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Wednesday, 29 November 1905

Mr SPENCE (Darling) - There is another phase of this question which I should like to present with a view to indicate the necessity of retaining the words which the honorable and learned member for Corinella wishes to strike out. Any one who has watched the trend of legislation in the States must realize that the interests of the public are being conserved to a greater extent every day. A Pure Foods Bill is before the Victorian Parliament, and measures of a similar character have already been passed by other States Legislatures, and we should, by means of the Bill now before us, endeavour to assist the States to carry on their good work. It can readily be recognised that in order to make effective the work of a State Department, or the work of an association which may be formed for the specific purpose of examining and certifying as to the quality of goods,, some provision must be made for the registration of the marks which will indicate that the goods have been made under satisfactory conditions, and that they are pure and up to standard. Let us take the case of the Victorian butter industry. Not only is the produce examined as to quality and branded accordingly, but inquiries are made as to the conditions under which it is manufactured. In the event of faulty samples of butter being received, inspectors are sent to the factories from which thev were received to instruct the managers in the most approved methods of production.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Is that done under a Trade Marks Bill ?

Mr SPENCE - I am stating facts which I contend have an important bearing upon the amendment. Every one knows that the conditions of manufacture affect the quality of many goods - particularly articles of food. At present the States authorities make provision for the inspection of meat and rabbits, and other articles of food, with a view to protecting the public as far as possible against the dissemination of disease. It is well known that goods made in sweating establishments have been the means of spreading disease, and it is surely necessary to provide some safeguard against the sale of such articles. Unless goods are made under wholesome conditions they cannot be pure. I contend that if we agree to the amendment, we shall incur considerable risk in this connexion.

Mr. JOSEPHCOOK (Parramatta).- I think that we are getting on splendidly. We only need to hear a few more speeches of a similar character to those which have been delivered by the Attorney-General and the honorable member for Darling, to realize exactly what is contained in this Bill. The Attorney-General has told us now that it is an anti-sweating Bill, and the honorable member for Darling has informed us that it is a Factories Bill and a Health Bill.

Mr Webster - The honorable member objects to those measures?

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - No. But I object to introducing provisions of that nature into this Bill. We ought to have been told what was the intention and purport of the measure. It is not a Trade Marks Bill in the ordinary sense of the term at all. It is a measure which seeks to promote the health of the* people, and to insure that they shall work under fair conditions. I say that we have not the constitutional power to do anything of that kind. During the present and previoussessions, we have been endeavouring to secure an alteration in the Constitution, so as to permit the Commonwealth to legislate in regard to factory inspection and' uniform industrial laws. We cannot do that without first securing an amendment of the Constitution, but we can " sneak" those matters into this Bill, I suppose?

Mr Page - Is that what the honorable member calls insuring fair conditions to the workers - " sneaking ' ' them into the Bill?

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I do not see the relevance of the honorable member's interjection. I am referring to the constitutional side of this matter.

Mr Page - The honorable member does not want to see it.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I am just as anxious as is the honorable member that the people shall work under good conditions. I believe that he is honestly seeking to benefit the workers. But surely he does not suppose that he is the only person who knows what is good for them?

Mr Page - I endeavour to do my best.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - But the honorable member should credit others with endeavouring to do their best for the people.

Mr Page - I am sure the honorable member is not trying to do that.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I am obliged to the honorable member for his opinion. I do not value it. He is not doing the best that he can for the workers by indulging in this sort of humbug. The people outside will suffer as the result of his action.

Mr Page - That is what the honorable member tells us in respect of every Bill.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Trade marks do not affect the health of the people, or the conditions under which they live and labour. They affect solely the quality of articles of merchandise, and they have nothing necessarily to do with the conditions under which goods are produced. Certainly they have nothing to do with the health of the people. We require another set of laws entirely to compass those objects. What we cannot do under the Constitution by means of factory legislation, we are endeavouring to clandestinely effect in this Bill. That is not straightforward conduct; and I venture to say that it will be entirely ineffective for the purposes contemplated by honorable members opposite should it ever be placed upon our statutebook. We have not the power--

Mr Spence - To register a trade mark?

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - We have not the power to register a trade mark which relates to the conditions of manufacture and the examination ofgoods. As far as I can see, we can get no trade mark which will take the place of a Factories Act. If we desire to enact factory legislation and to provide proper sanitary conditions for the workers let us support the honorable member for Melbourne Ports in his endeavour to secure an amendment of the Constitution which will enable us to obtain control of these powers. Then, we may use them throughout the length and breadth of Australia. I say again, that in this Bill we are seeking to usurp a function which is already provided for in the Commerce Bill. That measure inquires into the condition of rabbits, meat, &c, and vests the Minister with power to brand them.

Mr Spence - If persons wish to register any such brand as a trade mark, why should not they have power to do so?

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Why does the honorable member require to duplicate legislation? The Commerce Bill guarantees the quality of butter, meat,&c., and the States themselves possess extensive and expensive paraphernalia to do the rest. As a matter of fact they are doing it.

Mr Spence - They cannot register a trade mark.

Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Would the registration of a trade mark enable them to examine a rabbit or a piece of beef any better than they are doing now ? Would it afford an additional guarantee that the beef was fit for human consumption? I say again that under the Attorney-General's amendment we are setting up a piece of factory legislation which will enable us to assist the States in the inspection of factories and in the determination of the conditions which various goods shall be made. It is not within our legislative compass to do that. To insert this clause would, at the best, be a meddling interference with the States. If we want these further powers let us take thestraightforward course suggested by the honorable member for Melbourne Ports, and ask the States to grant them to us.

Mr. HENRYWILLIS (Robertson).After having listened to the discussion upon this measure, I am bound to confess that the honorable and learned member for Angas was right when he said that the clause is unnecessary, and should be struck" out. If the honorable and learned member for Corinella is sincere in his desire to nullify the bad effect of the provision, he will agree to the suggestion of the Attorney-General, who is willing to confine its operation to a State which may appoint an officer for the purpose of having a trade mark registered. Either the honorable and learned member is opposed to the clause entirely, or he is not. If he is opposed to it he should vote for its excision, but if he merely wishes to nullify its bad effect he will accept the suggestion of the Attorney-General. In my opinion, the deputy leader of the Opposition was right when he declared that the object of the clause is to give an additional power to trade unions. It amplifies what is proposed in Part VII. of the Bill. The amendment of the honorable and learned member for Corinella will have no more effect than will the proposal of the AttorneyGeneral, and, consequently, I decline to support it.

Mr. KNOX(Kooyong). - I admit at once that the Attorney-General has gone a considerable distance towards removing the fear that I had entertained in regard to the possible application of this clause. But in the most complete way he has justified the discussion which has taken place. He admits that he had in his mind that a State or Commonwealth authority might interfere with the conditions under which goods are produced. I am sure that the public did not for one moment believe that such a sinister proposal was hidden in this clause, and I regret that the Attorney-General has not dealt more frankly with the Committee. Honorable members opposite must not imagine that they possess a monopoly of the desire to protect the workers. I claim that I am as anxious as is any honorable member to improve the lot of the working classes, and in support of that statement would point to my record outside. The desire of the Opposition is that this Bill shall be so framed that the public will be able to tell at a glance for what purpose it is designed. We do not wish it to be converted into a Public Health Bill, a Wages Board Bill, or anything of that kind, and we hold, therefore, that it should relate strictly to trade marks. In the opinion of the Opposition, the proposed new Part VII. is opposed to the interests of the workers, and will afford ground for a fair fight between the opposing forces. But we did not expect that an outpost in the shape of this clause would be put forward lest the main army might be defeated. We have not been fairly treated, and I resent the suggestion made by the Attorney-General, that the Opposition, in opposing this clause, are influenced by a desire to prevent all work being carried out under humane conditions. Our opposition is based on the one ground that such a provision as this should not be introduced in this part of the Bill, and that we ought to have had from the Attorney-General a frank explanation of the effect of a new clause brought in by himself. If we cannot repose the fullest confidence in the AttorneyGeneral, we have reached a sorry stage. The honorable and learned gentleman told me the other day that he was Attorney-General not only for the Ministry, but for the House, and I should like him to deal with the Committee from that stand-point. He must have made the mental reservation that there was a power in this clause which did not appear on the surface, and he should have acted frankly--

Mr Isaacs - To what power does the honorable member refer?

Mr KNOX - The power to make examinations as to the conditions of manufacture

Mr Isaacs - I say that that is the argument of those who oppose the clause.

Mr KNOX - I hold that it is highly important that it should be clearly understood that the clause goes further than we at first believed.

Mr. McCAY(Corinella). - In order to expedite business, I wish to withdraw my amendment in favour of that suggested by the Attorney-General. It covers a good deal of the ground, although, perhaps, not the whole of it.

Amendment, by leave, withdrawn.

Mr. ISAACS(Indi- Attorney-General). - Before moving the amendment which I have indicated, I desire to intimate that I propose to add it to the end of the clause, so that if any honorable member has a prior amendment to move, he should at once submit it. As it appears that no one desires to move a prior amendment, I move -

That the following new sub-clause be added : - " (3) This section shall, as to conditions of manufacture, apply to Commonwealth and State authorities only."

Amendment agreed to.

Proposed new clause, as amended, agreed to.

Mr. ISAACS(Indi- Attorney-General). - I understand that it is the desire of honorable members that we should proceed now to deal with the non-contentious clauses.

Honorable Members. - Hear, hear.

Mr ISAACS - That brings us to proposed Part VIII. - protection of trademarks. I move -

That the following new clause be inserted : - "78Q. Whoever-

(a)   forges a registered trade mark ; or

(b)   falsely applies a registered trade mark to any goods; or

(c)   makes any die, block, machine, or instrument for the purpose of forging or of being used for forging a registered trade mark; or

(d)   disposes of or has in his possession any die, block, machine, or instrument for the purpose of forging or of being used for forging a registered trade mark, shall, unless he proves that he acted without intent to defraud, be guilty of an indictable offence, and liable to imprisonment for any term not exceeding three years."

Mr. McCAY(Corinella). - I wish the Attorney-General to state what will be the effect of the departure from the ordinary clause in the criminal code, which is embodied in the provision, that the person charged -

Unless he proves that he acted without intent to defraud, shall be liable to imprisonment. The ordinary forgery provisions of a criminal code make the forgery and the mens re the two things necessary for a conviction. Here, apparently, the principle observed in the Customs Act of assuming the guilt of a person until he proves his innocence is applied to a limited extent. I would ask the Attorney-General what are the reasons for departing from the ordinary form of the criminal code ?

Mr. ISAACS(Indi- Attorney-General). - I cannot for the moment place my hand on the English Act from which this is taken, but I think that it is in the ordinary form. The offence referred to in paragraph a speaks for itself. The false application of a registered trade mark to any goods, which is dealt with in paragraph b may be the mere fact of false application, whilst I think that the offences mentioned in the succeeding paragraphs are of such a class that the person charged should at least prove that he had no intent to defraud So far as. three of these cases are concerned. I do not know how we could do otherwise than presume the guilt of the person concerned. But, as to one of them, I can understand--

Mr McCay - If a man forged a trade mark, I do not think that any one would believe his statement that he had no intention to deceive.

Mr ISAACS - The provision to which the honorable and learned member has called attention may be quite right, so far as paragraph b is concerned ; and, perhaps, that is the only reason why it has been inserted. I do not think he can complain of the words in question.

Mr. McCAY(Corinella). - In proposed new clause 78V, we have the following definition of " forgery of trade mark " -

A person shall be deemed to forge a registered trade mark who either -

(a)   without the assent of the proprietor of the trade mark or the authority of this Act makes it or a mark so nearly resembling it as to be likely to deceive.....

That provides a new terror for imitators of trade marks.

Mr Isaacs - These words are in the English Act.

Mr McCAY - What commonly happens when B is sued for using a colourable imitation of A's trade mark is that he is cast in damages, ordered to account, and restrained from continuing the infringement. The Bill, however, also calls the offence forgery.

Mr Isaacs - It is not the applying, but the making, of the mark which is forgery.

Proposed new clause agreed to.

Amendments (by Mr. Isaacs) agreed to -

That the following new clauses be inserted : - 78R. Whoever sells or exposes for sale, or has in his possession for sale or for any purpose of trade or manufacture, any goods to which any forgery of a registered trade mark is applied or to which any registered trade mark is falsely applied, shall be guilty of an offence against this Act, unless he proves -

(a)   that he acted without intent to defraud ; or

(4)   that the goods were manufactured in or imported into Australia and the trade mark was applied to them before the commencement of this Act, and were held by him bond fide and without intent to defraud.

Penalty : One hundred pounds. 78s. Whoever imports into Australia any goods to which any forgery of a registered trade mark is applied or to which a registered trade mark is falsely applied shall, unless he proves that he did not knowingly import the goods in contravention of this Act, be guilty of an offence against this Act.

Penalty : One hundred pounds. 78T. Whoever aids abets counsels or procures or is in any way knowingly directly or indirectly concerned in or privy to -

(a)   the commission of any offence against this Act ; or

(b)   the commission of any act outside Australia which if committed in Australia would be an offence against this Act, shall be guilty of an offence against this Act.

Penalty : One hundred pounds.

Amendment (by Mr. Isaacs) proposed -

That the following new clause be inserted : - 78U. - (1) The following goods are prohibited to be imported, and shall, if imported, be forfeited to the King : -

(a)   All goods to which any forgery of a registered trade mark is applied, or to which any registered trade mark is falsely applied ; and

(b)   all goods manufactured at any place outside Australia and having applied to them any trade mark being the registered trade mark of any manufacturer dealer or trader in Australia unless the trade mark is accompanied by a definite indication of the country in which the goods were made or produced.

(2)   All imported goods forfeited under this section may be seized by any officer of Customs.

(3)   The provisions of the Customs Act 1901 shall apply to the seizure and forfeiture of goods under this section to the same extent as if they were prohibited imports under that Act.

(4)   Before taking any action under this section or permitting any officer of Customs to act thereunder, the Collector of Customs for the State may require the person requesting any action on the part of the Customs to give security in accordance with the regulations.

Mr. McCAY(Corinella). - I wish to point out to the Attorney-General that an importer might import goods to which a forgery of a registered trade mark was applied without knowing that there was anything improper about them.

Mr Isaacs - Sub-clause 4 might meet that case.

Mr McCAY - I do not think that it meets the case to which I am referring. It prevents blackmailers from pretending to be honest friends of the public, but it does not protect the importer who has innocently contravened the provisions of the Act. I shall not propose any amendment, but I think that the Minister or the Collector of Customs should be empowered to forego forfeiture of goods when satisfied that the importer has not wilfully contravened the Act, provided that the forged trade mark is erased, and, perhaps, some penalty paid. I do not think that an innocent Australian consignee should suffer for the wrong-doing of a foreign consignor.

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