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Thursday, 9 November 1905

Senator DRAKE (Queensland) - The intention of this Bill is to apply the principles of the British Merchandise Marks Act to imports and exports. That fact may give us an idea of about the time when the Bill was drafted. I do not know when it was, but the Minister has informed us that the draft was found in the pigeonhole of the Department. He went further, and spoke of it as not having received the final revision of the late Government, That expression - not having received final revision - implies that it had been adopted by the Government up to a certain point. But, as a matter of fact, it never received the approval of the late Government at all. It was never in any sense a Government measure, and the first. time I heard of it was when it was introduced here. But I believe that even the draft has undergone some alteration. In any case, even if it had been adopted by the previous Government, it would hardly become a member of the present Government to deprecate criticism of the Bill on the ground that it was prepared by his predecessors.

Senator Playford - We do not ; we take the full responsibility on our own shoulders.

Senator DRAKE - I intend to express my own opinion of it. I believe that while it contains some good provisions, it also contains others that are very dangerous. When the Bill which was afterwards called the Fraudulent Trade Marks Bill was under discussion here, a proposal was made to extend its provisions to imports, and was rejected. I think it is not improbable that it was from that circumstance that a Bill was drafted making the principles of the Merchandise Marks Act applicable to imports and exports. The Merchandise Marks Bill, introduced in the Senate, was practically a transcript, made applicable to our circumstances, of the British Merchandise Marks Act, and the expression that was used for a mark put upon goods was " False trade description." Some doubt was raised as to whether it was competent for us, under our Constitution, to pass such a Bill-. I, my_self , raised the question, and expressed considerable doubt as to our power. The Ministry which preceded the last Government, that headed by Mr. Watson, brought forward the Bill again, but changed the title from Merchandise Marks Bill to Fraudulent Trade Marks Bill, and called a " false description," a " trade mark." They contended that, having changed " false description " into "trade mark," they had brought the measure within our constitutional powers. It appeared to me, however, to be almost an absurdity to suppose that, having only a certain limited power under the Constitution, we could', by calling a thing by another name, extend our power. If that argument be correct, and the term " false description " in this Commerce Bill, which is also derived from the Merchandise Marks Bill, were changed to "trade mark," then by exactly the same reasoning, "the argument of Senator Keating with regard to our limited jurisdiction would be destroyed. He said distinctly that, in his opinion, under the Constitution, we could only in this measure apply the principles of the Merchandise Marks Act to external commerce. He admitted afterwards that it might, perhaps, be applicable to commerce between State and State, but he said that it would not be applicable to commerce within a State; and, therefore, manufactures would not be touched. If the argument was right that it was possible to touch manufactures in the Fraudulent Trade Marks Bill, which was a copy of the Merchandise Marks Act, then Parliament. would actually take power to interfere with trade within a State. The trading operations that go on in a shop in Bourke-street could be affected by an Act of this Parliament, which, I think, would be entirely wrong. And bv calling " false description " in this Bill, "trade mark," Ministers could take the power to interfere with trade within a State. If one thing is correct, the other must be, because it was only by altering the term "false description" to "trade mark," and the title from Merchandise Marks Bill to Fraudulent Trade Marks Bill, that it was contended we could legislate as Parliament has done up to a certain point in connexion with a measure which has not yet been passed. Senator Keating has also .said that the principles of the Merchandise Marks Act have been extended by judicial decision. 1 think the honorable senator was incorrect. The case affecting the York hams, that was mentioned by Senator Gray, was one that was quoted by myself when the Fraudulent Trade Marks Bill was going through. The decision in that case is very clear. It affects the sub-section 2 of section 2 of the Merchandise Marks Act, which creates the offence. The other section referred to, in which mention is made of the invoice, has nothing to do with the offence. The offence is created in the second section, and the fifth section describes the circumstances under which a trade mark shall be held to be applied to goods - that is, when it is put upon or wrapped round, or in any way attached to goods, or annexed to them ; The case referred to came under the provisions of sub-section 2 of section 2 - and* not section 5 - and it was held that the description in the invoice was a false trade description sufficient to satisfy the Statute. Of course section 5 made it an offence under the second section, so that I think there has been no extension of the provisions of the Act. I take the same position with regard to this Bill as I took with regard to the Fraudulent Marks Bill, and that is that Ave should not go further than to insist that when a trade description is put upon goods it shall be a truthful one. We are asked to go a very long step beyond that, and how far we are going, when we give power to a Minister to insist that a certain description shall be put upon all goods, it is difficult to say. Let me first show how in the case of exports it may operate. It is evident that even Ministers are -really not aware of what is the scope of the Bill. Not one of them seems to be able to say exactly what would be the extent of the power of the Minister in making regulations thereunder. The provisions are very vague, and in introducing the measure, Senator Playford told us again and again, " we may do this " or " we may do that" "perhaps we shall not do this," or "perhaps we shall do that." That is not a very satisfactory attitude for a Minister to take up in asking the Senate to pass a Bill which undoubtedly will give very great powers. Take the case of the exportation of butter. If I understand the Minister correctly, the Bill will operate very differently in different States, and that is why the representatives of the States do not stand exactly on the same footing. Victoria has legislation on this subject. If I am correctly informed, the grading is entirely voluntary, not compulsory. There is a certain system of grading, and certain marks for the various grades. The Minister says: "We shall accept them as they are." That is to say, there will be first class, second class, and so on, according to the practice which Has hitherto obtained here.

Senator Playford - We shall accept the State certificates.

Senator DRAKE - The honorable sen.atm, if I understood him correctly, also said that there is to be a uniform system throughout Australia.

Senator Playford - We are trying to aim at a uniform system, but we shall not be able to get it all at once.

Senator DRAKE - In this Bill, the Government are taking power to compel the exporters in other States to adopt a system which is going to be uniform throughout Australia, and the marks which are "already adopted in Victoria are to Be adopted by the Commonwealth Government. It would seem that in the action which they are taking to obtain uniformity they will have to compel the other States to come Into line with Victoria. That will be no hardship to the Victorians or the .South Australians, because the larger the volume of exports branded in the same way the greater will be the advantage to them. 'But it seems to me that a hardship will be inflicted in the' case of the States in which there has been no grading or branding done.

Senator Turley - In Queensland, it is compulsory.

Senator DRAKE - What marks have they in that State?

Senator Turley - I do not say that they are exactly similar, but for exportation branding is compulsory.

Senator DRAKE - There cannot be any uniformity if each State has a different system.

Senator Playford - I do not think they have.

Senator DRAKE - In Victoria the system is optional, and it has not been universally adopted. If the system is to be made uniform it must be made compulsory all round. Is it desirable to insist upon all producers of an article branding their goods in the same way so as to indicate the quality of them? Why should not a cooperative dairy export their goods under their own brand if they choose?

Senator Playford - I do not think we should prevent them.

Senator DRAKE - I still do not understand the Bill, 'because it appears to me that it empowers the Minister to insist upon butter being graded and marked uniformly throughout the States.

Senator Playford - Yes; but the question whether we should exercise the power is another thing.

Senator DRAKE - That is, I think, rather an objectionable way of legislating.

Senator Pearce - Could not they have a private mark in addition to the Government mark?

Senator DRAKE - I think they could, but a man might wish to continue to export his butter, in exactly the same form as previously, without the addition of another mark. This is not a matter of protecting the honest against the dishonest trader, or penalizing a trader who is dishonest, because there is no doubt that in a great many cases the goods which have been exported to the English market under certain recognised marks have been of a higher quality than similar goods which have been sent after Government inspection. I am not speaking particularly of butter, but I know that there are certain kinds of produce sent to the English market which bear a certain brand, and the quality of which is better than that of any of the articles sent, after Government inspection, and marked as fine or superfine or double superfine. They have built up a reputation by the careful maintenance of a very high standard. Their goods are sold on the market, and bought in preference to goods which bear a Government brand. Therefore there may be cases where the exporter of a really first-class article would be prejudiced by being compelled to put on it a mark which, after all,, would only be an indication of an average quality.

Senator Playford - I do not think we should ever do anything of the sort. We would never try to injure a man who wished to export produce.

Senator DRAKE - When we are giving great powers to the Government we have to consider, not what they think they will do, but what they may do.

Senator Playford - If they did anything wrong it could only be done for a very short time, because the regulations have to be laid before each House.

Senator DRAKE - In the meantime the Government might do a lot of mischief. Clause 7 provides that the regulations must be published in the Gazette for three months before they come into operation but there is nothing to prevent them being published in the Gazette when Parliament was not sitting. Some honorable senators seem to think that in consequence of that clause being in the Bill each House will have an opportunity of discussing the regulations. They might have an opportunity if the regulations were issued when Parliament happened to be sitting, but no opportunity would be afforded if they were gazetted during recess.

Senator Playford - The regulations have to be gazetted for three months before they come into operation, and as there is not usually more than a six months' recess, there should bc no great delay

Senator DRAKE - But a great deal of mischief might be caused in the meantime.

Senator Keating - How much more mischief might there not be occasioned, if the Bill could not be put into operation before the Parliament met?

Senator DRAKE - I should like to point out to Senator Keating that if the reasoning that was adopted in regard to the Fradulent Trade Marks Bill was right, we should only require to call a false description as referred to in the Bill before us a trade mark, to enable the Government to make the Bill apply within a State.

Senator Keating - That was never my contention.

Senator DRAKE - I should now like to consider how this Bill is likely to work in regard to imports. Preserved milk has been mentioned in the course of the discussion, and! I should imagine that Nestles, from the extent of their advertising, have an enormous output and trade connexions with every part of the world. That milk ils made up to a certain quality, and I suppose the people know what the quality is, and buy it for what it is worth. How could the Bill be applied to a trade of that character ? If by regulations we provide that the milk on being imported toAustralia must bear a certain brand, how long would it take the firm to make the necessary changes in order to comply with the requirements of- the Bill? If the Go,vernment claim that under this Bill they may tell manufacturers in any part of the world who dfc) trade with Australia, that they shall not be allowed to send in goods unless they are marked in a certain way, or bear a particular trade description, I think k will be found impossible to comply with the conditions. So far as the Bill applies the principles of the Merchandise Marks Act, and provides that if a mark be used it must be a true one, well and good, but the Bill, as a matter of fact, very unnecessarily goes a great deal further. Then, again, the measure to a great extent does work that could be done bv the States, an'di at this time I do not think it would be advisable to undertake legislation which the; States could just as well administer. There vet remains a good deal of work that is quite within our constitutional powers, and work much more urgent than that represented by this Bill. There is, for instance, the question of quarantine.

Senator Givens - Why did the Government of which the honorable senator was a member, not pass the legislation to which he refers?

Senator DRAKE - Of the large range of Federal work which then faced us that Government did a great amount.

Senator O'Keefe - The Government which immediately preceded the present Government proposed to do no work.

Senator DRAKE - Nothing of the kind ; that is a most unkind statement.

Senator O'Keefe - That Government brought down a blank sheet.

Senator DRAKE - That Government proposed to go to the country, but it had prepared a Government speech, dealing with about twenty different topics.

The PRESIDENT - Does the honorable senator think he is discussing the Bill ?

Senator DRAKE - I was drawn away by an interjection. It would.1 be much better for this Parliament to do work which lies undoubtedly within its province, than to deal with a Bill of this kind, which will lead to a great many difficulties, and not improve the relations between States and Commonwealth.




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