Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Friday, 8 December 1905


Senator MULCAHY (Tasmania) - Now we come back to the discussion of the particular amendment under consideration. I am just as strongly opposed to the inclusion in, this Bill of the principle of trade union marks as honorable senators opposite are. When the question was first proposed in the Senate, I voted against the trade union mark clauses. I gave my reasons for so doing, and need not reiterate them. .1 simply mention the point now, because I take it that we are trespassing upon the region of disorder in discussing anything except the amendment actually before us. We are not really concerned at this stage with the principle of trade union marks introduced in the Bill and which the Senate has already affirmed by a majority. The question of the constitutional right of the Federal Parliament to pass these clauses is one upon which I thoroughly agree with those who are opposed to this part of the measure. I think we are trespassing upon State rights. We are inserting provisions which have no right to be in a Trade Marks Bill at all. We are adopting legislation of an industrial character, and are forcing it upon States which, in their wisdom. ha.ve not chosen to enact that particular kind of legislation.


Senator Pearce - Is not the whole question of trade marks an industrial question ?


Senator MULCAHY - It is a trade question, but not an industrial question.


Senator Pearce - What is trade but industry ?


Senator MULCAHY - When we were first dealing with this subject. I gave a definition of trade marks, which happens to be in accord with the authorities. But the' situation in which we now are seems to be_ this : That the Senate has affirmed the principle of union marks.


Senator Clemons - Does the honorable senator mean to say that the Senate adopted the principle, when only eighteen voted for it?


Senator MULCAHY - The Senate, as a Senate, adopted a certain principle, which has received the concurrence of the other House. The House of Representatives, while accepting the principle, has amended the details. The position now is. therefore, that we either have to accept what has been sent back to us as an improvement upon the clauses passed by the Senate, or we have to go back to the provisions which we originally sent down.


Senator Clemons - Does the honorable senator think that they are the only alternatives?


Senator MULCAHY - There is the alternative of amending and improving the amendments of the House of Representatives, which I intend to try to do.


Senator Millen - Does the honorable senator mean to say that once a decision has been arrived at the Senate should never alter it?


Senator MULCAHY - Certainly not. But if we strike out the clauses inserted by the House of Representatives, or decline to carry them, we must insist upon our own amendments, which are worse.


Senator Pearce - That is practically the position.


Senator MULCAHY - It is absolutely the position.


Senator Dobson - Or drop the Bill.


Senator MULCAHY - We cannot drop the Bill, if the majority of honorable senators are against us. The common-sense thing to do is to try to improve these provisions. I do not approve of the principle involved in these clauses, but they are an improvement on the union label provisions contained in the Bill when it left the Senate. I think it is a pity that we have not included in the measure a definition of what a trade mark is, because if we had done so. the work of the High Court, which will sooner or later be called upon to decide this constitutional question, would have been simplified. If by voting against these amendments the result must be a return to the union label provisions as they appeared in the Bill when it left the Senate, my course is clear.


Senator Clemons - If we reject these amendments, we kill the Bill.


Senator MULCAHY - I cannot see that that follows. If a majority of the Committee vote against these amendments, the effect will be that we shall send it back to another place exactly as it left us before in this respect.


Senator Clemons - What will happen then ?


Senator MULCAHY - Is the honorable senator a, prophet ?


Senator Clemons - I know what would happen, and honorable senators opposite can inform Senator Mulcahy of what would happen.


Senator Pearce - Honorable members, in another place might accept our proposals.


Senator MULCAHY - If Senator Clemons claims to know what will happen, he must profess to be a prophet. We shall be simply wasting time if we discuss what might happen in another place when we know that there is no prospect of altering these provisions, in anY way. I think it would be better to deal with these amendments in groups. Senator Dobson made some reference to the Commonwealth trade mark, and I should like to have a word to say on that subject when we come to it. I wish to deal now particularly with clause "]6a, and to intimate that I intend to propose an amendment on it. The Bill has been returned to us with certain limitations and exemptions, certain industries being specifically excluded from the operation of this part of the measure. Clause 76a provides that - '

This Part shall not apply to any primary product of the agricultural, viticultural (including wine-making), horticultural, dairying (including butter-making and cheese-making), or pastoral industries.

I do not propose to say whether that is consistent with the other provisions of the Bill. I do not think there is very much consistency in tHis measure, since it is really made applicable not only to a section of the community, but to a small section of that section. If there are to be limitations on the operation of these provisions, and some industries are to be excluded, we are justified in suggesting thai other industries exactly similar to those mentioned should also be excluded, and I propose later on to move an amendment on clause 76a for the insertion after the word "horticultural " of the words " including fruit preserving and jam making." I cannot see why these industries should not be included as well as the products of the butter-making and cheese-making industries. If the products, of the butter-making and cheese-making industries are to be excluded from the operation of this part of the Bill, we should hear on what grounds the proposal is made. There is certainly full justification for ex-ยป eluding the products of industries in which Tasmania is so largely interested.


Senator Macfarlane - Are thev not excluded?


Senator MULCAHY - No; they are not primary industries.


Senator Gray - Would not the horticultural industry include what the honorable senator desires to -have included'.


Senator MULCAHY - I am afraid it would not be held to include preserved fruit and jam, which are the products of manufacturing industries. I hope that the Minister in charge of the Bill, apart from the fact that he is a representative of Tasmania, will admit that the amendment I have suggested is logical, and consistent with clause 76a, and will have no objection to the inclusion of the products of secondary industries as important to Tasmania, as the butter-making, cheese-making, and wine industries are to other States.







Suggest corrections