12th Parliament · 1st Session
The President (Senator the Hon. W. Kingsmill) took the chair at 3 p.m., and read prayers.
page 2675
The following papers were pre sented : -
Conference of Commonwealth and State Ministers, Melbourne, May to June - Proceedings and Decisions.
Canned Fruits Export Control Act - Regulations amended - Statutory Rules 1931, No. 65- No.66.
Papua Act - Ordinance No. 13 of 1930 - Public Service (Deduction from Salaries).
Northern Australia Act -
Central Australia - Slaughtering Ordinance - Regulations amended.
North Australia - Public Service Ordinance - Regulations amended.
Seat of Government Acceptance Act and Seat of Government (Administration) Act - Ordinance No. 10 of 1931 - Pharmacy.
page 2675
Senator O’HALLORAN brought up the reports of the Joint Committee of Public Accounts on the finances of Tasmania and South Australia as affected by federation.
Ordered to be printed.
– I should like to ask Senator O’Halloran, through you, Mr. President, if the committee of which he is a distinguished member has also reported on the finances of Western Australia, and, if so, why the report has not been presented ?
– The committee has not yet reported on the finances of Western Australia.
page 2675
– I rise to bring under notice a matter which I regard as affecting the privileges of honorable senators. I have this day received a communication, addressed to me personally, from a gentleman named William Usher, manufacturer of Bates salve, residing in Birrell-street, Norwood, South Australia. It is enclosed in an envelope of the House of Representatives, and presumably has been addressed within the precincts of this House. To me it seems highly improper that communications from persons not members of the Commonwealth Parliament should be forwarded to honorable senators in parliamentary envelopes, and, presumably, addressed by a typist or some one else within the House itself. I mention the matter so that there may be no repetition of it.
– The matter has already been brought under my notice. Inquiries will be made, and, when they are completed, I shall be in a position to deal with the matter.
page 2675
Government’s Advice to GovernorGeneral : Formal Motion for Adjournment.
– I have to inform honorable senators that I have this day received a letter from Senator Pearce, intimating that it is his intention this afternoon to move, “ That the Senate at its rising adjourn till 10 a.m. to-morrow,” in order to discuss a matter of urgent public importance, namely, “ The advice given to His Excellency the Governor-General by the Government in respect to the address presented to His Excellency by resolution of the Senate.” Is the honorable senator supported?
Four honorable senators having risen in their places,
– The right honorable senator may proceed.
– I take the point of order that the honorable senator is anticipating debate on order of the day No. 2-
That the Address of the Senate to His Excellency the Governor-General, passed on the 28th May last, and the reply of His Excellency thereto, be printed.
The discussion of that motion will give the right honorable senator every opportunity to say all that can possibly be said on the motion of which he has given notice to-day.
– The purpose for which Senator Pearce has given notice of his motion to-day is to discuss the advice given, to His Excellency the GovernorGeneral by the Government in respect to the address presented to His Excellency. The motion for the printingof the address to, and the reply by, His Excellency the Governor-General has to do not with the advice given to His Excellency but with the reply to the petition contained in the address. I, therefore, cannot uphold the point of order.
– I should like to ask if it is within the prerogative of this Parliament to condemn a government for giving certain advice to His Majesty’s representative?
– The motion may not be condemnatory, it may be eulogistic of that advice.
– I am not concerned whether it is eulogistic or otherwise. All I wish to know is whether it is competent for this Parliament to criticize, favorably or otherwise, advice tendered by the Government to His Majesty’s representative?
– In my opinion, it is quite competent for Parliament to do so. I know of no standing order or parliamentary procedure which would prevent it.
– May I ask, sir, if you know of any instance in which the course proposed to be taken has been taken?
– The instances have been innumerable as the honorable senator will recollect if he oasts his memory back.
– They may have beenin this Senate only.
– No, in all parliaments. Senator Pearce may proceed with his motion.
Senator Sir GEORGE PEARCE (Western Australia) [3.9]. - I move -
That the Senate at its rising adjourn til], 10 a.m. to-morrow.
I move this motion in order to discuss the advice given to His Excellency the Governor-General by the Government in respect to the address presented to His Excellency by resolution of the Senate. It is well known that that address related to the action of the Government in continually disregarding the Senate’s disallowance of transport workers’ regulations by presenting again to His Excellency regulations being the same in substance and effect as those which the Senate had already disallowed. I think it advisable to bring before the Senate exactly what the Government has been doing in order to show that the advice which it has tendered to His Excellency the Governor-General disregards altogether the established practice in regard to ‘ regulations, and sets up a new practice. Statutory Rules 1930, No. 158, issued on the 19th December, 1930, read -
STATUTORY RULES.
- No. 158.
Regulationsunder the Transport Workers Act 1928-1929.
I, the person administering the Government of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Transport Workers Act 1928-1929, to come into operation on the Nineteenth day of December, One thousand nine hundred and thirty.
Dated this nineteenth day of December, 1930.
Administering the Government of the Commonwealth of Australia.
By his Excellency’s Command,
M. Forde, for Minister of State for Transport.
Transport Workers(Waterside) Regulations.
These Regulations may be cited as the Transport Workers (Waterside) Regulations,
– (1.) In the employment, engagement or picking-up of transport workers (being waterside workers) for oversea or interstate vessels at the ports in the Commonwealth to which Part III. of the Transport Workers Act 1928-1029 applies, priority shall be given to those of such workers available for employment, engagement or picking-up at those ports, who are members of the Waterside Workers Federation of Australia, an organization which is bound by an existing award of the Commonwealth Court of Conciliation and Arbitration applicable to such employment:
Provided that nothing in this regulation shall operate to prevent the employment, engagement or picking-up of returned soldiers or returned sailors, as defined in section eightyone a of the Commonwealth Conciliation and Arbitration Act 1904-1930. (2.) Any person who employs, engages or picks-up a transport worker (being a waterside worker) in contraventionof the last preceding sub-regulation shall be guilty of an offence.
Penalty: Ten pounds or imprisonment for one month.
This was the first regulation granting preference in employment to members of the “Waterside Workers Federation, and to returned soldiers.
Statutory Rules 1930, No. 159, issued on the 30th December, 1930, read -
page 2677
Regulations under the Transport Workers Act 1928-1929.
I, the person administering the Government of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulation under the Transport Workers Act 1928-1929, to come into operation forthwith.
Dated this thirtieth day of December, 1930.
Administering the Government of the Commonwealth of Australia.
By his Excellency’s Command,
Regulation 2 of the Transport Workers (Waterside) Regulations is amended by adding at the end of the proviso to sub-regulation (1) thereof the words “ who were at any time during the year One thousand nine hundred and thirty the holders of licences under Part III. of the Transport Workers Act 1928-1929, in respect of any ports to which that act applied at any time during that year”.
This amended the previous regulations and limited the application of preference in employment of returned soldiers to those who, during the year 1930, held licences under Part III. of the Transport Workers Act 1928-1929 in respect of ports where the act applied during, that year.
StatutoryRules 1931, No. 10, issued on 21st January, 1931, read -
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Regulations under the Transport Workers Act 1928-1929.
I, the person administering the Government of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulation under the Transport Workers Act 1928-1929, to come into operation forthwith.
Dated this twenty -first day of January, 1931.
Administering the Government of the Commonwealth of Australia.
Amendment of Transport Workers ( Waterside ) Regulations. (Statutory Rules 1930, No. 158, as amended by Statutory Rules 1930, No. 159.)
Regulation 2 of the Transport Workers (Waterside) Regulations is amended by inserting in the proviso to sub-regulation ( 1 ) after the word “during” (first occurring) the words “the first six months of”.
These further limited the application of preference to returned soldiers as set out in Statutory Rules 1930, No. 159, to those who held licences during the first six months of 1930. Statutory Rules, 1930. Nos. 158 and 159, and 1931, No. 10, were disallowed by the Senate on 20th March, 1931.
Statutory Rules 1931, No. 34, issued on 20th March, 1931, read-
page 2677
Regulations under the Transport Workers Act 1928-1929.
I, the Governor-General of the Common wealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Transport Workers Act 1928-1929, to come into operation forthwith.
Dated this twentieth day of March, 1931.
Provided that nothing in this regulation shall operate to prevent the employment, engagement or picking-up of returned soldiers or returned sailors, as defined in section eightyone a of the Commonwealth Conciliation and Arbitration Act 1904-1930, who were, at any time during the first six months of the year 1930, the holders of licences under Part III. of the Transport Workers Act 1928-1929, in respect of any ports to which that Act applied at any time during that year. (2.) Any person who employs, engages or picks up a transport worker (being a waterside worker) in contravention of the last preceding sub-regulation shall be guilty of an offence.
Penalty: Ten pounds or imprisonment for one month.
The title of the regulations was changed from “ Transport Workers (Waterside) Regulations “ to “ Transport Workers (Waterside Workers) Regulations.” The words in the first regulation - Statutory Rules 1930, No. 158 - “for oversea or interstate vessels “ were elaborated to read as italicized in the regulation which I have just read. Otherwise, the wording is the same. The new statutory rule embodied the provisions of the previous regulations now being- considered, including the amendments. This statutory rule was disallowed by the Senate on 26th March, 1931.
Statutory Rules 1931, No. 53, issued on the 15th May, 1931, read -
page 2678
Regulations under the Transport Workers Act 1928-1929.
I, the Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Transport Workers Act 1928-1929, to come into operation forthwith.
Dated this fifteenth day of May, 1931.
Penalty: Ten pounds or imprisonment for one month.
Penalty: Ten pounds or imprisonment for one month.
Penalty:Ten pounds or imprisonment for one month.
The opening phrases of the regulation have been transposed from those of its predecessor (Statutory Rules 1931, No. 34). The words “the organization known “ have been added.
In sub-clause 2, with reference to returned soldiers, the mode of expression has been altered from “Provided that nothing in this regulation shall operate to prevent the employment “ &c. to “ Notwithstanding anything contained in the last preceding sub-regulation, persons who are returned soldiers as defined may be employed “ &c.
Clauses 3 and 4 have been added, in relation to “ The announcement of picking up places on private property” and “ Right of entry to picking up places “ respectively. This Statutory Rule was disallowed by the Senate on the 21st May, 1931.
Statutory Rules 1931, No. 58, issued on the 22nd May, 1931, read-
page 2679
Regulations under the Transport Workers Act 1928-1929.
I, the Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Transport Workers Act 1928-1929, to come into operation forthwith.
Dated this 22nd day of May, 1931.
Penalty: Ten pounds or imprisonment for one month.
Penalty: Ten pounds or imprisonment for one month.
Penalty: Ten pounds or imprisonment for one month.
The phrases in each of the clauses have been transposed from those in the previous regulation Statutory Rules 1931, No. 53, the wording otherwise being the same. This Statutory Rule was disallowed by the Senate on the 28th May, 1931.
Statutory Rules 1931, No. 64, issued on the 8th June, 1931, read -
STATUTORY RULES.
- No. 64.
Regulations under the Transport Workers Act 1928-1929.
I, the Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Transport Workers Act 1928-1929, to come into operation forthwith.
Dated this eighth day of June, 1931.
Isaac A. Isaacs
Governor-General.
By His Excellency’s Command,
Frank Brennan, for Minister of State for Transport.
Waterside Employment Regulations.
These Regulations may be cited as the Waterside Employment Regulations.
– (1.) Transport workers (being waterside workers) who -
are members of the organization known as the Waterside Workers Federation of Australia, an organization bound by an award of the Commonwealth Court of Conciliation and Arbitration applicable to employment for work in or in connexion with the provision of services in the transport of goods which are the subject of trade or commerce by sea with other countries or among the States; and
are available for employment, engagement or picking-up at ports in the Commonwealth to which Part III. of the Transport Workers Act 1928-1929 applies, shall be given priority in employment, engagement or picking-up for such work at those ports. (2.) Any person who contravenes or fails to comply with any provision of the last preceding sub-regulation shall be guilty of an offence.
Penalty: Ten pounds, or imprisonment for one month. (3.) Persons who -
were at any time during the first six months of the year 1930, the holders of licences under Part III. of the Transport Workers Act 1928-1929 in respect of any ports to which that act applied at any time during that year; and
are returned soldiers or returned sailors as defined in section 81a of the Commonwealth Conciliation and Arbitration Act 1904-1930, may, notwithstanding anything contained in the last preceding sub-regulation, be employed, engaged or picked up for work of the nature specified in that sub-regulation.
– (1.) Where a picking-up place is situate on private property at any port to which Part III. of the Transport Workers Act 1928-1929 applies, the picking-up of transport workers (being waterside workers) at that place shall not be effected unless, not less than half an hour before the picking up is to commence, a notice of the picking-up has been posted in a conspicuous position outside the picking-up place by the person effecting the picking up. (2.) At the conclusion of any picking-up in a picking-up place to which the last preceding sub-regulation applies, the person who has effected the picking-up shall announce, in a manner capable of being heard or understood by. all present, the fact that the picking-up has concluded. (3.) Any person who contravenes or fails to comply with any provision of this regulation shall be guilty of an offence.’
Penalty: Ten pounds, or imprisonment for one month.
– (1.) Any person -
to whom priority is required to be given under regulation 2 of these Regulations; or
who is a returned soldier or a returned sailor as specified in subregulation (3.) of that regulation, may, for the purpose of being picked up for work of the nature specified in sub-regulation (1.) of that regulation, enter -
any picking-up place specified in the last preceding regulation after the posting at that place of a notice in accordance with that regulation announcing that a picking-up will be effected; and
remain in that place until the conclusion of the picking-up is announced in accordance with that regulation. (2.) Any person who hinders or prevents the entry, in accordance with this regulation, of any person to whom the last preceding subregulation applies, into any picking-up place specified in the last preceding regulation, and any person who ejects or attempts to eject any person to whom that sub-regulation applies, from that place prior to the conclusion of the picking-up, shall be guilty of an offence.
Penalty: Ten pounds, or imprisonment for one month.
The title of the regulations was changed from “ Transport Workers (Waterside Workers) Regulation “ to “ Waterside Employment Regulations “. The phrases in each of the clauses have been similarly transposed from those in the preceding regulation. This Statutory Rule was disallowed by the Senate on the 11th June, 1931.
Statutory Rules 1931, No. 72, issued on 12th June, 1931, read -
page 2681
Regulations under the Transport Workers Act 1928-1929.
I, the Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Transport Workers Act 1928-1929, to come into operation forthwith.
Dated this twelfth day of June, 1931.
– (1.) No person shall give priority in employment, engagement or picking-up for work in or in connexion with the provision of services in the transport of goods which are the subject of trade or commerce by sea with other countries or among the States, at ports in the Commonwealth to which Part III. of the Transport Workers Act 1928-1929 applies, except to transport workers (being waterside workers ) who -
Penalty: Ten pounds or imprisonment for one month. (2.) Notwithstanding anything contained in the last preceding sub-regulation it shall not be an offence to employ, engage or pick up, in priority to the persons specified in the last preceding sub-regulation, for work of the nature specified in that sub-regulation, persons who -
were at any time during the first six months of the year 1930, the holders of licenses under Part III. of the Transport Workers Act 1928-1929 in respect of any ports to which that Act applied at any time during that year.
Penalty: Ten pounds or imprisonment for one month.
– (1.) Any picking-up place specified in the last preceding regulation may, after the posting at that place of a notice in accordance with that regulation announcing that a pickingup will be effected, be entered by any person -
Penalty: Ten pounds or imprisonment for one month.
The phrases in each of the clauses have been transposed from those in the previous regulations. The mode of expression has also been altered by the insertion of the words “no person”, &c, and “ except to “ &c, the change being that instead of “Priority shall be given to members of the Waterside Workers Federation “, it will read “ No person shall give priority except to members of the Waterside Workers Federation”. Similarly in regard to preference to returned soldiers, instead of “Returned soldiers may he picked up “, &c, it reads : “It shall not be an offence to pick up a returned soldier in priority”, &c. This statutory rule is now in force.
What is the object of the alterations to which I have directed the attention of the Senate ? Are they an admission on the part of the Government that it cannot legally bring in the same regulations after they have been disallowed by the Senate?
The regulations are the same in effect and in substance, but in every case there has been an alteration. I am curious to know why these interesting and ingenious alterations have been made. I now propose to read the Statutory Rules 1931, No. 72, which are as follow: -
page 2682
Regulations under the Transport Workers Act1928-1929.
I, the Governor-General of theCommonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following regulations under the Transport Workers Act 1928-1929 to come into operation forthwith.
I desire to invite special attention as affording the true guide in the present situation. I, therefore, turn to the Transport Workers Act 1928-1929 to find what is the legislative control there provided.
It cannot be too clearly rememberedthat the provisions of that statute, read by the light of the Acts Interpretation Acts, are the law of the Commonwealth, that is, the declared legislative will, as to the relevant power to make transport workers’ regulations, as totheir effect when made, and as to the legislative control with regard to them.
That is part of the advice tendered to His Excellency. In order to enable me to comment on that advice, I desire toread to the Senate the regulations which have been made with the advice of Ministers, in which it is clearly set out that the regulations are made under the regulationmaking power conferred by the Transport Workers Act. I desire to read these regulations in order that I may intelligently refer to the advice which was tendered to His Excellency the Governor-General.
– I think that the right honorable gentleman is not irrelevant in reading these regulations which, so far as I understand them, and judging from the tenor of his remarks, appear to be the same in substance as regulations which have before been made - I understand, on the advice of Ministers - by His Excellency the Governor-General. If the right honorable gentleman has not already done so, I am of the opinion that he would have no difficulty in establishing the necessary connexion between these regulations and previous regulations, which undoubtedly were made by the GovernorGeneral in Council on the advice of his Ministers.
– I take a further point of order, because I apparently did not make my meaning clear in the former . one. If the notice of motion were framed to deal with advice given to the GovernorGeneral generally, on the framing of regulations under the Transport Workers Act, I should not be concerned whether this particular motion would, or would not, be in order. But I respectfully draw your attention, sir, to the specific terms of this motion; they relate to advice given to the Governor-General on an address from the Senate.
– The honorable senator is now traversing the President’s ruling.
– I am aware that a number of honorable senators would like to be in the President’s chair. I am not dissenting from the President’s ruling, but I submit that I am entitled to place my contention before the Chair.
– The honorable senator is arguing the President’s ruling.
– I am doing nothing of the kind. The President has given a ruling on a certain matter. I am now taking a further point of order. I suggest that in giving your ruling, you, sir, misunderstood the point that I raised.
– I assure the honorable gentleman that I have not in the least misunderstood him. I rule that the Leader of the Opposition (Senator Pearce) will be strictly in order in quoting the regulations which he desires to read - regulations which he affirms, and which I believe, are the same in substance as previous regulations which have been disallowed by the Senate, and again presented to His Excellency the GovernorGeneral by his advisers.
– May I, sir, ask you a question?
– Certainly.
-For my own guidance, I desire to ask whether it is competent for an honorable senator, on a motion relating to advice given to the GovernorGeneral on an address, to quote regulations subsequently made.
– This is merely a matter of comparing the new regulations with previous ones.
– Then I submit that the Governor-General, or the Government, might be subjected to criticism in relation to certain advice relating to regu lations gazetted subsequently to an address being presented to the GovernorGeneral.
– On a motion, certainly.
– I shall proceed, with the reading of the regulations -
Dated this twelfth day of June, 1931.
page 2683
page 2683
Minister of State for Transport
Waterside Employment Regulations
– (1.) No person shall give priority in employment, engagememt or picking-up for work in or in connexion with the provision of services in the transport of goods which are the subject of trade or commerce by sea with other countries or among the States, at ports in the Commonwealth to which Part III. of the Transport Workers Act 1928-1929 applies, except to transport workers (being waterside workers ) who -
Penalty. Ten pounds or imprisonment for one month. (2.) Notwithstanding anything contained in the last preceding sub-regulation it shall not be an offence to employ, engage or pick up, in priority to the persons specified in the last preceding sub-regulation, for work of the nature specified in that sub-regulation, persons who -
were at any time during the first six months of the year 1930, the holders of licences under Part III. of the Transport Workers Act 1928-1929 in respect of any ports to which that Act applied at any time during that year.
Penalty: Ten pounds or imprisonment for one month.
– (1.) Any picking-up place specified in the last preceding regulation may, after the posting at that place of a notice in accordance with that regulation announcing that a pickingup will be effected, be entered by any person -
Penalty: Ten pounds or imprisonment for one month.
I submit that the advice tendered by Ministers to His Excellency entirely overlooked the position of the Senate under the Constitution, because we find that His Excellency, in his reply to the address of the Senate, states, dealing with the power of disallowance -
But with regard to the political desirability of certain regulations, there has arisen a serious difference of opinion between one branch of the legislature, namely, the House of Representatives, tacitly and constantly supporting the regulations as framed by the Executive, and the other branch of the legislature, namely, the Senate, expressly and constantly disapproving of these regulations.
If that is the constitutional position neither House can disallow a regulation. The House of Representatives has not expressly condoned or supported the action of the Government in re-enacting these regulations. But while another place has not been invited to pass a resolution on the subject the Senate has, time after time, disallowed regulations similar in substance to those now before the Senate. Although the Acts Interpretation Act provides that either
House may disallow regulations the Government has advised His Excellency the Governor-General that, if the Senate disallows regulations which are not also disallowed by the House of Representatives, the disallowance of the Senate is ofno avail. I submit that that advice puts the Senate in an entirely wrong position, and one not contemplated by the Constitution. It is the inauguration of a practice which will seriously limit the power of this chamber in regard to regulations, and I for one will not remain silent while any government attempts to do that. Under the Constitution the Senate is the guardian of the States and is, in fact, the representative of the States. Because of- the extent to which this regulation-making power is capable of being taken, if the advice which this Government tendered His Excellency the Governor-General cannot be successfully challenged, the Senate clearly must occupy a position subordinate to that of the Houseof Representatives. In one important part of the legislative ‘field the Senate will be absolutely impotent and entirely subordinate to another place. I emphasize that the delegation to the Executive of this regulation-making power expressly provides that either House may disallow regulations made under it. The Government, without any specific authority from the House of Representatives, tendered to His Excellency advice which was a negation of the Senate’s power and was quite contrary to the spirit and intention of the Constitution.For that reason the Senate is quite justified in taking the first convenient opportunity to challenge it. Until this Government adopted this extraordinary course of action it was the invariable parliamentary practice, when either House disallowed a regulation, for the Executive, as the inferior authority exercising a delegated power in the legislative field, to accept the decision and bow to the will of Parliament.For the first time in our history the Government, in its advice to the Governor-General, has assumed an authority superior to that of the legislature in this branch of law-making for, after all, the making of regulations is something more than a mere executive act - it is the exercise of a law-making power. This position was never contemplated by the framers of the Constitution and it is not endorsed by constitutional authorities. I enter my protest against the action of the Government. The majority of honorable senators will, I am sure, agree with me that the advice tendered recently to the Governor-General by the Government is a distinct blow at the prestige and power of the Senate and, if unchallenged, would place this branch of the legislature in a position subordinate, not only to another place, but also to the Executive with regard to its legislative power.
Motion (by Senator Guthrie) proposed -
That the document quoted by Senator Sir George Pearce during his speech be laid upon the table.
– I oppose the motion to lay on the table the document read by the right honorable the Leader -of the Opposition (Senator Pearce) and I hope that the Senate will not agree to this ingenious method of tabling the regulations. It may be considered by the Leader of the Opposition to be an approved means of speeding the Government on, but I submit that it is a rather dangerous practice for the Senate to sanction.
– The motion, is to lay the document on the table.
– I am aware of that. A motion has been moved protesting against the advice tendered by the Government to His Excellency the Governor-General relating to a certain address presented to His Excellency by the Senate, and the motion submitted by Senator Guthrie is to ensure the tabling of certain regulations to-day instead of tomorrow, with a view to their disallowance. I fail to see the connexion between this motion relating to the document read by the Leader of the Opposition (Senator Pearce) and his motion which, as I have stated, deals specifically with certain advice tendered by the Executive to His Excellency. The right honorable gentleman even omitted to insert the date of the resolution because he “might have been called upon to insert the date of the regulations to which he objects. The motion submitted by Senator Guthrie has nothing whatever to do with the address that was presented to the Governor-General. Under our party system either party in this chamber may meet before the Senate reassembles, and decide upon a certain course of action; but I appeal to honorable senators not to allow our constitutional rights, concerning which honorable gentlemen opposite appear to have so much regard, to be flouted to the extent intendedby the motion submitted by Senator Guthrie. Honorable senators on this side know why the Leader of the Opposition submitted his motion. The object is merely to afford an opportunity to some honorable senator to move that the document that has been read ‘be laid on the table. I protest against the adoption of such a procedure, and sincerely hope that if honorable senators wish to discuss any regulation they will insist upon its being tabled in a proper manner.
Motion - That the document quoted by Senator Sir George Pearce during his speech be laid upon the table - put. The Senate divided. (President - Senator the Hon. W. Kings mill.)
AYES: 24
NOES: 6
Majority . . . . 18
AYES
NOES
Question so resolved in the affirmative.
Document laid on the table.
Debate on original motion resumed.
– This practice of moving for the adjournment of the Senate appears to me to be quite wrong, and altogether unnecessary. We should remain here to-day until we have transacted the business that awaits our consideration. It would be purposeless to terminate the sitting at this stage. The proper procedure would be to withdraw the motion that has been moved by the right honorable the Leader of the Opposition, and to proceed with the business of the Senate. The right honorable gentleman has not advanced any reason why the business should be deferred until 10 o’clock to-morrow morning. His action is unintelligible.
– The Minister has airily dismissed the making of this precedent of first-class importance which has been created by certain advice that has been tendered by the Executive to His Excellency the Governor-General. If that advice is sound, the position of the Legislature of this country is unprecedented. No amount of learning can guide us in this matter, consequently we must resort to first principles to determine the correctness or otherwise of that advice. Having regard to the fact referred to by Senator Pearce, that this action of the Government impinges upon the powers of this branch of the Legislature, the advice that has been tendered to His Excellency should be examined very closely and pertinent observations should be made with respect to it. I ask leave to continue my remarks at a later hour.
Leave granted: Debate adjourned.
– I have just been advised that the leaders of parties in another place have agreed to confer regarding legislation, that the Government is bringing down, and that that House has adjourned for a brief period. I therefore suggest, Mr. President, that you leave the chair and resume in an hour’s time.
– To meet the convenience of honorable senators, and to effect the purpose spoken of by the Leader of the
Senate, I shall leave the chair until an hour which will be notified to honorable senators by the ringing of the bells.
Sitting suspended from3.50 to4.40 p.m.
– I have endeavoured to point out that the advice tendered to His Excellency the GovernorGeneral creates a precedent of the first importance. A set of circumstances has arisen which could not arise in any other legislature, but Berriedale Keith in his work on constitutional government shows that it is one that should be governed by constitutional practice rather than by positive law. The Senate, which is a component part of the legislature, has been given the power to disallow regulations. The only parallel is its power to reject a measure passed by the other House. But if the advice tendered by the Government to His Excellency the Governor-General be correct, the Senate’s power in relation to regulations is more limited than that which it has in respect to substantive legislation, which, of course, is an anomaly.Furthermore, His Excellency has been advised that there is no contest between the Legislature and the Executive. It is true, giving to the word “ legislature “ its broadest meaning, there may be no contest between “ both branches of the Legislature and the Executive,” but when we find the power which is allowed to the Senate under the provisions of the Acts’ Interpretation Act, is being challenged by the Executive there is certainly in existence a dispute between this part of the Legislature and the Executive. If the Senate had passed a resolution that no regulation or statutory rule of a certain character would meet with its approval during the present session, would the advisers of His Excellency the Governor-General be entitled to advise him that it was proper to re-enact a regulation in identical terms? Yet that is exactly the position. There may be no actual record in the journals of the Senate of any resolution having been agreed to by the Senate in certain specific terms; but, as pointed out by my leader, what has happened in this chamber is tantamount to the passing of such a resolution. All along, as we have a right to do, we have been expressing, by continuous disallowance, our objection to certain regulations. Surely that is tantamount to telling the Government not to continue issuing such regulations. Surely we are in no weaker position in that respect than if we had agreed to a resolution “ That the Senate disapproves of regulations of this character being introduced during this session”. Undoubtedly, the power of the Senate is being challenged by what the Government is doing. It is idle to say that we may accept regulations in identical terms with others previously disallowed, or that thisis not a contest between both branches of the Legislature and the Executive. It may be that another place, by its silence, has given its tacit approval to these regulations. But that is not the point. A bill requires the approval of both branches of the legislature, but regulations may be disallowed by either House. The action of the Government! is unprecedented; it is contrary to the best constitutional practice, and the advice tendered to His Excellency the Governor-General is little short of a travesty on constitutional government. In the past no Government in this country has ever elected to ignore the expressed will of either branch of the legislature in respect to regulations, and it is practically a violation of the rights of the legislature, at any rate of this component part of the legislature, for the Executive to advise the Governor-General to permit a continuance of the practice it has now set up. The re-issue of these regulations from time to time is a direct challenge to the rights of this chamber. It is a little difficult to express in constitutional terms actually what contest there is beween this branch of this Legislature and the Executive. There is nothing parallel to it under any other constitutional government, but putting the matter broadly, Parliament has never parted with its control over regulation-making except to the extent that it has vested it in the Executive. Beyond that, the Executive cannot and ought not go; “but the control which Parliament has never given up is being constantly ignored by the present Government. Such is the charge laid by my leader, and it is a charge which I support to the full.
– I hope that the motion will not be carried. I call the attention of honorable senators to the purpose for which il has been moved. The attack is against the
Government for the advice it has given to His Excellency the Governor-General in respect to the address presented to His Excellency by resolution of the Senate. We must examine the document itself to ascertain whether that charge is wellfounded, and to see whether the advice given was not the right advice to tender in. the circumstances. In its address, the Senate asked -
That Your Excellency will be pleased to refuse to approve, during the present session of Parliament, of any regulations presented to the Executive Council being the same in substance as regulations which the Senate, in the lawful exercise of its powers as defined by Parliament in the Acts Interpretation Act 1904-1930, has, in this session, already disallowed.
What advice did the Attorney-General on behalf of the Government give to the Governor-General? It is said that even the devil himself cannot try the state of any man’s mind, but we gather from the reply of the Governor-General the advice given to him by the AttorneyGeneral. It is contained in these words -
My consideration of the relevant legislation and judicial decisions has led me to the belief that the advice of my legal adviser, the honorable the Attorney-General, is correct.
– What else could the Governor-General say?
– What else could any lawyer with the experience which the Governor-General possesses, say?
– What else could he say as the King’s representative ?
– As the King’s representative with any knowledge whatever of constitutional law, he could make no other statement than what I am proceeding to read, and the Attorney-General, with any knowledge whatever of the law, could have given him no other advice than he gave. That advice was as follows : -
That unless and until disallowed by either House of the Parliament such a regulation would be valid and have the force of law.
The Senate requested the GovernorGeneral to disallow regulations which he might consider to be in substance similar to regulations that had already been disallowed. The answer of the GovernorGeneral to that contention is contained in the following paragraph penned by a brilliant jurist: -
With respect to legality, therefore, it is obviously my duty to take the only course which would enable the proper tribunal for that purpose, the judiciary, to determine the question should it arise.
The Senate requested the GovernorGeneral to refuse to sign regulation’s which might be in substance the same as regulations which had already been disallowed, and very properly, and in most dignified language, the Governor-General has told us-
– That he would take the advice of his advisers.
– Yes, if the advisers had sufficient knowledge of constitutional law to ‘advise him. He has told us that such a question is properly one for the judiciary.
– The honorable senator is putting into the mouth of the Governor-General words which he did not utter.
– I am putting nothing at all into His Excellency’s mouth. The honorable senator knows only too well that the watchdogs of the Constitution of this country are the justices of the High Court; that the only persons in Australia who have been vested with the power of deciding rights as between the people and the Parliament are the justices of the High Court.
– Some of those rights may not be justiciable.
– I admit that some may not be; but Senator McLachlan, who is a lawyer, knows that the matters referred to His Excellency the GovernorGeneral were justiciable. As a matter of fact, similar regulations were contested before the High Court. The AttorneyGeneral, whom the Governor-General names specifically in his answer to the petition of the Senate, has been charged with giving erroneous advice merely to provide a means of tabling regulations which will subsequently be disallowed. If honorable senators opposite possess any sense of fairness this motion will be withdrawn. Honorable senators opposite are challenging the advice given by the honorable the Attorney-General to His Excellency the Governor-General.
– Hear, hear !
– Does the honorable senator believe that the advice given by the Attorney-General was not sound?
– It may have been all sound.
– If the advice given by the Attorney-General to the GovernorGeneral was sound, does Senator Herbert Hays suggest that this motion, which condemns the Government for the advice it gave to the Governor-General, should be carried? The Governor-General said that the ‘ advice tendered to him by his advisers, in reply to the petition, was that the judiciary is the proper legal authority to decide whether the Parliament has acted intra, vires or ultra vires.
– The GovernorGeneral did not say that.
– If his words mean other than what I have said I do not understand the English language. The Governor-General said -
My consideration of the relevant legislation, and judicial ‘decisions has led me to the belief- “Whatever that means - that the advice of my legal adviser, the honorable the Attorney-General is correct.
– He says that is his opinion.
-What is the real issue? I understand that it is that the advice given by the Attorney-General misled the Governor-General. Prior to his occupancy of his present high office, the Governor-General occupied on the High Court Bench a most dignified position. He has made a name for himself as one of the most eminent jurists Australia has ever produced. “Whether the decision reached was qua Governor-General or qua lawyer does not matter. He said that the advice of the Attorney-General as tendered to him was correct. He did not say he was forced to follow it. He said definitely “my consideration of the relevant legislation and judicial decisions has led me to the belief that the advice of my legal adviser the honorable the Attorney-General is correct “. That cannot be repeated too often. Can any honorable senator opposite arrive at any other conclusion than that reached by the Governor-General, which was that unless and until disallowed by either House of Parliament the regulations would be in force, and would have the force of law. The petition of the Senate asked the Governor-General to refuse to sign regulations until he, sitting, so to speak, as a High Court judge, decided whether the regulations were in substance similar to regulations previously disallowed by the Senate. I cannot imagine anything more chaotic than to place the GovernorGeneral in the position of coming to a decision as to whether every executive or legislative act is or is not in conflict with something already disallowed by the Senate. Senator Sir HalColebatch proposes to move for the introduction of a bill to amend the Rules Publication Act. Has the Governor-General to enter the field of political controversy, and to decide whether that measure is in conflict with something already decided by the Senate?
– That would not be an executive act.
– So far as the Governor-General is concerned it would not matter whether it was a legislative or an executive act. The purpose of this motion is to condemn the Government for the advice tendered to the GovernorGeneral by one of its members.
– For exceeding its rights in issuing regulations which have been disallowed by the Senate.
– I admit that the Senate has the right to disallow such regulations; but this motion condemns the Government for the advice given by the Attorney-General to the GovernorGeneral. I am not concerned with the framing, but with the subject-matter of the motion, which in effect asks the Senate to condemn the Government for the advice given by the Government to the Governor-General. The petition requested the Governor-General to do something which he could not do.
– The honorable senator has exhausted his time.
– Mr. President-
– The Leader of the Senate has already spoken to the motion.
– I have spoken, but not on the subject-matter of the motion.
– I have a distinct recollection of the Leader of the Government reproving the Leader of the Opposition (Senator Pearce) for moving a motion which, if carried, would necessitate the Senate adjourning until 10 a.m. to-morrow.
– I was not then speaking to the motion.
– That is the only motion that could be discussed. Honorable senators know perfectly well that when a motion is moved for adjournment of the Senate to an unusual hour, it is only for the purpose of affording an opportunity to discuss some matter of urgent public importance. In discussing the motion when he did, the Leader of the Government, I am sorry to say, exhausted his right to speak further on the same motion.
– I rose once or twice to speak to points of order, and then to protest against the adjournment of the Senate until 10 a.m. to-morrow, but I did not discuss the subject-matter of the motion.
– I do not know what the Minister had in his mind. On previous occasions he has discussed the subject-matter under similar motions, and I cannot now allow him to speak further on the subject.
Motion - by leave - withdrawn.
Notice of Motion
That Statutory Rule 1931, No. 72, Waterside Employment Regulations, be disallowed; and that the Seriate enter an emphatic protest against the making, during the present session of Parliament, of any further regulations of the same or similar import or intent, on the ground that the making of such further regulations would be derogatory of the equal lawmaking power of the Senate with the House ofRepresentatives providedfor in Section53 of the Constitution, and destructive of the right of the Senate to disallow regulations as provided for by Section 10 of the Acts Interpretation Act.
page 2689
Stabilization of Finance
asked the Minister representing the Prime Minister, upon notice -
If it is a fact that Sir Otto Neimeyer, since leaving Australia, has been invited to reconstitute the Bank of Brazil, as an orthodox central bank on independent lines, and to advise the Brazilian Government on monetary reform and exchange problems, will the Prime Minister consider the advisability of inviting this special banking expert to revisit Australia and make recommendations as to the constitution and establishment of a central reserve bank, and to advise on exchange and other financial problems, as part of the general scheme for stabilization of finance in this country.
– In view of the arrangements which the Commonwealth Government is now formulating in conjunction with the State Governments to deal with the financial situation in Australia, it is not considered necessary to invoke outside assistance as suggested by the honorable senator.
page 2690
SenatorFOLL (through Senator.
Glasgow) asked the Minister representing the Minister for Defence, upon notice -
Has he seen a statement in the press recently that Mr. Mollison, who was attempting to fly to England, stated he crashed at Darwin on account of the aerodrome being too small ?
Is it a fact that Darwin is rapidly becoming an air port of great importance to Australia?
If the press statement referred to is correct, will the Government take immediate action to enlarge the aerodrome in order that planes of all sizes may readily land and take off?
– The answers are -
page 2690
Contracts with Bondholders - Conversion Loan.
asked the Minister representing the Prime Minister, upon notice -
– This question refers to matters which are being made the subject of a statement by the right honorable the Prime Minister in another place. I will see that the honorable senator is supplied with a copy of that statement.
Senator RAE (through Senator O’Halloran) asked the Minister representing the Prime Minister, upon notice -
– I would refer the honorable senator to the reply just given by me in answer to the preceding question.
page 2690
Motion (by Senator Sir Hal Colebatch) agreed to -
That leave be given to introduce a bill for an act to amend the Rules Publication Act 1903-1916, to repeal section 10 of the Acta Interpretation Act 1904-1930, and for other purposes.
page 2690
Notice of motion, by Senator Greene, for a return showing the legislation relating to gold reserves of central banks . withdrawn.
page 2690
Debate resumed from 11th June (vide page 2666), on motion by Senator Barnes -
That the bill be now read a second time.
Senator Sir GEORGE PEARCE (Western Australia) [5.12]. - As Senator Glasgow, who secured the adjournment of the debate on this measure, does not desire to exercise his right to speak, I wish to state that, having read the bill, I am still somewhat in the dark as to its effect. I understand that the Government’s intention is to safeguard to persons who were employed by the North Australia Commission their existing and accruing rights, which have not been safeguarded in other legislation. Provision was made in sections 13 and 14 of the North Australia Act for the retention of the rights of officers of the public, railways, or other services of the Commonwealth, or of the Territory, or of a State, who were appointed as commissioners or as officers under that act. It was intended that at the termination of their appointments, other than for misconduct, such persons should be re-appointed to positions equivalent to those which they held immediately prior to such appointments. That intention was clearly stated by the then Minister for Home and Territories, Mr. Marr, as reported in Hansard of the 19th May, 1926, pages 2142 and 2143-
Provision is made in the hill whereby a member of the Commonwealth, or State, public, or railway service, who may be appointed to the commission will not be asked to resign from the service, but will be seconded . . . The appointment of an officer to this commission will be on “ all fours “ with the appointment of an officer to the Canberra commission. He does not resign from the Public Service. When his work with the commission is completed,, he goes back to the Public Service to the position he left.
It was, however, subsequently discovered that sections 13 and 14 of the ‘act mentioned were faulty in that they did not give effect to the Government’s intention. In the Officers’ Eights Declaration Act of 1928 an attempt was made to rectify that anomaly. In moving the second reading of that measure, on -the 14th of June, 1928, the then Attorney-General stated inter alia -
This ‘is a bill relating to the rights of officers in the Public Service who arc transferred to the service of some Commonwealth’ authority. Many acts of Parliament provide that, when members of the Public Service are transferred to the service of a Commonwealth authority, they shall preserve their existing and accrued rights. The precise meaning of these terms has not yet been denned. In the schedule to the bill there is a list of some ten statutes, all of which provide that the existing and accrued rights of officers shall be preserved. It is desirable that the position should be made clear in this respect.
The honorable gentleman went on to say-
The officers who will be affected by this measure, and who will have their rights “placed upon a secure footing, may be ascertained by reference to the schedule. They are members of the Commonwealth Public Service Board, officers of the Commonwealth Bank, and mem- bers and officers of the Development and Migration Commission, income and land commissioners, members and officers of the North Australia Commission, members of the Council for Scientific and Industrial Research, members and officers of the Federal Capital Commission, and of the Superannuation Fund.
Although the sections of the North Australia Act which I have mentioned were definitely included in the schedule to the Officers’ Rights Declaration Act, it was subsequently found that, through an oversight, the last-mentioned act applied only to officers of the Commonwealth Public Service, and overlooked officers of the other services. A promise was then given that an amendment would be made to amend the Officers’ Rights Declaration Act; but, before that promise could be fulfilled, there was a change of government. Nothing further has been done in the matter. I should like the Minister, when replying, to say whether the bill before us does definitely clear up that position, and also whether it gives effect to the undoubted promises that were made when the other bills mentioned were introduced. Clause 4 certainly seems indefinite. It reads -
After section seventeen of the Northern Territory (Administration) Act 1010-1920, as amended by the Northern Territory (Administration) Act 1931, the following section is inserted: - “ 17a. Any person who was a member or officer of the North Australia Commission constituted under the act repealed by this act and who-
Sections 13 and 14 did not do what they were intended to do. The clause continues -
That seems to conserve the rights of an officer while he is in employment, but it does not seem to have any reference to his accrued rights when his employment is terminated. I am informed that, in answer to a question by Senator McLachlan, the Minister has furnished the names of certain officers who possess rights. In looking through those names I find that of Mr. Hobler, a member of the commission who has rights only in respect of leave and superannuation. I take it that the bill preserves those rights to him. There is also the name of Mr. Moyes, the secretary to the commission, and I assume that his rights also are retained. The list, however, does not include the name of Mr. Easton, who was a member of the commission, and at the time of his appointment was a member of either the Queensland or the Western Australian Public Service.
Senator Sir GEORGE PEARCE There is no doubt about that. Indeed, it is clear from the statement made hy the then Minister for Home and Territories, which I now repeat -
Provision is made in the bill whereby a member of the Commonwealth or State, Public or Railway Services, who may be appointed- to the commission, will not be asked to resign from the Service, but will be seconded. . . When his work with the commission is completed, he goes back to the Public Service to the position he left.
Although that deals only with his right to return to the Public Service, the inference is that Parliament intended to deal with officers taken from a State Public Service in the same manner that officers taken from the Public Service of the Commonwealth would be dealt with. At least, the Minister made no differentiation between them.
Senator Sir GEORGE PEARCE That may be so; but they would have certain rights as to leave on the termination of their services.
Senator Sir GEORGE PEARCE Clause 4 does not seem sufficiently definite. I want to ensure to these officers their rights, not only while they are in employment, but also on the termination of their employment.
Senator Sir GEORGE PEARCE The bill does not seem to meet the point raised by Senator McLachlan when the
North Australia Bill was before Parliament. When the same point was raised by the honorable senator at the conference between the two Houses, the Minister then gave an assurance that the matter would be dealt with in a separate bill. I suggest that consideration of this measure might be postponed until to-morrow, in order to give the Minister an opportunity to ascertain whether the points I have raised have been met.
– I am quite in sympathy with the object sought to be achieved by the Leader of the Opposition. Indeed, the object of the bill is to remedy mistakes in various other measures whereby the rights of certain officers were not sufficiently safeguarded. Only five men are concerned. I understand two of them are going out of the Service; one with certain accrued rights and the other without any such rights. The rights of officers who continue in the Service are fully safeguarded in this measure.
– Is Mr. Easton going out?
– I understand that he had no rights in the State Service; but in order to clear up the matter I shall, before the bill passes the committee stage, make further inquiries. We can then make any necessary amendments to the measure.
Question resolved in the affirmative.
Bill read a second time.
In committee:
Clause 1 agreed to.
Progress reported.
page 2693
Address to and Reply by the . Governor-General.
Order of the day for resumption of the debate from the 11th June (vide page 2666), on motion by Senator Barnes -
That the address of the Senate to His Excellency the Governor-General, passed on the 28thMay last, and the reply of His Excellency thereto, be printed, called on.
Question resolved in the affirmative.
Senate adjourned at 5.28 p.m.
Cite as: Australia, Senate, Debates, 17 June 1931, viewed 22 October 2017, <http://historichansard.net/senate/1931/19310617_senate_12_130/>.