. I hold that the greatest possible consideration should always be given to any proposed alteration of the law. I do not hold that it is a waste of the time of Parliament to consider or reconsider any Bill proposing an alteration of the law. In one of the old Greek statutes it was provided that any member of the Legislature who proposed an alteration of the law should do so with a halter round his neck, and that if the proposed Bill did not pass he should be hung. I think that is going a little bit too far. I am not prepared to go to that extent, but at the same time I do hold that we should have the greatest possible consideration of every proposal involving an alteration of the law. However, I am in this matter in a minority. I was in a minority in the Standing Orders Committee. The draft of the Standing Orders under which we were working made no provision with reference to lapsed Bills, and when a standing order for that purpose was inserted by the Standing Orders Committee, I voted’ against it. When the standing orders now proposed were approved I voted against them, and I believe I was the only member of the Joint Standing Orders Committee who did so. However, I bow to the will of the majority, and I shall be prepared to carry these orders into effect if they are adopted. I am willing to admit, and I do admit, that the new standing orders are a great improvement on the old standing order, because they provide that no Bill shall be passed without the concurrence of both Houses given in the same session. I am unable to draw any distinction between Bills which appropriate revenue and Bills which do not. I understood Senator Symon to say that Ministers who do not agree with a particular measure do not take Ministerial responsibility. I may be wrong, but that is what I understood the honorable and learned senator to say, and if I am right, I entirely disagree with him.
– No, I did not say that.
– I took the words down at the time, and I thought that was what the honorable and learned senator said.
– What I said was that there might be Ministers who would not agree with a particular measure, and who would have no opportunity of dealing with it if it were proceeded with in another House.
– Exactly. I say that if a Minister who disagrees with a measure joins with his colleagues in its introduction, he must take the same responsibility with respect to it as other members of the Ministry who do agree with it. The Ministry is a quasi corporation, and an individual Minister must bow to the will of the majority of his colleagues or resign. I say that any Minister who agrees with the policy of the Government to which he belongs in introducing am Bill and passing it, takes the same responsibility for the measure as other members of the Ministry, whether he agrees with it or does not. The point which Senator Symon made seems to me to be narrowed down to this : That if we pass these standing orders as recommended by the Joint Standing Orders Committee, it might sometimes be necessary to have two messages from the Governor-General. Why should we not? What objection is there to that? Suppose we did have two messages. All that they would amount to would be an indication that the Ministry of the day concurred in theexpenditureproposed. All that section 56 of the Constitution requires - and this is the object of that section - is that it shall be clear that the Ministry concurs in the proposed expenditure. I do not think myself that two messages are necessary, but that may be a matter of opinion. There are only three possible meanings of the word “passed” as used in section 56 of the Constitution. It might mean finally passed by both Houses of the Parliament, but I understand that that is not contended by any one. It might mean passed by either House of Parliament ; or it might mean passed by the House in which the Bill originated. I think it has the latter meaning. But suppose I am wrong, and suppose it has the second1 meaning, and that the Bill must be passed by either House. Then two messages will meet the case. I cannot see that from any point of view the objections submitted by SenatorSymon are well founded. I think the Senate would do well to adopt the recommendation of the Joint Standing Orders Committee, although, as I have said before, I am not in sympathy with standing orders in reference to lapsed Bills. If we look at the practice in Great Britain, and at the Constitutions of the six States included in this Commonwealth, we shall find that so far as Great Britain is concerned, we can obtain no information, because the Standing Orders in Great Britain provide that the House of Commons shall not proceed with a measure appropriating revenue until after a message has been received - the word used is not “pass.” So that the message must precede the consideration of such Bills by the House of Commons. In four of the States, New South Wales, Tasmania, Victoria, and Queensland, the same terms appear in their Constitution Acts. They cannot proceed with a Bill without a message. The message is the first preliminary. Then, if we take the South Australian Constitution, we find -
It shall not be lawful for either House of the State Parliament to pass -
That is clearly indicating either House - - until a message shall be received from the Governor recommending the House of Assembly to pass the Bill.
That is quite clear and definite. Neither House can pass such a Bill unless the Governor first recommends the Bill to the House of Assembly. If we turn to Western Australia, we find that in the case of that State, it is provided that “ it shall not be lawful for the Legislative Assembly to adopt or pass,” this clearing indicating the particular House. I give these illustrations to show that the matter is definitely provided for in all the seven Constitutions to which I refer - in the case of the British House of Commons, and the six Parliaments of the State. It is quite clear that in the case of the Federal Constitution, the Drafting Committee - because this section was redrafted by that committee - in their desire for conciseness, perhaps, erred a little too much on the side of ‘rejecting what they considered to be superfluous words. The Drafting Committee altered this section by leaving out the words “ either House “ ; and if those words had not been left out, the matter would have been quite clear. However, whether we have to interpolate into section 56, the words “ either House,” or whether we are not to do so, does not seem to make any difference. In the one case one message is sufficient, and in the other case two messages are required. But what does that matter? Why should not a second message be sent, which implies, or provides, that the Ministry in the second session concur in. the expenditure. That is all that is required; that is the object of the section, and ‘if that is done, whatever interpretation is adopted, we shall be acting within the intention of the Constitution in adopting these standing orders. I think that the criticisms of Senator Symon are not well founded. Of course, in that I may be mistaken, as anybody may be mistaken ; but it seems to me that we ought to adopt the recommendation of the Standing Orders Committee.
– I am glad to hear, Mr. President, that although you were adverse to these standing orders originally, you are now df opinion that they had better be adopted, in view of the strong recommendations, not only of the Standing Orders Committee of the Senate, but of the Joint Committee that met the other day. I deprecate all proposals which, from time to time, have a tendency to delay legislation which is necessary. When a Parliament has been elected, I take it that the mere fact of a periodical prorogation should not be regarded as a reason for interfering with the progress of legislation that has been introduced ; and I know that in the majority of the States that is the principle acted on. While it is well that we have had an opportunity to listen to Senator Symon and yourself on the constitutional aspect of the matter, I think that the ‘ question we have, first of all, to ask is - Does this proposal conflict with the Constitution in any way ? If it does not conflict with the Constitution, the next question is - Is it a desirable procedure to adopt, although the men who drew up the Constitution had not this contingency in contemplation at the time? Both of these questions can, I think, be answered without any great difficulty. I am satisfied that, although this contingency may not have been contemplated by the framers of the Constitution, the recommendation is not in conflict with the Constitution, or beyond our power’s. The fact that the wording of the section implies that only one message will be sent may be attributed to the general assumption that legislation will be completed in the particular session in which it is introduced. We know, however, that practically that cannot always be the case. There may be a Bill, for instance, which gives rise to a great deal of difference of opinion and conflict, and two or three months mav be occupied in pushing it along by means of constant sittings. When that Bill comes to another House, there may be a strong minority who, being opposed to the measure, may prevent it from becoming law. Surely it would not be reasonable, under such circumstances, to say that the whole of the time that had been occupied in the other House in taking the Bill through all its various stages should be thrown away, and that there must be introduced another Bill which might give rise to the same trouble and conflict, more particularly when in the Chamber in which the Bill was originally introduced, there is still an opportunity, on a message being received from the other Chamber, to ventilate any difficulties that may have cropped up in the meantime. An opportunity is thus given for consideration, while at the same time there is no room for such an amount of fighting, as would render it impracticable ‘to pass the measure. Personally, I would sooner see Parliament ultimately give a vote under such circumstances than have the measure destroyed by what those in favour of it might call obstruction. However much we may differ in opinion, we must recognise that Parliament, as representing the people, has a right to say whether a particular form of legislation shall pass. If a Bill were brought in towards the end of a Parliament, it would be unreasonable, in. the case of a general election, to say that all that had been done in the previous Parliament should be ratified. The new Parliament, having come fresh from the people, and being, probably, embued with the people’s ideas of a particular measure, as they would be if it were an important one, should have an opportunity to reintroduce it and pass it through all its stages. But a- mere prorogation occurring today, instead of a month hence, by which time probably the Bill would have been passed, should not be taken as a reason for rendering useless the work already done. I have always been strongly of opinion that a standing order of this character was desirable in the public interest, as well as in the interests of Parliament itself. I am glad to find that the standing orders as submitted have certain safeguards which did not surround the previous standing order. I am pleased to welcome standing orders which will prevent the possibility, as it appears to me, of an injustice being done to either House or to the country generally with regard to legislation under consideration. The point as to the messages, I regard as rather an interference with the prerogatives of the State; but, after all, we proceed on the theory that these are the moneys of the Crown, and that the Crown desires us to vote them.
– It is a mere recommendation, not an order.
.- And the recommendation is made at the request of the Ministry of the day?
– And the Ministry is responsible for the recommendation.
.- And, therefore, I do not regard the recommendation as in any way an interference with our rights and prerogatives. The course proposed is simply a means of safeguarding our rights, because it makes somebody responsible. If any foolish or wrong recommendation is made, those persons who are responsible for it ought to suffer for trying to lead Parliament astray in the payment of moneys which belong theoretically to the Crown, but really to the people, to whom we are responsible.
– The points put by Senator Symon were raised in the- Standing Order Committee, and thoroughly debated ; and the Committee, by a large majority, decided that they were on perfectly safe grounds in making the recommendation contained in the report. At the meetings of the Standing Orders Committee, Senator Symon, in an equally vigorous fashion, voiced the protest he has made to-day, and outlined what he considered to be the chief objections to the course proposed. I have not been present to-day to hear all that the honorable and learned senator said, but I take it that he took practically the same stand which he took in the Committee.
– Substantially the same.
– Although I say it with bated breath, it seems” to me that Senator Symon adopts a somewhat strained view of the section of the Constitution ; and if we apply it to a specific instance, I think we shall be able to see the flaw in his argument. The instance with which the Senate is most familiar, is that of the Port Augusta to Kalgoorlie Railway Survey Bill ; and if honorable senators will look at the procedure adopted in that case, and then .read the section in the Constitution, they will find that practically that section was complied with in full. Of course, there is undoubtedly more force in the argument against this procedure, as connected with Money Bills, than as connected with ordinary Bills ; in fact,
I do not think that Senator Symon advances his objections against ordinary Bills.
– Hear, hear.
– The Standing Orders Committee, with the safeguards they have embodied, give every power to both Houses, to conserve their rights in regard to Money Bills, and with those safeguards, I think the report might very well be adopted.
Question resolved in the affirmative.
Motion (by Senator Playford) agreed to-
That the following new standing orders be adopted in substitution for the existing order (No. 234) relating to Lapsed Bills : - “ 234A. Any public Bill which lapsesby reason of a prorogation before it has reached its final stage may be proceeded with in the next ensuing session at the stage it had reached in the preceding session, if a periodical election for the Senate or general election for either House has not taken place between such two sessions, under the following conditions : -
If the Bill be in the possession of the House in which it originated, not having been sent to the other House, or, if sent, then returned by message, it may be proeeded with by resolution of the House in which it is, restoring it to the notice-paper.
If the Bill be in the possession of the House in which it did not originate it may be proceeded with by resolution of the House in which it is, restoring it to the notice-paper, but such resolution shall not be passed unless a message has been received from the House in which it orginated, requesting that its consideration may be resumed.” “ 234b. Any Bill so restored to the notice-paper shall thenceforth be proceeded with in both Houses, as if its passage had not been interrupted by a prorogation, and, if finally passed, be presented to the Governor-General for His Majesty’s assent. 234C. Should the motion for restoration to the notice-paper be not agreed to by the House in which the Bill originated, the Bill may be introduced and proceeded with in the ordinary manner.”
page 1634
Debate resumed from 24th August (vide page 1432), on motion by Senator Keating -
That the Bill be now read a second time.
– By the courtesy of Senator Millen, who moved the adjournment of the debate on Friday last, I ask the indulgence of the Senate for a few minutes while I make one or two observations on this Bill. It is always refreshing to get a Bill which rises above and is outside the stormy limits of party politics. I do not think that this is a Bill which ought to, or, indeed, can, raise any political or party animosity. We may approach the measure from the same point of view as we should approach what we have called machinery Bills. There are three kinds of Bills with which this Parliament has to deal under the Constitution. There are those Bills which are known by the name I have just applied to them, namely, machinery Bills. There is a second class, which I may call Bills of uniformity - that is, Bills dealing with subjects which do not come within the ambit exactly of machinery Bills or of party politics, but are intended to secure uniformity of legislation on matters of public utility and public necessity. And there is a third class, which may be described as Bills of policy - that is, new Bills which are in the highest degree controversial. In machinery and uniformity Bills there may be much debatable matter as to details, but, so far as the principle involved is concerned, they involve no matter of controversy. If the time is opportune the principle we naturally adopt without much debate. At any rate, there is nothing in the principle which would induce any one to oppose the second reading of such a Bill. This Bill, dealing with copyright, if not machinery in the strict sense of the term, is at any rate within the second categoryof uniformity Bills like those relating to companies and bankruptcy, both of which, 1 hope, before many sessions are over, will be dealt with in order to prevent that conflict of procedure - a conflict that very often amounts almost to principle - which prevails in the diverse legislation of the various States. In regard to Bills of that character, we may disagree on details; but as a rule the principle is incontestable. This Bill has a further claim to my good will, in that it happens to be a Bill of the late Government, framed but not finally revised before they left office. In the third place, it has a special claim in that in it we are seeking to do what the Imperial Copyright Commission, who reported in 1878, declared to be an absolute necessity in relation to copyright, namely, to place the copyright law on something like a clear and intelligible footing. The main criticism of that very influential Commission, which carried on its labours from 1875 to 1878. was that, through the complexity and the number of the Acts of Parliament relating to copyright, we had merely a piecemeal method of dealing with the subject, and that if there was one body of legislation more than another which it was desirable to make clear, so that he who ran should read, if that were possible, it was the copyright legislation of England and of the Empire. This Bill is at least an effort - it was meant to be an effort by the late Government, and I take it that it is so intended by the present Government - to ‘carry out that object, and secure for all the States a uniform copyright law which shall, as far as possible, give effect to the best views in relation to that legislation and effectual copyright up to date. The details of the measure can be very much better left to the stage of Committee ; but I wish to say a few words about what the foundation of the law of copyright really is. I venture to put it in this way : That the system of copyright rests upon a recognition of the duty of Parliament and Government to secure justice to authors, and involves the recognition, on the part of Parliament and Government, of the justice of establishing a property in the fruit of a man’s reason, intellect, and imagination. That, of course, cannot be given effect to - we know quite well it cannot without arguing on the subject - unless the fruits of a man’s reason, intellect, and imagination are expressed. If a man’s brain is applied to the construction of something which can be handled, which is tangible, then there is no difficulty, because the law says that is his property. If any one invades it, or interferes with it, or takes it away from him, the offender is liable to the penalty which would follow upon a course of that sort. But where you cannot weigh or measure, where that which you seek to make a property is imponderable, you must first define what the property is, and then protect the owner in its enjoyment. In the first instance however, you must define what the property is so that you are able to say that this particular thing which you have defined is, in the eye of the law, to be property, and that its author or creator shall be entitled to the value of it, to be ascertained by the labour he has bestowed upon it, plus that right which the law may give him to enjoy the creation of his own efforts for a certain period. There has been a very great deal of discussion as to whether there is any natural right of property whatever - whether all property is not the creature of law - and undoubtedly in relation, to these fruits of intellect, reason, and imagination, there is no property unless, according to that which the law gives and defines. The result of that position is shown when you come to consider that a man’s ideas involve the notion of a property. A man’s ideas, so long as he has them, may be regarded at least as his natural property, but if they are communicated orally, without restriction, they may find a resting place in the hearts or the minds of his hearers. It may be good seed producing its fifty or onehundred fold, or it may be bad seed, or it may be seed falling upon stony ground, but in either case, the ideas are parted with, because there is no enforceable right of property. In ancient times, the ideas of the philosophers were communicated orally in Athens, the eye of Greece, the mother of art and eloquence.
– By Socrates.
– Yes ; Socrates. We have all heard of the groves of Academe.
– Plato taught there, but Socrates taught in the streets, anywhere he could.
– The whole of the philosophers taught, and as regards that teaching, there was no possibility of establishing anything in the nature of copyright, except under some such provisions with regard to lectures, as is contained in this Bill. When, subsequently, Plato embodied the teachings of Socrates in his Memorabilia, there you had that which the law may define and say is the expression of the teaching - the mode of communicating, the ideas - affixed in a certain form to which’ the law attaches the right of property, and which it protects by various means, that may from time to time be adopted. What we want, in order to lay a foundation for the law of copyright, is a permanent expression given _ to ideas for the instruction, the elevation.-, the guidance, and the amusement of mankind. Once embodied in tangible form, then and then only, is it possible to secure the copyright, not so much in the ideas that are expressed as in the mode and form of their expression. That is, to mv mind, essentially the -object of copyright. If you have merely the illuminating sparks thrown off from a great intellect. “ the thoughts,” as it has been expressed, “ that wander through eternity,” you have no subject-matter on which the law can take effect. But when you have these thoughts expressed in a more or less permanent form, which the law recognises, then it is the object of copyright to protect the form in which the ideas are given expression to, rather than the ideas themselves. Property being created in that way, it enables the author to secure the right which his property should secure, and to obtain the reward of his labour. Every one must admit that that object is one of the most salutary that the human mind can contemplate. It is one which our sense of justice immediately tells us should be given effect to. But, in considering the provisions of any law dealing with the subject, we must bear in mind, that there are advantages and disadvantages ; that we must not suppose that all that is left for us to do is to say that there shall be a particular form of property in products of the intellect expressed in this particular way, and that that property shall take a particular form for a particular period. We must look at the matter from each side. The advantages are that it enables a supply of good books to be kept up. We cannot have that supply of good books unless we provide some means of establishing a property intheir authors. We cannot possibly have a supply of good books unless men of letters are liberally remunerated, or are placed in a position in which they can expect to be able to make a bargain for their literary wares, and receive a compensation which they may think fair and just. Of course, as Senator Keating pointed out, there are men who may write for fame and glory. In my belief there are few men, perhaps, who write simply for that reason. There are a greater number of men who write because they cannot help it - poets who write because, as Tennyson, I think, said -
I do but sing because I must;
I pipe but as the linnets sing.
One canharely imagine Burns abstaining from writing his immortal songs from any consideration of the law of copyright, or whether copyright was to last for twenty or thirty years after his death, or was to expire when he died. We know, as far as we know anything of his life, that Shakspeare wrote not for fame and glory. In fact, he thought little or nothing of his own plays. He made his fortune out of his acting, and the conduct of the theatre to which he contributed those plays. We cannot imagine that many others amongst the greatest writers in the English tongue wrote because of any feeling that there was a system of copyright which would enable them to be greatly remunerated. And after all, we must not forget that it is not the author who derives the greatest benefit from any system of copyright, and we must be careful not to place in the hands of others than authors the benefit to be derived from such system. It is the bookseller and the publisher, who may drive a hard bargain with the author for the copyright of his work, and who may, after the author’s death, if you make the period of copyright too long, enjoy wealth which the Parliaments that legislated, and which the statesmen who proposed1 systems of copyright, intended to be for the author or his descendants. At one time, as Senator Keating very properly said, authors had to look a good deal to the patrons of learning - to the great and the noble. No one can say for a moment that authors should be obliged to look for that remuneration which their works should entitle them to receive to the great and the noble, or be mere dependents - as used to be the case 100 or 150 years ago - upon those who could give them a pittance. from time to time, in recognition of their efforts. At the same time, we know well that these patrons of literature were indispensable, and did a very great deal, for which subsequent generations ought to be grateful, in encouraging and establishing the authors of theday in which they lived. There are great disadvantages in connexion with copyright, unless framed upon lines and within limits which are, as far as possible, just. In the first place, copyright is a monopoly, and like all monopolies, it is evil in essence. Therefore, we should be careful not to extend its operation one day or one hour beyond that which is absolutely essential, in order to secure the good that is intended. The point we should consider in giving such a monopoly is, how far it is necessary to go in order to secure the good we have in view. The difficulty is in fixing the period. “Various periods have existed in English legislation on the subject. The periods of copyright differ in almost every country ; and an evil, I venture to think, exists, especially in giving a posthumous monopoly - a period of copyright of undue length after the death of the author^rather than a long fixed period dating from the publication of the book intended to be protected. I myself should give, as I intend to propose later on, a fixed period, so that there might be an absolute certain basis for which the copyright shall apply, an absolute fixed and certain period upon which an author can bargain with his publisher for the remuneration to which he thinks’ he is entitled, and not a lengthened uncertain period which leaves him entirely in the hands of the publisher in respect of the bargain to be struck. For instance, there is no motive, as we must all feel, to increased exertion and effort on [ne part of an author in the production of his works by giving to that author’s books a copyright of some thirty years after he is dead. Distance does not “ lend enchantment to the view” of the author so far as this matter is concerned.
– In France the period is fifty years.
– I cannot understand how it is that such long periods of posthumous copyright have- been given. In the law that prevailed in England before the Act of 1842, there was a period of twentyeight years of copyright. The Act of 1842 was passed in that year. The Senate has already been supplied with particulars of it, to which I shall refer in a moment. But in 1841 a Bill was introduced by Sergeant Talfourd, afterwards Mr. Justice Talfourd, giving a period of copyright extending for sixty years after the author’s death ; and, strangely enough, that Bill was strenuously opposed; by Lord Macaulay. When we remember Macaulay’s position in English literature, and the personal interest he had in the subject, his opposition to a copyright of sixty years after the death of the author must seem to be almost irresistible as a reason against the long posthumous periods. At any rate, we may well pause before giving a lengthened period after an authors death, when we remember the power and the keenness with which a principle of that kind was opposed by Lord Macaulay.
– In Japan the copyright is perpetual.
– It used to be perpetual in England a good many ‘ years ago, but that was altogether destroyed by a decision of the courts. When Talfourd’s Bill of 1841 was introduced, he proposed, as I have said, that copyright should extend for sixty years after the death of the author, instead of the old twenty-eight years, or the duration of the author’s life, whichever should last longest. On the occasion of that Bill being considered by the House of Commons, Lord Macaulay gave a most interesting illustration of the pernicious results which would follow, and the little advantage to authors which would accrue from having such long periods ot copyright. He took the case of Dr. Johnson, and I may read what he said, as it is just as applicable to this Bill in respect of the term proposed as it was to the Bill introduced by Sergeant Talfourd in 1841. Macaulay said -
Dr. Johnson died fifty six years ago. If the law were what my honorable and learned friend wishes to make it, somebody would now have the monopoly of Dr. Johnson’s works. Who that somebody would be it is impossible to say ; but we may venture to guess. 1 guess, then, that it would have been some bookseller, who was the assign of another bookseller, who was the grandson of a third bookseller, who had bought the copyright from Black ‘Frank, the doctor’s servant and residuary legatee, in 1785 or 1786. Now, would the knowledge that this copyright would exist in 1841 have been a source of gratification to Johnson? Would it have stimulated his exertions? Would ft have once drawn him out of his bed before noon? Would it have once cheered him under a fit of the spleen? Would it have induced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal? I firmly’ believe not. I firmly believe that a hundred years ago, when he was writing our debates for the Gentleman’s Magazine, he would very much rather have had twopence to buy a plate of shin of beef at a cook’s shop underground. Considered as a reward to him -
That is what every intelligent system of copyright ought to have first, and primarily and always in view - the reward to the author - ‘ the difference between a twenty years’ term and a sixty years’ term of posthumous copyright would have been nothing or next to nothing. But is the difference nothing to us?
Then on the other side - -because the public have an interest in this ; the public are entitled to have at the earliest possible period the benefit of a man’s intellect thrown open to them at the cheapest possible rate - Lord Macaulay said -
I can buy Rasselas for sixpence; I might have had to give five shillings for it.
Because of course a monopoly enables the bookseller to levy blackmail - to say, “ I will not print any more copies of this book, because I can keep up the price bv not doing so “
I can buy the Dictionary, the entire genuine Dictionary, for two guineas, perhaps for less; I might have had to give five or six guineas for it. Do I grudge this to a man like Dr- Johnson ?’ Not at all. Show me that the prospect of this boon roused him to any vigorous effort, or sustained his spirits under depressing circumstances, and I am quite willing to pay the price for such an object, heavy as that price is. But what I do complain of is that my circumstances are to be worse, and Johnson’s none the better; that I am to give five pounds for what to him was not worth a farthing.
Lord Macaulay in that speech, and in subsequent speeches, elaborated the same thought very fully ; but nothing could be more forcible and nothing more true than these remarks as applied ito the undesirability of establishing a lengthened period of what he calls “ posthumous copyright.” There is another illustration of the disadvantages from the point’ of view that copyright involves a tax on readers to enable a bounty or reward1 to be given to authors. It you could by increasing the tax- that is, by extending the period of monopoly - increase the benefit to the authors, that would be a desirable thing ; but the experience of authors, and the experience of life, and of the reading public, has shown that by increasing the tax you confer no increase of benefit on authors. My own personal belief is that by increasing the period - by having an uncertain period - you do not benefit the author; but by having a known and certain period you do benefit him. By having regard to the public interests you benefit authors. If you make copyright for the author’s life, securing it by a definite term, as I shall suggest, you give to the author the highest possible benefit you can. If, on the other hand, you make copyright for a lengthened period, in the belief that you are to remember his posterity and keep them in affluence from the efforts of his mind-
– As we ought to do.
– We ought to do so if we can; but it is quite impracticable, because as a rule - there are contrary instances, no doubt - the work is sold and in the hands of strangers. It is published by strangers. By extending the period you confer no benefit upon the authors of the books, whilst publishers exploit the public for. their own. benefit. We know that that has been the result.
– It is business.
– Of course it is business.
– That is largely due to the fact that, as a rule, authors know very little about copyright. It is also due to the uncertainty.
– There is no uncertainty as to the law that exists now. The very fact that the report of the Royal Commission - which sat from 1875 to 1878 - has never been acted upon, and its recommendations made law, is not to be got rid of by saying that Parliament had a great many other things to do which were of greater interest, and excited more concern than the question of copyright. But it is a significant fact that for twentyseven years that report has lain dormant, and there has never been an agitation to embody its recommendations and proposed changes in the law of England in respect to copyright. If the old law of 1842, in regard to books - of course, there are many other things in relation to which changes have been made by later legislation, and to which I need not refer - which gives a period of forty-two years, or the life of the author, plus seven years, had been unjust or insufficient, it is not to be supposed that’ there would not have been some amendment. The report of the Royal Commission has lain dormant, although there has been a sufficient number of authors in the House of Commons, and of authors having influence with the House of Commons, and with Parliament generally, to have brought necessary changes about. But the fact that the report has lain dormant and the law has remained in operation, as it existed in 1842, shows that the period of copyright and the principle on which that period was fixed under that Act,, was considered a good one, and has been effective for the protection of authors on the one hand and for giving the public the .benefit of the production of good books on the other.
– It fixes a period after the life of an author?
– The period fixed is seven years. It does not go to the extent of thirty, forty, fifty, or sixty years, as was proposed in 1841, or of fifty years, as is now provided for in some continental countries. To show why that was adopted, to some extent as a compromise, I might mention that the Bill, introduced in 1842 by Lord Mahon, afterwards. Earl Stanhope, provided for a copyright for the life of the author, and twentyfive years beyond. That was strenuously opposed by Macaulay, who said it was based on a wrong principle. He said, “ You ought not to enlarge the uncertain period, but enlarge if you like the certain period,” and it was at his instance that the twenty-five years after death was cut down to seven. Fourteen years more was added to the certain period of twenty-eight years that then existed, and forty-two years was enacted. So if was left at forty-two years, or, the life of the author and seven years, whichever term expired latest.
– The honorable and learned senator proposes to make it a fixed term, independently of the life of the author ? /
– So far as the period is concerned, I think that forty-two years is ample.
– Suppose a young man of twenty-five writes a book, and lives to be ninety years of age ?
– I should give him the benefit of copyright for his life. I should fix forty-two years after publication or, for the author’s life, whichever lasted longest. I think that would be perfectly just. I might say here that Senator Keating quite truly_ said that the thirty years was a suggestion merely of the Commission referred to, but it has never been adopted in England. It has never been the subject of legislation, and we, therefore, must exercise our own judgment as to what is fair and just, and we should not slavishly follow a mere recommendation of that kind, which met with the most strenuous opposition from one of the greatest authors of our time, both as to the period of sixty years and the lesser period of twenty-five years, as introduced in the Act of 1842. No doubt there are various elements to be taken into consideration. Young authors may not know the extent 0? their rights, but the difficulty is that, by this system of giving copyright for thirty years after an author’s death, we are practically giving a totally unequal copyright to different works of the same author. For instance, if an author produces a work of which he secures copyright at twenty-five years of age, and lives to be eighty-five years of age,, he has sixty years of his own life as copyright for that work, and then it is proposed under this Bill to add on to that thirty years more, which would give him a copyright of ninety years for that particular work. But if he produces a book in the maturity of his powers, say when he is about sixty years of age, he will only get fifty years copyright altogether - twenty-five years during his lifetime and twenty-five years after his death. That is not the basis on which it seems to me we should place an author in the position of fixing the remuneration for his labour. Then, too, the amount which a publisher gives bears no proportion, as a rule, to what he will draw from the work if his speculation is a successful one. He may buy from the youthful author, of whom Senator Walker speaks, and may make his fortune whilst the author may be starving. A singular illustration is given of that, which I may be forgiven for extracting from a later portion of Macaulay’s speech. I refer to the celebrated case of Milton’s granddaughter, and I give the illustration in the words used by Macaulay. He says -
If, six, I wished to find a strong and perfect illustration of the effects which I anticipate from long copyright, I should select - my honorable and learned friend will be surprised - I should select the case of Milton’s granddaughter. As often as this Bill has been under discussion, the fate of Milton’s granddaughter has been brought forward by the advocates of monopoly. My honorable and learned friend has repeatedly told the story with great eloquence and effect. He has dilated on the sufferings, on the abject poverty, of this ill-fated woman, the last of an illustrious race. He tells us that, in the extremity of her distress, Garrick gave her a benefit, that Johnson Wrote a prologue, and that the public contributed some hundreds of pounds. Was it fit, he asks, that she should receive, in this eleemosynary form, a small portion of what was in truth a debt? Why, he asks, instead of obtaining a pittance from charity, did she not live in comfort and luxury on the proceeds of the sale of her ancestor’s works? But, sir, will my honorable and learned friend tell me that this event, which he has so often and so pathetically described, was caused by the shortness of the term of copyright? Why, at that time, the duration of copyright was longer than even he at present proposes to make it. The monopoly lasted not sixty years, but for ever. At the time at which Milton’s granddaughter asked charity, Milton’s works were the exclusive property of a bookseller. Within a few months of the day on which the benefit was given at Garrick’s theatre, the holder of the copyright of Paradise Lost - I think it was Tonson - applied to the Court of Chancery for an injunction against a bookseller who had published a cheap edition of the great epic poem, and obtained the injunction. The representation -of Comus was, if I remember rightly, in 1750;. the injunction in 17.53. Here then is a perfect illustration of the effect of long copyright. Milton’s works are the property of a single publisher. Everybody who wants . them must buy them at Tonson’s shop, and at Tonson’s price. Whoever attempts to under-sell Tonson is harassed with legal proceedings. Thousands who would gladly possess a copy of Paradise Lost must forego that great enjoyment. And what, in the meantime, is “the situation of the only person for whom we can suppose that the author, protected at such a cost of the public, was at all interested? She is reduced te utter destitution. Milton’s works are under a monopoly. Milton’s granddaughter is starving. The reader is pillaged ; but the writer’s family is not enriched. Society is taxed doubly. It has to give an exorbitant price for the poems ; and it has, at the same time, to give alms to the only surviving descendant of the poet.
– The honorable senator, I am sure, will not overlook the growing practice of book publishers paying a royalty on every book sold.
– No doubt that is so, but even in that respect we will have to consider the duration which ought to be given to the copyright. If there is a copyright for a long period of years, for the author’s lifetime, we have some certain basis of computation. He and his publisher will be placed more nearly on an equal footing, in their means pf determining what the profits of ‘the venture may be, and the price which the author should receive for his work. If the whole copyright is sold, and it is not merely a question of the payment of a royalty, the author will get the benefit of a fair bargain on. a basis which can, perhaps, be approximately estimated, while it could not be approximately estimated if we fixed an extended period of thirty years or fifty years after an author’s death. In view of these considerations, I propose to ask the Senate to fix. as I have said, a definite period of forty-two years after publication, or for the author’s .life, whichever lasts longest. Of course any period is liable undoubtedly to a certain amount of abuse. We know the well-known instance of Mr. Ruskin, whose copyright, of course, extended during his life under the existing law, but who for a great many years prohibited the republication of his books. The result was, as we all know, that they went up to a perfectly fabulous price, and were unprocurable, except by wealthy men. Now, after his death, when the copyright is at an end, the public who value Mr. Ruskin’s books - works of most pelucid English - have an opportunity of getting them at a comparatively small price, as any one will find on application to the booksellers of this city. Still that is a disadvantage which we cannot get rid of, and which might or might not be incidental to the justice which we seek to do in giving an author a copyright at least during his own life, but fixing it definitely so that there shall be none of the posthumous copyright to which so much exception is taken, and which leads to very much evil and disad vantage. I hope we shall be able, in this Bill, to insert a fixed period, instead of a provision for the period of an author’s life, with so long a posthumous period as thirty years beyond. There are on J,v one or two other matters to which I desire to refer. I should like to see a definition in the Bill as to what is meant by publication. Some doubt exists on that subject in relation to books published for private circulation - books published at the instance of subscribers, and issued only to subscribers, who must subscribe for the whole set, and so on, and books published in the ordinary way, and thrown open to the purchasing and reading public.
– Does not the definition in the Bill cover the ground ?
– I do not think it does. It does not seem to me to be quite clear enough. It deals with the offering of the book for sale, but one might offer for sale a book published for private circulation. It depends who offers it for sale, and I think some words should be introduced which would indicate the. offering for sale without reference to the author. That is a matter which can be better considered in Committee. Then there is another very important subject, which must be looked at in going through the Bill in detail. I hope nothing will induce the Senate to hastily pass, this Bill as a mere matter of form, as something which we do not understand, or as a, technical measure which we should take entirely upon trust. A measure of this kind should have the fullest consideration given to every line of every clause, so that we may have! every possible explanation of the views of the jurists and text-writers who have dealt with the subject, and no provision be inserted unless as the result of the deliberate wisdom of Parliament. That is particularly important, because, as the Minister in charge of the Bill has pointed out, the Imperial Copyright Act is in operation in Australia, and any provision in this Bill which conflicts with that law crumbles into dust, unless we have some Imperial measure, such as has been adopted in Canada, giving legislative effect to it. It must never be forgotten that, irrespective of the local law, this Imperial Copyright Act is in operation in Australia, and that every Australian author who publishes a book here is entitled to the benefit of that law. Whatever we may legislate - for instance, as to the period - if it be inconsistent with the Imperial law, it can have no effect until ratified by the Imperial authorities. It is, therefore, incumbent upon us to be particularly careful that we do not impinge on, or conflict with, that Imperial law. I am sure that the Minister, when we come to deal with the Bill in detail, will assist us on each clause, and guide us as to how far it may be affected bv. or how far it, in its turn, affects the existing Imperial legislation. At any rate, I ask the Minister not to hastily push this Bill through Committee, because it is preeminently a Bill for caution and not for haste. The object is one of the highest to which we can direct our attention, namely, to protect the fruits of a man’s intellect - the results of the effort of his brain - as distinguished from the efforts of a man’s hands in constructing tangible articles which we can see and deal with as ordinary property. Although the object is a great one, the mode of carrying it into effect is difficult ; and we should take every possible opportunity to consider and investigate each provision we propose to introduce, that we may place on the statutebook, not merely a measure which will achieve the purpose we all have in view, but a measure in such a form that it will be a credit to Commonwealth legislation.
– It was a great privilege to hear the addresses of Senator Keating and Senator Symon on this Bill. I do not propose to speak at any great length; but there are one or two points to which I am justified in drawing attention. The States have certain rights, which, it is desired, shall be preserved in this measure. For instance, the New .South Wales Copyright Act of j 879 stipulates that a copy of every book first published in that State must be delivered to the Public Library and the University of the State within two months of publication on a penalty of .£10.
– Is there any reason for that law?
– Mr. H. C. L. Anderson, Registrar of Copyrights in New South Wales, has drawn the attention of the Premier of that State to the necessity to preserve this right ; I mention that fact for what it may be worth. If the same principle were carried out throughout the Commonwealth, each Parliament, Public Library, and University would want a copy, and, as there are seven Parliaments, four
Universities, and six Libraries, each author would require to give seventeen free copies of his work. As pointed out by Senator Keating and Senator Symon, if we pass a Bill that conflicts with the Imperial Act, we shall require the King’s consent to our measure. I intend to present a petition - embodying what was represented in the petition which ‘to-day was ruled irregular - pointing out that the authors of Australia are placed at a great disadvantage in relation to America. Australian authors cannot have their books copyrighted’ in America, unless they are simultaneously printed there, whereas American books may be freely imported into Australia under the Imperial Copyright Act. It may perhaps be interesting and instructive to read one or two extracts from a letter written by Mr. Anderson on the point to which I first alluded. Mr. Anderson says -
The privileges at present enjoyed secure to our Public Library complete files of all country newspapers (about 340), and a copy of everything, large or small, that is published in the State. It saves an expenditure of at least ^500 or ^’600 per annum, and it is obviously necessary that a State Library should contain files of all newspapers published in that State, and all its general literature ; and if these were not supplied to the library under the terms of the Copyright Act of 1879 ‘ney would have to be paid for. The newspapers of 100 years ago are our greatest treasures for historical students to-day, and the same will probably be true iu the future.
Further, the State Copyright Act of 1879 provides for the registration of copyright in “ designs,” to which it gives protection for two or three years, and it is a provision that is largely availed of. No such protection is given in the Federal Bill. The result of the Bill, if passed in its present form, would be, on proclamation being made by the Governor-General, to take the administration of the whole of the State Act, so far as it relates to copyright, out of the hands of the State authorities, and vest it in the Commonwealth. Consequently, the State authorities would be no longer able to register copyright in “ designs,” and it would seem that the Federal authorities would have no power to register “ designs “ either. As a result, new designs would be left unprotected in the future, failing new State legislation in that direction.
I notice that in the Bill simultaneous publication means publication within, fourteen days.
– That is provided in clause 5.
– When we get into Committee, I have several little points to bring forward, but I shall not detain honorable senators now, further than to congratulate Senator Keating and Senator Symon again on their interesting and instructive addresses.
– The person who wrote the letter from which Senator Walker has quoted, overlooks the fact that this Bill does not touch the question of designs. The Constitution gives the Commonwealth power to legislate on copyright, patents, inventions, and designs, and trade marks. We have already passed a Bill dealing with patents, and there is at present a measure before another place dealing with trade marks. The Bill now under consideration deals with copyright, and I take it that it is the intention of the Government to, at some time or other, introduce a measure relating to designs. At present, however, so far as designs are concerned, Mr. Anderson’s fears are unfounded. I find some difficulty in criticising the Bill, because of what I take to be an innovation. Previously, when we have had measures dealing with such subjects, there have been marginal notes indicating the sources of the various clauses, whereas in this Bill there is anabsence of any such information. That makes it difficult for honorable senators to compare the provisions with existing legislation. We have to do all the foraging for ourselves.
– There are fourteen different Acts besides the report of the Royal Commission to compare with the Bill.
– Senator Keating in introducing the measure, indicated that it is largely based on the report of the Royal Commission. It would have been helpful to honorable senators in the case ofl a highly technical measure of this description, if some indication had been given as to what portions of the Bill are based on the report of the Commission, and what are based on existing legislation. We should then have been able to see how far the Bill clashes with, or takes away, existing rights in the States. There are one or two clauses in which this difficulty arises in very acute form. One of the firstpointsthatstruck my attention was the definition of “ artistic work,” which, according to the Bill, includes -
An important question here arises. I do not know whether my reading of the Law is right, but it might be possible, by obtaining copyright for a lithography or similar work, to use it practically as a trade mark, and so to obtain under this Bill what could not be obtained under a Trade Mark Act. It is a common practice to use a lithograph or an engraving as a trade mark ; and if a person mav take out a copyright, he will be under no necessity to register under the trade mark law. Under the latter he could register for only fourteen years, whereas a copyright mav be obtained for a life time, and thirty years afterwards. In America it has been found necessary to make provision for this particular contingency, and I have given notice of an amendment on the point. The Act of Congress, relating to patents, trade marks, and copyright, was approved oh. the 1 8th June, 1874. Section 3 is as follows : -
That in the constitution of this Act the words “ engraving, cut, and print,” shall be applied only to pictorial illustrations or works connected with the fine arts, and no printsor labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be registered in the Patent Office. And the Commissioner of Patents is hereby charged with the supervision and control of the entry or registry of such prints or labels, in conformity with the regulations provided by law as to copyright of prints, except that there shall be paid for recording the title of any print or label, not a trade mark, six dollars, which shall cover the expense of furnishing a copy of the record, under the seal of the Commissioner of Patents, to the party entering the same.
There are subsequent sections to carry out the intention to prevent the copyrighting of these particular pictures, or works of art. It seems to me that some such provision is necessary in this definition of “ artistic work,” to prevent a person copyrighting things which might be called works of art, but which are really to be used as trade marks. The Bill provides that copyright shall subsist for thirty years after the death of the author. That is, I think, altogether too long. Of course, the argument is brought forward that the author has the same right to protection for the product of his brain as has the author of a patent. Under the patent law a patentee enjoys the right for fourteen years, and in certain circumstances he can extend the period. But I fail to see why we should give copyright, not only to an author for his life-time, but to somebody else, for thirty years after the author’s death. , I indorse what Senator Symon said ‘on that subject, but the amendment he suggested to substitute forty-two years might create almost as great an evil. If, after copyrighting his work, an author were to die, the copyright would subsist for forty-two years, that is, for twelve years longer than it would under the Bill aa it is framed. It seems to me that the honorable and learned senator might do better by adopting the term of the author’s life, and a shorter term after his death, or by abolishing the latter term. By giving copyright for forty-two years, irrespective of the length of the author’s life, we might bring about all the results which the honorable and learned senator depicted, and perhaps intensify them. Clause 33 is a very interesting one, and induces me to call attention to the danger of the practice of omitting the marginal note from a clause. This is the clause which gives copyright in cable news to newspapers. On reading it one might almost lie led “to think that it merely carries on existing legislation. But so far as three States are concerned, and also, I think, as regards the United Kingdom, it is an, innovation. The laws of Queensland, New South Wales, and Victoria give no statutory copyright in cable messages or news. After the news has been published, any person is free to republish it. So that as far as those States are concerned, the clause proposes to give to the owners of press messages therein a monopoly which they do not hold under their copyright law. Under State law copyright is given for forty-eight hours in Tasmania, for from twenty-four to thirty-six hours under circumstances in South Australia, and for seventy -two hours in Western Australia. In Great Britain, too, there is no copyright in such news. Can any reason be shown why, in the States where copyright in cable messages does not exist, it should be given? Had a marginal note been attached to the clause, it would, I think, have given rise to strong discussion, and drawn attention to the fact that we were conferring a right in three States which did not previously exist. Take clause 51, which deals with the liability in respect to the use of a theatre. It is so vaguely
I worded as to be somewhat dangerous. It 1 commences in this way -
Where a dramatic or musical work is performed in a theatre or other place in infringement of the performing right of the owner pf that right, the person who permitted the theatre or place to be used for the performance shall be deemed to have infringed the performing right, and shall be guilty of an offence against this Act.
It goes on to provide for the imposition of a penalty. A person who proposed to stage a play might incur great expense on rehearsals and scenery, and a rival, for the purpose of damaging him, might choose to stop the performance of the play. If he wrongfully did so, a penalty is provided, but it is altogether disproportionate to the harm and damage which he might have done. It would not be the first time that it was done. We should be very careful not to frame a law which would practically offer an incentive to men to do that sort of thing. The penalty to be imposed upon a person who takes this course without just cause, is ^20. One has only to consider the great cost which a theatrical proprietor is put to in staging a play to recognise that a penalty of £,20 would not be at all commensurate with the injury which might be done to him by a person who took advantage of this provision to stop its performance.
– I have here the draft of a new clause to provide that where a notice is given, and is not bond fide, by one who is not the owner of the performingright, or agent, to make it an offence punishable by imprisonment.
– That would be better, and I am glad that the necessity for the stringent amendment has been recognised by the Government. With these few exceptions, the Bill seems to be one which will be of service to the fine arts and to authors. I had hoped that Senator Keating or Senator Symon, being lawyers, would have explained how it comes that this Bill makes provision for the operation of the common law of the United Kingdom. It seems to me to be an innovation.
– Where’ does the Bill do that ?
– Clause 7 says -
Subject to this and any other Acts of the Parliament, the common law of England relating to proprietary rights in unpublished literary compositions shall,- after the commencement of this Act, apply throughout the Commonwealth.
– That clause is altogether unnecessary, because the common law applies, unless it is changed by legislation.
– Senator Keating pointed out that in passing the Bill we had to remember that the common and statute law of the United Kingdom, and two copyright conventions, applied to the Commonwealth. In connexion with not only this subject, but also navigation, the question will arise as to how far we are entitled to legislate, and as to how our law will stand if it clashes with Imperial law. Supposing that there is any doubt on the point, is it advisable to put in this Bill a clause which seems to give away the position, so far as the superiority of our law is concerned ? I was under the impression that we had power to legislate exhaustively on the question of copyright ; but it would seem that our power is limited. If that is the case, I should like some lawyer in the Senate to point out how far we can deal with these questions, because, according to my reading of the Constitution, our power is not limited where we are given exclusive jurisdiction on any subject.
– It is a pity that Senator Keating did not introduce this measure at an early part of Thursday’s sitting, when he might have been able to furnish more information than he could give when he began his speech at a late hour. No doubt, he curtailed his remarks very considerably^ owing to that fact.
– I thought it was a model second -reading speech, dealing with principles only
– A number of important points on which we have a right to expect some information were not touched by Senator Keating, because, as I thought, he made his speech late in the evening. I should have liked to hear better reasons given for the introduction of this Bill than have been given. I am in favour of the idea of having a Copyright Act, but at the same time it should have been made clear that there is a pressing necessity or a call from the country for a law of this kind. I know of no such demand having been made. I have not heard of any meetings being held. Of course, in some parts of the Commonwealth there may have arisen a demand of which I have not heard. So far, the necessity for the introduction of this Bill has not been satisfactorily explained. Senator Keating did not mention whether it is to be administered by the Patent Office, or whether a new office is to be created for that purpose- If a new office is to be created, it will involve considerable expenditure. Before I can support the second reading, I desire to know what the cost of ad ministration is likely to be. If we are to be asked to pass measures which involve great expenditure, and for which there is very little call from the country, I can easily see that the Federal expenditure will increase by leaps and bounds, and that there may be some reason for the oftrepeated cry about extravagance. I hope we siha.il be told by Senator Keating what the cost of administering this measure will be, and whether we shall be justified in incurring that expense. I can understand that a great many officers will be required to administer its provisions, and that is why I think that the Minister might very properly have furnished, better reasons for its introduction. I do not know that it is likely to benefit very many persons in Australia. I am of opinion that an Australian author of any standing will consult his interests best by bringing out his book in the United Kingdom, where there is a much larger reading public to appeal to, than there is in Australia.
– That is what is done. There is no urgency for this measure.
– Any author who has acquired a standing will no doubt recognise that the market in which he can make the most of his work is the United Kingdom. If he looks to his own interest - which we can reasonably expect that he will do - he will have his work published there. That seems to me to be another reason against the passage of this Bill at the present time. Of course we look forward to a time when we shall have an array of writers in Australia whose works I should like to protect, just as I should like to protect the works of any other workman, because, from my point of view, a writer is a man belonging to a profession which requires a certain amount of encouragement and protection, and if we can give it without any great hindrance to the public I see no reason why we should not do so. There is some difference of opinion as to whether a measure of this kind is an advantage to literary men. Some literary men have expressed (the opinion that copyright laws are not in their interest. Professor Dicey hold’s the opinion that the rights of literary men are best conserved when they have the utmost freedom so far as concerns their productions. There are others who view the matter from quite the opposite stand-point. For instance, Herbert Spencer declared that there was no reason whatever why a writer should not have the full benefit of any original idea that he might give to the world, and that he should have first and foremost the full value derived from his literary productions. The fact that two such eminent authors as Professor Dicey and Herbert Spencer - and I could mention others - entertain opposite views, shows that literary men are not in agreement as to the requirements of a copyright law. The principle underlying copyright may be sound in itself, but in a young country such as ours I question whether we shall be consulting the public interest by passing such a Bill. For many years the United States had’ no copyright law in the same sense as this. The result was that in America books for which -£i would have had to be paid in the United Kingdom could be purchased for about 2s.
– Who suffered from that?
– I do not know that any one suffered.
– It was piracy.
– The result was that a very much larger number of books were sold, and that publishers had a larger market.
– We have passed a Customs Act which prohibits the importation of such American reprints.
– That may be an argument against what I- am saying ; but at the same time it is worthy of consideration whether we shall consult the public interest by passing such a Bill. It has been held that a great deal of the enlightenment and up-to-dateness of the American people is due to the fact that for so- many years they have been able to purchase books cheaper than the rest of the world could do. And owing to the fact that books in America are so cheap the public buy them, and have them in their homes, instead of having to borrow them from libraries. -
– Does the honorable senator know that books in America, [with the exception of pirated books, cost a great deal more than is the case in England’?
– I have no information on that point. It may be so; but we know that in this country books of a high class are quite out of the reach of the poor man, although they are purchas able for a very small sum in America. There can be no two opinions as to whether it is to the advantage of the public to be able to buy a book for 2s. or for ^1. I wish to say a word in reference to the clauses of the Bill affecting newspapers. I should like to know from Senator Keating whether a writer for a newspaper, working for wages, will have the benefit of protection for articles which he publishes whilst employed in that capacity? Will the copyright belong to the writer or to the man who employs him ? I do not see where that is made clear in any part of the Bill.
– If a newspaper proprietor paid a man a couple of guineas for a leader, I should say that it would belong to the newspaper.
– I wish to have some information on the point. Another consideration is that under this measure copyright can be secured for cabled news. At the present time, so far as Australian newspapers are concerned, cabled news is not original. It is culled from the newspapers of the old country, and simply wired out here. If news of that kind can be copyrighted, it seems to me that an injury will be done to the public. We are well aware that certain arrangements exist amongst newspaper proprietors in Australia, and that there is a very close ring or corporation. They keep out any other newspapers whom they chose to exclude. The consequence is that country newspapers, or small weekly journals, brought out in the cities, which may desire to get information, or to enter this newspaper ring, are excluded, because of the great expense they would have fo incur if they attempted1 to obtain cablegrams for themselves. The principal newspaper proprietors have kept the ring as a close preserve. Are we going to help these rich newspapers to boycott the country newspapers, as they have done in the past? If there were any originality about the cabled news, the case would be different; but, as a matter of fact, it is nothing more than scissors and paste work. No originality can be claimed for it by those who cable it fo this country. We should, therefore, hesitate before we give to any one a title of copyright in news of that kind. If no provision is made to leave the door open for other newspapers to participate in tb” agencies that exist, I shall feel compelled to vote against any such protection being granted to newspaper proprietors. This is an important matter, about which Senator Keating will, I hope, be able to enlighten us when the Bill gets into Committee
– I notice from this Bill an absence of marginal notes, telling us from what source the clauses are taken. We have often found such notes of great service in the consideration of Bills. I am, however, informed that many of the clauses have been taken not from English Acts, but from Bills prepared as the result of various conventions and conferences on copyright. , Those Bills, as Senator Symon tells us, have not yet been placed upon the statute-book of Great Britain. I understand that we shall have copies of them before us in due time. With regard to clause 7, as to which Senator Pearce spoke, I understand that it has been inserted simply to clear up doubts which otherwise might arise The common law with regard to the matter as applicable to New South Wales was taken from the English common law as it existed when the State of New South Wales was founded. When subsequent States were founded, it may be that the common law of England, as altered by various decisions, was followed. In order to settle doubts, this clause was put in, to make the common law applicable in all cases, subject to the provisions of this measure. I have nothing further to say about the principles of the- Bill, which were admirably stated by Senator Keating in his very able second-reading speech, upon which I desire to congratulate him.
– I also should like to compliment Senator Keating on the very informative speech which he made in moving the second reading of this Bill, and also on the very interesting historical resume which he ga.ve of legislation in connexion with copyright He covered a period of about 400 years ; and Senator Symon in his very able speech this afternoon drew on his extensive repertoire of information for illustrations of events that occurred over 2,000 years ago. Thev were all apposite, and helped to illustrate the importance and the difficulties which surround this measure. The Bill is a natural corollary to or complement oT the Patents Act, The works of both author and inventor are the result of mental energy, the one directed to art and literature, the other to applied science. In both cases those who have created works of value are undoubtedly entitled to have some special privileges with regard to the remuneration derived from them. But there is a considerable difference in the extent of time, to which we are giving exclusive privileges, in the case of an ordinary patent and in that of a copyright. A patent is .allowed to continue for fourteen years ; a copyright under this Bill for thirty years after the death of the author. While I am not prepared at the present moment to say what action I intend to take on this matter, I think it is well worthy of consideration whether we should not somewhat limit that time in the interest of the great mass of the public wh’o are desirous to obtain works of literature, and who in many cases cannot obtain those works unless they are published in what are termed cheap editions. When this Bill was introduced, the thought occurred to my mind : “ Why is such a Copyright Bill necessary, seeing that an Imperial Act applies to the whole of the British Empire, and also that the’ decisions arrived at by the Berne Convention of 1887 and the Paris Convention of 1896 protect the holders of copyright in the British Empire and in the various countries’ that were parties to these conventions?” The reason, I think, was stated by one of the speakers in the fact that the British Acts are somewhat vague, and there is a multiplicity of them. There are, I think, some seventeen Acts dealing with copyright on the British statute-book, and there is a great deal of doubt in the’ minds of people concerned as to their powers under those various Acts. This Bill can only be considered as a compliment to the British Act, and in consolidating the laws* of the various States of Australia in one Australian Copyright Act, we shall possibly, succeed in reducing the expense of registration, and may enable people to obtain copyright with greater facility. But it seems to me that any person who desires to obtain copyright, after this Bill is passed, will be able to do so in any State, either under the Imperial Act or under the Commonwealth Act, and if this measure is assented to by the Imperial authorities, in both cases the copyright acquired1 will apply to the whole of the British Empire, and will cover the privileges secured under the Berne and Paris conventions. I do not wish, at this stage, to say anything further, but in Committee I hope to be able to propose some amendments for the improvement of the measure.
– I have a word or two to say on the Bill, but I shall not occupy the time of the Senate at any length, because there is very little to be said on the second reading of the measure after the admirable speech delivered by Senator Keating.
– Do not give the honorable senator too much jam.
– I shall not give him any more jam than I think he deserves. I think he made a very good speech, notwithstanding some opinions which have been expressed to the contrary. I desire to draw attention to the fact that it will be an act of supererogation on the part of this Parliament to pass this Bill in its present form, inasmuch as it will not supersede the Imperial Act, and1 will not therefore be necessary. Authors in Australia. or authors outside, who may publish their works in Australia, may choose to secure copyright under the Imperial Act and ignore this measure altogether. I do not hold with the idea that the Commonwealth Act should be subservient in the smallest degree to the Imperial Act. Under sub-section XVIII. of section 51 of our Constitution, which is itself an Imperial Act, we are given power to make laws, amongst other things, with respect to copyrights. That power, I hold, is not limited in any way/ by any Act which the Imperial Parliament may choose to pass, or by any Imperial Act already in force, in so far as future copyright is concerned. I find that by clause 62 of this Bill it is expressly provided that the Imperial Act shall remain in force in Australia. Any one who registers copyright under the Imperial Act may do so, entirely irrespective of our law. Of what use will it be to pass this Bill if we are going to have two laws on the subject in force in Australia? I shall move an amendment in connexion with clause 62 when the Bill gets into Committee, because I consider that Ave ha’e definite and unlimited powers of legislation with regard fo copyright in the Commonwealth. I fail to see why Ave should make our law inferior or subservient to the Imperial Act, when the Imperial authorities themselves do not claim that Ave should do anything of the kind. It is quite correct that any rights hitherto acquired under the Imperial Act should: not be interfered Avith by our law, but to say that in future the Imperial ‘ law should apply in just the same way as if Ave had not passed any Commonwealth law would, in my opinion, be absolutely ridiculous. If that is to. be the case, Ave had better not waste time in passing this Bill. Clause 7 of the Bill provides that the common law of England shall apply throughout the Commonwealth, “subject to this Act.” I have no objection to that, provided it is recognised that the common law of England shall apply where lt is not in conflict with our laW, and that where it is in conflict with our law on the subject it shall not ‘apply. I think that clause 62 should be framed in the same terms, and that where the common Law or statute law of England on the subject is in conflict Avith our Commonwealth copyright law our law should prevail. In common Avith most other persons, I am firmly Convinced that an author or inventor has as much, if not more, right to the product of his brains, ingenuity, or industry than any individual has to any other form of property. I think that he has a greater right, inasmuch as the product of his brains, ingenuity, or industry is something of his own creation which cannot be said of a great deal of property the right to which is fully recognised by this and other Parliaments. For that reason, I gladly hail this attempt to recognise such rights’ by la”: At the same time Ave should be exceedingly careful to see that any rights which we mav give under this Bill shall not limit the rights of other people, and shall not interfere Avith the welfare of the community. Every author or inventor’ should remember that he is not the absolute originator of the book which he writes, or the machine which he invents. He is the heir of the accumulated know ledge of all the ages. His product is therefore not entirely his own, inasmuch as he has been enabled to avail himself of the help of the accumulated knowledge of all the people who have gone before him, and it is quite possible that if he had not stepped in another person might have produced an equally valuable work, or an equally entertaining and instructive book. I therefore think that to give a man for a very lengthy period the exclusive right to the publication of a book, whether it be a valuable scientific or a very interesting literary production would be to a certain extent to impose a tax on knowledge. I think that is something which even authors themselves could scarcely claim. If an author is given the, right to the exclusive publication of his work during his life time, and for a reasonable term of years thereafter, or in the alternative for a fixed period of years, that is al! he can reasonably expect. For instance, under the EnglisH law there is provided a, fixed period of fortytwo years, or during the author’s life, which ever period is longer.
– For the author’s life, plus seven years.
– That is so, and I think some arrangement of that kind would be better than the provision in this Bill for copyright for the author’s life, and thirty years. I arn inclined to think that the period allowed by the Imperial statute is too long. If a man and his family have the benefit accruing from the right to the exclusive publication of his work while he lives, and Until such time as the members of his family reach the age pi twenty years, that is about all that can reasonably Le required, and then publication should be free to all. If this Bill be passed as it stands, a man might publish a valuable work at twenty-five or thirty years of age. As a matter of fact, most of the great works have been published by comparatively young men. Chatterton published a volume of poems long before he was twenty years of age. Byron also was a distinguished poet before he had reached the age of manhood.
– Burns died at thirty-seven years of age.
– Byron died when he was thirty-six years of age, and we know that a great many writers published valuable works at an early age. Under this Bill a man who publishes a valuable book when he is twenty-five years of age, and who lives to the age of seventy-five, years, is given for himself, his heirs, and those to whom he may assign his property, an absolute copyright of that book for seventy years - that is, for thirty years after his death. That period is altogether too long, and I think a reasonable limit of time, in addition to a man’s life, should be fixed, or, in the alternative, a reasonable fixed period. I shall move in that direction when the Bill gets into Committee. Again, with regard to the publication of news, it is a wellknown fact that, so far as Australia is concerned, newspapers have arranged a sort of combine, or ring, for obtaining news from abroad, and unless the proprietor of a newspaper accedes to the terms-, of those forming the ring, it is impossible for him to be supplied with news, unless he goes to the expense, which is entirely prohibitive, of having a news agent abroad himself, and getting news separately cabled to him for his particular use. I think this Parliament should do nothing to assist a combine of the kind I have mentioned to become more harsh in its operations. In some of the States, at the present time, a much shorter period than the twenty-four hours provided for in this Bill is allowed for the exclusive copyright in the publication of news. If a newspaper published in Melbourne in the morning is given six hours’ copyright of its news, that should be quite sufficient, be cause no other newpaper could publish that news, after the expiration of six hours, and continue to call itself a morning newspaper. For instance, if the Age were to come outwith an exclusive item of news in its first edition, published at 3 or 4 o’clock in the morning, the fact that it would have the exclusive right to the publication of that news for six hours afterwards would render it impossible for any other newspaper to copy it until nine o’clock that morning. Of what use would that news be then to the Argus, or to any other morning journal ?
– The evening newspaper could copy the news.
– Certainly it could; but of what use is stale news in an evening newspaper? We often find news in the evening newspaper published in Melbourne which we do not find in the newspapers published on the following morning. I contend that six hours’ copyright would be ample protection for newspapers. Suppose, on the contrary, that an item of news is first published in an evening newspaper, the first edition of which is published about 3 o’clock in the afternoon. It would be 9 o’clock in the evening before it could be copied by any other newspaper. By that time the news would be useless to any newspaper proprietor who contemplated piracy. I therefore contend that six hours is ample; after that’ period the news should be public property, available for country newspaper proprietors and others.
– I should not give five minutes in the case of a close corporation.
– I should allow a reasonable time for copyright in exclusive items of news.
– Supposing there is an exclusive ring ?
– Yes; a ring which will not allow any one else to join.
– There should ‘be some way of getting at such a ring, and I should do all I possibly could to get at them. It is further proposed in the Bill that a lecturer shall have a copyright in his lecture for the same lengthy period provided in the case of an author of a book. It is quite a common practice for lectures to be fully reported in a newspaper, and, if the subject be particularly interesting, to be copied in part by other newspapers. I desire to know whether the proprietors of the newspapers which thus copy portions of a lecture, will be liable for a technical breach of the copyright law? The Bill seems to be very far reaching in this respect, and would, doubtless, affect people who in no way desire to offend against the law. It will be necessary to scrutinize the measure very carefully in Committee, so as to make it consistent with the protection of the author and the welfare of the public. Publishers in the early stages of copyright law, at any rate, have reaped the main advantages of it, as compared with the authors. At the present time, publishers buy copyrights at very small prices, and if the books subsequently become popular they get a rich return, while the authors very often have to go hungry ; in fact, some Australian authors are extremely hungry at the present time. To my knowledge, publishers have, in more than one case, made handsome profits out of copyrights bought at an exceedingly low figure; and some arrangement should be made to prevent an author exercising that absolute freedom of contract which publishers so much’ favour. Some of the profit, at any rate, should be reserved for an author, notwithstanding any sale he may make ; he should not be allowed to give away or part with the whole of the rights conferred by the Act. So long as a publisher may possess an assigned right in a particular work, so long will he clamour to buy such rights at an infinitesimal price. Authors have at all times been a struggling class, and publishers have taken advantage of their position and shamefully sweated them. In other directions, we have legislated somewhat effectively, I believe, to prevent sweating, and I do not see why the same protection, or as much as is possible, should not be extended to the struggling author who has hitherto not enjoyed too much of the good things of life. The principle of the Bill is good, and I shall be glad to see it pass the second reading, and to do what I can to amend the provisions in Committee.
– I should like to say a few words in answer to the criticisms which have been directed to particular clauses of the Bill. I am very glad to recognise that the disposition of honorable senators who haveaddressed themselves to’ the subject is onethat indicates a desire to pass an effectiveand creditable Copyright Bill. SenatorSymon, in speaking of the term of” protection which it is proposed to confer on» authors, and which he desires to alter, showed that he was animated by a verystrong desire to place on our statute-book copyright legislation that will be, as he said, a credit to Parliament. Senator Walker, in the course of his remarks, referred to a letter in which Mr. Anderson, of the Public Library, Sydney, pointed out that, under the Copyright Act of New South Wales, certain publications must be supplied to that library. I may say that there is no desi,re on the part of the Government, in introducing this measure, to take away from that or similar institutions in the Commonwealth any of the rights or privileges which they at present enjoy. After the Bill was introduced, and before the second reading was proposed, I was approached by a representative of the trustees of the Melbourne Public Library, and asked whether the effect of the measure would be to deprive that institution of certain publications now received under the State copyright law.
– I suppose the Minister proposes to treat all public libraries alike?
– The treatment of public libraries in this respect is a matter for the States themselves. Those rights and privileges are enjoyed by the libraries under the operation of State law, and I do not think that any provision in the Bill before us will deprive them of any such rights and privileges.
– I am afraid it will.
– It will still be competent for the States to provide by legislation that the publications in question shall continue to be supplied to the libraries. That is not a matter which necessarily comes within the purview of copyright legislation; but, in order that there shall be no doubt whatever, I am having some . amendments prepared for insertion in clause 8 to provide that this Bill shall affect the copyright laws of the States only in so far as copyright itself is concerned. That will insure that the States, in the connexion referred to, will not be interfered with, and may continue to enjoy their rights and privileges as though the present Bill had not been passed, and their own Acts remained in force.
– If a State has no Public Library, this Bill will not confer the privilege ?
– It is proposed to leave the matter entirely to the operation of States law.
– Could a State afterwards provide that a Public Library shall be supplied with such publications?
– Yes, as States provide at present. The supply of these publications to public libraries and other institutions is not made a condition of copyright.
– Why should we use a Federal law to enable these institutions to levy toll on authors?
– We are not doing so ; we are simply providing that the provisions of this Bill shall affect States Acts only so far as copyright is concerned.
– Would it not be better to provide that a certain number of copies of publications shall be sent to the Copyright Office for distribution amongst those institutions?
– That would be a better way.
– It is not for us to make such a provision in regard to the public libraries of the States. I am not debating the merits of the proposed amendment just now, but merely indicating that the matter received consideration between the first and second readings of the Bill, and that I propose to submit an amendment to remove a doubt about the operation of the existing States laws. Senator Pearce addressed himself to clause 7, and asked whether it was not curious we should enact that the common law of England shall apply in the Commonwealth. Clause 7 provides -
Subject to this and any other Acts of the Parliament, the common law of England relating to proprietary rights in unpublished literary compositions shall, after the commencement of this Act, apply throughout the Commonwealth.
The rights in respect of unpublished literary compositions are not copyrights.
– The compositions are the personal property of the
SenatorKEATING.- That is so; it is a case of the common law in regard to manuscripts.
– Is it necessary to enact the common law?
– When a manuscript has been published it may be subject to copyright at common law or statutory copyright ; and it is obviously necessary that we should have the common law of England, subject to this Bill, applying throughout the Commonwealth. Senator Pearce thinks that the definition of “ artistic work “ may be construed so widely as to enable a label to be copyrighted and practically used in theplace of a trade mark. When we come to the discussion of that point, we shall have an opportunity to narrow down the definition if it be too wide, though I do not think the discussion will reveal that to be the case. As to the remarks of Senator Pearce and Senator Givens, on the question of cable news copyright, the present position is that in Tasmania the copyright continues for forty-eight hours from publication, while in New South Wales the copyright is for twenty-four hours from publication, but not more than thirty-six hours from the receipt of the cable ; that is to say, an owner of a newspaper has no exclusive right to cable news after thirtysix hours from its receipt. In Western Australia, the period of exclusive use is seventy-two hours. I do not know whether in Western Australia, or in the other States, this right is conferred by separate Act, but that is the case in Tasmania ; indeed, the only copyright statute in the latter. State is the Newspaper Copyright Act. If there be no provision in the Bill with regard to the term of copyright of such news, it seems to me that the Tasmanian Act will remain in full force there.
– In the other States not mentioned, there isno copyright in news.
– There is no statutory copyright ; what rights there may Be in this respect at common law have not been determined, so far as I know. Senator Pearce also referred to clause 54, which deals with the power of the owner of the performing right in a musical or dramatic work to forbid performance in infringement of his right. To deal with this point, I am having prepared a clause which will provide that if a person falsely represents that he is the owner of a copyright or performing right, or that he is the agent of any such owner, he shall be guilty of ari offence, the punishment for which shall be imprisonment. Of course, a person has every right to give such notice if. he has reasonable cause to believe that some one is going to infringe his right. Senator de Largie says there is no demand on the part of the public for any legislation of this kind, and he does not clearly realize why it is necessary. In Great Britain the copyright statutes are of the character I described when I quoted from Mr. Scrutton’s excellent little- work on trie law of copyright. There is no harmony in them ; they are, as he says, ill-drawn ; they leave a considerable amount of doubt as to what are the rights of authors and those whom they purport to protect. In addition to Imperial legislation operating in Australia, we have Copyright Acts in the different States conferring different, terms of protection, and subject to varying conditions. To some of these laws I referred in my opening speech. It is desirable that we should have a harmonious and uniform system of copyright law for the six States. Again, owing to the defective state of the law, a considerable amount pf piracy has taken place in times past. We have endeavoured by the Customs Act to prevent the importation of pirated reproductions pf a copyrighted work, but we have not always been as successful as we wished to be. When we reach the clauses in Committee, I shall be able to give Senator de Largie and others illustrations of. how persons who have been the owners of copyright, particularly in artistic works, have been victimized in Australia by the way in which pirated reproductions of their works haVe been brought in and sold at a very small value. I do not think that Senator de Largie need apprehend that the administration of the measure will be so expensive as to constitute a burden on the general revenue. It may be provided by regulations in connexion with registration that such small fees shall be paid as will -to some extent tend to balance the revenue with the expenditure. The honorable senator also asked a question in regard to copyright in articles supplied’ to newspapers or magazines by a paid writer, and on that point I direct his attention, to clause 22. The other criticism came from Senator Givens, and dealt with the operation of Imperial legislation.
– Which office is going to administer the Bill - the Patents Office?
– Most likely it will be administered, by the Department of Trade .and Customs. As Senator Givens indicated his intention to bring up in Committee the matters to which he. referred, perhaps it will be better to reserve “their discussion until that stage is reached.
– The Minister does not propose to provide for copyright in designs.
– No, that will form the subject of a separate ‘ Bill. I hope we shall have the opportunity of bringing in that Bill during the present session, and getting it put through, so that we may complete the scheme of legislation on which we entered when we passed the Patents Bill.
Question resolved in the affirmative.
Bill read a second time.
In Committee:
Clause 1 agreed to.
Senator KEATING (Tasmania- Honorary Minister). - In moving -
That the Chairman report progress, and ask leave to sit again,
I wish to indicate that I heard the representations made by some honorable senators in discussing the second reading. I think it “ might facilitate the consideration of the measure if some information of the character they referred to were supplied to them. Originally it was my intention to have a memorandum prepared on this highly technical Bill, which would help honorable senators to understand its provisions. Before the consideration of. the Bill in Committee is resumed, I shall endeavour to get such information supplied to them as will enable them to properly approach its consideration.
– Will the honorable and learned senator fix a date, so that those honorable senators who may not be in Victoria when the memorandum is distributed will have an opportunity pf seeing it before the consideration of the Bill is resumed?
– I .shall endeavour to get the memorandum ready for honorable senators by to-morrow.
Senator Sir JOSIAH SYMON (South Australia). - i am very glad that the. .Min?ister has adopted this course.
– A motion to report progress is not debatable, and if this debate is to be continued it must be understood that it does not establish a precedent.
– I did not rise to debate what the Minister said, but rather to ask a question, because even to a lawyer the subject of copyright is not a familiar every-day one. It is a good many years since a copyright case has been tried in my State. I was going to ask the Minister if the particulars in the memorandum he proposes to prepare will refer to the different clauses on which he thinks information is necessary, in order that we may be able to apply to their consideration a reasonable appreciation of the very complex and multifarious legislation that «xists ?
– Yes.
– Perhaps the Minister will intimate when he is likely to bring the measure on again in Committee?
– On Wednesday next.
Question resolved in the affirmative.
Progress reported.
Senate adjourned at 5.39 p.m.
Cite as: Australia, Senate, Debates, 30 August 1905, viewed 22 October 2017, <http://historichansard.net/senate/1905/19050830_senate_2_26/>.