The Prime Minister has received a letter from the Premier of New South Wales, dated 5 August 1904, in the following terms:

Referring to the action of the Federal Patents Authorities in endeavouring to remove the records of the Patents Office of this State to Melbourne, which would leave this State without either originals or copies of such documents, I have the honour to inform you that the view taken here of section 19 (c) of the Federal Patents law is that it is ultra vires, insomuch as it purports to vest property belonging to this State in the Federal authorities without making 'just terms' according to the provisions of section 51 sub- section (xxxi) of the Constitution Act; and further with regard to this section, that certainly as the library, furniture, etc. is not mentioned in the wording of the section, this property will not so pass, even if the section be not ultra vires.

The law officers of this State are further of opinion that the provisions of the Federal Act which vest the exclusive control of Patents in the Federal Administration are ultra vires insomuch as power to legislate on this subject is by the Constitution concurrent and not exclusive.

In view of the foregoing, this Government must decline to permit the removal of its patent records or other property in the Patents Office.

The Prime Minister asks for advice on the points raised in the above letter.

1. I am of opinion that section 19 (c) of the Patents Act 1903 is not ultra vires. It is not necessary to rely on the power to acquire property contained in section 51, sub-section (xxxi) of the Constitution in order to justify the transfer of the records, registers etc. of the State patent offices to the Commonwealth for the purpose of properly administering the Commonwealth Patents Act. But even if the Commonwealth Parliament is limited to the power contained in section 51, sub-section (xxxi) of the Constitution, I am strongly inclined to think that there is no ground for saying that the terms on which the records etc. are vested in the Commonwealth are not 'just terms'. For the Commonwealth takes on itself, under section 19 (a) of the Act, the burden of administering the State Patents Acts, and of collecting for the State the fees which become payable.
2. In my opinion, the library, furniture etc. do not become the property of the Commonwealth under section 19 (c).
3. The view that the provisions of the Patents Act 1903 which vest the exclusive control of patents in the Commonwealth officers are ultra vires seems to be utterly untenable. It arises from a radical misconception of the nature of the concurrent power of legislation which remains in the State Parliaments until the Commonwealth Parliament has legislated.

Of course, whatever may be my view on the matters in dispute, Ministers may see fit to come to terms rather than have litigation. They may be willing to supply Sydney with copies of the specifications etc. lodged, in order to give the Sydney patent agents ready access for searches. But this question is not for me to decide.

[Vol. 4, p. 326]