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Tuesday, 5 December 1905

Mr WATSON (Bland) - The honorable member for Kooyong in this clause is, I think, trenching very dangerously on the limitations to the constitutional rights of this Parliament. I do not think we have the power to enact conspiracy laws. Some honorable members on the other side have complained of the introduction into the Trade Marks Bill of provisions to give protection to a workers' trade mark as being foreign to the general purposes of a trade marks law. Surely it is still more foreign to the purposes of such' a law to include in it a series of provisions relating to conspiracy ? Apart from those who are known to be pushing their opposition to the union label provision to the utmost possible extent, and speaking of unbiased persons, it is news to me to hear it contended that to enact provisions for the protection df a mark to be applied to goods in the course of trade is foreign to the purposes of trade marks legislation. But certainly it can reasonably be held that a provision dealing with' the subject of conspiracy, and enacting something completely new, is foreign to legislation- dealing with trade marks. Leaving that matter, I point out that the honorable member for Kooyong said that the voting upon this clause would test the sincerity of the professions of honorable members on this side. I should like to know, as a test of his professions, what steps the honorable member proroses to take to deal with the boycotting indulged in by the proprietors of ordinary trade marks? So far as I know, the honorable member intends to take no steps whatever in regard to them.

Mr Kelly - What sort of boycott do they indulge in?

Mr Harper - How can they boycott ?

Mr WATSON - We do not expect the honorable member for Wentworth to know, but I ask the honorable member for Mernda whether in respect of some of his goods he permits more than one trader to distribute them in a particular town ?

Mr Harper - Yes, the more the better.

Mr WATSON - Then the honorable member's practice in that respect differs from that followed by many other manufacturers. I am sure the honorable member will be candid enough to admit that he personally knows of a great number of manufacturers who limit their agency to one trader in a town, and boycott every other trader in it.

Mr Page - The honorable member for Mernda does the same thing himself, in Queensland. He has only one agent in Rockhampton.

Mr McCay - What is there improper in that?

Mr WATSON - I do not say that it is improper for a manufacturer to do that. In some cases, I can quite understand that it might be absolutely justifiable from business considerations; but I do say that it is in restraint of trade. There is no freedom to the one hundred and one other traders in a town to purchase the goods of the manufacturer who adopts that practice, in order to distribute them to the public, though they may desire to do so. The practice, therefore, resolves itself into a boycott of certain individuals in that town. The principle on which legislation has always proceeded in regard to trade marks in every British community, and indeed in every civilized community in the world, has been to grant legislative Protection to the owner of a trade mark, independently of what he does with that trade mark. In the laws of England, of America, and of every continental country, so far as I have been able to ascertain, no question is raised as to how the owner of a trade mark mav care to use the symbol in respect of which the community has given him protection, and in the use and enjoyment of which they have confirmed him. Why should this principle be introduced now, when the interests of the workers are at stake? Because they are concerned the honorable member for Koovong has suddenly become alive to the necessity of protecting the public against boycotting.

Mr Wilson - It will work both ways.

Mr WATSON - I, personally, contend that there is no likelihood of any effective boycotting resulting from the establishment of the proposed union' label, because the public will soon show by their lack of sympathy that it is not profitable for any one to indulge in boycotting of the kind suggested. I say that if honorable members who are opposed to the union label provisions insist upon and succeed in introducing a clause that will have the effect of limiting the operation of the workers' trade mark, I, for one, will take every step possible to provide that the owner of every trade mark used in the ordinary course of business, and given protection under this measure, shall be brought under review by the authorities as to the manner in which he uses that trade mark, and as to whether it is used in the public interest or not. If we are to have legislation to say how this concession by the community is to be used, it should be applied all round without discrimination. This clause should be proposed in another part of the Bill, and applied to all trade marks, in order that the action taken under them all might be brought under review in every instance, and that some public authority, whether a. Government officer, a board, or some such body, shall pronounce whether the holder of a trade mark is entitled to continue in the use and enjoyment of it, iq view of the manner in which he is operating it in the interests or against the interests of the public. If the honorable member for Kooyong is prepared to amend his clause so as to make it apply to all trade marks indiscriminately - because, after all, a trade mark is in the nature of a monopoly since it is a concession from the public to a particular" individual, permitting him to acquire proprietary interests in his mark, and extending to him the assistance of the whole machinery of Government to secure his enjoyment of it-

Mr McCay - I thought it was a question of conspiracy, only a moment ago.

Mr WATSON - 1say that the false use of a trade mark is a question of conspiracy, and all the evasions of the honorable and learned member for Corinella will not induce the public to believe that the attitude assumed1 by him can have any other result than that of assisting the pirate and the forger. In this clause the honorable member for Kooyong is going either too far or not far enough. He should put no such proposal before the Committee, or he should be prepared to submit a clause which will apply the restrictions he proposes in this clause equally to every form of trade mark. If the honorable member does that, I shall be prepared to support him.

Mr. ISAACS(Indi- Attorney-General). - I do not think that the honorable member for Kooyong intends to suggest anything unfair. But I can assure him that his proposal is unfair: In the first place, it offends not only against the spirit of the rule just referred to by the honorable member for Bland, inasmuch as it does not pretend to apply that rule all round to all trade marks, but it does not presume to say to other traders : " If you unite to induce your customers not to deal with somebody else, you shall be guilty of an offence." But there is something more. Even in regard to the workers' trade marks, this is the most onesided proposal I ever heard of. So far as I can understand! it at all, the clause provides that if there is a conspiracy - and I do not know what a conspiracy to induce any person to do anything of his own will may be - for the purpose of inducing any person not to deal with any manufacturer, trader, or employer, because he does not use a workers' trade mark, and the persons engaged in it are to be liable to punishment, why" is there not also a proposal to make it punishable for employers to induce other persons not to employ unionists, or not to give employment to any person or deal with* any person who does use a workers' trade mark? Why is this proposition so one-sided? I could appreciate the difficult position in which the honorable member for Kooyong would be placed if he returned to the Chamber of Manufactures, and said, " I have moved a clause which renders you liable to punishment as criminals if you unite together and decide that you will not employ unionists., or that you will give preference to persons who do not employ unionists," or that they would place themselves in a similar position if they did what Mr. Walpole threatened, in the letter which I read the other evening, that the bankers and manufacturers might do - bring pressure to bear on persons who did use workers' trade marks. I can imagine the astonishment with which the honorable member would be received if he had such a communication to make. Yet it would be only fair to include such a provision as a counterpart to what he proposes in this clause. Let us deal with the clause as it stands. I ask honorable members what we are to understand by it? It provides that-

Any person who unlawfully conspires with any other person or persons -

To do what? - to induce or attempt to induce any person not t* deal with or accept employment from any manufacturer, trader, or employer - who does not use a workers' trade mark. I ask honorable members to imagine the position created. Two persons meet together, and they say : " We will use our best efforts to persuade a certain individual or fellow-worker not to deal with a certain man, because he does not use a workers' trade mark." Instantly, under this clause, they would be criminals.

Mr Mauger - That would affect the whole of the members of the Anti-Sweating League.

Mr ISAACS - As the honorable member for Melbourne Ports points out, this clause would put the whole of the members of the Anti-Sweating League in gaol in about a week.

Mr Tudor - Perhaps that is what is desired.

Mr ISAACS - That would be the effect of this clause; but I am satisfied that the honorable member does not intend that it should achieve any such unfair conse1quences

Mr Tudor - The honorable member did not know that it was loaded.

Mr ISAACS - I say that that might be the effect of the clause, but I propose to show the Committee that there is no necessity for any such provision. I was very careful to put into the Bill the provision to which the Committee has agreed in clause 75 -

Nothing in this Part shall be so construed as to make it lawful for any person or association or combination of persons to do any act which it would have been unlawful for such person, association, or combination of persons to do before the commencement of this Act.

In other words, if there is any conspiracy or unlawful act which, at the present moment, would render those committing it liable to punishment, they will be equally liable after the Bill is passed.

Mr Knox - I understand that that provision covers the ground which I desire to cover by my amendment?

Mr ISAACS - It does not create a new offence, but leaves the law as it is at the present moment.

Mr Harper - It doesnot alter the law.

Mr ISAACS - That is so. It says, in effect, that no power is given to the workers to indulge in criminal practices. It is very doubtful whether this Parliament can pass any criminal law. I do not know what the Statute law is in all the States, but at common law, and by the Statutes of two of the States, conspiracy and boycotting, in the sense of intimidation, are prohibited, and it is the business of the States to make their laws in this respect effective if they are not now sufficiently stringent. Section 20 of the Employers and Employes Act of Victoria, No. 1219, passed in 1891 and based upon the English Act 38 and 39 Vic, cap. 86, section 7, provides that -

Every person who with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing wrongfully or without legal authority -

(1)   uses violence to or intimidates such other person or his wife or children or injureshis property ; or

(2)   persistently follows such other person about from place to place ; or

(3)   hides any tools clothes or other property owned or used by such other person or deprives him of or hinders him in the use thereof ; or

(4)   watches or besets the house or other place where such other person resides or works or carries on business or happens to be or the approach to such house or place ; or

(5)   follows such other person with two or more other persons in a disorderly manner in or through any street or road - shall on conviction thereof by a court of petty sessions, or on inducement or presentment as hereinafter mentioned be liable either to pay a penalty not exceeding twenty pounds, or to be imprisoned for a term not exceeding three months, with or without hard labour.

Attending at or near the house or place where a person resides or works or carries on business or happens to be or the approach to such house or place in order merely to obtain or communicate information shall not be deemed a watching or besetting within the meaning of this section.

Section 7 of the Western Australian Conspiracy and Protection of Property Act - 64 Vic. No. 19 - contains almost the same provision. Under these circumstances, and having regard to the facts to which I have already referred - more particularly the onesided "nature of the proposal - I have no option but to oppose the amendment.

Mr.THOMAS (Barrier). - I was very much amused when I found that the honorable member for Kooyong had given notice of this amendment. I understand that his intention is to prevent what is known as boycotting ; but such an amendment as he has moved would have come with better grace from any other honorable member. My reason for saying so is that he is associated with a company which employs probably more men than are employed by any other company, and uses the boycott very rigorously. I know from personal experience that it does so, because it boycotted me. I was president of the Miners' Association at Broken Hill previous to a certain strike, and was boycotted on that account, by not being allowed to work in any of the mines there. Mr. Vosper, who was then treasurer of the association, was similarly treated, and had ultimately to leave Australia to obtain work. He went to South Africa.

Mr Hutchison - And we lost a firstclass citizen.

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