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Thursday, 9 November 1905


Senator KEATING (Tasmania) (Honorary Minister) . - When the honorable senator, who has just resumed his seat, rose, he intimated in his opening remarks that he was going to be at once brief and to the point. I listened to him with a great deal of interest, but I think that in respect of irrelevance he has been more guilty than any other honorable senator who has addressed himself to this motion. I hope to emulate the example of brevity which he set himself if he did not follow it. It is well for us to remember in connexion with the Bill what exactly is the limit of our legislative authority. We have no jurisdiction over matters which might possibly come within the purview of provisions of this kind, except they be the subjects of either external commerce or Inter-State trade and commerce. It appears to me that the main burden of the criticism which has been levelled against the Bill by Senator Millen and other honorable senators opposite, as well as by those in another place, and outside, who are opposed to its enactment, may be summed up in four statements. First, that the Bill does not protect the consumer as is claimed to be one of its objects ; secondly, that it is not similar to the English Act; thirdly, that the branding or marking of goods under its provisions is not optional; and, fourthly, that its more important provisions are vague and indefinite. This Parliament has no legislative authority over the method or mode of the manufacture of goods in the Commonwealth. The moment that goods become the subject of external or Inter-State commerce, the jurisdiction of this Parliament arises. As soon as goods are, so to speak, incorporated in the general body of property in a State, our legislative authority over them ceases completely, and that of the State arises. So fas then, as the protection of our consumer is concerned, we can do nothing further than affect imports by our legislation, but once the goods have passed beyond the barrier of the Customs, and have become part and parcel of the general stock of property in a State, the legislative authority of this Parliament absolutely ceases, and it cannot prescribe that those goods in passing between two residents of the State shall bear any particular brand which we may, either by legislation or regulation thereunder, prescribe.


Senator Millen - Does any one affirm the contrary?


Senator KEATING - No; but the whole burden of the complaint against the Bill - that it does not protect the consumer - has been based on that alleged defect.


Senator Millen - No.


Senator KEATING - -The honorable senator has just pointed out to Senator Best that he could not have the handkerchiefs or the serviettes or the collars labelled in every individual instance.


Senator Millen - Exactly.


Senator KEATING - We can prescribe that the packages shall bear certain brands when they are passing from the trader abroad into the hands, of the trader in this community, who may be either a wholesale trader, or both a wholesale and retail trader. But so far as distribution amongst the general body of the public here is concerned, it is the duty of the State to supplement our legislation.


Senator Millen - The Minister cannot say that we can protect the consumer then?


Senator KEATING - We cannot absolutely do that.


Senator Millen - Then do not say that we can.


Senator KEATING - So far as the limit of our legislative authority goes, we do everything in our power to protect the consumer.


Senator Macfarlane - It does not go very far.


Senator KEATING - That is not our fault. Surely the honorable senator does not object to the Bill because it does not go far enough in that direction. If he does, let him use his well-known influence in connexion with the State Parliament to supplement our legislation, and let other honorable senators opposite who criticise the Bill because it is defective in that respect follow his example, and then they will get all they profess to desire, and all that we do desire in. that regard. We are told that the Bill is not similar to the English Act. It is not similar to that Act in every respect; it is an improvement on that Act, and is based on the experience which the English, and Australian public have gone through since it was enacted. As honorable senators know, the main Act in the Imperial statute-book dates back as far as 1862, and then we have the Act of 1887. When Senator Millen rose with a large volume in his hand I was quite prepared to hear a very lengthy and ex haustive criticism of the Bill in contrast: with the provisions of that English Act. What do we find? We are told that theBilll goes further than the English Act by making provision in regard to trade descriptions which do not appear therein. Kerly is, I suppose, the highest standard, authority as a text-book writer on the subject of trade marks. At page 570 of thesecond edition of his work on trade marks he deads with the term " trade description,"" and a note on his commentary on the sections of the Merchandise Marks Act dealing with "trade descriptions" has a. particular significance in respect to an interjection made by my honorable colleagueto the effect that many English Acts had to be considered in this regard, and not one. Kerly says -

Adulteration, or the sale of goods not of tlienature or quality demanded, or pretended, is. made a criminal offence by other statutes in. many special instances.

The reason why it does not come into the English Merchandise Marks A~ct is because it is dealt with in so many other Statutes. We have no provisions on this subject, except in the Customs Act, to which I shall refer directly. Kerly goes on to say -

By far the most important of these statutes, are the sale of Food and Drugs Acts, 1875, 1879, an£l '899, by which it is an offence to mix injurious ingredients with any article of food, or any drug, with intent that the same may besold, or to sell the article of food or drug somixed ; to sell articles of food or drugs not of the nature, substance, and quality demanded by the purchaser; to abstract from an article of food, with intent that the same may be sold without notice, any part of it so as injuriously to. affect its quality, substance, or nature, or to sell (without notice) the article so altered, and to 'import margarine and other foods insufficiently described upon their containers. For cases under these Acts, see the Law ReportsDigest, Adulteration.

He enumerates a number of Statutes - for instance, a Statute dealing with bread, a Statute dealing with tea, a Statute dealingwith coffee, a Statute dealing with beer, a. Statute dealing with seeds, a Statute dealing with agricultural fertilizers, a Statute dealing with feed stuffs, and the Margarine Act. When there is Imperial legislation! dealing specifically with all these cases,, obviously it is not necessary that the definition of " trade description " should be as. comprehensive in their Merchandise Marks: Act as is necessary in a Bill which, so far as we are concerned, proposes to deal once for all with the subject. It is urged that itis not optional in the measure to take ad- vantage of the provisions for marking and branding in contrast with the provisions in the English Act. Honorable senators opposite would have the Senate believe that, so far as the English Jaw is concerned, a man is punishable only for (riving .a false trade description upon the goods.


Senator Millen - I said nothing to lead to that view.


Senator KEATING - That it is not. punishable to have a false trade description unless it is under the Merchandise Marks Act.


Senator Millen - Is the Minister supposed to be quoting what I said?


Senator KEATING - I am quoting the effect of the contention ot nearly every honorable senator opposite.


Senator Millen - Nothing of the kind. The statement made on this side :was that it was not compulsory for a man to put a mark upon his goods, but that if he did, it would have to be an honest one.


Senator KEATING - The object of the contention of honorable senators was to influence the mind of the Senate in the direction that the English Act makes it punishable for a man to put a false trade description on goods only in the way in which the Merchandise Marks Act on its face clearly contemplated. As I interjected to the honorable senator at the time, it is not absolutely necessary, in order to get the proper interpretation of the scope and value of that Act, to confine one's self to the words of it, and he replied to me, " Oh, a lawyer can practically get any interpretation out of an Act. There is no brief on the Act." There was a case decided recently, in which, without any mark being on the goods, a conviction was sustained under the Merchandise Marks Act.


Senator Drake - The mark was vised in the invoice.


Senator KEATING - The mark was used in the invoice, but not on the goods. In Co-p-pen v. Moore, L.R., 2 Q.B.D., 300, it was held -

The provisions of section 2, sub-section 2, of the Merchandise Marks Act 1887, which make it an offence to sell goods to which a false trade description is applied, do not apply where the description is entirely oral.

The respondent asked a salesman in the appellant's shop for a small English ham; the salesman pointed to some American hams on a shelf, and said, "These are Scotch hams"; the respondent chose one, which was weighed, and an invoice which did not contain the word " Scotch " was handed to the respondent by another assistant. The respondent told the assistant to put the word " Scotch " on the in voice, as he had bought the ham as such; the assistant did so,' and handed the invoice to the respondent, who then paid the amount.

It was held that the description in the invoice was a false trade description, sufficient to satisfy the terms of the Statute - that is the Merchandise Marks Act - and the man was convicted. It shows the extensive interpretation to which the provisions of the Act lend themselves when they can be applied to the facts of concrete cases.


Senator Millen - Section 17 of the Act distinctly provides that a document in connexion with goods must contain a true description.


Senator KEATING - Exactly ; but in this case the man was not charged under that section.


Senator Millen - The invoice set out that it was a Scotch ham.


Senator KEATING - The decision does not rest on that section. If the honorable senator will read the decision he will find that it does not rest on that section, that it is a sufficient conviction within the provisions of sub-section 2 of section 2 of the Act, and that is where the value and importance of the decision lies in interpreting that particular provision.


Senator Drake - The other section is not brought into the decision.


Senator KEATING - The other section is not brought into the argument or the decision.


Senator Drake - I do not care whether it is brought into the argument or not.


Senator KEATING - Surely no one knows better than Senator Drake that if a Statute creates half-a-dozen different offences, and proceedings are taken tinder one section, and a conviction is obtained and appealed against, it is impossible to ask that it shall be sustained because another sectionunder which proceedings were not taken constitutes the facts, as shown in the prosecution, an offence. He cannot rely on that section.


Senator Gray - Was it a prosecution on behalf of the Government?


Senator KEATING - No; it was a prosecution by John Moore, an inspector of the Bacon Curers' Association of Great Britain and Ireland.


Senator Gray - Can the Minister give an instance of a prosecution by the Government ?


Senator KEATING - I am not dealing with that point at all. I am simply showing that the Act has not the narrow signi- fication and scope which honorable senators opposite would have us believe when after instituting a comparison they say that this Bill is too wide and extensive.


Senator Gray - Last night the Minister distinctly declared over and over again that the Government had prosecuted parties for selling York hams. Has he any decision on that subject?


Senator KEATING - No ; I only know that the honorable senator dealt rather extensively with the subject. I had not the pleasure or the profit of being here at the time, but he can have all these particulars during the courseof the passage of the Bill if he desires to have them. We are told that the Bill, in its main provisions, is very vague, and Senator Millen has referred to clause 7, to which he says all speakers have evaded1 making any reference. The clause is necessarily wide. It is as elastic as possible, and for very obvious reasons. It says -

The regulations may prohibit the importation or introduction into Australia of any specified goods unless there is applied to them a trade description of such character, relating to such matters, and applied in such manner, as is prescribed.

The clause goes on to provide that, subject to regulations - 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 ComptrollerGeneral that the prescribed trade description will be applied to the goods, or that they will be forthwith exported

It is contended by honorable senators who oppose this provision, that it is too extensive, and not sufficiently explicit. But if honorable senators refer to clause 15 they will see there provided that clauses 7 and 11 shall not apply to any goods other than -

(a)   articles used for food or drink by man, or used in the manufacture or preparation of articles used for food or drink by man; or

(b)   medicines or medicinal preparations for internal or external use ; or

(c)   manures; or

(d)   apparel (including boots and shoes) and the materials from which such apparel is manufactured ; or

(e)   seeds and plants.

It will be seen that clauses 7 and 11 extend, in the main, to articles whichmay injuriously affect the health of indivi- duals,and the Minister has power by regulation to prohibit their importation or introduction into Australia unless they bear a trade description. It is highly important, particularly in relation to food and medicines, that the health of the community should, as far as possible, be guarded against the danger towhich it may be exposed owing to the avarice or greed of those engaged in trade.


Senator Gray - Are the people not safeguarded already by the States laws ?


Senator KEATING - The Public Health Acts of the States do something in that direction, but the Commonwealth may assist by prohibiting, in the first instance, the importation of deleterious food-stuffs or medicines, or classes of clothing and apparel which mayaffect the health of the community.


Senator Millen - The Bill will not stop such importations.


Senator KEATING - We are endeavouring to stop them.


Senator Millen - The greatest rubbish can be brought in if it be properly described.


Senator KEATING -Then let us have it properly described. The development of trade operations, not only in England and Australia, but all over the world, has, for some time, disclosed great scandals. I have here the last number of the National Review, which contains an article by Dr. Adderley, a Bishop of the Established Church of England, on the subject of " Clergy and Commercial Morality."


Senator Macfarlane - I doubt whether a clergyman knows anything about the subject.


Senator KEATING - The author of the article has the modesty to admit that he may be open to the soft impeachment of knowing very little of the subject; but he, at the same time, states that he has taken the fullest possible precautions against being misled. He makes himself responsible for only three different classes of statements, namely, those made publicly, and more or less admitted; those made to him by individuals on whom he can thoroughly rely ; and a third class the designation of which has escaped my memory for the moment. He deals with various complaints, and goes on to say : -

The greatest indictment of modern commerce came from Mr. Herbert Spencer in his " Morals of Trade," an essay published in pamphlet form, together with a sermon by the late Canon Lyttleton on 11 Sins of Trade and Business," but now out of print. Two sentences from this pamphlet will be enough for our purpose.

I do not say that 1 indorse the whole of what is stated by the writer of the article, but when a gentleman occupying this high position, publishes an article of the kind in a production like the National Review, there must be very grave cause for the criticism. The article proceeds: -

It has been said that the law of the animal creation is, " Eat and be eaten " ; and of our trading community it may be similarly said that its law is, " Cheat and be cheated." A system of keen competition, carried on, as it is, without adequate moral restraint, is very much a system of commercial cannibalism. Its alternatives are " Use the same weapons as your antagonist, or be conquered and devoured." It is not true, as many suppose, that only the lower classes of the commercial world are guilty of fraudulent dealing; those above them are to a great extent blameworthy. On the average, men who deal in bales and tons differ but little in morality from men who deal in yards and pounds. Illicit practices of every form and shade, from venial deception up to all but direct theft, may be brought home to the higher grades of our commercial world. Tricks innumerable, lies acted or uttered, elaborately devised frauds, are prevalent - many of them established as " customs of the trade," nay, not only established, but defended.

Now for the grocery trade. One person who likes is. 8d. tea says that he expected the reduction of tea duty would benefit him. But, apparently, he gets the same tea as before, and pays as much, being told (hat the grocer is out of the old quality, and can only supply a better kind at is. 8d., which used to be is. lod. A grocer's assistant tells us that he had to turn out large tubs of the same butter, and put is. tickets on one half, and is. 4d. on the other. Currants, he says, were sold at three' prices. A man employed by a wealthy grocer in the country had orders for is. butter, which he supplied with margarine at 8d., without a label. " My attitude," he says, " towards this practice resulted in my having a week's notice." A " manager " says he had to ask two prices for is. butter, the same for sugar, and three prices for tea, if possible. This he was forced to do to make his stock account show a profit.

The writer then goes on to deal with the milk trade and various other trades.

An iron and brass founder writes to me : " The contention of the bishop is practically true. The picture is not painted bad enough. Trade is only another name for theft. I have come to the conclusion that it is absolutely impossible to be a business man, and at the same time a Christian."


Senator Millen - Surely the Minister does not believe that?


Senator KEATING - I have said that I do not indorse everything said in the article, but when a man of the attainments, experience, and character of the writer thinks it incumbent upon him to publish utterances of the kind there must be grave causes for his action. The article goes on : -

Now for more grocery frauds. Vinegar is watered, although even pure vinegar can be sold at an enormous profit. . . .

To sum up, one is struck by the ominous silence of some trades when accusations like these are made in public. No doubt many traders can defend themselves easily and truthfully. But others apparently cannot. We clergy are supposed to want to get at the dishonest trader in order to brand him. This is not the case. It is the honest ones we desire to exhibit in our crusade. We are convinced that there are enough honest traders and honest customers in this country to make falsehood impossible in business.

This Bill is for the protection of honest traders, who are the majority of those engaged in business enterprise. The desire is to prevent the dishonest trader injuring the health or prosperity of the community. Honorable senators contend that the Bill does not meet cases of the kind to which I have just referred; but I point to the article in the National Review in order that they may realize the ingenuity and resourcefulness which characterize different traders in perpetrating fraud.


Senator Gray - These things have been going on for a thousand years.


Senator KEATING - We know they have. If the honorable senator will refer to some of the ancient records of the time when it was proposed to make highway robbery an offence, he will doubtless find that there were people who justified it, on the ground that it had been carried on for years. Highway robbery, however, has been stopped; and there never was an offence proposed to be made punishable that some people were not retrograde enough to defend on the ground that it had been perpetrated for years. The article from which I quoted spoke of frauds which have not only become established as customs, but are actually as such defended. Surely Senator Gray would not defend tricks which amount to fraud simply because they have been perpetrated for years? The object of the Bill is to prevent such tricks so far as our legislation can prevent them. It is necessary in many respects for this Bill to differ from the English Act, owing to the experience under the administration of that Act. That Act was passed in 1887, and since then inquiries and articles have revealed many evils not provided for by legislation. Senator Millen would have us confine the Bill to clauses 5, 9, and 13. I pointed out by way of interjection that, although there are almost the same powers under the Customs Act as are proposed to be given the Minister under the Bill, an essential difference is that, whereas the Customs Act only prohibits the importation of certain classes of goods, the Bill goes one step further, and provides that those responsible for the endeavour to import such goods shall be guilty of an offence, and liable, on summary conviction, to a penalty in addition to the forfeiture of the goods. Clause 5 provides for the inspection of imports and exports, and empowers an inspector to examine, take samples, and for these purposes to enter a ship, and so forth. Clause g provides that no person shall import any goods to which a false trade description is applied under a penalty of £100, and want of knowledge is made a defence. Then so far as clause 13 is concerned there is provision made.


Senator Millen - The honorable senator will pardon me, clause 12 is the corresponding clause to clause 9.


Senator KEATING - Clause 12 provides that -

No person shall -

(a)   knowingly apply any false trade description toany goods intended or entered for export or brought to any wharf or place for the purpose of export.

Penalty :£100.

These are the only provisions of the Bill to which Senator Millen says he is ready to subscribe. They would still leave us with a very limited definition of a false trade description. It is essential that we should provide that the term " trade description " shall cover as far as possible everything which might come within some of these tricks or fraudulent practices to which reference is made in that article, and of which we have had experience here and elsewhere. I say so, because I think, and honorable senators will agree with me, that the ingenuity of those who are engaged in trade, if they wish to be criminal - as certainly only a minority of them do, to the great prejudice of their fellow-traders - is unbounded. For that reason we musthave very elastic provisions. We must be prepared to meet any case that may arise. We must be prepared to meet the case of dishonest practices arising here and now, even though Parliament might not be ready to sit for another six months. Otherwise the evil willgo unchecked. It is for this reason that extensive powers are given to the Minister by this Bill, under regulation to prescribe that certain classes of goods coming only within those referred to in clause 15shall not be imported unless they bear a certain description. It may be that foods for infants or invalids are being imported, and it may suddenly be discovered that a classof these goods is being introduced containing very deleterious ingredients, which may seriously affect the health and may endanger the lives of the people who ultimately consume them.


Senator Gray - What better means are provided under this Bill to prevent that than the action which at the present time the States can put into operation.







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