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Friday, 19 July 1912


Senator McGREGOR (South Australia) (Vice-President of the Executive Council) . - I move -

That this Bill be now read a second time .

I need scarcely remind honorable senators of the debate which took place in 1905 with respect to the original Trade Marks Bill passed' by the Commonwealth Parliament. We then availed ourselves of the experience of Great Britain and other countries, as embodied in the British Consolidated Act passed in 1883, and, I think, amended in 1888. At that very time, a more comprehensive measure was being dealt with in

England ; but we had not then the advantage of knowing what would be done regarding it. Consequently, we find that to-day there is in operation, in what some of our friends are pleased to term the heart of the Empire, a more comprehensive, and, I may say, a more liberal Trade Marks Act than we have. Every one knows the value attached by manufacturers and others to trade marks which they have registered and are accustomed to put upon their productions. Every manufacturer or company that produces an article for human use or consumption is desirous of earning as good a name as possible for the things produced; and when the patronage of the public has been obtained with regard to a particular class of goods, it is only right that some protection should be afforded to their makers. Under our present system of civilization, the only way of securing that protection is by marking the goods in some particular fashion, and registering the mark ; which is then an indication that (hose goods are produced by a particular individual or firm, and is a guarantee of quality to the public. Therefore, we must all recognise the importance of legislation dealing with -marks of that description. The only amendment that has been made in the trade marks legislation of the Commonwealth since it was passed, was iti 1910, when the administration was transferred from the Minister of Trade and Customs to the AttorneyGeneral. That amendment did not affect the terms and conditions of the Act in any way. It was merely a transferring measure. At the last Imperial Conference, a resolution was unanimously carried to the effect that, as far as possible, legislation throughout the Empire with respect to patents, trade marks, and designs should be uniform. In pursuance of that resolution, it has become the duty of the Government to introduce a Bill to make the Commonwealth law relating to trade marks as nearly as possible similar to that existing in Great Britain; always, of course, having due regard to the particular conditions existing in this part of the Empire. The amendments which are proposed by the Bill are not very numerous. Some of them are very important, and others may be considered by certain honorable senators as not being of such great consequence. It will be recollected that, in 1905, it was thought advisable, by a very large number of honorable senators, and even of members of another place, that the workers of Australia should have the benefit which might be gained from the protection of their different industries through the adoption of some mark. Consequently, a portion of the Trade Marks Bill was applied to the purpose of bringing into existence workers' trade marks; it was carried by a majority of both Houses, and became law, and, of course, the workers began to avail themselves of what they considered an opportunity to protect their own, interests. The union label has been heard of in other countries than Australia, and the workers have taken a very great interest in it.


Senator St Ledger - Is this Bill intended to give constitutional effect to what the High Court has decided is unconstitutional ?


Senator McGREGOR - The Bill hasbeen before the Senate for some time. Before an honorable senator with such legal ability and acumen as my honorable friend" possesses begins to ask questions, lie ought to look at the Bill and see what it contains. If he had a case before the High Court, or a Supreme Court, and began to ask questions without knowing anything about the case, he would be ridiculed out of the Court.


Senator St Ledger - No, my question arose out of your remark.


Senator McGREGOR - The honorable senator is so impetuous that, if I were reading the Lord's Prayer, he would want toknow what I was driving at. If he will only possess his soul in patience for a few minutes, I shall endeavour, in my own way, to explain the position to him and otherhonorable senators. But I do not think, just because it enters the mind of any honorable senator that the Government isgoing to attempt to subvert justice as laid down by the High Court or any otherCourt, that they should assume that from anything I have said up to the present time.


Senator St Ledger - Very well, I accept it. Let the fault be mine.


Senator Chataway - Can the Ministertell us whether any more memoranda on this Bill are going to be provided? I have* received three.


Senator McGREGOR -Does the honorable senator object to getting as. much information as possible?


Senator Chataway - I want to know if any more memoranda will be circulated?-


Senator McGREGOR - Instead of talking in that manner, the honorable senator ought to welcome the memoranda and appreciate the thoughtfulness of the Government in providing all the information that can possibly be obtained.


Senator Chataway - I do.


Senator McGREGOR - Instead of appreciating our actions, the honorable 'senator objects.


Senator Chataway - I did not object at all. I asked if there were any more memoranda to be provided.


Senator McGREGOR - If the honorable senator will give us an idea of what he wants, and it is possible and reasonable to provide the information, it will be obtained for him.


Senator Chataway - I am much obliged.


Senator McGREGOR - We have an honorable senator sitting alongside him who has all the information that Senator Chataway possesses, but does not seem to know anything about the subject yet.


Senator Chataway - Do not blame him for sitting alongside me.


Senator McGREGOR - I do not imagine that the honorable senator suffers anything from sitting alongside Senator Chataway, and I do not suppose that we would welcome him to this side. He was very nearly related to the Labour party on one occasion. We had a very narrow escape from his society, and, consequently, 'we have no desire that he should ever shift from the other side of the chamber unless it be to shift out altogether. When I was interrupted, I was referring to the workers' trade mark, or the union, label, which was carried in 1905 by a substantial, and *an intelligent, majority in both branches of the Legislature. I have mentioned that the workers began in their own interests to adopt labels, or trade marks, or designs, and put them on the goods which were the product of their brains and labour, and that they were going to get some recognition from the public; but their jubilation or happiness was very short-lived. The brewery workers in New South Wales adopted a workers' trade mark. It was opposed by the Attorney-General of the State, and brought before the High Court. In my parliamentary life, I have never cast a reflection upon the judgment of any Court in Australia. The High Court decided by a majority that we had not the constitutional power to give the workers an opportunity of adopting any mark of this description. The Court declared that it was not the intention of the framers of the Constitution that the workers should have any such right. Since my entry into this Parliament, I have studied the Constitution pretty diligently. I have read paragraph 18 of section 51, and I cannot see any limitations there with respect to legislation on trade marks, patents, designs, or copyrights.


Senator St Ledger - You differ from the High Court?


Senator McGREGOR - Yes j but that is not a reflection on the High Court. Greater men than I differ from the High Court. I have heard even the honorable senator express opinions at variance with those expressed by the Judges in the High Court.


Senator St Ledger - Very seldom, I think.


Senator McGREGOR - That does not matter. ' So long as the honorable senator has been dissatisfied, and expressed contrary opinions, I am. sure that I, in common with every other citizen, have the right to express an opinion with respect to any legislation or any judgment of which there is a possibility for a difference of opinion to arise? The High Court is not infallible. The fact that the High Court was divided on this question shows that it was a case in which there was room for a difference of opinion. No honorable senator will question the ability of the Judges, but we find that, in nearly every instance where the High Court has been called upon to interpret the Constitution with respect to legislation, it has put upon it the narrowest interpretation which any man in Australia could do.


Senator St Ledger - Is not that a reflection on the Court?


Senator McGREGOR - Certainly not. I say that those gentlemen in the High Court were quite justified in expressing their opinions.


Senator St Ledger - Are you not saying that the minority put a wide interpretation on the Constitution, and1 the majority a narrow one?


Senator McGREGOR - Yes ; but that is no reflection, it is a fact. I would not blame the honorable senator if he were a member of the High Court Bench for any decision he came to. He could only decide according to his judgment, his ability, his conscious or unconscious prejudices.


Senator St Ledger - According to his knowledge or his ignorance.


Senator McGREGOR - Does the honorable senator imagine, for one moment, that the Judges of the High Court have not their particular prejudices, whether conscious or unconscious? They know that they have been brought up under certain circumstances in Australia - under certain conditions - overshadowed by certain political opinions.


Senator ST LEDGER (QUEENSLAND) - What ! The members of the High Court Bench overshadowed by their political environment.


Senator McGREGOR - I say that they have been brought up under certain conditions. The honorable senator is like an angler, he seems to be fishing for any kind of mis-statement or lapse that I may make ; but I am making none. Some of these gentlemen were brought up under the shadow of political conditions which have influenced them for the rest of their lives. If the honorable senator were a man of discrimination, he would be prepared to acknowledge that straight away. I do not blame the Judges for that; I do not say that as a reflection on their ability or their intelligence, but it is a fact that the majority- of the' Court, whenever they have had the chance, have put upon the Constitution the narrowest construction which could possibly be put upon it by any man, or, for that matter, by any woman, in Australia.


Senator St Ledger - If you are not over the line, you are very near it.


Senator McGREGOR - I can walk the chalk-line probably as straight as the honorable senator can. I can come just up to the line and retreat as gracefully as he can. I am stating now a fact. The majority of those who were elected by the people of Australia believed that they had the power to put into the Trade Marks Bill of X905 a part dealing with workers' trade marks. They had read and studied the Constitution, and they came to that conclusion, after lengthy debate, and long argument. This Parliament is in .as good a position to express an opinion with respect to the correct interpretation of the Constitution as is any Court in Australia. I hope the day will come when the Parliament of the Commonwealth will have a greater say in the interpretation of the Constitution than it appears to have had up to the present time.


Senator St Ledger - Would the honorable senator abolish the High Court?


Senator McGREGOR - I would not. There are a great many purposes, for -which the High Court is useful and necessary besides the interpretation of the Constitution ; but the Parliament of the country is the place in which the Constitution should be interpreted.


Senator St Ledger - It should .be interpreted by the people of Australia, and not by the Parliament.


Senator McGREGOR - When I speak of the Parliament, I speak of the representatives of the people of Australia. I hope it will be the people of Australia who will interpret certain sections of the Constitution which have been limited by the power placed in the hands of the High Court. According to that Court, we have no power to carry out the principles adopted by this Parliament in 1905.


Senator St Ledger - Is this Bill intended to give power to do what the High Court has said we have not power to do?


Senator McGREGOR - It is not. If the honorable senator, has read the Bill, and does not know that, I cannot give him much credit for intelligence. The High Court decided that the workers' trade mark for which we provided is not constitutional. If that be so, the Act is overloaded. The High Court may, at some future time, decide that this unconstitutional provision is not severable from the rest of the Act, and such a decision may destroy the value of the whole Act. Consequently, for the purpose of safety, it is advisable that this part of the Trade Marks Act should be repealed. Does Senator St. Ledger now understand the intentions of the Government ?


Senator St Ledger - "I clearly understand them now.


Senator McGREGOR - And is not what I have said stated plainly in the Bill, which the honorable senator has had in his hands for several days past? If he had not read the Bill he should have waited until I finished my speech. If he was not satisfied with what I had to say, he could read the Bill, and would then be able to take part in 'the discussion of it. I still maintain that it was within the power of the High Court to put a .broader interpretation upon legislation of this description. I have as much right to my opinion as has any member of the High Court. The only question that arises is as to whether I have as much- experience as have the Judges of the High Court.


Senator Rae - No, the question is whether the honorable senator has as much power.


Senator McGREGOR - I have not as much power, nor, apparently, has this Parliament, but I hope the time will come when Parliament will have as much power as, and a little more, than any institution that is the creation of Parliament. No instrument of legislation in any part of the world, and no institution the creation of a Legislature, should have greater power than the Legislature that brought it into existence. That is my opinion, and I feel sure that no honorable senator opposite will question a statement of that kind.


Senator Sayers - The High Court is created by the Constitution, and not by Parliament.


Senator McGREGOR - Honorable senators opposite are always thirsting for information. I believe that they sometimes make statements which they know to be incorrect merely in order to elicit information. The Constitution gave Parliament the power, or the instruction, to institute a High Court.


Senator Keating - No ; the Constitution says there shall be a High Court.


Senator McGREGOR - The High Court could not have been brought into existence without an Act of. this Parliament.


Senator Sayers - The people of Australia made the Constitution.


Senator McGREGOR - The honorable senate has just said that the Constitution made the High Court.


Senator Sayers - Decidedly it did.


Senator McGREGOR - I say it did not.

The Constitution that was adopted by the people gave the Parliament of the Commonwealth the power, if not an instruction, to bring the High Court into existence.


Senator Keating - No; it established the Judicial power, and imposed the duty upon Parliament.


Senator McGREGOR - What is the difference? If I were to instruct the honorable senator, and had the power to instruct him, would that not be the same as imposing a duty upon him? Honorable senators opposite must have been hunting up dictionaries and encyclopedias for the purpose of tripping people up ; but they cannot do it. I hope that the day will come when the Parliament of the Commonwealth will be able to give every section of the workers of Australia the powerto register a trade mark for themselves. Senator Keating is aware that in some of the

States workers' trade marks were established by State legislation. Our legislation establishing a workers' trade mark was carried because the statement was made, and proved, that in some of the States workers had trade marks of their own. If inany of the States it was possible for workers to register a trade mark, seeing that the powers of the States with respect to trade marks, copyright, and designs were handed over to the Commonwealth, it was a natural assumption that the Commonwealth Parliament could do what it was competent for the State Parliaments to do under the powers taken' from them and vested in the Commonwealth Parliament. There is nothing unreasonable in such an assumption. I am satisfied that the Judges of the High Court exercised their functions according to their knowledge. I believe they were honest in the views to which they gave expression. I have never suggested that they did other than what they believed to be right. But their beliefs and actions have not, in my opinion, conserved the best interests of the people of Australia. In all these circumstances, it has been decided to ask Parliament to repeal that part of the Trade Marks Act providing for workers' trade marks. The next amendment that is proposed by this Bill is the extension of the operations of our trade marks legislation. So far as patents are concerned, that legislation has already been extended to the Territory of Papua. This Bill, if passed, will extend our trade marks legislation also to that Territory. Some persons have asked, though honorable senators would surely not do so, whether this legislation should not also be extended to the Northern Territory. As the Northern Territory is part of- the Commonwealth of Australia our legislation is already in force there, and there is consequently no necessity for an amendment of the law in that respect. The next alteration proposed is to bring the law more into conformity' with Imperial legislation, and to make it more beneficial to those who are applying, or intend to apply, for the registration of trade marks. We propose to make applications much simpler than they are at present, particularly in relation to additional matter. If, under our existing legislation, a man desires to have additional matter in a trade mark as well as the essential particulars of the mark, a good deal of trouble is involved in making his application. Under this Bill there need be no difficulty in making his application. So long as the mark contains the essential particulars, it will be eligible for registration. Honorable senators are aware that a trade mark may consist of a mark, letter, word, or design, but if a word other than an invented word is used, it must not be a word directly connected with the article to which it is to be applied. For instance, if I desired to register a trade mark for cheese, butter, or condensed milk, I should not be allowed to register a design of a cow, a churn, or anything connected with the article I wished to protect. The trade mark must be different from the article to which it is applied. Difficulties arise every day in connexion with the application for the registration of trade marks on this account. If one man registered a silver star for starch, and another attempted to register a golden star for another kind of starch, there would very likely be some trouble. But a man might register a silver star as a trade mark for something not included in the same class of goods as starch. All these things have to be considered in dealing with trade marks registered for the benefit of manufacturers. We must see that no one is allowed to infringe the rights of any one else by imitation. Trade marks must have their essential particulars, but they must differ if applied to the same .class of goods. The next amendment of any consequence which it is proposed to make in the existing law has reference to the names which may be applied to the trade marks relating to particular goods. There may be persons in other parts of the world who are not so honest and scrupulous as are the traders in Australia. The former may desire to cut out our honest traders, and to this end may send here goods bearing a similar name to that of a manufacturer in the Commonwealth. In this Bill we lay it down that any goods thus forwarded, and bearing names resembling those of our own traders, shall be treated as prohibited imports. Now, it is a very serious thing for a trader in another part of the world to have his goods seized as prohibited imports.


Senator Rae - How will the traders in other parts of the world know what names are applied to particular goods here?


Senator McGREGOR - They will have to find out. Of course, if a trade mark is registered in Great Britain before it is registered here, the person registering it will receive priority. It is only when an attempt is made to commit what Senator Rae would regard as a fraud that this legislation will come into operation. We have a right to protect our own people in the matter of trade marks and designs, as in all other things. Then it will be recognised that goods sometimes reach our ports in a very mysterious manner. In the future, if any goods are found to infringe the rights of the citizens of Australia, and if, as a result, they are seized as prohibited imports, the Comptroller-General of Customs will have power to compel the importer of those goods to disclose the names of the consignee and consignor, so that they may be dealt- with by Commonwealth legislation. Honorable senators will, therefore, see that we have endeavoured to make the Bill as comprehensive as possible. In the past some difficulty has been experienced in respect of search warrants. Seeing that under this Bill we have provided for prohibited imports, and have created various offences, we ought to take every precaution to insure that effect is given to this legislation. Consequently, we propose to authorize justices of the peace to issue search warrants, so as to enable prohibited imports to be followed into every possible place where there is a chance that they may be discovered. If they are discovered they will be dealt with in accordance with the next amendment. The amendments which we propose in connexion with the infringement of a name will necessitate what may be termed consequential amendments. The amendment consequential on the alteration of the law with which I have been dealing, provides for the forfeiture of prohibited imports to the King. Very little argument is necessary in connexion with these consequential amendments. Then we propose generally to amend the Act so as to bring it into conformity with the legislation which is embodied in the Imperial Act. If honorable senators will study the Bill and the memoranda which have been circulated for their information, they will see that we have done all in our power to put them in possession of data likely to be of service to them. In the absence of that information, they might have justly complained of laxity on the part of the Government or of the Department in which this legislation originated. Everything has been done to obviate that difficulty, and when the second reading of the measure has been passed, I have no doubt that very little difficulty will be experienced in dealing with it in Committee in such a way as to bring our legislation in respect of trade marks more into conformity with the trade mark legislation which exists in other parts of the world. The Imperial Act of 1905 was drafted by Mr. Fletcher Moulton, who has since been elevated to the Bench; and who is now Lord Justice Fletcher Moulton. He is regarded as one of those men who has had the greatest experience, and possesses the most extensive knowledge, of trade mark legislation. Seeing that a gentleman of such distinguished ability has taken the trouble to bring about complete trade mark legislation in connexion with Imperial affairs, I am sure that we are doing a wise thing when we follow as closely as possible the example which he has set. Further, when this Bill becomes law, the Commonwealth Courts will' have the advantage of all the decisions which have, been arrived at by the higher Courts in the centre of the Empire. I hope that the Bill will be dealt with in as liberal a manner as possible.

Debate (on motion by Senator Keating) adjourned.







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