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Wednesday, 8 November 1905


Senator PULSFORD (New South Wales) - I have been hearing so much about apples that I am reminded of the fact that apples were the cause of original sin. We heard of very little else than apples when we were discussing the Sea Carriage of Goods Bill. If we do not mind, the Minister will get this measure through under the disguise of its being an apple Bill. But I can assure the Senate that this is very much more than a mere apple Bill. It is a Bill of a very far-reaching character. Indeed, it is a terrible Bill- It is one of the most serious Bills ever introduced in the Senate. It proposes practically to put the commerce of Australia under the heel of the Minister of Trade and Customs for the time being, whoever he may be. The Bill gives extraordinary powers. Senator Macfarlane has spoken of it as being a fraudulent marks Bill. I wish it were. Then it would be something like a copy of the English Ad, which simply says to the trade, " If you put a mark on any goods it must be an honest mark ; if you are guilty of fraud in any way, you must suffer," But that is not what the Bill before us proposes. Under this measure, a man may be made to suffer if he marks goods falsely, but the extraordinary principle of the Bill is that the "Government propose to take out of the hands of the people themselves the trade that belongs to them, to say what description shall be given to goods, how the goods are to be. graded, how they are to be divided, and how they are to be marked. In these proposals there is the very gravest possible danger to the prosperity of Australia. The measure deals with quite a number of things - how many, honorable senators will understand when I have enlightened' them somewhat. When the Bill was passing through the other House, in the small /and early hours -of one fine morning, some additions were made to it. that altogether altered its scope, and made it applicable _ to an immensely larger area of the commerce of Australia. The Minister, when approached by a deputation from the Chambers of Commerce, confessed that he was much impressed by the representations made to him, and he said he would take care that the Bill was made applicable only to articles of food, drink, and medicines. The Bill, however, as it stands, applies, I suppose, to something like three-fourths of the commerce of Australia ; and that is a statement which I have no doubt will cause some surprise to honorable senators. The Bill applies to - articles used for food or drink by man, or used in the manufacture or preparation of articles used for food or drink by man.

Well, there is no end to the machinery and metal-wares of all kinds which are used in the manufacture and preparation of " articles used for food or drink by man," not to mention the raw material. It appears to me that the far-reaching character of the words used in the Bill has not been observed. In another place, apparel was included amongst the manufactures to come under the Bill; and apparel includes boots and shoes and " the materials from which such apparel is manufactured." I believe that apparel is sometimes manufactured from wool, and, therefore, the whole of the wool trade of Australia is comprehended in this measure. I have here a return showing the imports through the Customs for last year. The value of the total import of merchandise was 35.8 millions sterling, and the value of the goods indicated by the Bill would come to 17.3 millions. But if we have to include the articles which would be embraced by the words " used in the manufacture or preparation of articles used for food or drink by man," trie total is brought up to at least 25 millions sterling. When we come to the exports, which, in value, total 39.7 millions sterling, we find that the goods indicated in the Bill represent 30.2 millions; and when we bear in mind the proviso " used in the manufacture or preparation," the figures are larger still. In fact, we may say that coal is used in the preparation of articles of food, and will, therefore, come within the operation of the Bill ; and some fine morning we may find the Minister issuing regulations as to how coal shall be graded. I have made out a list of the articles which come under the Bill, and the number is verv great. I shall not inflict the whole list on honorable senators, but merely draw attention to one or two. For instance, there is sulphur, which is mainly imported as an article of trade for the manufacture of sulphuric acid, and so forth. Sulphur, however, is to some extent used in medicine, and, therefore, under clause 15, sulphur is brought within the operation of the Bill. The same remark may be made in regard to turpentine, which is used not only as a liniment, but as an internal medicine. Of course, it may be said that all these matters depend on how the Bill is read and administered, and to a large extent that is true. But when we have a first-class linguist at the head of the Customs Department anything may be read into an Act of Parliament. The gentleman who fills the post of Minister of Trade and Customs to-day can read a good many things into an Act of Parliament which legislators could scarcely have expected.


Senator Givens - Can the honorable senator give us one instance, after making so general a charge?


Senator Trenwith - The statement of Senator Pulsford is as comprehensive as the Bill.


Senator PULSFORD - The position is something like this : If the total imports and exports of merchandise amount, in value, to 75-5 millions sterling, no more than ^15,000,000 worth can escape being brought under the Bill, if the Minister in charge thinks it desirable to take steps to that end.


Senator Trenwith - Does the honorable senator complain that a large amount of commerce will escape the Bill?


Senator PULSFORD - We have been told that the commerce affected by the Bill is, comparatively speaking, a small quantity, but I think I have shown that the great bulk of the commerce would be affected by it.


Senator Styles - We cannot have too much of a good thing.


Senator PULSFORD - We ought to have as little as possible of a bad thing. If we cannot put this Bill into the wastepaper basket, let us mitigate its evils as far as we can. I should agree with the measure if it were simply a replica of the British Fraudulent Trade Marks Act; under these circumstances, it would have a swift and easy passage through the Senate. I object to the title of the Bill, which describes it as " an Act relating to commerce with other countries." In my opinion the title ought to be much more restricted, and if it is not called a Fraudulent Trade Marks Bill the measure ought to be called a Trade Description Bill, or something of that sort. To give it the dignified titled of " an Act relating to commerce with other countries " is a little too absurd.


Senator Trenwith - There has not been much dignity about the commerce of which we have heard in the Courts lately.


Senator PULSFORD - A matter of that kind goes a long way with some honorable senators. If a case of fraud occurs there are people who will say that the trade of Australia is rotten to the core; and that is the view taken by those very people who are for ever girding at others who have published similar statements in the English press. If honorable senators would begin at home, and, contenting themselves with actual cases, would say less about the alleged iniquities of merchants in general, it would be well for the country.


Senator Styles - This Bill is to protect honest merchants.


Senator PULSFORD - I desire to call the attention of honorable senators to clause 2, which is as follows: -

This Act shall be incorporated and read -is one with the Customs Act 1901.

That is a very small clause, but it is pregnant with great meaning and possible results. It means that the whole of the highly penal sections of the Customs Act are incorporated in the Bill.


Senator Playford - Hear, hear.


Senator PULSFORD - The clause means that if a man makes a small mistake he may be fined £100, aand that the minimum penalty cannot be reduced below £$. A mistake of the kind may occur in regard to an article only worth a shilling, and I have in my mind the case of some lascars from an Orient steamer in Sydney, who sold about ten sticks, worth is. each, and were, in the aggregate, mulcted in penalties amounting to^'50. That clause subjects the whole of the producers for export to penal exactions for small mistakes, apart altogether from fraud. Let me direct the attention of honorable senators to the definition of " trade description." In the English Act trade description deals only with number, quantity, measure, gauge, and weight. Under the Bill before us, however, we are asked to consider the nature, number, quantity, quality, purity, class, grade, measure, gauge, size, and weight. It would appear that any indefinite word open to dispute has been inserted in the Bill, which sets forth that "trade description " means any description, statement, indication, or suggestion, direct or indirect. Thus we have several different divisions. There is the description, statement, indication, or suggestion, direct or indirect, and then the description is applied to the nature, number, quantity, quality, purity, class, grade, measure, gauge, size, and weight. Under the circumstances, he would be a poor Minister who could not catch a merchant in some way. There are, in fact, eleven divisions, each of which may be tested in eight different ways. Bearing in mind the first subdivision, there are no fewer than eighty-eight ways in which the accuracy of a trade description may be questioned.


Senator PEARCE (WESTERN AUSTRALIA) - The exporter is given plenty of scope !


Senator PULSFORD - As if that were not enough, "trade description " means any description, and so forth, as to the country or place " in or at which the goods were made or produced," and, further, as to the manufacturer or producer of the goods, " or the person by whom they were selected, packed, or in any way prepared for the market." ' Then particulars have to be given as to the mode of manufacturing, producing, selecting, and packing, and also as to the material or ingredients of which the goods are composed. These drag-net provisions are capable of catching the most innocent. Any' man who imports a small shipment of goods, and has not made himself fully aware of their nature, mav make some slight mistake, and' on that he is to be branded as a fraudulent trader. The Minister must remember that the whole of the trade of Australia is open to the power of inspection.

The Bill provides that an officer may inspect and examine all prescribed goods which are imported. Power is taken to inspect all goods, whether imports or exports. So that the whole of the commerce of the country is affected by the Bill. It is only the proportion to which I have referred that comes under the special clause, and is the subject of prohibition. When we consider what I have been pointing out, that for a slight difference in description, slight errors or omissions, almost any goods in connexion with threefourths of the trade of the country may at amy time be prohibited-


Senator Playford - No, no.


Senator PULSFORD - The honorable senator says, "No, no," doubtless because he is ashamed of the Bill. He is not willing to' readily admit all its iniquities, but it will be quite enough if the honorable senator is induced to admit them little by little.


Senator Playford - The words of the Bill are, "which makes the. description false or likely to mislead in a material respect " - not in a little matter.


Senator PULSFORD - That is to be according to regulation. I have of late been calling attention to the way in which we have been governed by- regulations. I have said again and again that we are having too much of it; but the worst phase of government by regulation to which we have so far been subjected id before us in this Bill, in sub-clause 3 of clause 7, and sub-clause 3 of clause 11. Sub-clause 3 of clause 7 provides that - the Comptroller-General, or on appeal from him the Minister, may in any case, and if in his opinion the contravention has not occurred either knowingly or negligently, shall permit any goods which are liable to be or have been seized as forfeited under this section to be delivered to the owner or importer upon security being given to the satisfaction of the Comptroller-General that the prescribed trade description will be applied to the goods, or that they will be forthwith LXported.

That is an explicit provision, but what do honorable senators think of these words being preceded by the words, " Subject to the regulations." We are here to legislate^ - subject to regulations ! Surely the Commonwealth Parliament has fallen indeed to a very low level if it is prepared to' submit to that sort of thing !


Senator Playford - The regulations will say_ what trade description shall be applied in each case.


Senator PULSFORD - We are to have this power, " subject to regulations."


Senator Pearce - Is it practical to put what the honorable senator requires in the Bill? What is the use of fighting shadows ?


Senator PULSFORD - I wish to direct attention to a report made on this Bill by the Sydney Chamber of Commerce. The members of that body have spent a considerable amount of time in studying the Bill, and whatever may be the views of honorable senators, the report which they have adopted is marked by so much insight, and is so well put, that I think it worthy of very close attention.


Senator Playford - They look after their own interests.


Senator PULSFORD - In their report they say -

The Chamber would hail with satisfaction a well considered measure safeguarding the public health, and applied to food and drugs -

I must go back for a moment to refer to Senator Playford^ interjection, because I think it insulting. The honorable senator said that the members of the Sydney Chamber of Commerce look after their own interests, but I say, most emphatically, that the interests of all Chambers of Commerce are concerned with honest trading, and there is no Chamber of Commerce in Australia that will not be found ready to stand by the Government in passing simple measures for promoting honest trading.


Senator Pearce - Where is the insult? The Minister merely said, " They look after their own interests." Do they not do so?


Senator PULSFORD - Senator Pearceis well aware what was meant, and what was behind the words as used by the Minister. It is not at all necessary that I should explain the interjection further. The Sydney Chamber of Commerce report as follows : -

The Chamber would hail with satisfaction a well-considered measure safeguarding the public health and applied to food and drugs, but as these are already provided for here, and possibly in other States, by legislation, we cannot see the necessity for any such Act as the present one. It is evident, from the list of goods stated by Sir William Lyne as being most likely to be affected by the Act, that the measure is not to be regarded as one to safeguard health, but that it is one which affects all classes of the trading community. In their opinion the Commerce Bill travels too far, and in its possible restrictions might very injuriously be used, and seriously embarrass the operations of both importers and exporters.

In the next place, if such an Act is considered necessary in the public interests, we think it should embrace all trade operations, and not deal with imports and exports only, leaving manufacturers and producers in Australia severely alone in their transactions between States of the Commonwealth.

It is only when a manufacturer or producer becomes an exporter to countries beyond the Commonwealth that he comes within the provisions of the Bill, which is entitled " An Act relating to commerce with other countries."

Honorable senators must remember that the title of this Bill 'is, "A Bill for an Act relating to commerce with other countries." The Chamber of Commerce- further reports : -

Seeing tha! the measure, if passed into an Act, is to be " incorporated and read as one with the Customs Act I 9OI," it appears possible to have been designed as a " drag-net " to give extended powers to the Customs never anticipated or authorized by Parliament when the Customs Act 1901 was passed.

The main effects of the measure, if passed into an Act, will primarily be to harass importers, and, secondly, producers and manufacturers when they wish to become exporters.

Clause 7, sub-section 1. - The GovernorGeneral may, by proclamation, prohibit the importation or introduction into Australia of any goods specified in the proclamation unless there is applied to them " a trade description of such character relating to such matters, and applied in such manner as is prescribed by the proclamation Or by regulations."

In addition to the very wide powers sought tobe conferred on the Governor-General by proclamation, there is the insidious and dangerous (judging by past experience) power by regulation.

If we turn to the definition of a trade description we find - " Trade description," in relation to any goods, means any description, statement, indication, or suggestion, direct or indirect -

Then they give, the six different divisions, and they point out that it - includes a Customs entry relating to goods;, and any mark which, according to the custom of the trade or common repute, ls commonly taken to be an indication of any of the above matters, shall be deemed to be a trade description withinthe meaning of this Act.

The definitions, " direct or indirect," under (a), (), (r), (d), (e), (/), are full enough, one would think, but are added to by the inclusionof " a Customs entry relating to goods," and, further, " any mark, &c, shall be deemed atrade description within the meaning of this Act."

On any one of the above items a proclamation, could be issued, or regulations promulgated - but this is not sufficiently drastic; it is made toinclude any description, statement, indication, or suggestion, direct or indirect, in connexion therewith.

It is clearly evident that almost any articlecould be prohibited on one or other of the above grounds, and that in the hands of a Minister with such powers of restriction, importations of a most ordinary nature could be forced to prohibition.

Let honorable senators think of that. This Bill, if it becomes an Act, can be used to prohibit importations on fiscal grounds. There is absolutely no doubt about that.


Senator Pearce - Does the honorable senator think it would be so used? .


Senator PULSFORD - I have not a shadow of doubt about it, and I will tell the honorable senator why.


Senator Mulcahy - It would be so used by both" sides.


Senator PULSFORD - It could not be so used by free-traders. In Germany and in the United States, regulations, framed ostensibly for the preservation of the public health and other such reasons, have been used for years, and notoriously used, to prevent the importation of goods.


Senator Playford - In the case of meat, swine fever and all sorts. of diseases have been introduced. The Americans have altered that now by Government inspection, and the goods are allowed to come in.


Senator PULSFORD - I am glad that I am at last getting a little support from the Minister. The honorable senator admits that these measures can be used as adjuncts to a Tariff. There is no possibility of doubt about it. The Bill before us can be turned into a second Tariff.


Senator Playford - No, no; it is only for the preservation of the health of the people.


Senator PULSFORD - I say that it can, and honorable senators cannot very well dispute what I say, bearing, in mind the experience in the United States of America and in Germany. The report of the Sydney Chamber of Commerce goes on to say : -

Then, further, in passing an entry, an importer is faced with a false trade description. " False Trade Description " means a trade description which, by reason of anything contained therein, or omitted therefrom, is false or likely to mislead, in a material respect, as regards the goods to which it is applied, and includes every alteration of a trade description, whether by way of addition, effacement, or otherwise, which makes the description false or likely to mislead in a material respect.

In the majority of instances it is impossible for .in importer to know of his own knowledge, say, for instance, the " measure " or " "purity," the " country " or " place " in or at which goods were made, by whom they were selected and packed, the " material " or " ingredients." Yet any error or omission under clause 8 renders an importer liable to a fine of £100, or three months' imprisonment, under clause 260 of the Customs Act 1 901.


Senator Lt Colonel Sir ALBERT GOULD (NEW SOUTH WALES) -Col. Gould. - There is the assumption that he has committed an offence as soon as he is charged with it.


Senator PULSFORD - The report further says: -

It is, however, provided in the same section - " It shall be a defence to a prosecution for an offence against this section if the defendant proves that he did not knowingly import the goods in contravention of this section."

But the onus of proof is on the defendant, and under the Customs Act 1901, with which this measure has to be read, the proof must be to the satisfaction of the Customs.

It is not, then, of very much use to say that a man has a defence if the Customs Department is not willing to accept it. The report further says: -

That is a most difficult task at the best of times, but under certain conditions it is absolutely impossible.

We must now refer again to clause 7. Subsection 2 provides for forfeiture. Sub-section 3 says - " Subject to the regulations, the ComptrollerGeneral, or on appeal from him, the Minister, may permit any goods which are liable to be, or have been, seized as forfeited under this section, to be delivered to the owner or importer upon security being given to the satisfaction of the Comptroller-General that the prescribed trade description will be applied to the goods, or that they will be forthwith exported."

We do not know what regulations there' may be, but the Council see grave objections to putting the terms of the " trade description ". as applied to a particular article in the hands of the Comptroller-General.

It is not a matter of the probity of the Comptroller-General. We all know that, in that respect, he is worthy of all our trust. But the knowledge of that gentleman, or of any successor in the office, must be limited. There is no man who, unless he is a walking encyclopaedia of knowledge, is able to deal effectively and righteously with every article of commerce. There is always a clanger that, even in his desire to do what is right, he may, from lack of knowledge, do what is wrong.

The Council fear that under clause 5, which provides that an officer shall inspect and examine all prescribed goods; and clause 6, which provides that notice of intention to export must be given, the export trade will be seriously hampered, and the expenses incurred in the supervision for carrying out the provisions of the Act will fall very heavily on the producing interests of the State.


Senator Lt Colonel Sir ALBERT GOULD (NEW SOUTH WALES) -Col. Gould. - I call your attention; sir, to the state of the Senate. [Quorum formed.]


Senator PULSFORD - On the subject of the export of fruit, the honorary secretary of the Fruit-growers' Union in New

South Wales has written a letter, in which he objects to being called upon to give notice in this way. He says -

I have been instructed by the Executive of the Fruit-growers' Union of New South Wales, to respectfully draw your attention to the provisions of the Commerce Bill, which will, in our opinion, prove very injurious to trade in general, and particularly such perishable articles as fruit, &c. The clauses requiring certain notice to be given with description of goods is unreasonable. The matter of inspection is also most objectionable. We would earnestly request that you do your utmost to oppose the Bill, or to have it so amended so as not to cause us undue injury.

The fruit-growers in New South Wales object to be called upon, by regulation, to give notice when they are about to make a small shipment of apples, which may have to be despatched within a few hours from the time they were picked. The report to the Sydney Chamber of Commerce continues - >

If the provisions of the Act mean that the goods have to be graded prior to export, no provision has been made for the appointment of graders or for their emolument, nor has any -charge been authorized on the exporter ; but, per,haps, all this will be attended to under the sweeping conditions of clause 14 - miscellaneous. Certainly producers ought to be apprised of the intentions of the Government under the clause in question.

I am afraid that if I were to ask Senator Playford what the intentions of the Government were, he would shrug his shoulders, and say, " I do not know."

A -curious anomaly seems to exist in connexion with sub-section 3 of clause 7, and sub-section 3 of clause ro. Under the former, goods imported and seized as being prohibited may be exported. In the latter, goods prohibited may not be exported. Clause 15 states -

Whoever knowingly aids and abets, &c, shall be deemed to have committed that offence, and shall be punished accordingly.

An indentor, ship-owner, drayman, Customs clerk, all might assist in importing a prohibited article unknowingly, but the onus of proof being on accused, they will, under the Customs Act of 1901, have to prove their innocence.

That is, I think, rather a serious matter.


Senator Playford - The honorable senator wants to amend the Customs Act ?


Senator PULSFORD - The Customs Act is bad enough as it stand's. We do not want to bring any more poor unfortunates under its wheel if that can be helped.

We fancy under the Customs Act, any officer, at any rate on shore, would require a warrant for breaking into a store - it does not seem so here.

Clause 6. Notice of intention to export. This could only work to the detriment of exporters.

Under clause 3 it would be absolutely impossible for an importer to give the details enumerated from A to F, -

I am quite certain that it is absolutely impossible. There is no man living who could fill up all the details of the trade description of any goods.


Senator Pearce - Does the honorable senator say that that has to be done?


Senator PULSFORD - That may have to be done, if it is called for by the Government.


Senator Pearce - Does the honorable senator, as a reasonable man, think that it would be called for?


Senator PULSFORD - I am quite certain that under the Bill there will be regulations of which neither -I nor the honorable senator will approve. I feel that there is a possibility of regulations being brought in distinctly with a view to stop the importation of goods. I object to .the prohibition of imports by regulation, but if Parliament chooses to prohibit the importation of any goods well and good - and it would appear that many pitfalls are provided for traders ; and they object to the effect of this Bill, which will be to standardize goods.

We should leave our producers a little freedom to move in the direction) which, as the result of long experience, may seem to them to be the best -

According to the Interpretations Act, any regulation or proclamation will require two months' notice ; this was considered quite inadequate, as a sailing vessel often takes from three to four months to come from England, and we would suggest that six months' notice of regulation or proclamation should be given.

That refers to one clause under which three months' notice of certain regulations is required to be given - a period which, is utterly insufficient.

No proclamation or regulation should take effect in respect of orders placed or shipped before the issue of such proclamation. It is often necessary to place orders twelve months or more before execution. It is felt it would be a hardship to ask any manufacturer to divulge the secret of his manufacture, and to guard against this as much as possible, we think that any patent medicine or other compound, unless proved to be deleterious, should not be subject to description. In answer to our objection to being governed by proclamation and regulations, it is urged by departmental officers that this Act was much more elastic under such rule, and that any mistaken regulation would be upset by Parliament. How this could be done when Parliament was not sitting does not appear.

Analysis : - It was argued that the importer should have the right to have the goods analyzed, and that in case of a difference between his analyst and a Customs analyst a third should be appointed as arbitrator. Should not some amendment of clause 14 be made in this direction ?

A Customs entry could be deemed a trade description. Wool adulterated with cotton would be entered as " wool," but Would be a false description. How can this be reconciled.

A large number of graders and inspectors would have to be appointed at very considerable expense.

To sum up, your committee is of opinion that this Bill is unnecessary, ample powers in the same direction being already possessed by the different States; that the effect of the Bill would be to interfere with and restrain trade, that the standardization and grading of manufactures and products would be harassing and inimical to progress and improvement, and that the cost of proper administration would be enormous.

In this report to the Sydney Chamber of Commerce, there is ample evidence as to the danger of the Bill, and plenty of ground for the most careful consideration of its statements by the Senate. On the 16th August, the Brisbane Chamber of Commerce passed the following resolution : -

That, in the opinion of this Chamber, the Bill relating to commerce with other countries, introduced by the Honorable Sir William Lyne in the House of Representatives, is an unnecessary embargo on the trade of the Commonwealth, and its tendency will be to restrict the free exchange of commercial commodities to the detriment of the producer, manufacturer, and importer.

That the power vested in an officer of Customs under the Bill is despotic and unreasonable.

That if, as the Bill proposes, it is to be "Government by regulations," the proposed regulations should be scheduled with the Bill.

That a strong protest be entered against the Bill being proceeded with.

The Brisbane Chamber of Commerce has pointed out what I have been pointing out so often, and that is that the Bill is practically "government by regulations." They see that what is stated on the face of the Bill is as nothing to what may be brought about by the regulations made thereunder. Therein lies the greatest danger. The trade of Australia has, I think, quite enough difficulties to contend with already. Not long ago I elicited, in reply to a question, the information that up to date under the Customs Tariff 10,000 decisions and definitions have been given, and the number continues to increase. Here is a Gazette in which fifty or 100 new definitions are given, and seventeen definitions cancelled. Here is another Gazette containing five pages of new decisions, and notifying the cancellation of twenty-seven decisions. The game goes on merrily; the difficulty of a man knowing where he is gets greater than ever, and under this Bill it is to be intensified. Let it be remembered, in connexion with all the difficulties I have pointed put, that a rival in trade is not only at liberty, and perhaps under a temptation, to give information, but is encouraged to do so. Then with regard to the inspection of goods. The Bill, as drafted, gives power to inspect all goods coming in and going out. That could scarcely be done. It has been pointed out by Senator Macfarlane and Senator Dobson that the very mass of exports makes anything like a thorough inspection almost a work of impossibility. Therefore, it is of no use to put upon trade conditions which cannot be carried out. Besides, in regard to fruit, I may ask honorable senators whether it is of any use to inspect fruit at this side of the world, and to declare whether ft is sound, considering that when it arrives at the other side of the world it may be rotten ? A declaration that ' fruit was sound in Australia would not make it any sounder when: it arrived in England.


Senator Styles - It may prevent unsound fruit from being sent.


Senator PULSFORD - If Senator Styles had 100 cases of rotten fruit, would he pay 3s. 6d. a case to send it to England? Would he spend £20 in exporting 100 cases of rotten fruit? That is an answer to his interjection. Under this Bill a man may also be required to show on his goods the place of production. Goods may be imported which may be marked as " Made in Liverpool." Upon their arrival in Australia it may be said that they were not made in Liverpool, Liverpool being a place in New South Wales. The description might be' held to be wrong. Then every one knows that there is a great suburb of London called Paddington. One of the greatest of the Sydney suburbs is also called Paddington. Goods may be marked as " Made in Paddington," and it might be held' that ibm was a misdescription because the goods were made in Paddington, England, whereas people in Australia might take it to mean made in Paddington. Sydney. All these pit-falls exist in the Bill. '


Senator Pearce - Could not such, a misunderstanding be avoided?


Senator PULSFORD - When a man is landing a shipment of goods, would he like to be called upon to pay ^1,000 to send them back to England to be redescribed. or to have them forfeited, or to have to go through any formality at all in connexion with them? Then again, goods which are imported, and are largely used in connexion with one line of commerce may be used in another. For instance, alcohol is an article which probably has a great future before it as a fuel. It is known mainly as an article of drink. It might be all right to use it as an article of fuel, or it might be all wrong to 'use it for drink. There are possibilities of divergence in its use. Senator Dobson has referred to a statement made by the AttorneyGeneral of New South. Wales, Mr. Wade. I propose to read it. It contains some very weighty matter -

In the first place, while the Constitution enables the Federal Parliament 10 deal with matters affecting trade and commerce with other countries and among the States, the primary and the reasonable purpose of that power was 10 enable the Federal authority to exercise supreme control in securing smoothness and rapidity in transport and exchange of products and traffic not only between component parts of the Commonwealth, but also between the Commonwealth and outside countries. On the other hand, the States were supposed to retain those necessary powers, insuring the safety, health, and morals of the people within its boundaries. The police power of the State is one thing, but very different from the commerce power which has been surrendered to the Commonwealth. But if one is to gather anything in this Bill now before the Federal Parliament, it would look as if they proposed to entirely usurp the police functions of the various States. Again, the jurisdiction of the Federal Government in respect to commerce can only arise at a point where the article has been produced or manufactured within a. State, and it is about to start upon its journey elsewhere. Looking at the matter from the ordinary common-sense point of view, the method of manufacture, the name of the manufacture, the source of the product are matters in which the commerce power is hot concerned. Yet we find clause 3 in the Bill declares that the trade description which has to be attached to articles of commerce has to contain some reference or information with regard to the manufacturer or producer of the goods or the person by whom- they are selected, packed, or in any way prepared for market. As I say, all these matters are wholly antecedent to that point in time when the goods that have been manufactured are despatched on their journey out of the State.

Again, sub-clause D provides that the trade description is to govern the mode of manufacturing, producing, selecting, &c. Sub-clause E deals with the material or ingredients of which the goods are possessed, or from which they are derived. I have not had an opportunity of examining the authorities upon this point, but it does seem worthy of deeper investigation as to whether these conditions being absolutely irrelevant to the transportation or export of goods are not unconstitutional. Then sub-clause A provides that the trade description is to apply to the quality and purity of the goods amongst other things.....

These are matters affecting the constitutionality of the proposed measure, but. quite 1 apart from that there are elements in the Bill of a character, I think, both unprecedented and highly dangerous. For example, the general outline of the Bill is to the effect that trade descriptions shall be applied to all goods, either exported or imported, and the adoption of a false trade description involves some person or persons in a penalty. Now, the definition of a trade description is left very vague in the Bill, and is capable of all manner of extension at the caprice of any person. Yet the Bill provides that the Governor-General may by proclamation prohibit either the importation or the exportation of any goods which are specified in the proclamation unless there is applied to those goods a trade description of such a character and applied in such a manner as is prescribed by the proclamation or by the regulations. This is legislation by executive Act with a vengeance. There is no provision in the Bill for imposing any check on the regulations or upon the terms of 'the proclamation itself. The proper place to interpret the Act is the law courts, yet this provision I have just mentioned practically gives the Executive the power of interpreting in their own way these wide variations of the term trade description. Great complaint was made in regard to the Customs Act where it empowered the Executive to prohibit certain goods being imported into the Commonwealth, but in that Act it is only fair to say that in nearly every instance the class of prohibited imports was Specified, and the grounds of prohibition were declared to be some characteristic of the imported article, which operated against either the safety or the morals or the health of the Commonwealth. Under this Commerce Bill it is left entirely to the Executive to state on what grounds goods may be prohibited, either for exportation or for importation. The Minister may prescribe the goods that do not comply with the ordinary requirements of health or decency to be prohibited. That would not be sO bad as to give rise to the question suggested above, as to whether such an action was constitutional or not; but if we give to an elastic mind the opportunity of interpreting an elastic definition of trade description, it is open to the Minister to practically control the inward and outward trade of the Commonwealth.

Mr. Wadesays truly that the Bill puts the trade and commerce of the Commonwealth; under the heel of the Minister.


Senator Playford - At whose instance did he give that opinion?


Senator PULSFORD - At his own instance.


Senator Playford - As a rule, lawyers do not give opinions for nothing.


Senator PULSFORD

It may mean this : The Customs Act and the Tariff Act in combination impose an obligation on the importer of goods, whereby the duty imposed may prevent successful trade inside the Commonwealth in competition with the local article. If legislation fails to keep outside the

Ting any particular class of goods, I can see no reason, as this Bill is now drawn, to prevent the Minister of the Commonwealth imposing prohibitive conditions as to character, make, description, or quality, and so giving to the Executive the power of excluding goods indirectly which, by the direct means of the existing law, could not be shut out.

Take an example again. Supposing some question arose with regard to the manufacture of agricultural implements. It may happen that a firm in some State of the Commonwealth was able to produce an article at a certain figure, but the tariff might not be sufficient to exclude the article from Canada or America from entering and competing with the local manufacturer. The Minister might, in his proclamation, lay down the conditions with regard to the manufacturer of the imported article as to the mode of manufacturing or selecting or packing, or as to the material of which it is composed, which would have the effect of either excluding the foreign article or imposing heavy obligations upon the trader. Or again, sub-clause D, as I have said, provides that the trade description is to apply to the mode of manufacturing. The article may be made by non-union labour, yet it is possible that the proclamation may prescribe that any goods brought to the Commonwealth which do not contain the union label specifying the mode of manufacture should be prohibited articles. Whether any court of justice would allow this gross interference with trade in this case is not likely, but in the meantime business relations may be entirely paralyzed and trade may be driven away for ever from the Commonwealth.

It is further possible to conceive that for pure blackmailing purposes the suggestion might be made that some article of food so described contains injurious ingredients. The Minister might prohibit goods with such ingredients from export. Now we see the arbitrary powers given to the officials under this Bill. Under clause 5 an officer is enabled at any ship, wharf, or place to break open any packages and do all things necessary to enable him to carry out his powers and duties under this clause. If any person offends against the measure the goods may be forfeited, and the individual owning the goods may be made a criminal, although there is a magnanimous provision that the ComptrollerGeneral of Customs may permit any goods that have been so forfeited to be returned to the owner on security being given. Meanwhile the owner may have lost his ship, and possibly may have lost the profit in respect of the goods so seized.

Here is another instance of the gross interference wilh individual liberty. Clause S provides that no person shall import any goods to which a false trade description is applied. Certainly the defendant may show that he did not intentionally import the goods in contravention of the clause, but that can only be established by himself giving evidence of the fact. It is no part of the Crown case, for all the prosecution need prove is that the goods have been imported with a false trade description attached to them. Now, a false trade description means a description which, by reason of something obtained therefrom, is false, and, irrespective of whether it is likely to mislead in a material respect or not.

In referring again to the definition' of trade description, it is found to refer to the number or quantity or the size of the goods. It has been the law from time immemorial that a purchaser should take the risk of seeing that he obtains the goods he bargains for. There is no reason why the transaction should not be completed and the goods delivered, and the purchaser ascertain if the goods comply with the contract, and if they do not, bring his action accordingly for damages. What possible harm can be done by allowing the law to operate in this manner, 1 don't know ; but the inevitable result of passing this Bill will be to harass and delay the consignor of the goods at each stage. One effect of the Bill will be to hand over to the Federal authority the power of determining all conditions with regard to butter export.

To my mind this Bill seems to point to two directions : First of all, to destroy all external trade ; and, secondly, to bring us one long stage nearer to unification of the Continent by vesting the Federal Parliament and Executive with the sole control of all the small details of commercial life, which should, and in accordance with the Federal bond must be, left to the component parts of the Commonwealth.

I do not feel inclined to apologize for the length of the quotation, which I regard as very weighty, and worthy of record in Hansard, containing, as it does, arguments which I fancy Senator Playford will find it exceedingly difficult to answer. I trust that the Senate will be careful, and not be misled into accepting the Bill as it now stands, even if we consent to have it read a second time.







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