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Wednesday, 29 November 1905


Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - I hope that the Attorney-General will pass the clause as it stands, and, if necessary, recommit it later on for amendment. An amendment drafted at the table is not certain to achieve the end desired when a complicated clause like this is before the Committee.


Mr Isaacs - I will recommit the clause in any case, to have the matter discussed.

Amendment, by leave, withdrawn.

Clause, as amended, agreed to.

Clause 100 agreed to.

Amendment (by Mr. Isaacs) proposed -

That the following new clause be inserted : - "22.4. - (1) Where any Commonwealth or State authority, or any association or person, undertakes the examination of any goods in respect of origin, material, mode or conditions of manufacture, quality, accuracy, or other characteristic, and certifies the result of such examination by a mark used upon or in connexion with such goods, the Minister may, if he judges it to be to the public advantage, permit the authority, association, 01 person to register the mark as a trade mark in respect of such .goods, whether the authority association or person is or is not a trader, or is or is not possessed of a good-will in connexion with such examination and certifying.

(2)   When registered, the trade mark shall be deemed in all respects to be a registered trade mark, and the authority, association, or person to be the registered proprietor thereof, save that the trade mark shall not be transmissible or assignable except with the permission of the Minister.

Question - That the proposed new clause be read a second time - proposed.

Mr. McCAY(Corinella).- This clause is borrowed from the new English Act, but, whereas the English section provides that " any association or person ' ' may undertake the examination of goods, the clause provides that " any Commonwealth or State authority, or any association or person " may do so. Then the English provision speaks of an examination of goods in respect to " origin, material, mode of manufacture, quality, accuracy, or other characteristic," all these words referring to some value in the goods themselves; but in the clause the words "or conditions ' ' have been inserted after " mode," and they refer, not to any quality in the goods, but to their history.


Mr Isaacs - Does not the word "origin" also refer to the history of the goods?


Mr McCAY - I do not think that the Attorney-General would argue before a Judge at nisi prius in Westminster Hall, that the word "origin," as used in the

English Act, refers to the history of the goods. What it means is the place of origin; as, in the case of guano, the islands from which it has come. If the word "origin," as used in the clause, refers to the circumstances under which goods are made, why are the words "conditions of manufacture" also used? The English section provides that goods may be marked to show that some authority certifies them to be of certain quality or grade; but, under the clause, the conditions of manufacture may also be certified to. This is a tremendous step towards legalizing the trade union label; but I would suggest to the AttorneyGeneral that the words should be omitted from the clause,- and the matter left to be dealt with in Part VII. The clause differs from the English provision :.1SO in the fact that the Minister of Trade and Customs is substituted for the Board of Trade. I cannot at the present moment think of any other authority who might take the place of the Board of Trade.


Mr Isaacs - The Minister of Trade and Customs is a very good substitute.


Mr McCAY - He is a verv bad substitute, because it is conceivable that we might have a Minister whose views would unconsciously be coloured by his political opinions. I admit that we could not imagine such a thing happening in. connexion with the present Minister ; but future Ministers may not all be like him. If the words " or conditions " are left in the clause, it can be used, not only for the legalization of workers' trade marks in the way proposed 'to be sanctioned by the Attorney-General, but even in the way in which they are used in the United States, where the consent of the registered proprietor of a mark is required before it can be used. Therefore, the clause is really worse than the Attorney-General's workers' trade marks provisions. Any association, if the Minister judges it to be to the public advantage, mav be authorized to register a brand relating to the conditions of the manufacture of goods, and have the goods issued with that brand on them, whether it is, or is not a trader, and is, or is not possessed of a goodwill in connexion with such examination and certifying. The association may have no ownership in the goods, and, as a fact, may have nothing to do with their manufacture, but may farm out its label to favoured maufacturers. . That is the objection to the union trade mark provisions as they came from the Senate, which the Government recognised as a valid one.


Mr Isaacs - The Minister may interpose.


Mr McCAY - The Minister is to be satisfied that what is done is in the public interest. If such an association, as I have indicated asked the Minister of Trade and Customs whether he thought it would be in the public interest to allow a label to be registered, what would1 happen?


Mr Page - He would not register it.


Mr McCAY - The honorable member for Maranoa makes that astounding interjection from the place where the Minister usually sits, and that makes it all the worse. Whether the Minister said " yes " or " no," a purely trade matter could be made a political question of the most acute character. I have looked at this clause very carefully, and I find that it would enable everything to be done that could Have been done by clauses 73 to 78 that we have just struck out of the measure.


Mr Isaacs - The honorable and learned member has overlooked several important words. The Commonwealth or State authority, or any association or person, must " undertake the examination of the goods,."


Mr McCAY - I quite understand that. An association could undertake the examination of the goods to-morrow. No provision is made that the association be formed solely for the purpose of undertaking the examination of the goods. If the Attorney-General would amend the clause by inserting after the word1 " association " the words "formed solely for such purpose," I should be satisfied.


Mr Isaacs - We could not say that a Commonwealth or State authority should be " formed solely for such purpose."


Mr McCAY - No. I desire that condition to be applied only to the association.


Mr Watson - That would block the manufacturing jewellers.


Mr Isaacs - Or it might block an ordinary trading company.


Mr McCAY - Then why not leave out the word's "or conditions"? My objection, applies most strongly to them. The clause with those words in it would enable everything to be done that could have been done under the provision that was passed by the Senate. The Minister could find a hundred reasons for coming to the conclu-sion that the registration would be for. the public advantage. Will the AttorneyGeneral deny that a trade union could, under this clause, with the consent of the Minister, get a union label registered and applied to goods produced under union conditions? Further, will he deny that that union could refuse to grant the use of the label to an employer?


Mr Tudor - No one has ever said that the American unionists have granted the label to favoured manufacturers, and denied it to others.


Mr McCAY - I am speaking of legal rights, and not of facts - those will be dealt with later on. I do not want any one to have the right to do as I have described. I would trust my rights to no man's generosity or sense of justice.


Mr Watson - Yet the honorable and learned member is prepared to give full liberty to the proprietors of trade marks to use them as they like, regardless of the public interest.


Mr McCAY - That question does not arise in this case.


Mr Watson - Yes it does. The honorable and learned member knows that trade marks are sometimes used in such a way as to boycott a certain proportion of the population.


Mr McCAY - I cannot follow the honorable member. If he had pointed out cases in which that could occur, I would have been ready to assist him to prevent the use of trade marks for the purposes of boycott.


Mr Watson - I am not in favour of placing any embargo upon any one.


Mr McCAY - Then the honorable member is in favour of boycotting all round?


Mr Watson - I say that every one should have the same liberty.


Mr McCAY - It is interesting to know that the honorablememberproposes to give everybody the right to boycott. I want to give nobody the right to boycott.


Mr Isaacs - A good deal depends upon the terminology - upon the meaning which the honorable and learned member applies to the word "boycott." Does he mean coercion or not?


Mr McCAY - Not ostensible coercion, but actual coercion. The Attorney-General knows what "boycott" means.


Mr Isaacs - It has been defined both in the Courts and elsewhere in different senses.


Mr McCAY - It produces very similar results, in every case. The refinements referred to have been confined to the Law Courts. The effects are very much the same in every case.


Mr King O'Malley - What about the employers' boycotts, such as black lists?


Mr McCAY - I think that the black list which the honorable member for Maranoa brought under our notice some time ago was a very improper thing.


Mr Watson - Ask the honorable member for Kooyong ; he knows something about it.


Mr Knox - That is not correct.


Mr Watson - Did not the Broken Hill Mining Company have a black list?


Mr Knox - If they did, I knew nothing about it.


Mr Frazer - There is not an Employers' Federation that does not use the black list, more or less.


Mr McCAY - None of them have any right to do so. I shall be perfectly willing to join with honorable members in devising methods of preventing its use.







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