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Thursday, 30 November 1905

The CHAIRMAN - I must ask honorable members to refrain from carrying on conversations across the Chamber, and to extend to the Attorney-General that courtesy to which he is entitled.

Mr McCay - He has had a very good hearing.

Mr ISAACS - I recognise that. I recognise also that there is a strong feeling in regard to this matter, and I have endeavoured, as far as possible, to eliminate all,but the bare arguments, and to put them as strongly as I can. I do not think that the statement that the Labour Party represent only organizedlabour is a fair one.

Mr Watson - To begin with, it is not true.

Mr ISAACS - If we look the matter fairly and fully in the face, we must recognise that, until it organized, labour did not have any fair rights accorded it. Capital is always self -organized, but labour is not. It has been said over and over again that " capital speaks every language," can transfer itself instantly from one country to another, can pass from one business to another, and is, in short, cosmopolitan. But labour is in a different position. It is not only native of the country - it is not only as a rule tied down to one country - but is nearly always tied down to the one place andto the one occupation. Until labour has organized it cannot hope to fight a fair battle with capital. I do not wish to do anything more than hold the scales, as far as lies in my power, fairly and evenly between the two. But it is a remarkable and noteworthy fact that from no quarter whatever has any objection beer, offered to this proposal, during the twelve months or more that it has been before the Parliament, by a single worker who is not a member of a union.

Mr Higgins - Not even from the Machine Shearers' Union.

Mr ISAACS - I do not wish to say anything as to that. I propose to call the attention of honorable members to a remarkable incident. We have been told that the passing of these provisions will lead to a boycott by labour, and the word " boycott " is used in a derogatory sense. I wish to direct attention to a memorandum on the union label clauses which was addressed to the Commonwealth Government by the president, executive officers, and council of the 'Central Council of Employers of Australia.

Mr Page - Is that Knox's " push " ?

Mr ISAACS - I am not going to allude to personal matters. I cannot give the exact date of the memorandum, but I find in it a reference to 24th January, though it bears the date of 23rd August, 1905. It is signed by Mr. Walpole, as secretary, and I think that it is amongst the papers laid on the table of the House. It is a warning against these clauses.

Mr Higgins - We all have copies.

Mr ISAACS - I think that we have. In this memorandum the following statement is made: -

Another danger may crop up speedily. If the employer gives way to union pressure, and for the sake of the union label accepts union conditions in their entirety, those people in the community who object to the union label goods may refuse to buy them. In extreme cases pressure might also be brought to bear upon the unfortunate manufacturer through his trade creditors or his banker, if he accepts union conditions.

Mr Frazer - That is a boycott.

Mr ISAACS - What does it mean, coming as it does from Mr. Walpole, who represents the Central Council of Employers? Is it a threatened boycott, or is it not? Is it not a statement by Mr. Walpole that if we desire to do this the great banking institutions and1 trade creditors will put pressure upon the smaller traders, and prevent them from doing that which they might otherwise do? This is the first and only real threat of a boycott thai: I have known to be made during the whole of these proceedings. I accept this statement, coming,1 as it does, fromMr. Walpole, as emanating from a source which is supposed to be aware of it. but I will say that I "do not believe Mr. Walpole on all occasions thoroughly and properly represents the Employers' Council.

Mr Knox - I will say. on behalf of the Banks, that the statement in question is not accurate.

Mr ISAACS - I am glad to hear it. I fully and frankly accept the assurance of my honorable friend. My acquaintance with the employers, and the courteous, frank, fair, and outspoken way in which they have always met me, leads me to believe that they would not lend themselves to anything of the kind ; but I wish to warn the country against accepting the statements of Mr. Walpole on all occasions. I do not think that on all occasions he properly represents the employers, and in many respects he may do their cause great injury. As this statement has been put before the country by Mr. Walpole, who may be taken by the people to properly represent the Employers' Council, I think that the latter would do well to see that such memoranda are properly scanned before they are sent out. I wish now to deal with the constitutional aspect of the matter. If these clauses, from a moral and political standpoint, ought to be enacted, then we should enact them-, unless, as I take it, we can clearly see that they are beyond the range of our power. Are they clearly beyond the range of our power? I should like to remind honorable members that, under subsection xviii., section 51, of the Constitution, power is given to the Parliament to make laws with respect to copyright, . patents of inventions and designs, and trade marks. It has been contended for a very long time by those who hold that the provisions now before us are unconstitutional, that the power of the Parliament in this respect is restricted to the passing of laws relating to marks which are used by the seller of goods to denote that they are sold by him. I have referred to some American cases which very considerably shake that view. One of the clauses which we passed last night distinctly departs from it.

Mr Watson - And it forms part of English legislation..

Mr ISAACS - Quite so. When honorable members look at the section of the Constitution to which I have referred, they will see that it gives us power to legislate with regard to trade marks. There are two separate words. It is possible to take a broad view ; it is possible to take a restricted one. Even if we take the restricted view, I am not sure that the contention that it isoutside our power to deal with such a matter as this is correct. I should like to call the attention of honorable members to a point which does not seem to have occurred to some of the critics of this power. I refer to the fact that all we propose to say inregard to this matter is that a trader, a man who has goods to sell, is not to put upon those goods a mark for the purposes of trade or sale - which is practically the same thing in that regard - unless it is a true one.

Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - Hear, hear; I am with the Attorney-General up to the hilt.

Mr ISAACS - That has been done. We have not said that the unions are to be able to apply the mark to goods which do not belong to them. We have not given them power to apply a mark to goods ; but we have said that a man in trade, having a right to .sell his goods, may apply to them a particular mark, if it be true. I should think it would take a lot of argument to show that such is not a trade mark. It is a trade mark used for the purposes of trade.

If we take a broader view of the matter-- if we remember that ours is a Constitution for all time - it seems somewhat remarkable to assume that for all time as a Commonwealth we are to be restricted to legislation in respect of just such trade marks as were used and known in commerce when the Constitution Act was passed. I think that the honorable and learned member for Angas wished to limit the power to common law trade marks.

Mr Glynn - No.

Mr ISAACS - I understood the honorable and learned member to ask " Could it be that if a man owned a- trade mark in one of the States of Australia when it was passed, that that would be a trade mark, under the Constitution, of all Australia ? "

Mr Glynn - No. I said that the statutes had also to be taken into account. I know that the honorable and learned member at first misunderstood me, but I corrected him.

Mr Watson - When the Constitution was passed, trade union marks formed the subject of legislation in the United States. They were therefore in existence prior to the passing of the Constitution.

Mr ISAACS - We have had placed before us the opinion of eminent counsel that it is not within our power to legislate in this way. We all know my learned friend, Mr. Cussen, and all respect his opinion. But I do not think that a statement which he makes at the outset of his opinion has received the prominence it deserves. He says -

The 0'iestion whether the Commonwealth Parliament has power to legislate in respect oof what may be shortly called " union labels " is to my mind one of extreme difficulty.

He does not say, "I am perfectly clear."

Mr Higgins - No one could.

Mr ISAACS - That is so. Mr. Cussen says the question is one of extreme difficulty. Senator Sir Jos'iah Symon said that it-was a moot question. When we have twodistinguished lawyers, one saying that it isa question of extreme difficulty, and another, when in a position of responsibility,declaring that it is a moot question, arewe, as a Federal Parliament, at oncegoing to admit for all time that we have no power to pass these provisions? Surely it is right to consider the question on its merits. Surely it is right to deal with it from the stand-point of political justice ; and, if we come to the conclusion that it is proper, to place these provisions on the statute-book, leaving the only tribunal of which the Constitution knows to say whether or not we have the necessary power. We are told, forsooth, that this must mean costly litigation. It has been said in some quarters, and I think we find the statement in this morning's issues of both the Melbourne dailies, that the Employers' Federation object that the proposal will be costly to test in the Courts, though if is one that will affect the welfare of thousands and tens of thousands of the workers of Australia now and to come. That being so, how could we justify the exclusion of these provisions from our legislation, on the ground that it may cost £50 or £100 to test our power in this regard ?

Mr Hutchison - One case will settle the lot.

Mr ISAACS - Of course, one case will settle the lot. Speaking for myself, I think that a very trivial argument.' Cases of much less importance, and questions of far less magnitude, are argued in the Law Courts every day at much greater expense, and as we have a tribunal constituted for the purpose of determining these matters, why should we hold our hand, if we come to the conclusion that a thing is the right thing to do, because an eminent counsel, who admits that the question. is one of extreme difficulty, thinks that certain action is not within the power of the Federal Parliament?

Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - The Prime Minister took another course with regard to the Conciliation and Arbitration Bill.

Mr ISAACS - I took then the course which I am taking' now. When it was proposed to bring the public servants of the States within the scope of that measure, i said that it was doubtful whether we could do so, but that I would not determine the question against the Parliament. I went on to consider the proposal again on its merits, and voted against the inclusion.

Mr G B EDWARDS (SOUTH SYDNEY, NEW SOUTH WALES) - The Prime Minister refused to vote against his convictions on that occasion.

Mr ISAACS - The Prime Minister is able to justify all that he has done.

Mr McCay - ls he?

Mr ISAACS - On the nth August, of last year, Senator Keating, who is a lawyer, when speaking in the Senate, said, as reported at page 4128 of Vol. XXI. of H Hansard -

At that time the amendments were not circulated, but simply read to us; and now, after more careful consideration, I have come to the conclusion that the term " trade mark " in the Constitution is a term to receive an interpretation according to the varying conditions and requirements of the- time .as we progress. If we were bound by the interpretation put on the term by ordinary common law - that is, by the common law of to-day - we should need a new Constitution every few years. I think the marks referred to in the proposed clause come within the term "trade mark" in the Constitution, and that it is perfectly competent to insert those clauses in the Bill.

If we were compelled to confine ourselves to dealing with matters as they existed at the time of the Constitution, we should be very much fettered.

Mr McCay - No one presents that argument.

Mr ISAACS - I am not so sure of that. The Constitution gives us power to deal with telegraphs, but it might be said by some that we have no power to legislate in respect of wireless telegraphy, because it was necessary, in connexion with telegraphy as known under the Constitution, that there should be a wire connecting the sender and receiver of messages.

Mr McCay - Both English and American decisions show that the Constitution must be interpreted according to the circumstances of the day.'

Mr ISAACS - We are in accord on that point. I am supporting the view that it will lie competent for the Court to say that trade marks are marks used in trade, and that, rs time goes on. it will be competent for this Parliament to legislate in respect of trade marks in the larger and broader meaning of the term, bv enacting what shall be registrable and what shall not, or what shall be excluded and what shall be included.

Mr McCay - That is begging the whole question.

Mr Higgins - It is absurd to say that we cannot define a trade mark by extending or limiting the meaning of the term.

Mr ISAACS - Certainly we can, so long as the mark is used for the purposes of trade, and answers a general description. In that view I am supported to a large extent by English legislation. I find, by reference to Sebastian on Trade Marks, that as far back as 1423, in the reign of Henry VI., it' was provided thai no. harness of silver should be offered for sale in the city of London " until touched with the touch of the leopard's head," and also with the workman's mark, under penalty of forfeiture or payment of double value.

Mr McCay - I do not think that that is the law at the present day.

Mr ISAACS - Similar laws were passed in the reigns of Henry VII., Elizabeth, James 1., and George III. Then, by an Act of 41, George 111'., it was provided that a free man of the Cutlers' Company might give his mark by will, and in default of a will, the mark should pass as personalty, subject to the widow's life estate. Therefore, the worker's mark was treated as absolute property, and passed to his representatives, lt also provided that gold or silver plate should not be sold or exported unless marked with the worker's mark. Even at the present day, the Sheffield marks and the goldsmiths' marks, which are purely workers' marks, are similarly protected by legislation ; so that there is nothing new in the idea.

Mr Glynn - The name is not new ; but it possesses a different significance now from what it did then. The worker's mark was protected as the mark of the producer and seller of the goods to which it was applied.

Mr ISAACS - It has been argued by some learned gentlemen that there cannot be a trade mark apart from exclusive property in the article to which it is applied'; but in this connexion I should like honorable members to read a case - Somerville v. Schembri - decided bv the Privy Council in 1887 - 12 Appeal Cases, 453. Lord Watson, who is' a very accurate lawyer, in delivering judgment, made some observations which are well worthy of consideration. They appear on pages 456 and 457 -

In Malta there is no law or. statute establishing the registration of trade marks, and no authority exists from whom an exclusive right to a particular trade mark can be obtained. The rights of the parties to this cause are therefore dependent upon the general principles of the commercial law, some of which are referred to in the judgment of the Court of Commerce. These principles have been very fully illustrated and explained by the House of Lords in the Leather Cloth Coy. Ltd. v. American Leather Cloth Coy. Ltd.; Wotherspoon v. Currie; Johnston and Co. v. Orr, Ewing, and Co.; all of which were cases which arose before the passing of the first British Trades Mark Registration Act in the year 1875. In the first of these cases, the interest which a merchant or manufacturer has in the trade mark which he uses was thus defined by Lord Cranworth : - " The right which a manufacturer has in his trade mark is the exclusive right to use it for the purpose of indicating where, or by whom, or at what manufactory the article to which it is affixed was manufactured." As soon, therefore, as a trade mark has been so employed in the market as to indicate to purchasers that the goods to which it is attached are the manufacture of a particular firm, it becomes to that extent, the exclusive property of the firm ; and no one else has a right to copy it, or even to appropriate any part of it, if by such appropriation unwary purchasers may be induced to believe that they are getting goods which were made by the firm to whom the trade mark belongs.

It seems to me that his Lordship admitted that a trade mark may exist without being the exclusive property of anybody, and that when by any circumstance, as by some of the traders using, it, if it were common to the trade, dropping out, or parting with their interest, or from any other cause, it became publicly known as indicating the good's of a particular person, then that particular person had an exclusive right to it. But the judgment assumes that there may be a trade mark, that is, a mark used for the purposes of trade, even though no exclusive right in it is enjoyed by anybody.

Mr McCay - Is that a necessary assumption from the decision?

Mr ISAACS - No one is more accurate in his language than is Lord Watson, and he says -

As soon, therefore, as a trade mark has been so employed in the market as to indicate to purchasers that the goods to which it is attached are the manufacture of a particular firm, it becomes to that extent the exclusive property of the firm.

Mr McCay - Is that assumption necessary to the judgment, or even to the dictum ?

Mr ISAACS - I think that those words necessarily carry that meaning. I should not be justified in occupying the attention of the Committee at any greater length. I have stated, as fast as I can, the various considerations which I thought necessary to present to honorable members. The provisions which I wish to insert are an honest attempt to accord to the workers of Australia the same recognition of their trade marks as is enjoyed by the capitalists of the Commonwealth, be they large or small. But there is something further - and I press this view as a final consideration upon the attention of honorable members who desire to promote Australian manufactures. As I said to the deputation from the Chamber of Commerce which waited on me, it is a great thing to enlist the manhood and the womanhood of this great Commonwealth in the cause of Australian manufacture. No goods can honestly bear the union trade mark unless produced in Australia. If we desire to promote Australian manufactures, to give work to Australians, and to provide a. larger home market for our producers, we may combine this consideration with the justice of extending equality before the law - including the trade marks law - to those who are rightly termed the workers of the Commonwealth.

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