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Friday, 8 December 1905


The PRESIDENT - What are the points of order?

The Chairman of Committees. - The points of order raised by Senator Dobson are, in the first place, that these amendments do not come within the title of the Bill; in the second place, that they do not come within the scope of the Bill ; and, in the third place, that they are a breach of the Constitution.


The PRESIDENT - Honorable senators will, no doubt, recollect that on the occasion when this question first arose--


Senator Clemons - May I ask, Mr. President, whether you intend to deliver your ruling without debate?


The PRESIDENT - Yes.


Senator Clemons - I assumed, of course, that you were prepared to hear argument.


The PRESIDENT - I am merely repeating a ruling which has already been given half-a-dozen times. From the very initiation of the Senate, I have always refused to interpret the Constitution except so far as is actually necessary to carry on the business of the Senate.Therefore, all argument as to whether Senator Dobson is right or wrong in his interpretation of the Constitution seems to me to have nothing to do with the issue.


Senator Clemons - May I say that, if the President takes that attitude, he has nothing on which to rule, there having been no opportunity for honorable senators to speak. If you intend now to deliver a ruling, I consider that you would be abridging the rights of every senator if you were to insist upon delivering it without having heard reasons for or against it. If you take up the attitude that there is nothing upon which to rule, you will compel me to resume my seat. But if you admit the position that you are going to give a ruling I intend to insist upon my right to speak, subject, of course, toyour decision.


The PRESIDENT - I understand that there are substantially two points raised - first, as to whether or not the amendments made by the other House are in accordance with the Constitution, and, secondly, as to whether that House had, under their Standing Orders, the right to make them.


Senator Clemons - Under our Standing Orders !


The PRESIDENT - Our Standing Orders have nothing to do with the matter.


Senator Clemons - This is most instructive and interesting. I suppose that I, in common with every other senator, am to understand from your last remark, sir, that, no matter how much this Bill may violate our Standing Orders we have nothing whatever to do with that?


The PRESIDENT - I did not say that. I said that our Standing Orders have nothing to do with the matter.


Senator Clemons - You are repeating the very statement to which I referred.


The PRESIDENT - The honorable senator had better continue if he wishes to speak.


Senator Clemons - I think so, too; but I first wish you to intimate whether I am entirely within my rights - I do not wish to be allowed to speak as a favour from you - in debating the question which has been submitted to you for a ruling thereon?


The PRESIDENT - It is the practice of the Senate - I do not know whether it is a good one or not - when a ruling of the Chairman of Committees is dissented from, to permit senators to address themselves to the question before the President gives a decision, and therefore I never intended to stop the honorable senator. I did not try to stop him. I only wanted to call his attention to the points raised.


Senator Clemons - I am very glad to hear you now intimate that you did not intend to stop me.


The PRESIDENT - I never intimated to the contrary.


Senator Clemons - Subject to your ruling me out of order, I repeat that I am very glad that you now - and I deliberately emphasize the word " now " - intimate to me that I, in common with even' other senator, have a perfect right to address myself to a point of order when you are asked to rule upon it.


The PRESIDENT - Very well.


Senator Clemons - Further, I was absolutely justified in assuming that you wanted to prevent me from addressing myself to the point of order when you first rose.


The PRESIDENT - No ; the honorable senator has no right to assume such a thing.


Senator Clemons - Well, I reserve to myself the right to make that assumption. I do not wish to speak at any length.I have only risen to as,k your attention to this fact, that in. giving his ruling the Chairman of Committees emphasized the point - and this is the salient point in issue - that the question of a workers' trade mark, formerly known as a trade union label, was clearly comprised in paragraph c of clause 16. The Chairman took up Part III. of the Bill and read clause 16, which practically operates, as a definition of a trade mark. That is the root of the whole matter. If we had in the Bill a clear definition of a trade mark, and if a workers' trade mark came under that definition, I admit at once that Senator Dobson 's contention would fall to the ground. But seeing that Part III., which does give a definition of a trade mark, is; expressly excluded from applying to the clauses which we are now discussing, it means that there is no definition which covers the question of a workers' trade mark.


Senator Millen - -The.e is a definition from which it is excluded.


Senator Clemons - Precisely.


Senator Givens - It is to be assumed that we shall adopt the amendments.


Senator Clemons - I can assure the honorable senator that so far I have only stated facts. It is absolutely a fact that in the Bill there is no definition which is applicable to a workers' trade mark.


Senator Givens - We are going to make the definition applicable if honorable senators will allow us to proceed.


Senator Clemons - But the Bill goes further. Having provided a definition for every other kind of trade mark, it expressly excludes therefrom a workers' trade mark. That, sir, is, the point, and the only po'int, I wish to emphasize to you, and I submit with confidence that it is fatal to the ruling of the Chairman of Committees.


Senator Keating - I submit, sir, that what you have to consider is whether the ruling of the Chairman-of Committees was right or wrong,, and not whether the reasons which he assigned therefor were correct or incorrect. It is now suggested that there is no definition of trade mark which will coveT this particular division of the Bill. When the Bill was previously before the Senate, it contained no definition of the phrase " trade marks," and in relying upon any definition to support his argument, Senator Dobson must invariably fall back upon a definition which is not in itself absolute and unalterable. A statutory definition, as he knows, is one which is always made in and for the purposes of the Statute in which it appears. The common law definition of a trade mark, as he must know, has never been the same during a succession of years.


Senator Dobson - I think it has.


Senator Keating - Undoubtedly not. If I were to take the honorable senator through the history of the development of the legal conception of a trade mark, he would find' that it has varied from generation to generation.


Senator Dobson - I was talking of the last half-century.


Senator Keating - I did not expect that the point of order would be raised, seeing that it was raised and determined last year, as, I supposed', for all time. -The term "trade marks" occurs in the Constitution, and, in the absence of a definition, are we to be guided by a statutory definition? I submit not, because a statutorydefinition is one which is intended for a specific purpose, and is not intended to be absolute and unalterable in all circumstances. In the last English Act, the definition of " trade mark " is expressly stated to be one in and for the purposes of the Act.


Senator Clemons - Have we got that in this Bill ?


Senator Keating - No, and we have never had a definition in the Bill.


Senator Clemons - It is time that we had.


Senator Keating - I think not. Even before the amendment of Senator Pearce was introduced, before it was ever projected, the Bill contained no definition.


Senator Clemons - That does not make this any better.


Senator Keating - It does not make it any worse. It was considered by those who were responsible for the drafting and introduction of the Bill that it was then better without a definition, and I think, that under- any circumstances, it is better without a definition, because it would not allow the measure to take cognizance, so to speak, of the varying conditions in the development of trade.


Senator Millen - That applies to the definition clauses in all. Bills.


Senator Keating - Not in all Bills, but particularly in connexion with a trade which is constantly developing. It is well known that the definition of " trade mark " is constantly being altered. I could cite a number of cases in which the conception of the term has varied according to the exigencies of the times.


Senator Dobson - The honorable senator is passing over the point that there is a definition in clause 16,. and that does not apply to the union label.


Senator Keating - Last year, when we were dealing with this point of order, I gave reasons for my opinion that the proposed amendments came within the scope and purview of the Bill. I have heard no reason why I should alter that opinion ; in fact,,, what the honorable senator read this morning only goes to emphasize what I then urged. It will be remembered that I then pointed out that if it were to be limited to the conception of the term, as it might have existed in certain quarters when the Constitution was passed, we should necessarily require, from time to time, an amendment thereof.


Senator Fraser - Not necessarily, because the custom of the country would give the meaning of the term,


Senator Keating - Exactly; that is the whole point of my argument. If the custom of the country does not give the meaning of -the term,' if we have to be limited to the concept, which was entertained when the Constitution was passed, then, no matter what the custom of the country may be, no matter what development of trade may have taken place, we shall have to go to the people from time to time, and ask them to amend the Constitution.


Senator Fraser - The country has decided against the Government now. Every one knows what a trade mark is.


Senator Keating - The same thing would apply to. the question of telegraphy. The Commonwealth is invested by the Constitution with supreme power with regard to telegraphy. When it was passed such a thing as wireless telegraphy was not known. Do we have to go to the people and ask them to amend the Constitution in order to give the Parliament power to deal with wireless telegraphy ?


Senator Millen - We have a right to deal with telegraphic services.


Senator Keating - There was no such thing as wireless telegraphy known in Great Britain when the Constitution was passed.


Senator Clemons - I do not wish to interrupt Senator Keating, but surely, sir, his reference to wireless telegraphy is not relevant to the point of order.


The PRESIDENT - It seems to me that nearly all the arguments which have been advanced on both sides have had nothing to db with the point of order.


Senator Dobson - If we are going to finish with the amendments in the Bill by 4 o'clock the Minister had' better cut his remarks short.


Senator Keating - The honorable senator took a great deal of time in putting certain phases of the question before the Senate and the country. If honorable senators in reply were to ' be restricted to this point of order, and were not to be allowed to touch upon the other points upon which the President's, ruling is required, it would not be quite fair. I have only one other argument to urge. It has been said, I think by Senator Clemons, that because this particular trade mark is dealt with differently from other trade marks-


Senator Clemons - The argument is that there is no definition touching trade union marks ; the only definition in the Bill is expressly made inapplicable to them.


Senator Keating - The effect of the argument is that union marks are dealt wilh differently from other trade marks, and that that is a reason why union marks are not trade marks within the Bill. I wish to draw attention to one piece of legislation which we have passed lately. We have power under the Constitution to deal with copyright. When the Imperial Parliament passed our Constitution, there was no such' thing known to the English law as copyright in news or cable messages.


Senator Clemons - That is not quite an accurate statement.


Senator Keating - It is. It was never recognised by the Courts in England or byParliament.


Senator Clemons - It was never disallowed by the' Courts.


Senator Keating - It never came before them.


The PRESIDENT - Cannot the honorable senator confine himself to the point of order, and not deal with the main question ?


Senator Keating - I shall be brief. There was at that time no such thing as copyright in news, either at common law or by Statute. When we started to legislate on copyright, we made provision, for copyright in cable messages ; but we did not make that copyright similar to the general copyright given in literary productions and works of art. We made it apply for a definite limited period of twenty -four hours, and attached to it certain conditions and remedies that did not apply to any other system of copyright. Would any one contend that those provisions did not come within the scope of a Copyright Bill?


The PRESIDENT - With all due deference to honorable senators, I think that the point of order has rather been obscured by argument concerning other matters. I will direct the attention of the Senate to the fact that the first time in the history of the Senate, when a question arose concerning the construction of the Constitution, I gave the following ruling : -

It does not seem to me that I should, from the Chair, undertake the responsibility of interpreting all the provisions of the Constitution. The Constitution itself has provided for a tribunal, the High Court, which, after argument and consideration such as would be impossible and undesirable in this Senate, is empowered to finally determine its meaning in most of the cases which will arise. It is my duty to interpret and determine the Standing Orders, and to regulate the procedure of the Senate; and perhaps to interpret the Constitution so far as the conduct of the business of the Senate is concerned. But the difference is great between the two cases. The Senate is the final and sole judge of the meaning of its own Standing Orders, whilst a law made in derogation of the provisions of the Constitution may in some cases be declared invalid at the instance of any citizen.

That ruling has been adopted by the Senate, and has been in force ever since. As an illustration of the case mentioned in (hat ruling - where it is perhaps necessary that the President should give a .ruling interpreting a provision of the Constitution-


Senator Fraser - Surely you should say under what paragraph of the 39 articles this Bill has been introduced?


The PRESIDENT - I have nothing to do with the 39 articles. I am not going to interpret the 39 articles, or to say under which of them this Bill has been introduced. As an instance showing where it was necessary to give a ruling affecting the Constitution, in order that the business of the _ Senate might be carried on, I may mention the case of a vote given by Mr. Saunders, whose right to sit as a senator for Western Australia was challenged. From the very necessity of that case a ruling had to be given interpreting the Constitution. But, excepting cases of that sort, I have always decided that it is not my business to interpret the provisions of the Constitution. That is the point here, and it seems to me to be the only point.


Senator Millen - It is not the only point.


The PRESIDENT - I ought not to be interrupted in giving a ruling.


Senator Millen - I think the thing ought: to be stated correctly.


The PRESIDENT - It seems to methat the only point here is whether this union label, or workers' trade mark, is a trade mark within, the meaning of the Constitution and therefore can be properly provided for in this Bill.


Senator Clemons - May I respectfully ask you to rule on standing order 179?


The PRESIDENT - I am asked to give a ruling on a constitutional point.


Senator Clemons - And on a point of order.


The PRESIDENT - The honorable senator must permit me to rule on one thing at a time. I cannot rule on two things at once, and I do not think that I ought to be interrupted.


Senator Clemons - I apologise if I interrupted you improperly ; but I thought it proper to direct your attention to the point of order.


The PRESIDENT - As I was saying when interrupted, this union trade mark, or workers' label,¬Ľor whatever you like to call it - I do not think the name makes any difference - is either a trade mark within the meaning of the Constitution, or it is not. If it is a trade mark within the meaning of the Constitution, it is properly in the Bill. If it is not, it ought not to be in the Bill. But to say now whether it ought or ought not to be in the Bill involves an interpretation of the Constitution. That is not my duty,, and I decline to do it. I therefore agree with the ruling of the Chairman of Committees that it is not within his province to interpret the Constitution. Then I come to the other point. It is this : This is a Bill which was introduced in the Senate. We sent it down to the House of Representatives containing clauses concerning trade union marks. Those clauses have been struck out, and other clauses inserted dealing with the same subject-matter under a different name. Whether those new clauses have been properly inserted or not is a question which involves the interpretation of the Standing Orders of the other House. I do not know what the

Standing Orders of the House of Representatives on that question are ; and, if I did know, it would be altogether improper for me to try to interpret them. That House has its own Speaker, whose duty it is to interpret its Standing Orders ; and, if it were permitted for the President of the Senate, or the Speaker of the House of Representatives, to challenge proceedings in the other House, we should simply get into the most inextricable confusion, and quarrels would arise between the two Houses at once. I have been referred to standing order 179.


Senator Dobson - That is my point.


The PRESIDENT - That standing order reads -

The title shall agree with the order of leave, and no clause shall be inserted in any such Bill foreign to its title.

We inserted certain clauses in. the Trade Marks Bill. The House of Representatives struck them out and inserted other clauses. I am not saying whether those clauses are, or are not, foreign to its title.


Senator Clemons - You are not?


The PRESIDENT - No; and I ask the honorable senator not to make remarks of that nature. I do not think it is fair to ir.e.


Senator Clemons - Very well ; I am perfectly willing to apologize.


The PRESIDENT - The honorable senator is continually making remarks of that nature, and I object. The question is this : We have now sent this Bill down to the other House. Presumably, it was in order when we sent it down, or we ought not to have passed it. That is to say, it was in order according to our Standing Orders. The other House has inserted some clauses in it in lieu of the clauses inserted by the Senate. It is asserted that those clauses are foreign to the title of the Bill. Am I authorized to say. that the other House was wrong to do that ?


Senator Fraser - But if they were wrong-


The PRESIDENT - The honorable senator will please not interrupt. If the other House inserted, according to its standing orders, and1 to the interpretation put upon them by its Speaker, some clauses which are not in accordance with our Standing Orders, what are we to do? We can say that we think that the other House was wrong. But I do not think that that is a question that should be asked of the President or the

Chairmanof Committees. It is not my duty, or that of the Chairman, to interpret the Standing Orders of the other branch of the Legislature, and to say whether certain clauses have been inserted by that other branch of the Legislature properly or otherwise. That is a matter for the Senate or the Committee of the Whole to decide. I therefore uphold in its entirety the ruling of the Chairman of Committees.


Senator Dobson - We are asked to insert in the Bill clauses which are foreign to the title.


The PRESIDENT - We are not'; the clauses are in the Bill. They have been inserted by the House of Representatives. / 11 Committee :







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