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Friday, 10 November 1905


Senator Sir JOSIAH SYMON (South Australia) - It would be exceedingly discourteous if I were to remain silent any longer than is necessary, and were not to express my deep indebtedness to my honorable friend who has just sat down. Not only did I receive from him a cordial welcome when I arrived, but I am also indebted to him for the information which he has given, and for the little delay which he has caused to enable me to gain my breath.


Senator Croft - To get instructions.


Senator Sir JOSIAH SYMON - I do not know that any instructions were necessary. I understand that the amendment is to substitute for the word "Commerce" the words " Merchandise Marks."


Senator Playford - No; "Trade descriptions."


Senator Sir JOSIAH SYMON - At any rate, the intention is todelete the word "Commerce." Surely there cannot be any possible objection to that. To label this a Commerce. Bill is simply ludicrous. It is like looking through the wrong end of the telescope to call this meddlesome, interfering, twopenny-halfpenny measure-


Senator Gray - And hypocritical.


Senator Sir JOSIAH SYMON - I will not call it that ; but to call this Bill an Australian Commerce Bill is simply a perfect travesty. It is the most inappropriate name that could possibly be applied. The Senate was informed some little time ago by the Minister of Defence that this Bill was prepared by the late Government. When he made that statement my honorable friend, who has a powerful imagination, was entirely drawing upon it.


Senator Drake - He said that it had not received the final revision of the late Government.


Senator Sir JOSIAH SYMON - That is the way he reconciles the statement to his sensitive conscience. I am happy to say that the late Government was not in anv respect responsible for this measure. I am proud to believe that they never sanctioned it - that neither in this form nor in any other form was the Bill ever sanctioned by the late Government. But what happened was this : Probably some honorable senators are aware of the history of it. When a very weak Government was in power, known as the Deakin Government-


Senator Drake - No, no.


Senator Sir JOSIAH SYMON - They introduced a measure which was called a Trade Marks Bill, and which has been dragging along a lingering existence, and waiting for a favorable opportunity to have crushed into it what are called Trade Union Marks provisions. The Deakin Government also introduced at the same time a Bill called the Merchandise Marks Bill. It was based upon a piece of Imperial legislation which has been more or- less adopted throughout the States of Australia, and is known as the Merchandise Marks Act. The object of it was to provide that a person who deals with a retailer - or it may be with a wholesale merchant - may not be imposed upon by goods which are fraudulently marked. The Bill was one to deal with internal trade. The Act in England itself, which is still upon the Imperial Statutebook, was for the same purpose. It was that measure which was submitted to this Parliament. These two Bills were introduced in the Senate, if my recollection serves me rightly. The Trade Marks Bill had embodied in it at the instance of Senator Pearce, provisions with regard to the trade union label. When the Watson Government came into power, in order, I suppose, to make it more attractive, and to give it that facility for being swallowed which, if you dub a measure something to stop a fraud, it is sure to have withdrew the Merchandise Marks Bill from the noticepaper, and changed its title to " Fraudulent Marks Bill." Of course the object of that was perfectly legitimate. I will not say that it was to gild the pill, but it was to' suit the taste, and to make the measure more easily swallowed by some. When that Fraudulent Marks Bill was going through the Senate, my recollection is that it was subjected to a great deal of criticism from the point of view, first of all, of the Constitution, and our right to deal with matters of that kind ; and, secondly, from the point of view of the States. Because there can be no doubt whatever that the States are far more deeply interested than we are. In fact, it is a matter for a State Parliament and State administration much more than for ourselves. We have little or nothing to do with it, and nothing that we can do, so far as some of the provisions of the Bill are concerned; can possibly affect the great object which we should all entertain of securing the consumer in obtaining pure and unadulterated articles, whether of food or of any other nature - of securing that they are articles which correspond with the name under which they are described. The criticism was justly levelled against the Bill that it was ultra vires of our powers, that it encroached upon the domain of the States, and, in some of its provisions, that it mixed up matters that would more properly be left to a Trade Marks Bill. That is the history up to that stage. Under these circumstances, and I presume under the direction - the very proper direction - of the Watson Government, the officers set about analyzing the Fraudulent Marks Bill, and endeavoured to place on the one side the powers which they thought more properly belonged to a Trade Marks Bill, to set upon the other side the powers that seemed to encroach upon the domain of the State, and to put into a third classification the powers that they thought might possibly be applied to goods imported through the ports of the Commonwealth. The officials accordingly made that analysis and called the Bill, not the Commerce Bill, but the Imports and Exports Bill. That was the state of the draft print as I first saw it. At the time I last saw the Bill it was undergoing an examination, not by me, but By the officers, by my instructions, with a view to showing clearly, for the information of Parliament, the principal parts which were considered to bc ultra vires, or to encroach upon the domain of the States. The Bill was not advanced enough to be .considered by me, and of course it follows that it was not considered by the Government. The title was to be limited in the way in which it was limited, even in that suggested framework. The Bill does not deal with commerce in the sense in which it would be. understood either in the Commonwealth or outside. If we appropriate the term "commerce" to the Bill we shall debar ourselves, at least in ordinary circumstances, from using that word where it might be more appropriately used. If we were dealing with the entire subject of commerce throughout the Commonwealth, it would be an accurate title. But when we are simply seeking to make imports and exports liable to certain supervision, with a view to preventing the use of fraudulent descriptions, then I think we ought to make the Bill, even in its title, if I may use the phrase, understandable by small as well as big traders. My honorable friends must see that it will be better understood if it is called the Merchandise Marks Bill, or even the Trade Descriptions Bill, than if it is called the Commerce Bill, because the latter title is absolutely misleading. It is generally agreed that it is undesirable to give an opportunity to any one to defame or belittle us. or to say that we are legislating for the mere sake of legislating. We shall give such an opportunity if this is called the Commerce Bill of Australia. I understand that in another place it was understood - I shall not s3.v promised - that there would be no objection to delete the word "commerce." and substitute a 'word more appropriate to the purpose of the Bill.


Senator Playford - I can find no reference to it.


Senator Sir JOSIAH SYMON - I have not had sufficient time in which to lav my finger upon the exact phrase which was used, but if it was not absolutely promised, it was very nearly promised, that in the Senate, if the Government would not see to the word being deleted, they would offer no objection to its deletion. It is well to have a title that will describe the Bill and its objects, and we must all admit that Commerce Bill is not a descriptive title. The object of a short title is to earmark the subject-matter of the Bill, so that a man can very readily make himself and any one with whom he is dealing aware of what its purport and intention are. "Commerce" is a fine, euphonious word, but surely we can find a better use for it than by pinning it to this Bill. Certain of its provisions are taken, not from the Imperial Merchandise Marks Act, but from the Imperial Customs Act, so that literally the Bill has nothing whatever to do with commerce as ordinarily understood. So far as those provisions are concerned, it would be just as appropriate if it were Galled the Customs Act Amendment Bill as the Commerce Bill. I hope that the Ministers will see their way to consent to the deletion of the word "commerce." There seems to be some confusion as to what word should be substituted. The expression " merchandise marks ' ' is one which is well understood. It would almost enable us to have the benefit of the decisions given under the Imperial Merchandise Marks Act. The purpose of the two measures is not exactly the same, because, while the English Act relates to internal trade, this Bill relates to over-sea trade. If it encroaches, as I think it does, in spirit, if not in letter, on the domain of the States, it is very much better that it should be confined to that which we intend.

Senator PULSFORD(New South Wales). - For the benefit of Senator Symon, I may mention that my original proposal was to insert the words " trade descriptions," but that when Senator Drake suggested the adoption of the English title, I at once intimated my willingness to accept the suggestion, as I thought that "merchandise marks" was a better term than "commerce " to apply to this Bill.







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