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Thursday, 8 December 1960


Mr WHITLAM (Werriwa) -The Opposition will not oppose the second reading of this bill, but will move an amendment at the committee stage to preserve the present position concerning the publication of a complete specification. Hitherto, the bill has taken a course with which the Attorney-General (Sir Garfield Barwick) has familiarized us during his term of office. He made his second-reading speech on 2nd June, but the second-reading debate did not proceed during the autumn session. On 9th September, the Attorney-General made a statement in the House forecasting the amendments which he would make to the amending bill of which he had moved the second reading three months before. It was quite a considerable statement. It took up six roneo-ed foolscap pages. At the same time, he circulated to interested persons outside the House a further statement of eight roneo-ed foolscap pages explaining the amendments which he proposed to move to the amending bill. Last week, the Attorney-General once again made a statement in the Parliament - this time of four roneo-ed foolscap pages - saying that he would make some interim amendments to the amending bill in lieu of the amendments which he had previously explained in the companion statement of September.

The amending bill arose out of a report made to the Attorney-General by Mr. Justice Dean of the Supreme Court of Victoria, who does not seem to have signed the report, by the president and past president of the Institute of Patent Attorneys of Australia, by the Commissioner of Patents and by the Parliamentary Draftsman. The criticism has been made that the report was prepared principally by patent attorneys on the basis of representations and evidence which they had received from patent attorneys, but that the committee did not receive representations, to any extent, from manufacturers and included no representatives of manufacturers' organizations. Consequently, when the Attorney-General introduced his original bill in June, the manufacturers complained about some of its provisions.

Normally, a complete specification is published after its acceptance. In Australia, before the war, we had the rather unusual position in which such a specification could be published practically forthwith. After the war, we amended the act to provide that the complete specification could be published six months after lodgment. The Attorney-General, last June, proposed to repeal that provision. Then the normal position would have applied in Australia which applies in- most other countries that the specification would be published when it was accepted.

The manufacturers made representations to the Attorney-General and he then, in September last, proposed various amendments which would, he said, meet some of the manufacturers' objections. His chief proposal was that publication should take place a year after lodgment. He now proposes that publication should take place on the second anniversary of lodgment of the complete specification or on the date of its acceptance, whichever date first arrives. This seems to be the only matter of controversy in the bill.

We will not oppose the second reading of the bill. There are many features of the bill which we should promptly enact since they enable us to ratify the Lisbon revision of two years ago of the International Convention for the Protection of Industrial Property. At this point, we do not see any advantage in extending the period of publication as an interim measure from six months to two years which the AttorneyGeneral, last week, told us was the longest period that he could envisage, when as he also told us then, in the autumn session he will move an amendment to make permanent provision in this matter. We might as well leave the six months' publication period until he has made up his mind definitely as to what period he proposes to lay down for the indefinite future.

There is one point that I feel I should mention at this stage because it affects the general amendment of acts concerning industrial property as they come before us from time to time. I notice that in this bill there is a reference to the appeal tribunal. Under the principal act, the appeal tribunal is constituted by a single justice of the High Court of Australia. An appeal lies from him to a Full Court of the High Court. I would have hoped that the opportunity would have been taken to provide for the appeal tribunal to be constituted by the Commonwealth Industrial Court.

The Commonwealth Industrial Court now includes several members who have had considerable experience in matters of industrial property. If one may say so with respect, some members of the Commonwealth Industrial Court have had greater experience in matters of industrial property than they have had in matters of industrial relations. In fact, one can properly pay tribute to the Chief Judge of the Industrial Court for having done more than any other Commonwealth Attorney-General to institute a review of Commonwealth legislation on industrial property. I therefore regret that this opportunity seems to have been missed to give the Commonwealth Industrial Court work for which it is well qualified and which would,. I would think, secure more general acceptance in the community than some of the work which the Parliament has given it.

I want to make it quite plain that I am not in any way reflecting on the way in which the judges of the Industrial Court perform this work. It is the fault of this Parliament that it has given them this work to perform. But on matters of industrial property 1 would think, with respect, that the Industrial Court is very well qualified, and that the High Court has far too much of an appellate or constitutional nature to be worried with appeals under the Patents Act. 1 will refer to the generally confused matter of appeals under our acts which deal with- industrial property. Under the Copyright. Act, Mr. Speaker, the Supreme

Court of any State may order the rectification of any register; an appeal lies to the High Court. Under the Designs Act, there is an appeal, if the Registrar of Designs refuses to register a design, to the AttorneyGeneral or to the Crown Solicitor. If either of them, in turn, refuses the application, there is an appeal to the Supreme Court of a State. After registration, any interested person may apply to the High Court for its cancellation or for a compulsory licence. The Supreme Court of a State may order the rectification of the register. An appeal lies to the High Court. Finally, under the Trade Marks Act, appeals lie to the Appeal Tribunal constituted by a single justice of the High Court and thence to a Full Court of the High Court. While this bill is going through, and whenever these other bills to which I have referred are being amended, the opportunity might well be taken to co-ordinate the methods of appeal by providing an appeal from a Registrar or Commissioner to the Commonwealth Industrial Court. Sometimes appeals lie to the law officers of the Crown - the Attorney-General or the Crown Solicitor - sometimes to the Supreme Court of a State but not it seems to the Supreme Court of a Territory, and sometimes to the High Court. These various means of appeal are provided and, in fact, they sometimes occur in the one act.

As we have a new tribunal which has been created since any of these acts were passed and since the Patents Act was last amended, I would have thought that the Attorney-General would have seized the opportunity to relieve the High Court of some of its original jurisdiction and give a special court - this new court - the job of co-ordinating these provisions. In this connexion, last week we passed the Seamen's Compensation Act. Again, one would have thought an appeal procedure on what would be regarded as an industrial matter - workers compensation - could also be properly given to the Commonwealth's special new court - the Commonwealth Industrial Court. The Opposition does not oppose the second reading of the bill.







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