23rd Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 3 p.m., and read prayers.
– Can the Minister for Shipping and Transport inform the Senate of the railway lines in South Australia that have been converted to uniform gauge, giving the approximate mileage and also the approximate cost to the Commonwealth to the present time? Has the attention of the Minister been directed to the report of the Commonwealth Railways Commissioner wherein it is stated that last year the Commonwealth Railways carried Leigh Creek coal for an amount less than the normal earningrate, resulting in a loss of £767,238? Is that amount heldin suspense, orwillit be;a Commonwealth gift to South Australia? Ifurther ask the Minister: What has been done in relation to unification ofthe gauge between Kalgoorlie and Fremantle? To what (extenthasthe Commonwealth assisted Western Australia in overcomingitscoal difficulties sat Collie?
– I shall answer first the question concerning the difference in the standard rate and the Tate charged by the Commonwealth Railways to the South Australian Electricity Trust. -Senator Cooke has pointed out that the Commonwealth RailwaysCommissioner, in his report, has referred to an amount of approximately £767,000, which is infact the difference between what is described as the Standard Tate and the charge made by agreement with the South Australian “ElectricityTrust. As was explained inthe statementissuedby me concurrently with the report ofthe commissioner, the £767,000 referred to is held in sundry debtors account. It is currently the subject of investigation and as soon as a determination is made,if there is tobe any adjustment an adjustment willbe made.
As totheextent ofthe lines converted to uniform gaugein South Australia,as the honorablesenator is aware, the standard gauge nowextends on the north-south line toMarree., a distance , of 269miles. That has been converted in recent years. In addition to that particular conversion to standard gauge, what was known as the interim standardization work in the southeast of the State has bow been completed. I am sure that the honorable senator will excuse me for not being aware of the cost at fine moment. I shall obtain particulars and let him know. Regarding the position in Western Australia, I am not able at the moment to let the honorable senator have definite information, except to tell him that as recently as Friday last I had informal discussions in Perth with the new Minister for Railways, Mr. Court, and 1 have no doubt that within the near future those informal discussions will be replaced by discussions of a more formal nature.
– I desire to ask the Minister for Shipping and Transport a question supplementary to that just asked by Senator Cooke. Is it not a fact that the rate agreed between the South Australian Government and the Commonwealth Railways for transporting coal from Leigh Creek to Port Augusta makes that line the most profitable line operated by the Commonwealth Railways? Isit true to say that no loss whatever is incurred by the Commonwealth Railways in transporting coal between Leigh Creek and Port Augusta?
– The question asked by thehonorable senator is indeed an interesting one. Thereare two diametrically opposed viewsthereon. The Commonwealth ‘Railways Commissioner advances one view with great force, and thePremier of South Australia, supported by the South Australian Electricity Trust advances another.The fact is that therate charged isfixedby agreement between the Commonwealth Government andthe South AustralianGovernment. The contention of thecommissioner is that,irrespective of the agreement,the amount paid tohimshouldbehisstandardrate. The mattercurrentlyreceiving consideration is, not a disputebetween the Commonwealth andthe State - Allah be praised! - but a dispute between the Commonwealth Railways and the Commonwealth Treasury.
SenatorDITTMER - My (question is addressedtothe Leaderof theGovernment inthe Senate. Hasthe Minister’s attention beendrawnto an invaluable articlethat appeared in the Sydney “ Bulletin “ of 30th September? If not, I should appreciate bringing before his notice an extract from the article, which reads as follows -
The Senate’s debates are far superior to those of the House of Representatives, which have been reduced in the main to dreary ministerial expositions followed by deplorable exhibitions of backbiting and spleen.
As the “ Bulletin “ is one of the few newspapers with some literary merit, and pays some regard to the truth, this statement could have a deleterious effect on the cause of Christian democracy in its life and death struggle with the forces of ruthless atheistic imperialism. In the light of this, would the Minister give due consideration to adopting such measures as would lift the standard and tone of the other place? Would the Minister make endeavours to have adopted, if possible, the following measures: That a number of hours of attendance in the Senate by members of the other place be made compulsory; that those teenagers in the schools who have won prizes for good character and behaviour be asked to try to teach the members of the other place; and finally, that a number of attractive models be brought to Canberra to show the members of the other place what correct deportment is?
– I read the article in the “ Bulletin “ with great interest. Those parts of it which praised the work of the Senate I read with great approbation. I put down the “ Bulletin “ and said to myself, “ A Daniel come to judgment!” As to the honorable senator’s suggestions, I would have a little doubt about pursuing the matter through to that logical end. I think that we should be pleased that the “ Bulletin “ has evaluated the work of the Senate much more favorably than have some other newspapers, and that our outstanding resolve now should be to apply ourselves to the task of meriting the vote of confidence that the “ Bulletin “ has expressed in us. That is a matter in which, I think, we all have a common interest. I believe that we have made a little progress in recent months by debating matters of public interest which are not related to specific legislation before the Senate. I think a little bit of public attention has been directed to those efforts on the part of the Senate to give a lead to public thinking. I should like to see us do a little more to give a lead generally for I believe this is in consonance with the procedure of Upper Houses in other parliaments throughout the world. It also makes a contribution towards strengthening the bi-cameral system of government in which we, as senators, believe. But to carry it through in the way suggested by Senator Dittmer might be, I think, a bit provocative. I prefer to do good by stealth for a while.
– Has the Minister for the Navy seen the publicity given to a plan for peace originated by a young American naval officer, Frank Manson, by the use of a great mercy fleet to be drawn from navy ships now standing idle in United States ports? His suggestion is that these ships should be fitted out as hospital and food ships with facilities to assist sick and injured victims of flood or earthquake disasters, along with food supplies and a supply of technicians to help underprivileged people to improve their lot. Will the Minister consult with the Prime Minister with a view to promoting Australia’s co-operation in this very inspiring scheme which would not only further the cause of peace but would also help to combat the progress of Communism, especially in Pacific countries?
– Before she entered the chamber, Senator Robertson showed me the article in question. It appeared in the “ Saturday Evening Post “. I had already seen it, and in reply I point out that it has always been one of the tasks of the Royal Navy, the Royal Australian Navy and the United States Navy to bring quick help to the people of any islands or coasts afflicted in any way by typhoons, tidal waves or other natural disasters. Indeed, at the moment, two Australian destroyers attached to the Far East Strategic Reserve are charged with the duty of caring for the victims of any such natural disaster in the area in which they are operating. Honorable senators will also have seen reports of the way in which helicopters have been rescuing flood victims from rooftops in Japan. This suggestion is in fact merely a suggested extension of the work of mercy, rescue and health which is and always has been part of the work of ships attached to the Royal Navy, the Royal Australian Navy and the United States Navy.
– I direct a question to the Minister representing the Minister for Trade. It follows upon a question which was answered in the Senate last week relating to the possibility of a bid for increased freights for overseas exports in the current export season, and has particular reference to the fruit trade. The Minister was good enough to remind us in answer to that question that the Australian Overseas Transport Association intended to endeavour to match the Conference Line in the negotiations for freight rates. He reminded us that the Government was not represented on that body. I ask him whether he will supply the Senate with information as to the actual constitution of the Australian Overseas Transport Association and examine it carefully to assure honorable Senators and, through them, the producer elements they represent, that the members of the association are in every way independent of shipping interests.
– My recollection is that the membership of the two bodies which are conducting these negotiations has been made public. I have also a recollection that the names of the representatives of the overseas shipping concerns have been published in the newspapers, and I have an idea that the names of those who are representing the exporting interests, and the primary producers in particular, were also published, although I do not remember who they are. These negotiations follow, I think, a familiar pattern. What happens is that an agreement to cover a period of years emerges, and we have reached the point at which one such period has terminated. What the honorable senator asks me to do is to make inquiries and give some assurance that those who represent Australian exporters are truly independent. I have no reason to doubt that they are. I do not think that it is practicable to inquire into what you might almost term the bona fides of the negotiating parties. What I will undertake to do - and I hope that this will meet the circumstances - is to give to-morrow a list of those who are conducting the negotiations - always assuming that what I said earlier is correct, and that the information is public information.
– My question is directed to the Minister for the Navy and also, I take it, to the Minister representing the Minister for Defence. In view of the uncertainty in the minds of many young men of national service age because of press reports that the Government contemplates changes in - or even the abolition of - such training, will the Minister say whether there is any justification for the reports?
– In answering that question as Minister for the Navy, I would point out that there has not been any question of national service training in the Navy for very many years, as the Navy has simply not called up people for such service.
– Perhaps my question should be addressed to the Minister representing the Minister for Defence.
– Apparently Senator McManus shoots with both barrels. I think that I had better give the reply that the matter is one of policy, and therefore not properly the subject of question and answer in the Senate. However, I have no information which suggests that there is any substance in the question and therefore, on reflection, as Senator McManus fired two barrels, I shall do the same and say, lest what I said earlier should create a wrong impression, that I shall ask the honorable senator to put the question on notice. A reply can then be given and the matter put beyond doubt.
– Has the Minister for Shipping and Transport anything to. report on the action that his department is taking towards the establishment of a uniform traffic code for Australia?
– The honorable senator asked me a somewhat similar question some weeks ago. I think that I told him then that certain action was in train. The Australian Road Traffic Code Committee, a sub-committee of the Australian Transport Advisory Council, recently appointed its own sub-committee - composed of representatives from each State - to consider the matter of a uniform traffic code. This committee met as recently as last month, and I have received from it a report to the effect that quite considerable and encouraging progress has been made. Each State is to be asked to report, within two months, its reaction to the proposals embodied in the current Victorian traffic code. When that has been done, the Department of Shipping and Transport will co-ordinate the information and hand it back to the committee for further consideration. I think the honorable senator will appreciate that each State has sovereign rights in the matter and the Commonwealth in this instance can only act, as it were, as the honest broker and bring its best efforts to bear to see that progress is continued towards achieving ultimately a uniform traffic code throughout Australia.
asked the Minister representing the Minister for the Interior, upon notice -
Minister for the Interior has furnished the following replies: - 1’. r am unable to undertake the’ examination the honorable senator requests. The subject matter of his’ question concerns policy of State governments as well as the Commonwealth, Government 2.. It is at fact that certain. Commonwealth instrumentalities pay to the local’ councils amounts equivalent to the rates which would be assessed on> the properties occupied’ by them if rateable.
asked the Minister for Shipping and Transport, upon notice -
– The reply to the questions asked by the honorable senator contains particulars of payments to 57 stevedoring companies. As it would take up a great deal of the Senate’s time if I were to read the reply in full, I shall, with the concurrence of honorable senators, have the particulars incorporated in “ Hansard “. They are as follows: -
asked the Minister representing the Postmaster-General, upon notice -
Postmaster-General has supplied the following answers: -
asked the Minister representing the Minister for Labour and National Service, upon notice -
– The Minister for Labour and National Service has supplied the following answers: - 1 and 2. The Waterside Workers Federation has asked that the Stevedoring Industry Act be amended to make continued registration as a waterside worker under that act dependent on continued membership of the union.
asked the Minister for Shipping and Transport, upon notice -
– The following answers are now supplied: -
Commission is not aware of any Chinese crews being employed on Australian articles, nor of the wages which would be paid to a Chinese crew of a River class ship on other articles.
asked the Minister representing the Minister for Territories, upon notice -
Minister for Territories has now furnished the following replies: -
asked the Minister representing the Minister for Territories, upon notice -
Has the abolition, as from 1st September, 1959, of import licensing in the Territory of Papua and New Guinea eliminated all protection and preference for Australian imports into the Territory?
Minister for Territories has now furnished the following reply: -
The Customs Tariff of Papua and New Guinea contains no preferences for the goods of Australia or any other country.
Licensing of imports other than from Australia has operated over the last eight years with varying degrees of severity in order to assist the Commonwealth’s varying needs to conserve foreign currency. Import licensing was never intended or applied as a protective or preferential measure.
The licensing system imposed virtually no restrictions on essential goods which had to be obtained from foreign sources, but relatively severe restrictions were placed on goods of a luxury or semi-luxury nature. The abolition of import licensing has put Australian and foreign suppliers on the same footing.
asked the Minister for Civil Aviation, upon notice - 1. (a) Fs it under consideration that the airport at Coffs Harbour should be handed over by the Department of Civil Aviation to the Coffs Harbour Shire Council? (b) Is it under consideration that any of the building equipment at the airport should be demolished or removed? (c) Is ii under consideration that no further development of the airport be undertaken by the Department of Civil Aviation?
– The following answers are now supplied: - 1. (a) It is intended to offer the Coffs Harbour aerodrome to the appropriate local authority in accordance with the policy now operating and known as the aerodrome local ownership plan. The offer will be made on the same lines as :i number of similar offers of aerodromes have been made to, and accepted by, local authorities throughout Australia, (b) During the war a number of buildings were erected at the Coffs Harbour aerodrome closer to the runway than is normally done in civil aviation practice to-day. They do not constitute any danger to operators but do not conform with modern practices. Departmental communications staff and equipment, now in some of these wartime buildings, will shortly be moved to accommodation available in the terminal building and this will enable the original buildings to be removed or demolished, (c) No major development of the airport is considered to be necessary in the foreseeable future. The runways are of sufficient length and the terminal buildings and other facilities are adequate to handle the types*’ of aircraft and traffic expected at Coffs Harbour^
asked the Minister representing the Minister for Primary Industry, upon notice -
Is it a fact that a further consignment of 28,000 fat lambs will be shipped from Australia to the United States of America during October this year?
– The Minister for Primary Industry has supplied the following answer: -
Approval has been given for a further shipment by S.S. “Delfino” of up to 26,000 lambs to California of breeds other than merino. An import permit has been issued by the United States authorities. I am not aware what stage the purchase of the lambs may have reached or when the ship is likely to leave.
– On 16th September, I directed a question to the Minister for National Development. I understand that he now has a more detailed reply. The question was as follows: -
I direct a question to the Minister representing the Minister for External Affairs, who is in charge of the Commonwealth Scientific and Industrial Research Organization. In explanation, I point out that during a recent lecture to the Institute of Public Supplies Officers, Mr. J. C. Dickinson, an officer of the International Wool Secretariat, said that statements being circulated regarding the unsuitability of woollen blankets for use in hospitals because of the excessive amount of wool fluff that resulted from their use, were not correct. Can the Minister say whether the C.S.I.R.O. has conducted research in this matter, and, if so, whether the results of that research can be made available to the Senate?
– The answer I have obtained from the Commonwealth Scientific and Industrial Research Organization is as follows: -
Because of suggestions that fluff from wool blankets has been a significant source of crossinfection in hospitals the Division of Protein
Chemistry of the C.S.I.R.O. has undertaken Tesearch into the composition of fluff collected in the wards of several hospitals in which wool blankets are used. The C.S.I.R.O. tests have shown fibres from blankets, or from any other source, constitute only a very minor fraction of the air-borne fluff. From the point of view of the welfare of the hospital patient the important consideration is the nature of the airborne fluff at bed level. A typical sample of such fluff collected in the tests was found to contain 96 per cent, of cotton and other forms of cellulose and only 3 per cent, of wool. Up till the present time no comparative tests have been carried out in hospital wards where blankets made from textile fibres other than wool are used; however, such tests are to be commenced in the near future.
Tests conducted by the Royal Melbourne Hospital in conjunction with C.S.I.R.O. have shown that, if the proper procedure is followed, shrink resistant allwool blankets can be sterilized by boiling without deterioration. Blankets that have been subjected to more than 200 cycles of washing in the hospital laundry, involving boiling followed by tumble drying, still remain serviceable. The C.S.I.R.O. research has provided evidence that wool blankets can be used and laundered in hospitals very satisfactorily, avoiding the difficulties of both shrinkage and bacterial contamination. It has been shown that their use does not give rise to the formation of excessive amounts of fluff.
– On 30th September, Senator Laught asked me to indicate the amount of shipping under construction at Whyalla in South Australia and 1 told him at the time that although I was aware of the larger units being built at that yard I was not certain that there may not have been some smaller vessels also under construction. I have since ascertained that there are no small ships being built at Whayalla, the smallest under construction being of 14,000 tons deadweight.
I have arranged for the distribution to honorable senators and members of the House of Representatives of the 12th edition of “Australian Shipping and Shipbuilding Statistics” produced by my department, and these should be in the hands of honorable senators this week. If when Senator Laught receives his copy he turns to page 49, he will see that as at 30th June there were seven vessels totalling 131,050 tons deadweight under construction or on order at Whyalla. Since that date, the “Iron Flinders” of 19,000 tons has been completed and commissioned so that there are now six vessels totalling 112,050 dead weight tons under construction or on order at Whyalla. One of these ships is being built for the Broken Hill Proprietary Company Limited, two for the Australian National Line, one for Ampol Petroleum and two for Bulkships Limited. On all of these vessels the Commonwealth is paying the normal shipbuilding subsidy.
Assent to the following bills reported: -
Social Services Bill 1959.
Repatriation Bill 1959.
Seamen’s War Pensions and Allowances Bill 1959.
– by leave -I have prepared this statement so that it is factual and cannot be challenged. Too long have I remained silent while the daily press have carried on a barrage of propaganda against me, most of which has been a distortion of the facts and misstatements in which I have been accused of using privileges, most of which I was entitled to use, but did not. But many members in this Senate and members in another place have used them. I am taking all the kicks for only using part of what many others are using in full. But while the attack is concentrated on me, many of my colleagues in both Houses, and in both parties, Government and Opposition, are having a free and open run on doing many things that I have been accused of doing, but up to date have not done. Later in this statement I will name some of the matters I make reference to. But let me first make my own position clear in regard to my office in Launceston, which I still have and always intended to retain, supplied by the Government, and my own private office on the Gold Coast, supplied and equipped with everything by myself except the typewriter, which the department claimed needed servicing after only having it three weeks. I told the gentleman concerned that if that was the case he had better take it back to the department to save further expense.
I was confronted with three problems - my wife’s health, my own health and my responsibility in this Senate to my State and party that I have the honour of representing for over 21 years. I put them in that category and so that there can be no misunderstanding by my colleagues on both sides of the House, or the press, I do not intend to change them from that order,, either now or in the future. At the moment, might I crave the indulgence of the Senate to deal with each item separately? First, my wife has had bad health over many years, but in latter years it has been more pronounced. Recently, she has been right down in health in Launceston, Tasmania, for many months, and when her doctors - here I emphasize the word “ doctors “, not doctor - tried and failed and told me there was nothing further they could do, I knew then they had left her on my hands to die. So I tried other methods - a change of climate, a change of surroundings and a change of doctors. Again I emphasize the word “ doctors “ because the first doctor I took her to, unlike my Launceston doctors, when he saw instantly he could not cure “her made all arrangements for me with a Brisbane specialist who is still treating her and was achieving wonderful success up until last week when she suffered a severe setback when she was persecuted by a pressman and a photographer who, to use their own statement to her, were sent up from Sydney by the Sydney “Daily Mirror “ to “ sit on me and follow me on every movement for a week”.
They came back and apologized for their conduct to my wife and said they would not publish her photograph and that they would leave her out of the story. My wife asked them if they would ring my doctor to come to me as I was out .to it, suffering a collapse and a recurrence of paralysis in my legs and arms. Few people know that I suffered a stroke in March, 1956, and was practically totally paralysed for many weeks, and partly paralysed for many years, and that I am still severely affected by it physically. That is why I put my own health in the second priority. I can represent my State and party much better by being on my feet in this Senate than by lying on a bed in Tasmania, crippled with paralysis and rheumatism, as our late colleague, the late Senator Grant, had to do for three years when he was a Liberal senator representing Tasmania.
The third duty is to my party and my State in this Senate. I intend to fulfil my obligation to both equally as well as I have done in the past, providing my health will allow me; but whatever happens I will always do my best in that direction. The electors of Tasmania have shown over the past 21 years that they are satisfied with my performance as, at no time, has my re-election ever been in doubt on election day. In spite of the fabricated statements by certain newspapers, here are the facts: At no time did I ever say I would, nor did I ever intend to, desert Tasmania and live permanently on the Gold Coast while I occupy a seat in this Senate. I still have and intend to keep a fully furnished home in Tasmania, where I will live, as I always intended to do, for a good part of me summer when Parliament is not sitting. I shall also use it on other occasions when in Tasmania. I also intend to keep my car there for use in my electorate. In the cold winter, I admit that, because of my wife’s health and mine, I will spend most of the time at my flat on the Gold Coast when Parliament is not sitting.
The facts in reference to my office in Launceston are that I did not shift my secretary or any office equipment from Launceston to the Gold Coast. The press had stated that I did. I did retain my letter-box as that is the only postal address I have had in Tasmania for 21 years, and I have no desire to change it. I have not given up an electoral office, as the press call it, in Tasmania. I made it perfectly clear to officers of the Department of the Interior in Tasmania, in the letter I wrote to them, that when they gave me the key to another room with a telephone, furniture, &c, in it, I would give them the keys of the rooms I occupy. I have .a copy of the letter here for any one to peruse. I have not as yet received a key to any other room in Launceston, so I still hold the keys to the rooms I have and still occupy in Launceston. That gives the lie direct to the press or any one else who says I have no office in Tasmania. I still intend to occupy it when in Tasmania for such purposes as I need it. As to where my secretary can best serve me, only I would know.
I also have an office on the Gold Coast. That is my own private office which I use for my political work when there. As I have previously stated, the only article in it that belongs to the Government is the typewriter. It is not true, as stated by the press, that I asked the Minister for am office there and was refused. I offered to find my own office and furniture. I made a request to the Minister for a typewriter and the installation of a telephone. He did not hesitate in granting the request, but up to date 1 have not heard anything further about the telephone. So it was a brutal lie when the press stated that the Government had taken over my private telephone and that all my private and business calls were paid for by the taxpayer. So much for the free press of lies.
I come now to the hue and cry that I have left my electorate permanently to live elsewhere and that I have retained only a letterbox in my electorate. I have explained the position fully, and given the lie direct to that charge. But here again I am getting the kicks for something I am not doing and do not intend to do while other members both State and federal have been doing it ever since federation and are still doing it. In Tasmania, the Premier, Mr. Reece, for many years, both before and since he became Premier, has always lived in Hobart while the electorate he represents is Braddon on the other end of the island. The Leader of the Government in the Legislative Council in Tasmania also lives in Hobart while the electorate he represents is Gordon on the far west coast. But no member has ever represented his electorate better than these two gentlemen in spite of the fact that it takes them equally as long to travel from Hobart, where their homes are, to their electorates as it would take my leader to go from Sydney to Hobart or myself to go from the Gold Coast to Launceston, or any other Tasmanian senator to go from Queensland to Tasmania.
The question of federal members having their permanent homes out of the electorate or State they represent is not new and is not uncommon. It has been practised ever since federation. I emphasize again the fact that I still have a permanent home in Tasmania and intend to keep it there. So for the benefit of the Senate 1 shall just quote a few who had or have no permanent home in their electorates. From 1901 to 1915, the late King O’Malley, Labour representative of Darwin, now Braddon, in Tasmania, lived in Melbourne all the time. Neither the press nor the electors ever complained. He was followed by the late W. G. Spence, Liberal member for Braddon, who lived in Melbourne all the time, and there were no complaints. Again quoting Tasmania, for whom the press is so concerned, my leader, previously confronted with the similar problem of sickness in his family to which I have been subjected, made his home in Sydney many years ago. But no member from Tasmania in either of the parties has achieved better results for Tasmania in Canberra and the Parliament during that time than has Senator McKenna.
A few years ago in Tasmania, a motion was put on the Australian Labour Party agenda to the effect that only nominations for election be considered from members living in the electorate or State for which they wanted endorsement, but this was gracefully withdrawn without single opposition. In spite of the press propaganda, 1 have not received one single complaint from Tasmania and, I venture to say. neither has my leader in connexion with same. Now let us look further north, in Sydney. My colleague, Mr. Joe Clark, has his office and secretary and home in Sydney, and has represented Broken Hill continuously for 25 years. Now if the press really want to blitz any one, let them check up on Liberal and Country Party members, including some of the present Ministers. They would be amazed at the number they would find living out of the State in which their electorate is situated - the same as many of their predecessors.
If I am committing a crime when, because of ill health, I spend part of my time out of my electorate, why the blitz on mc only, when nearly half the members of the Federal Parliament are probably doing the same thing? 1 leave it at that to show the Senate the kind of democracy the Australian press believes in.
Now I come to the blitz on me by the press for being absent last Wednesday. The reason I left was to get home to my wife because I knew that her health had deteriorated considerably owing to continued false statements being made by the press about me. The matter before the Senate was a debate on a statement made by Mr. Casey some weeks ago that is completely out of date now because foreign affairs change so fast that often, when Mr. Casey arrives in Australia, he has to catch the next plane out again for Europe to acquaint himself of the changed situation since he left. For the benefit of the press, a vote is never taken on such a motion. It was put on to help some senators get their old pet theories on Communists, or anything else, off their chests.
Again for the benefit of the press, which said I was absent without leave, 1 was no: the only one by any means who was absent on that occasion. What leave are they talking about? My leader has no power to grant any senator leave. 1 would not be so stupid as to embarrass my leader bv asking such a stupid question, knowing full well that he has no power whatever tt> grant it to any senator. The Senate itself is the only body that can grant leave to a senator. Then it has to be moved as a motion and carried by the Senate. Only once in 21 years have I ever requested it, and on that occasion it was granted the day before the time expired to forfeit my seat. I was then hopelessly paralysed in hospital, and I know it was thought by all concerned, in and out of the hospital, that leave would not be necessary as 1 would be well and truly in a grave in a cemetery before the two months expired. But once again I thank God that He brought me back and enabled me to fight for justice as I am doing here to-day.
I will make two very brief references to the Gold Coast “ Advertiser “. The first is to the picture of four Government senators from other States on the Gold Coast the previous week-end. For the benefit of the press, they would probably all travel up and back at the taxpayer’s, expense - the same as I do - but they would also, probably, collect £4 a day expenses if they so wished. 1 did not, but they would be justly entitled to it if they wanted it, yet they are exonerated by the press.
The next cutting is in regard to Sir Arthur Fadden and Sir Neil O’sullivan being made chairman and vice-chairman of L. J. Hooker, Queensland branch - the biggest real estate agency in Australia. It has just bought £500,000 worth of property in Melbourne and another £500,000 worth in Brisbane. There is no mention of Sir Neil, but plenty when they thought that I had applied for an estate agent’s licence, which I had not. The only regret that I have in regard to Sir Arthur and Sir Neil is that my interests are not just as big as theirs and that theirs are not twice as big.
Now one word to the editor of the Sydney “Daily Mirror”, “Truth” or any other paper that might be concerned in the same matter. I have nothing to hide in any of my political or private life. I might add here, Mr. President, that if there is anybody in Australia who can prove that I have not been upright and honest in all my dealings, and in politics, I will resign from this Senate to-morrow. I know that there are quite a number of other senators who could make the same statement. I hope that all honorable senators are in the same position as I am, and can make that statement and challenge. I have nothing to hide in my political life, and if they care to write me a private letter as to why they were prepared to spend up to £150 to send two of their staff from Sydney to the Gold Coast to persecute my sick wife, and endeavour to persecute me when I am physically ill, then I trust that I will treat it as a private letter and give the correct answer if I should know it.
The Brisbane “Truth “, and from what I have been told, the Sydney “ Daily Mirror “ also, printed a fabricated story about my wife and myself at the week-end in which they actually branded me as a malingerer and a liar. This sort of writing is not only for the purpose of blackmailing me in the eyes of the public, but our parliamentary institution as well. And if, as the press has indicated, most of the members in this House and in another place are hostile towards me over what I am doing, then it is my bad luck because I will be left to fight a lone battle on the privileges that all members enjoy - many of them privileges that I am not using and my colleagues are at the present moment.
I wish to thank my doctors who came to me last Friday - who prescribed the medicine that has held me together long enough to make this statement. I wish also to thank the Brisbane specialist, Dr. Youngman, who is attending my wife in a private hospital in Brisbane as the result of the actions of two pressmen who tried to molest us last Friday. I pleaded with them to leave, but pleas have no effect on potential murderers. That is the only way I can describe them, after seeing and hearing them in action. I sincerely hope that noother member and his wife will be subjected to such treatment. These two underworld thugs whom the press employed to persecute my wife and myself, after preventing mc from getting to the post office to carry out my parliamentary duties, also used a variety of insults to us both and boasted in the hotel bar at Palm Beach how they were employed by the press to persecute us for a week. The result of the work of these two thugs would certainly have been the death of my wife if I had not had a doctor who knew the counter to such sickness. Therefore I must class the underworld thugs whom the press employed on such work and the editor who employed them and wrote such slanderous, blackmailing, lying statements as “Truth” newspaper has at the last two week-ends, as potential murderers. If you, Mr. President, and Mr. Speaker, are not prepared to take action to pull the press into line with democracy, and the Government takes no action, then we must recognize this as the thin edge of the wedge to end our parliamentary institutions and the form of government as we have known it in the past.
I make no secret of the fact that, failing protection from this Parliament for my wife and myself, I will have to take the law into my own hands if there is any repetition of what has been happening, by whatever means I can obtain, and if I am forced to make such a drastic move I can assure you all I will not be the only one that will get hurt, and the slur left on this Parliament would be no credit to it.
– I move-
That the Senate forthwith resolve itself into Committee of the Whole for the purpose of considering the Fifteenth Report of the Stand ing Committee on Regulations and Ordinances, tabled in the Senate on 22nd September, 1959.
– Is the motion seconded?
– I second the motion.
Question resolved in the affirmative.
Motion (by Senator Spooner) agreed to -
That the report be considered in parts as follows: -
Functions of the committee - paragraphs 2 to 13.
Customs (Prohibited Exports) Regulations - paragraphs 14 to 17.
Ordinances of the Territories - paragraphs 18 to 22.
– Mr. Chairman, I move -
That the committee takes note of paragraphs 2 to 13.
I would like at the outset to thank the Government for affording honorable senators an opportunity of considering the Fifteenth Report from the Standing Committee on Regulations and Ordinances this afternoon. I should like, also, to commend the Leader of the Government in the Senate (Senator Spooner) for the way in which the report is to be considered, because I think that the vehicle of consideration - that is, in committee - is the proper way for consideration of such an important report.
May I, Sir, say a word or two about the committee, because the paragraphs before the Chair come under the heading “ Functions of the Committee “. The committee consists of seven senators - four from the Government side, and three from the Opposition side. The Acting Usher of the Black Rod is the clerk of the committee. The committee has a legal adviser, a gentleman of the South Australian bar. It may interest honorable senators to know that, over the years, the committee has had distinguished legal advisers. One whose name I call to mind is now the Chief Judge of the Commonwealth Industrial Court. Formerly, as Senator Spicer, he was AttorneyGeneral in this Parliament.
I think I should explain something of the history of this committee. As you appreciate, Sir, the committee is based on Senate Standing Order No. 36A, and it is called the Standing Committee on Regulations and Ordinances. It is appointed at the commencement of each session. In 1929, the late Senator Elliott moved in the Senate for the appointment of a select committee to report and make recommendations upon the advisability or otherwise of establishing standing committees of the
Senate upon such subjects as statutory rules and ordinances, international relations, finance, and private members’ bills. At this stage, Sir, I crave leave to invite the attention of honorable senators to some additional wording that I think they should consider in relation to paragraph 3 of the report now before us. This additional wording which was embodied in Senator Elliott’s motion was - with a view to increasing the participation of individual Senators in the work of the Senate.
That was the final form in which the motion by Senator Elliott, which preceded the formation of this committee, came before the Senate. As a consequential amendment to the report which we are now considering, I refer to paragraph 13 thereof. The last line of this paragraph should be eliminated and the words “increasing the participation of individual Senators in the work of the Senate “ should be added.I interpose those remarks so that the record of the report now before us will be adequate for this debate.
Reverting to the setting up of this committee, I point out that it was appointed as a result of the select committee’s report. Recommendation (d) contained in the select committee’s report, which is referred to at page 2 of the report now before us, gives in effect the charter which the select committee desired the Regulations and Ordinances Committee to have. Recommendation (d) reads -
That such Standing Committee shall be charged with the responsibility of seeing that the clause of each bill conferring; a regulation-making power does not confer a legislative power of a character which ought to be exercised by Parliament itself; and that it shall also scrutinize regulations to ascertain -
The committee was established, as I have explained. Standing Order No. 36a relates to the appointment of members of it each session. I shall not go into the details of the manner in which the members of the committee are appointed, because that is not relevant to the debate this afternoon, particularly as one is conscious of the fact that one’s remarks must be confined to fifteen minutes.
Over the years the committee has made fifteen reports, which have received great commendation by the Senate from time to time. The standing order to which I have referred is, of course, of necessity short, and does not lay down the charter of the committee, which is in effect derived from the report of the select committee that inquired into the desirability of establishing the Regulations and Ordinances Committee. From time to time this committee has operated under that charter. I think it is advisable to take time off to explain this to the Senate because from time to time one or two shocks, if I may put the position in that way, have been delivered to the committee. I recall in particular an incident that occurred in the Senate on 18th March, 1959, when the chairman of the committee, Senator Wood, brought up and laid on the table the fourteenth report of the committee. At that time the Civil Aviation (Carriers’ Liability) Bill was before the Senate. I remind honorable senators that clause 41 of the bill which, of course, is now section 41 of the act, stated -
The regulations may provide for applying, with such exceptions, adaptations and modifications as are prescribed, the provisions of the Warsaw Convention and the Hague Protocol and any of the provisions of this Act to and in relation to the carriage of cargo . . .
The committee thought it appropriate to inform the Senate that, in its opinion, clause 41, portion of which I have just read, did not concern itself with power to make regulations dealing with administrative detail, but gave power to enact regulations which amounted to substantive legislation appropriate to Parliament. The committee, in good faith, presented that report to the Senate, but the Deputy Leader of the Government in the Senate at that time, the Minister for Shipping and Transport and Minister for Civil Aviation (Senator Paltridge) rose on a point of order and suggested that the committee was acting improperly in bringing into the Senate a report on clause 41 of the bill that was then before the Senate. Then followed some considerable debate, which extended. for more than an hour, in which a most interesting exchange of opinion on the powers of the committee took place. Among those who took part in the debate were, I think, four out of the five Ministers in the Senate, the Leader of the Opposition (Senator McKenna), six out of the seven members of the committee, and a former Deputy Leader of the Opposition, Senator Armstrong. My recollection is that Senator Armstrong suggested that an occasion be set aside for a discussion such as we are having this afternoon.
The point I wish to make is that in the charter of the committee, that is, the report of the select committee that was originated by Senator Elliott, it was clearly envisaged that the Regulations and Ordinances Committee would have the very power that the committee, in its fourteenth report, suggested it had. Paragraph 23 of the select committee’s report stated -
In the opinion of the Committee the work of the proposed Standing Committee on Regulations and Ordinances would be both preventive and corrective. It ‘would be charged with the responsibility of seeing that the clause of each bill conferring a regulation-making power does not confer a legislative power which ought to be exercised by Parliament itself. It would be required to scrutinize regulations to ascertain -
that they are in accord with the Statute;
that they do not trespass unduly on personal rights and liberties;
that they do not unduly make the rights and liberties of citizens dependent upon administrative and not upon judicial decisions;
that they are concerned with administrative detail and do not amount to substantive legislation which should be a matter for parliamentary enactment.
I emphasize to the Senate that the work of the committee “ would be both preventive and corrective “. I submit that the committee’s action, in its fourteenth report, in shining the red light, as it saw it, in relation to clauses 40 and 41 of the bill to which I have referred, was in accordance with its proper work as a watchdog for this Senate. The committee indicated clearly to the Senate, in its report or memorandum that the Senate should be on the lookout. From time to time, when a Minister presents a bill to the Senate he circulates a memorandum.I recall that when the usual bill relating to taxation comes before the Senate a memorandum, prepared by the Commissioner for Taxation, is circulated by the
Minister. 1 understand that in another place the Attorney-General (Sir Garfield Barwick), who is in charge of a bill relating to matrimonial causes, has circulated a most valuable memorandum with reference to it. So this committee took the opportunity on that occasion to circulate a memorandum relating to two clauses of the bill. 1 think it is proper to ventilate that point of view this afternoon, because we, as a committee, feel that we can be most useful in that preventive way, if as a result of our studies, and through the diligence of ourselves, our secretary, and our learned counsel we can see and detect such matters. Of course, the great function of the committee is the consideration, almost week by week, of regulations that come before the Senate. You will appreciate, Sir, that Standing Order No. 36a makes it mandatory for these matters to come before the committee.
The CHAIRMAN (Senator the Hon. A. D. Reid). - Order! The honorable senator’s time has expired.
– Because of the nature of this debate and because Senator Laught has introduced the matter, 1 rise merely to give you, Mr. Chairman, an opportunity, under the Standing Orders, of calling Senator Laught again to complete his introduction to this debate.
– I thank the Senate, and particularly Senator Willesee, for the courtesy. Clause (4.) of Standing Order No. 36a states -
All Regulations and Ordinances laid on the Table of the Senate shall stand referred to such Committee for consideration and, if necessary, report thereon. Any action necessary, arising from a report of the Committee, shall be taken in the Senate on motion after notice.
It will be seen, therefore, that this committee does hot usurp, as it were, a power of the Senate; it just has the humdrum job, if I may put it that way, of examining all the regulations that are referred to it. If necessary, it can report to the Senate, and then any action arising from the report of the committee is taken in the Senate on motion after notice.
I want to clear from the minds of honorable senators the thought that the committee in any way usurps the function of the
Senate as a whole. Reading the motion proposed by the Minister on the occasion to which 1 have referred on 1 8th March, I gathered that he and some of his colleagues were of the opinion that the committee was endeavouring to usurp a function of the Senate as a whole and that it was endeavouring to anticipate legislation. But it was doing nothing of the sort. The intention of the committee was to shine a red light, if it thought that to be its duty, and it was for the Senate to regard or disregard that red light. 1 feel, therefore, that too limited an interpretation has been given to Standing Order No. 36a. The interpretation that some honorable senators put on the standing order seems to be that the committee can consider only regulations and ordinances that are laid on the table of the Senate. With very great respect to the Senate, I consider that such an exclusive and limiting interpretation is not the right interpretation. The proper interpretation, in accordance with the view of the great committee that really founded this Regulations and Ordinances Committee, should be the wider interpretation - that the committee should be a preventive body and should act if it sees a usurpation of the powers of the Parliament being promulgated in a clause of a bill, as it thought it saw in the Civil Aviation (Carriers’ Liability) Bill.
, - I thought I might lead for the Government in the debate on this matter, which is of such significance to the Senate as a whole, and. preface my remarks by stating the way that Ministers in the Senate think it should be approached. We think that in the debate on practical matters - by that 1 mean the actual regulations themselves - we should be careful not to depart from the principle of ministerial responsibility. Things that relate to the Northern Territory in their practical application should be dealt with by the Minister representing the Minister for Territories, and the voice that speaks with authority on customs regulations should be that of the Minister for Customs and Excise.
I think a further point that should be made is that we approach the discussion upon the basis that in no sense is this a reflection on Mr. President’s ruling at the time the legislation was before the Senate. What we are now discussing is what we might do in the future, not what has been done in the past.
– It was just mentioned by way of illustration.
– Yes. We are not canvassing that ruling at all. 1 propose to talk for a while upon the first part of the report. 1 remind the Senate, going back to the question of the principle of ministerial responsibility, that my colleague, Senator Paltridge, will apply his mind to the original question, because it arose in respect of his legislation and, naturally, he has given a good deal of thought to it. I think it is appropriate to start my discussion of the general question with a little bit of history, as Senator Laught did. However, my research officer has gone back a little further into the past than Senator Laught apparently did.
Almost since the inception of the Commonwealth, the Senate has recognized the principle that each House of the Parliament should have the right to review executivemade law. This was illustrated in 1904, when Senator Drake, who was then the Attorney-General, introduced into the Senate an Acts Interpretation Bill which made provision merely for all regulations to be laid before each House of the Parliament. The government of that day was not prepared to give a power to either House or to each House to disallow any regulations. The proposal then was merely to lay the regulations before the Parliament. The government of the day was not prepared to agree to any general power; it thought that whether there should be .) power to disallow regulations should be decided on the merits of each individual bill. When that bill, Acts Interpretation Bill, came before the Senate, the Senate inserted a general provision which enabled either House of the Parliament to disallow any regulation. So, what we are discussing goes back deep into the history of the Senate.
The problem, of course, became increasingly complex in the war years, when the question was well raised as to whether any senator could, individually and unaided, examine the great mass of regulations that was necessary in those conditions. It is interesting to observe that it was not a position entirely restricted to Australia. The records show that the problem exercising the minds of members of the Australian Parliament was also being considered by the British Parliament, the South African Parliament and the Indian Parliament. As a result, both the British and the Indian Parliaments set up parliamentary committees to assist their members in the examination of subordinate legislation. The House of Lords, in 1924, set up a sessional committee to examine and report on certain types of legislation, and back in 1932 a committee was set up by the House of Commons to examine the powers exercised by Ministers in the United Kingdom. Tha: committee, interestingly enough, reported its opinion to be that the facilities afforded to Parliament to scrutinize and control the exercise of powers delegated to Ministers were adequate.
That was in 1932, but when we get to 1943 we find that opinion has changed. At that time the House of Commons constituted a select committee to scrutinize all these statutory instruments. In 1949, a select committee of the South African Parliament recommended the payment of an officer to scrutinize delegated legislation, but that recommendation was not acted upon, so that the problem that confronts us has proved to be one on which there has not been uniform thinking in other parts of the world. In 1953, the Indian Parliament set up a select committee which exercises functions closely allied to those which the select committee of this Senate exercises. So I think, Mr. Chairman, that, holding the views that I do about the work of the committee, it is a matter for congratulation that this Australian Senate was the first House of Parliament based on the British system to appoint a committee to examine and report on all regulations and ordinances made under the authority of an act of Parliament.
In the seventeen years that the committee has functioned since its establishment in 1932, it has made fifteen reports. I think it is fair to say that those reports have been of great value to individual senators in assisting them in the examination and review of regulations and ordinances which are grouped together and called subordinate legislation. I do not propose to cover the ground of the recommendations that the committee has made in the past and the’ extent to which they have been adopted. I come closer to home now in relation to the matter before the chamber and make the point that the object of this debate is not to ask the Senate to pass judgment on matters that have been raised by the committee. The debate will give honorable senators an opportunity to express their individual views on those matters. My views are critical and opposed to the implied recommendations that the committee makes, but I hope that anything that I say in criticism will not be construed as due to failure to recognize the value of the work that has been done by the committee over its seventeen years of life and the value of the work that has been done by the honorable senators who have served on it during that time. I feel impelled, though, to say something which perhaps may not be acceptable to some honorable senators and which may be construed as a note of warning.
I believe that if this committee, whose work we value, is to fulfil its purpose to the best advantage, it must convince the Senate and honorable senators by the logic of its arguments expressed in dignified language. For my part, I should have liked to see the views of the committee on the customs regulations expressed, first, in more temperate language than they were expressed. Secondly - and no doubt the appropriate Minister will deal with this matter - in my opinion there is quite a considerable element of overstatement of the case of the committee in that report. I like to see the work of the Senate performed on the highest level that it can be done, and I am not happy about the phraseology that was used in the wording of the report.
Coming closer to the matter before the committee, in effect, the first part of the report to which this committee of the Senate is now addressing itself expresses a view that the standing committee will do its work more effectively if it has power to ensure that the clauses of a bill do not confer power of what might be called a legislative character. In other words, the committee is arguing that it should have an anticipatory power, as well as what might be termed a corrective power, using those two terms in a colloquial way. The committee’s only power, of course, is to report to the Senate, but it feels that it could do better work if it were able to make a report while a particular piece of legislation was before the Senate rather than after the legislation had been passed and the regulations laid on the table of the Senate in the normal way. The committee in its report by implication supports this view by referring to the constitution of the committee and the debates in the Senate in the years 1929, 1930 and 1931.
Some of my colleagues will perhaps deal with that point in greater detail than I propose to do, but I do not accept the assumption which seems to me to be inherent in the fifteenth report of the committee now before the chamber, that because this matter was mentioned in the early stages in the Senate, there flows from that a set of circumstances in which the committee is really clothed by tradition with anticipatory power. To me, the whole atmosphere is directly contrary to that view. The whole atmosphere seems to me to lead irresistibly to the conclusion that this was one of the matters that the select committee had in mind. True it is that when the matter came before the Senate there was apparently no debate, or only a little debate, on that aspect. But it is of the utmost significance to me that when the matter was referred back to the select committee by the Senate, and the select committee again brought it before the Senate, it did so with this particular provision deleted. That being so, I believe that the reasonable inference is that discussions outside the chamber - perhaps in the respective party rooms - indicated a consensus of opinion against the proposal instead of in favour of it. That, I think, will turn out to be one of the points of the debate. I content myself with a general observation-
– Order! The Minister’s time has expired.
– I rise, in conformity with the Standing Orders, merely to enable Senator Spooner to continue his remarks.
– I thank my colleague and my political friends and enemies for giving me the opportunity to proceed. As I have said, I think that the inference is irresistible that the point I made previously was toyed with and thought about - it was not discussed in the Senate - and that the provision was dropped as a result of a general consensus of opinion. 1 shall not reiterate the four principles^ under which this committee has operated since its inception. Senator Laught has mentioned them. I will not mention them further, beyond expressing the view that they have my approbation and that they seem to me to be good commonsense lines for the charter of a committee such as this. 1 want to go on and give the reasons why, in my opinion, it would be a bad thing for the Senate to express any approbation of the committee’s suggestion to extend its charter by the introduction of what I claim to be an entirely new principle. That principle had support about 30 years ago, when the committee was under contemplation. It was dropped, and is now sought to be reintroduced. I look at this matter in the year 1959- not 1929- in the light of what I think to be current parliamentary practice. I repeat that I want nothing that I say to be regarded as a discouragement of the committee or a lack of appreciation of the work it is doing, but, given the best will in the world toward the committee, there are four compelling reasons why we should not extend the principle further.
First, it is a fundamental principle of the British parliamentary system that the government of the day has in its hands the ordering of government business, and takes the responsibility for the order in which business is introduced. It takes the responsibility for the time that is allowed for debate and the responsibility for the general conduct of affairs. I cannot help thinking that if the Regulations and Ordinances Committee introduced this anticipatory principle, it would automatically follow that the Government would have to change its order of business in order to allow the committee to function. The Government would be forced into the situation that from time to time, if need be, it would have to defer debate on a bill until after the committee had reported on the regulation-making powers. I do not suggest that it is a conclusive argument, but, at the least, it must be accepted as a very powerful argument that the Government must have control of the business of the Senate if parliamentary government is to work in an effective and a business-like way. To accept this proposal would be to disturb that approach. The point 1 put to the Senate is this: If we accepted this proposal, even by inference, we would reach an incongruous situation in that we would put a committee of the Senate in a situation where it could take the ordering of the business out of the hands of the Government.
The second point I make is that if this committee contemplates examining all bills in the time available between their introduction and their consideration in committee in this chamber, there is no escape from the situation that, under present conditions in this Parliament, the committee’s examination, in practice, would be hurried and superficial. It would be an examination conducted without the benefit of a report from the legal adviser whom the Parliament provides to assist the committee. Reports made against that background could not be expected to have in the Senate the force and the consequence of present reports, which are made after mature consideration and in a deliberative fashion. I venture to predict that if we had in the hurly-burly of a parliamentary setting a select committee taking a bill away to examine its prospective regulation capacity, and then presenting a hurried report to the Senate, the time would not be far distant when the committee would lose a good deal of caste and standing, because it could happen that the committee, after later and mature consideration, would disagree with a report it had presented to the Senate without having had the time and the opportunity carefully to weigh the pros and cons.
The next point is that, as I read the proposal - perhaps not correctly - we could arrive at the situation that this select committee could decide which bills it would look at and which bills it would not look at. It could make a selection of the bills it should examine and report upon. It would not be required to report on every bill that came before the Senate. That, to me, is an objectionable feature. It could produce a situation in which a group of senators would be able to express views in opposition to a particular bill, with the report of a committee of the Senate to support them. You might get to the stage where you changed the present atmosphere, in which regulations are considered maturely, deliberately and, I believe, on a non-party basis. Bills might be thrown into the hurly burly of political debate, taken away, and considered on a party basis. By doing that, you could get a report back which did not do justice to the committee or to the Senate.
I find it difficult to put my final point in appropriate terms. I am a great supporter of the view that tradition sets a standard. The worth, usefulness and standing of anything that we create is determined by the regard in which it is held by those who are served by the work that it does. I venture to predict that if we give the committee this anticipatory power, we could easily reach a situation in which the standing and prestige of the committee would be disturbed. Instead of being a committee that reports in a deliberative way, after the passage of time, on a regulation that is laid on the table of the Senate, it could so easily become a committee which reported on certain bills which were in the hurly-burly of politics. It could become a committee which, as it were, snatched the ball out of the scrum, went away and looked at a particular facet of it, and then brought the ball back and threw it into the hurly-burly of a political debate. Such a committee would not have the standing that this committee enjoys at present. All the possibilities are that the views that it would express, against the background of that sort of atmosphere, could easily be over-ruled in the Senate in the heat of argument. The committee would not receive the support it receives now, when it approaches its task after the regulation has been tabled, after it has obtained independent legal advice and after it has deliberated upon the regulation in an atmosphere in which there is not the heat of party politics. So I sum up by repeating what I said at the beginning. If I have been critical, I do not want to be taken as criticizing either the committee or the work it has done over the years. I have certain objections to the wording of the present report. I do not think the report does us all justice. But that is a small matter by comparison with all the reports which the committee has submitted over the years. My opinion, for what it is worth, is that if the committee added to its principles those which it now places before the Senate, it would detract from rather than strengthen the work of the committee or improve the status of the committee.
– This is a very interesting debate on a most important report. As one who has served on the committee from 1946 to 1951 and again for the last year or so. I can assure the Senate that the members of the committee are never influenced by prejudice in any way. The committee works unremittingly, at all times attempting to do what is best for the Senate. I do not think any member of the committee feels that he has any duty other than to do what is best for the Senate in the interests of both the people and the Senate when considering regulations.
There always has been and always will bc considerable doubt about what implied powers the committee might have. The committee believes that its first duty is to examine all ordinances and regulations in accordance with Standing Order No. 36a and that it is most important that we guard against giving any outside body power to make regulations which can override an act of Parliament. It is not unusual for the committee to be confronted with regulations which, although drafted by departmental officers who have a full appreciation of their responsibilities, are objectionable to our legal advisers who see in them certain risks. As Senator Laught has pointed out, we have eminent legal advisers and it is not unusual for them to see certain dangers in agreeing to proposed regulations. On the other hand, there are occasions when, in the opinion of the committee and its legal advisers, it is safe to agree to certain regulations because, although there could be a danger if they were abused, there is very little likelihood of their being abused. Let me assure the Senate that if the members of the committee were to adopt an extremely narrow outlook when considering the tremendous number of regulations submitted to them for approval, they would never get through their work. The committee approaches its task with a full sense of responsibility, and I can assure Senator Spooner that its outlook is by no means narrow or petty. The sole desire of all its members is to do what is best in the interests of the Senate, our laws and the people who have to observe those laws.
After all, when the committee sees that a proposed bill contains a clause which could give an outside body the statutory right to promulgate regulations which would override an act of Parliament, it has a duty to perform. In those instances, it feels that it has the duty of pointing out the weakness in the proposed legislation. If such a provision were allowed to be incorporated in our legislation, it could mean that departmental officers could frame regulations which would be contrary to both the intention and the will of Parliament. This appeared to have happened in connexion with the Civil Aviation (Carriers’ Liability) Bill. In that instance, it is possible for a department to issue regulations that are contrary to our own laws, but in accord with an international agreement made outside Australia and, in effect, accepted by this Parliament. It is the opinion of the majority of the members of the committee that such powers should not be given to any authority outside Parliament. In some cases, our legislation provides that the Minister shall be responsible for regulations issued under that legislation. On the other hand, as has been pointed out by the committee, there are cases in which regulations, which give neither the Minister nor any public officer the right to give redress to any one who has been harshly treated, have been issued. I can see quite clearly that the Leader of the Government has a very good basis for his argument that if we operate as a committee and examine regulations - as he says we should - after they have been laid on the table for a certain period, and then call the attention of the Senate to them, asking for a disallowance in certain cases, we will be doing a job of work. As he says, we should be permitted to do that.
Then, of course, arises the all important question of whether the committee can be both preventive and corrective. To make that possible we must consider matters at the appropriate time - when the bill is before the Senate. We are called upon to enact something that will ultimately become law and, in the process, handing over a tremendous regulation and ordinance issuing power to some authority outside the Parliament. At that stage, the matter should be examined, whether by our committee or by some section of the Senate.
It was quite obvious that that was a cardinal point in the recommendations of the select committee which decided that a body such as the Regulations and Ordinances Committee should be set up. As the Minister, the Leader of the Government and Senator Laught pointed out, the matter would ultimately be referred back to the Senate. That would be specified at the time of the appointment of the committee. However, that implied power is not incorporated in Standing Order No. 36a. It would not be difficult for a committee to act in a preventive capacity in regard to regulations issued under legislation. It would not be difficult, when a bill before the Senate proposed to give power for the making of regulations, to ensure that those regulations would be made in conformity not only with the letter of the act, but also with the intention of the Parliament; to see that democracy functioned - because the making of regulations is impinging very closely on democratic government.
Immediately a bill leaves this Parliament there passes to some one outside a power to make regulations which can be harsh, oppressive and discriminating. If that happens we .have done a disservice both to the Parliament and to democracy. Power is put into the hands of bureaucracy - power in respect of important matters involving the earning of one’s living. I have known men interested in import and export regulations who, if they had had government favour, or the favour of a government department, could have extended their activities in a field which would have been most lucrative,, as well as good for the nation. Then yo.u will find some one else in the same category who can, as a result of certain departmental actions - perhaps by way of regulation - obtain an advantage over his fellow citizen. That will always happen. We shall never attain such equality as would remove that possibility. Nevertheless, the members of the Regulations and Ordinances Committee believe that the most they want to do is to report to the Senate the danger as they see it in the course of their work - the immense task of reviewing regulations and ordinances and moving that they be disallowed if they appear wrong, ultra vires, or oppressive.
I think, too, that at this .stage there should be a review of the whole matter.
As Senator Spooner has said, it was decided in 1905 and 1929: - and has been decided at the present time - that we should carry on in the usual way, but the Commonwealth Parliament’s activities have extended a great deal since those early days. We now have regulations and ordinances covering the Australian Capital Territory, external Territories - of which the report makes mention - the Army, Navy, Air Force, Social Services, Health, PostmasterGeneral’s Department, Defence and so on. The Commonwealth Parliament is a very different proposition from what it was in 1926. Certainly, in 1904, the scope of its work of making laws for, and administering, the Australian nation was very much less than it is now. There is no doubt that this Parliament has a great influence on the life of the people of Australia. Our laws are most important, but the number of regulations produced has been absolutely excessive. Government by regulation should be the last card in the pack, never to be used if that can be avoided. I know of legal friends who have tried to consolidate regulations, but who have failed. Even the departmental officers find that there are so many regulations which, though current, have been forgotten - that by searching back over a period of time one can always produce a regulation that is as dead as the dodo, but nevertheless effective for one’s purpose. Government by regulation has become too general. Parliament is losing a lot of its democratic power, and even though both Labour and Liberals have criticized bureaucracy the citizen has, in effect, been handed over to a certain degree of bureaucratic control, whereby he can receive favour in some instances and in others have his claims rejected. I am satisfied that if the committee is empowered to do what it believes it should do that power will not be abused. The committee will, of course, have to undertake a terrific amount of work.
– Order! The honorable senator’s time has expired.
– I take the call again merely for the purpose of enabling Senator Cooke to continue.
– I thank the Minister. I have not very much more to say. The committee is. moved by a deep sense of national responsibility. lt is not prompted by party politics and believes that, whether as a result of this report or not, at a fairly early stage a revision should be undertaken of the Standing Committee’s powers in an attempt to stop the process - disapproved by many honorable senators - whereby the right is given to. administrators, boards and regulating authorities to make regulations which are important but which should, in fact, be incorporated in statute - in law.
.- Before discussing this fifteenth report of the Standing Committee on Regulations and Ordinances J think attention should be directed ito the committee’s activities and the manner in which it carries out its work. Senator Cooke, a member of the Opposition, put the viewpoint of the committee concerning the regulations and ordinances which come before it. As chairman of the committee, and a supporter of the Government, I want to pay a tribute not only to my colleagues, but also to the members who come from the other side of the chamber - from the Labour Party. While I have been chairman discussion has not taken place on party lines. These gentlemen have conducted themselves in the highest parliamentary tradition. I see one of the Ministers looking at me, and I realize that probably that is hard for some people to understand, but I honestly believe it. I pay .that tribute to members of the Opposition, They have played a very valuable part in the work of the committee. To emphasize the truth of that statement - and here I am not criticizing either side - I would say that when any action, has been necessary so that the Government would not he hindered - the Opposition members have proved even more considerate of the Government than have our own colleagues. I do not say that in any derogatory way. I think that Opposition members of the committee have taken a very fine part in its work. I wanted to pay them that tribute, and to make it clear in the minds of honorable senators that party considerations do not apply. Furthermore, the committee attends regularly to its duties. Usually, even during lengthy sessions, the committee has a weekly meeting. I also want to point out to honorable senators that, to a layman in particular, regulations and ordinances are not exciting. They are not the sort of thing you take to bed with you to read as a pastime. On the committee we are very fortunate to have a couple of very fine legal minds in the persons of Senator Wright and Senator Laught. Therefore, it is a good composite committee in which very good balance is maintained in relation to professional and lay thinking on regulations and ordinances.
When I was first elected to this chamber m 1949, I was appointed to this committee. As I knew nothing about its functions, I spoke to the then Attorney-General, Senator Spicer, who has since resigned from the Senate. In my ignorance, I said to him, “ Why on earth did they put me on this committee? “ He replied, “ You should be ashamed of yourself speaking like that. It is an extremely important committee, and you should regard it as an honour to be appointed to it.” Later, an honorable senator opposite told me that he and some of his colleagues had discussed the status of the committee with the late Sir Robert Garran and that Sir Robert had stressed its importance. I thereupon set my .mind to it. I think this committee is a watchdog of the Parliament to see that parliamentary functions are not taken out of the hands of the Parliament and the country run by civil servants;. Therefore, this committee works in the interests of this Parliament and of democracy. It is a standing committee of the Parliament. The members of a standing committee that is set up by the Government with -the support of the Opposition should clearly carry out their duties to the best of their ability:. That is how we have tried to carry out our duties.
It was not until last April that we had what might be termed our first real clash in this chamber. I trust that this debate will be temperate, because I think that some good will arise out of it. I am glad that an opportunity has been afforded to us in this way to consider the aims and rights of the committee. We are dealing with something that is of vital concern to this chamber. The Senate ‘has two main functions. First, it is the States’ House and, secondly, it is a House of Review, The second function is’ of particular importance in this debate.
On more occasions than many people realize, the Senate has altered legislation that has been sent to it from the other House. It is undoubtedly a fact that, on occasions, after legislation that has been passed by the House of Representatives and sent to this chamber, the Government, on second thoughts, has considered that the legislation could be improved. Honorable senators will recall occasions when, after the Senate had received a bill from the other House, the Leader of the Government in this chamber received word that the Government desired certain amendments to be made to the measure. The Senate has played a more important role in amending legislation than it has been given credit for. It is to the credit of the Senate that the standard of debate in this chamber is being continually raised. Only recently, the Sydney “ Bulletin “, in a full-page article, paid a tribute to the Senate in those terms. I think that, as time goes on, more people will realize the value of this chamber.
The function of the Senate as a house of review raises matters that come very much within the scope of this committee. If the Government thought that the Senate should not review legislation, one of this chamber’s major functions would disappear. The point I am making is that as we have the right to review legislation, surely the various committees of the Senate should apply their minds to legislation before the chamber as well as to regulations and ordinances after they have been made. I think these things run together. This matter comes down to the point as to whether the Senate has both a preventive and corrective function in dealing with regulations and ordinances. The Senate select committee went into the matter in a full and informative way to find out how it should operate and what it should do. If honorable senators would read the report of the proceedings when the select committee’s report was presented, they would find that there was very little opposition expressed to the report, and very little was said about the particular phase that I have mentioned. There was no substantial opposition on the matter. It is obvious that there was very little opposition to the recommendation that was made by the select committee.
Senator Spooner has said that we can visualize what happened, and why there was so little debate on that occasion - that possibly discussions outside the chamber indicated a concensus of opinion against the proposal. But for that statement he has no proof. At least we have the evidence that there was nothing said against the recommendation in this chamber. As Senator Spooner has asked us to imagine possible happenings outside the doors of this chamber, surely there is more ground for asking the Senate to accept the committee’s report. I am surprised that Senator Spooner should take this view of the work of the committee. I know how keen he is to raise the standard of the Senate as a house of review, and I know that the Leader of the Opposition (Senator McKenna) is also imbued with the same spirit. As the Senate has a right to review legislation, surely there can be nothing wrong in making the scope of this committee as wide as possible so that it can function in the best possible manner. What is wrong with obviating certain things taking place before legislation is placed on the statute-book.
– It is not legislation.
– I am sorry that Senator Anderson has taken that point. I was referring to our function of review and saying that we have a right to alter legislation. Therefore, the Regulations and Ordinances Committee should have sufficient power to consider legislation that is before the chamber, where it appears likely that the regulationmaking activities of the Executive could be increased. In order to obviate something that could be detrimental to this chamber and the people, I think that the committee’s function should be of a preventive character. As I have said, this matter was distinctly referred to in the report of the select committee, and therefore I cannot see why objection should be taken to it. The Senate should be proud of the fact that this committee is prepared to engage in activities directed towards safeguarding this chamber. The particular incident from which this arose was equivalent to a senator walking into the chamber, giving another senator a nudge, and saying, “ Watch clause soandso. It is a little dangerous. It is giving away too much of the power of the Senate.” It was said to me that we, as a committee, were trying to take away the powers of the Parliament. Actually, what we were trying to do was to make sure that the Parliament retained as many of its rights as possible. What was proposed under the clause we were considering was that the right to legislate by regulation would be passed to somebody outside the chamber. The view of the committee at the time, if 1 interpreted it rightly, was that the Parliament made the legislation, that the legislation should be altered only by the Parliament, and that we should not set anybody above us who could virtually make an alteration to legislation that we, as a Parliament, had enacted.
I feel that this does tie in with the aims and the work of the committee. I think that the Senate should not try to keep the committee’s work within as narrow a field as possible. The matter should be looked at from the point of view of keeping the Senate’s activities as wide as possible. The Government, and any Minister in charge of a bill, should be broad-minded enough to be pleased to have the committee watching all those points, because it is not possible for every Minister always to see what might be envisaged in a particular clause or subclause. The Leader of the Government referred to the committee getting bushed or lost in so many activities in relation to legislation. Not all the legislation and not all the clauses in legislation, but only particular aspects, would be referred to the committee. The committee could do that work, just as it deals with regulations and ordinances. As has been pointed out, many regulations and ordinances come before the committee, but because the committee is active it does get through the work, whereas other committees in the past have not been active.
It all amounts to having a really live, active and vigilant committee. To show that in the minds of Ministers this committee is vigilant, let me inform the Senate of what a Minister once said to me. He said, “ I appreciate the fact that the committee is vigilant and active. Having that committee there in such a vigilant way is a great relief to me as a Minister.” I do not say that as criticism of the Minister, but as being complimentary of the committee. We as a Senate should try to give the committee as wide a field as possible in accordance with the select committee’s report.
– Order! The honorable senator’s time has expired.
– I rise only in order to give the honorable senator an opportunity to be called again and to continue.
– L cannot see why the Government or the Senate should feel any fear in this particular regard. The Leader of the Government criticized the committee’s carrying out work like this. He said that we would be taking the business out of the Government’s hands. There is a very interesting passage in the introductory speech by Sir Hal Colebatch on the standing committee system, as reported at page 1313 of the Senate “ Hansard “ report for 1st May, 1930. It contains an interesting comment on the work of the Senate in relation to regulations, and its effect upon the Government. It reads -
Evidence was given before the select committee by Mr. Maurice McCrae Blackburn. M.L.A., barrister and solicitor, of Melbourne, who occupies an honoured position in the Labour movement in Victoria. He deprecated the general practice of forming committees in the Senate, on the ground that the number of senators was not large enough-
That was when the number was 36 - but, on the subject of regulations and ordinances, he said -
I wish to comment on one portion of the proposals before this committee, the consideration of statutory rules and ordinances. As your chairman pointed out in the Senate debate, the Commonwealth Parliament makes provision for the disallowance of statutory regulations by the vote of either House. 1 recollect a case in which a regulation under the War Precautions Act was disallowed by the Senate - I think in 1917. The House of Representatives is not likely to do that work well, or, in fact, to do it at all. Upon its vote turns the fate of the ministry. The regulation is made by the ministry, and a proposal for its disallowance would certainly be treated as a vote of want of confidence, and would be tested on party lines. No ministry depends on the vote of the Senate, and it is quite likely that in that chamber a regulation would be considered on its merits. It is a very dangerous thing that in Australia, as well as in England, so much of our legislation should be done by regulations foi which Parliament does not take responsibility, and which are in a great degree inaccessible to the people. The scrutiny of those regulations would be a very useful function foi the Senate to discharge, one that could or done better by the Upper than by the Lower House. 1 quote that in reply to the statement ot the Leader of the Government that this was a matter of taking the business out of the Government’s hands.
– That has nothing to do with my argument, i agree with that, but it is no answer to my argument.
– You are talking about the Senate,
– Blackburn was referring to a scrutiny of the regulations.
– He indicates the difference between a vote against the Government in the House of Representatives and a vote against the Government in the Senate. That is the point I am making.
It is very easy for the Government to slip into the practice of handing over, in legislation, power to the executive to make regulations. So we have piece after piece of legislation, wherein the Government is giving the power to the executive to make regulations. It is very easy. We are slipping from one standard to another simply because it is easier. When some bills relating to the payment of very highly paid officials came before us, the statement was made that this was becoming a general practice. That is the sort of thing that a committee like this has to watch. Something becomes a general practice that at one time would have been looked on with great disfavour by such a committee as this or by the Senate itself. Over a period of years legislation is being drafted in such a manner that bill after bill is passing over to the executive power to make regulations or to do something by regulation. As I said earlier in my address, one of the functions of this committee is to see that the democracy of Parliament is retained within Parliament. That principle does apply very strongly in this connexion. I ask once again: What is wrong with the house of review having as wide a field as possible in dealing with either legislation or regulation, particularly where the legislation relates to the making of regulations?
I feel that when the report of the select committee was made, what was wanted was very clear in the minds of the people who made the report. It is unfortunate, from the point of view of clarity, that this particular clause was not brought into the Standing Orders, but I do not count that as being of paramount importance. I cannot find in any place a record of any strong exception being taken to the recommendation. The recommendation was clearly made. It was made by a committee. According to Sir Hal Colebatch -
The committee took evidence in the cities of Sydney and Melbourne from a number of eminent constitutional authorities and from men with very wide experience in political practice. The witnesses represented all shades of political thought. They were select rather than numerous; and because of the qualifications of some of them and because of the enormous amount of time that they spent, without any expectation of fee or reward, in investigations, the evidence which accompanies the report forms a very valuable and instructive document altogether apart from what any one may think of the conclusions at which the committee arrived.
Throughout all the members of the committee participated in its investigations and its subsequent deliberations; and it should serve to commend the report to the Senate when I mention that the decision at which it arrived was. unanimous. The recommendations represent the unqualified view of the whole of the members of the committee.
In making the point that the Parliament itself sometimes, perhaps in cases of emergency, falls into the easy way out by making regulations, let me remind the committee that there was once a statutory requirement in Australia that regulations had to be published in the “ Commonwealth Gazette “ for 60 days before they came intoforce, so that all people likely to be affected would have an opportunity to see a regulation that might be repugnant to their interests.
Sir Hal Colebatch went on to say ;
In 1916, during the war, because of the enormous number of regulations that had to be passed and acted upon quickly, this Parliament repealed that particular provision of the Rules. Publication Act. Although faced with an exactly similar difficulty the Imperial Parliament did1 nothing of the kind. It left that provision intact, but included in a number of bills power to make regulations that should be exempt from thisrequirement of the Rules Publication Act. The Commonwealth has done nothing to restore theprovision repealed in 1916, and all the protection that prior publication afforded to thepeople has been taken away entirely.
I think, Mr. Chairman, that the statements. I have read show how we can move away from practices which have been accepted’ in the past and, in doing so, discard democratic safeguards. We find that in Great Britain, which was very much closer to the war than we were, apparently it was not found necessary to do as we in this country have done.
In conclusion, I reiterate that the committee has at all times done its job as it saw fit and has had regard to the need to safeguard the democratic rights of this Parliament. I believe that the report ot the committee sets out very clearly what was intended. Senator Spooner has asked honorable senators to imagine that something went on outside the doors of this chamber, perhaps in conversation, but I say that the evidence contained in the report of the committee and the debate in this chamber show that the case put by the committee to retain the rights it possesses is stronger than that presented by the Leader of the Government.
Sitting suspended from 5.43 to 8 p.m.
– In this rather unusual debate, which has been one of the few debates on nonparty lines in this chamber, we have seen - at any rate, so far - the rather unusual spectacle of only one person, namely the Leader of the Government in the Senate, opposing a report which has been presented. We have seen speakers from both the Government side and the Opposition side affirming the proposition that has been put. The broad question that we have to decide is: What part in the proceedings of the Parliament shall the Regulations and Ordinances Committee play? We are all agreed that the committee does play a useful part in the life of the Parliament now, and that it has done so ever since it was established away back in the depression days.
We have agreed to divide the debate on this report into three watertight departments. We are dealing now with only one aspect of the matter, and our flexible rules will allow us to deal with the other aspects later. The particular question before us now is a rather unusual one, in that it has been dealt with here only once before. We are considering whether the committee has power to examine a bill containing a regulationmaking power and to take action before regulations are made under that power. Senator Spooner painted a rather gloomy picture and said that all bills had to be referred to the committee, the com mittee would be taking the conduct of the business of the Parliament out of the hands of the Government, which would be a negation of a well-established principle of British democracy. He said that there would be undue delay in the consideration of legislation, but I think that he allowed his imagination to run riot.
I remind honorable senators that the Minister for Shipping and Transport (Senator Paltridge) already has withdrawn a bill designed to allow the Commonwealth to establish canteens at airports. The Minister withdrew the bill, not because of the action of any committee, but because he felt there was some doubt about the wisdom of the step that the bill proposed. I commend him for that. The Minister was big enough to withdraw the bill and, to use Senator Spooner’s words, to hold up the business of the Parliament while he and his officers had a further look at the matter and gathered additional information. One of the admirable aspects of British law is that time must not be permitted to interfere with the administration of justice.
This is an interesting debate, and I agree with Senator Spooner and Senator Laught that the records of the speeches made today on the history of regulations and ordinances will be of value to students. It seems that although the Regulations and Ordinances Committee has been in existence for a long time, it is only in the last couple of years that it has been assuming a form which will, I think, enable it to play a great part in the life of this Parliament.
Senator Spooner raised what he said was rather a minor objection, but I notice that he referred to it several times. He chided the members of the committee with using rather severe language, but I ask the Senate to consider our position. On almost every occasion that we have brought down a report running slightly counter to the opinions of the department or the Minister concerned, we have found ourselves fighting an uphill battle to get our views across to the Senate. If you consder the genteel people who comprise this committee, you will see that they are people who are not accustomed to using strong language.
– I beg your pardon?
– The Minister heard me correctly. We are in the desperate position of trying to put our view over to the Senate. Although we would prefer to use polite language, we would rather be accused of impoliteness than of ineffectiveness. The problem that faces us is to make this committee an effective body.
This problem is not a new one, as is shown by the research that we have all been doing during the last few days, and which I commend to Senator Spooner. Away back in, I think, 1928, a man called Sir Arthur Robinson had something to say on this problem. He used very nice language, but I think his remarks are illustrative of the problems that we face to-day. Speaking obviously in Melbourne, he said -
But to-day we have two Parliaments - one in Melbourne and the other in an otherwise uninhabited corner of New South Wales. The latter turns out statutes not unduly lengthy, but to the accompaniment of oratory unusually vituperative. But just as the oyster secretes a pearl, so does something precious to us exude from Canberra. A constant stream of regulations of a range, breadth, and length surely unequalled in any other country pours out with never-failing regularity.
Even Senator Spooner, I believe, would not object to the language that Sir Arthur Robinson used then.
Let me turn now to the question whether this committee should have a preventive power. I underline the word “ power “. What power has the committee now? It has, as Senator Spooner acknowledged, power only to direct the attention of this House of the Parliament to certain things that happen. It has no power to take the business of the Senate out of the hands of the Government. I think that the arguments on that aspect of the matter have been particularly exaggerated. This question came up in the days of the ill-fated Scullin Government. Let me urge Senator Spooner and other Ministers not to think, because they are sitting here temporarily as Ministers of the Crown, that Heaven sent them down to save the Australian Commonwealth.
If we look at the matter in the broad sense, we shall see that the adoption of our suggestion would support, not deny, the doctrine of ministerial responsibility. Surely Senator Spooner and the other Ministers want to uphold that doctrine. If there is a solemn pledge that we have taken, it is to uphold that doctrine of ministerial responsibility. In the other sections of this debate, we shall be dealing with this matter.
Senator Spooner tried to make out that if every bill had to be referred to the Regulations and Ordinances Committee, there would be undue delay. But not every bill would be referred to it. The fact is that this committee, trained as it is to look at regulation-making powers, would look only at clauses of the kind that we looked at in the Airlines Bill.
Let me take the minds of” honorable senators back to one or two reports that we have presented and in respect of which we have had to suffer the sting of the lash from the Government. On some occasions the Government has seen the wisdom of our advice. There was the famous regulation affecting the Air Force. After weeks of work and after days of cross-examining witnesses, we brought our report before the Minister, and almost immediately, having seen the force of our arguments, he withdrew the regulation. Then there was the regulation in respect of which Senator Paltridge so effectively caused us to bc ruled out of order only a few months ago, but the honorable senator himself said in this chamber that although he had caused us to be ruled out of order, he was willing to incorporate in the bill “a provision that the clause should not operate to the detriment of those people who might be affected by it. He admitted the force of our argument at least to that extent.
The point I want to make now is that the Government is driving the committee into a position of ineffectiveness. Unless we have the power, the force and the drive to put our view before the Parliament, the next step will be for the Government - and it has the numbers to do so - to close the committee down. Surely the Senate does not want a committee that is completely ineffective. Sure it does not want a “ Yes “ committee. If the Senate makes us its watchdog, surely it wants us to bark when we see danger approaching.
Now I remind the Senate of our action in relation to an import regulation, which caused quite a furore in the community. It was a drastic step that we took, because, after all, import regulations not only control the destinies of many businessmen in this country but, so to speak, have their hand at the throat of our overseas balances. On that occasion, we were belted from one end of the community to the other. When we went before the Minister of the day he said, “ Perhaps you are right, but, after all, the particular regulations to which you are objecting are contained word for word in the bill itself. Parliament has looked at this and, in its wisdom, has agreed to it. Therefore, you are coming in rather late in the day.” And I think that was a forceful argument. But I emphasize that even then, Mr. McEwen, believing that he had all the legal right on his side at that stage, established a committee of businessmen and public servants; and that committee is working more or less effectively on import controls to-day.
I come now to the Civil Aviation (Carriers’ Liability) Bill. We had an identical situation there. We discovered that the principle to which we objected was contained in that legislation, which later was passed by the Parliament. The gravamen of the situation there was that the position was to be governed not by legislative action but by regulation-making power which was being handed down. If we had sat back on that occasion and let Parliament pass the bill, if we had waited for the regulations to come before us and then sounded our warning, we would have met with the same reply as we received in connexion with regulations relating to import controls.
Let me point out the position in which the committee found itself on that occasion. We submitted a recommendation pointing out the danger. Then, low and behold, the Government took a back somersault and said, “ This has passed us “. Where do we go from there? If we wait for the regulations to come down before pointing out the objection, the Government says that Parliament has already agreed to the provision in the act. On the other hand, if we do not wait, if we make an attempt to point out the danger early, the Government says that we are out of order. That is why the Leader of the Government (Senator Spooner) said to-day that we were seeking to introduce a new principle. I am merely asking the Government to examine the matter sensibly, and explaining why we have been forced to sound this note of warning.
If we examine the history of the matter we find that in any case the Standing Orders are badly drafted. Why, the four provisions under which we operate have never had the blessing of the Senate! An examination of the committee’s fourth report will disclose that it followed custom. It is only by common use and custom that the four principles under which we work have come to be our charter. If we are to have those four powers, if the individual is to be protected from overbearing rules and regulations, if the civil rights and liberties of the individual are to be protected, if we are to ensure that Parliament does not become merely a rubber stamp which passes the real power on to anonymous civil servants down the line, then, it follows as surely as the day follows the night that we must also have a preventive power.
Senator Spooner argues that if all bills were to be referred to the committee - [ emphasize that they would not be - there would be no need to consider the purpose of the bill at all. My answer to that is that even in circumstances such as those which arose in connexion with the Civil Aviation (Carriers’ Liability) Bill at least the Parliament would have the committee’s report. At least the committee would have considered the bill and tabled its report in the Senate.
Senator Spooner also said that this was the first British-speaking Parliament to establish a committee such as this. I remind him that in the British House of Commons all except certain money bills automatically stand referred to one committee or another at the end of their second reading. If that does not unduly uphold or impede the progress of the Mother of Parliaments in which there are 622 members, surely it would not do so in this Parliament.
I do not want it to be thought that the committee looks round trying to pick up every possible defect. I emphasize that, time and time again, working in a nonparty atmosphere, we have allowed the line ball to go. The point that is worrying us. the thing that has prompted us to take this drastic step to which Senator Spooner objects, is the fact that we see creeping into the Parliament of Australia a tendency to take more and more power from the Parliament and to place it in the hands of public servants under regulation-making provisions.
– Order! The honorable senator’s time has expired.
– - Mr. Chairman, I rise to conform with the Standing Orders and to enable Senator Willesee to continue his remarks.
– I thank honorable senators for their courtesy in enabling me to complete my remarks. I have very little more to say.
Let me revert to the point with which Senator Spooner started - the question pf ministerial responsibility. I wonder what Ministers have against this assistance that we are trying to provide to them? I think that one of the faults of our system is that a Minister is charged solely with the responsibility of his department. It is becoming more and more obvious that under this system a Minister fails to get a proper appreciation of overall policy. I suppose it is only human nature that when a Minister is being guided by his department, when he is tied up with the administration of a single department, he will tend to become a little self-centred. As I said earlier, although our suggestion in connexion with import regulations created a terrific furore we finally got our message over and, although we were on weak ground because Parliament had already passed the act, something was done about it. The same thing occurred in connexion with the Civil Aviation (Carriers’ Liability) Bill. For the life of me, I cannot see why Ministers take objection to our suggestions. I think Senator Wood gave a most effective reply to Senator Spooner when he referred to the history of this matter. He pointed out that frequently in constitutions, standing orders, rules and regulations of organizations, whether they be bowling clubs, the Australian Parliament or anything else, are silent on certain points and it becomes necessary to use native wit and to apply the good common sense of the Australian people.
Senator Spooner takes the view that because this suggestion was not specifically included in the committee’s second report in 1931, wisdom had prevailed in taking it out. But, as Senator Wood pointed out, an impartial examination of all the evidence will disclose that at no stage was it specifically attacked. As a matter of fact, I find it a most difficult debate to follow. For instance, I was most interested to see that Senator Colebatch, who had been nominated by the Liberal Party continually disclaimed that he was a party man. He certainly must have been a remarkable man. Sir George Pearce was another, and I think that everybody, but especially those who come from Western Australia, will know his record. Senator Daly was critical at times. After analysing the whole of the debate, he had this to say on 14th May, 1931-
I now find myself in the position of being able to support the motion for the adoption of the report. When last this matter was under discussion we differed, I think, only as to whether the activities of the proposed Standing Committee should include the consideration of external affairs. Now that the select committee has recommended the appointment of committees that will consider only such matters as reports, ordinances and regulations, I see no objection to the motion.
A perusal of the debate discloses that only about one-sixth of the speeches dealt with regulations and ordinances and that by far the greater majority dealt with the complex questions - they are even more so to-day: - of foreign affairs. We have all had enough experience of the cut and thrust of debate to know that in. the true tradition of trying to arrive at a compromise, we have all at some time or other got away from the shadow and endeavoured to get , back to the substance with a view to arriving at something that would improve om* working, especially the working of this Parliament.
Contrary to Senator Spooner’s belief, there can be no harm in the committee giving the Senate a nudge in the ribs and saying, “Look. You are stepping over the line a bit. The grant of regulatory powers which you propose is unprecedented. We think you should be a little careful in transferring such power from the elected representatives of the people to persons cloaked in glorious anonymity.” I see nothing wrong with that at all, but we were ruled out of order. If nothing else, that was base ingratitude. Not that a politician expects gratitude, but at least they might have said, “ Thank you for your report. We do not agree with you.” We would not have taken any objection to that, We would merely have said that we hoped too much power would not be placed in the hands of anonymous civil servants.
I point out that we were forced into this position. Surely it is inevitable, if the committee is to be as effective as possible. If you let the thing go through you say, “ The Parliament has spoken “. If you do not, you are merely saying, “ You are over-stepping the mark”. I cannot understand the objection. Of course, it is something in the field of politics to have agreed, and we have agreed as to the doctrine of ministerial responsibility, and the only way that can be attained is by making the Minister ensure that he always puts the rubber stamp on himself. If you forget the past, as Senator Spooner counselled us to do and look at the future, remembering that you are not sent from Heaven as Ministers to rule here forever, you might take a vastly different View of this matter.
– In a speech that was characteristically thoughtful and well-prepared, Senator Willesee referred to my own action in deferring the consideration of the Airports (Business Concessions) Bill. I had some difficulty in relating that particular matter to the subject which is now under review. Indeed, if I had wanted to give an example of the alertness of the Senate, acting in its own right, as distinct from a committee of the Senate, I should probably have cited that as an instance. The bill had nothing at all to do with the Regulations and Ordinances ‘Committee. The action that I took was taken because if the bill had gone further the Senate would undoubtedly, in Committee of the Whole, have put me on warning as to precisely what it thought of the bill, and that warning would have guided me in the action I should take. I shall return to that subject later because we are discussing to-night not so much the functions of a particular committee in isolation but rather the functions of a particular committee in relation to the Senate which appoints it.
– And to which it has to report back. That is very important.
– It has to report back, but that does not alter the validity of my contention.
– We do not wish to abrogate the powers of the Senate.
– I shall come to that point in due course. In speaking on this matter I confess at once to a consciousness that the committee whose report we are discussing is a committee of the Senate which undertakes a job which is not undertaken in another place. It is a committee which has a very real responsibility, a very real place, in the Parliament of the country. Though I may be critical of the report that has been brought down I should like to make it clear that I would be completely objective. I do not criticize either the existence of the committee - which I. warmly support - or the job that it has done in the past, and might well do in the future. I am particularly interested - as indeed I should be as the Minister most directly concerned - with the incident that gave rise to a part of this report - that part which claims for the committee a right to report - I repeat, to report - to the Committee of the Whole on legislation currently before it.
The first point in the report to which I should like to refer is that of which Senator Laught spoke when putting the motion before the Senate. He referred to that part which reads -
It is of interest to note that the motion for the appointment of the Select Committee commenced by stating the reasons for its appointment to be “ with a view to improving the legislative work of the chamber and increasing the participation of individual senators in such work “.
I may say- not in any way offensively - that hs offered a completely naive explanation of the reasons accompanying the alteration of that motion. It was amended by the mover himself to read -
That, with a view to increasing the participation of individual senators in the work of the Senate a Select Committee of seven members . . .
Senator Elliot moved the amendment to his own motion. The amendment removed from the motion for the establishment of the committee the very germ of its authority to report on legislation passing through the Senate. That there was no hostility to that part of the motion; that it was directed only to the method of election of the committee is an assertion made to-night that I fail to understand. If I needed any evidence to support me I should have to go no further than the fourth report of the committee, which sat under the chairmanship of the late Senator George McLeay. It had this to say about the resolution presented by the select committee. After quoting the original recommendation of the select committee the fourth report stated -
The committee therefore has never had the Senate’s formal endorsement of the four principles set out in paragraph (d) and intended by the Select Committee for its guidance. Paragraph (d) embraced not only the four principles but also the fact that the bills should be presented to the committee.
Indeed, the four principles were strongly attacked in the Senate by the Leader of the Opposition, Sir George Pearce, who, 1 remind honorable senators, led an Opposition of 27 against a Government membership of nine. If it is contended that Sir George Pearce’s criticism did not embrace the legislative aspect of this recommendation, then all I can say to those honorable senators who so assert is that they have never read or understood what Sir George Pearce did in fact say. What was the position? Senator Daly, who led the Government, suggested an amendment to the recommendation. His amendment dispensed with that part of the original recommendation which was to give the committee power to examine bills, but when Sir George Pearce spoke he attacked this tooth and nail - the four principles, and the fifth principle, if you like.
– The four principles had become common usage.
– Not at that stage. We are only discussing the recommendation of the select committee. The Regulations and Ordinances Committee had not been set up. Sir George Pearce moved for the recommittal to the committee of the recommendations.
I do not want to waste the time of honorable senators in reading the interesting debate which occurred at the time when the select committee brought down its original -report, but I express myself as completely mystified that anyone could say that the terms of the recommendations, particularly that recommendation which had to do with the legislation - the power to review bills - were attacked most vociferously by Sir George Pearce, who referred specifically to -section 1 (d). Now, Sir, what happened? I remind honorable senators, as I have said before, that at that time Senator Daly led a Government party of nine members. There were 27 members of the Opposition, for whom Sir George Pearce spoke, with the possible exception of his fellow Western Australian, that grand old man of independent mind and spirit, Sir Hal Colebatch, who would not be bound by loyalty to any party at any time of his life but followed his own judgment. What happened when, at Sir George Pearce’s suggestion, the report was recommitted? It came back to the Senate in a completely different form after being, as I have said, attacked in its original form in the committee of the Senate.
The fourteenth report of the Regulations and Ordinances Committee - I refer to it because I think in the interests of accuracy I should do so - states -
It is of interest to note that no controversy existed in relation to paragraph (d) of the recommendation relating to that Committee.
I controvert that strongly. I would refer honorable senators to the debate and to the amendments that were moved to the motion -
The Committee stresses at this point that no objection was raised to that paragraph and that the sole reason for the re-committal of the report was because of objections taken to the proposed method of appointment of members of the Committee.
Sir, if honorable senators are not persuaded by that argument of mine, I again refer them to the fourth report of the Regulations and Ordinances Committee, which states -
The motion for the adoption of the select committee’s report was not agreed to by the Senate, principally because of the method of selection proposed in paragraph (c).
– That was the selection of members.
– The election of members of the committee, yes.
– It had nothing to do with the charter.
– If the honorable senator will let me proceed: I want to say that there is a difference - it is a very real difference - between what the fourteenth report says and what the fourth report says. The fourteenth report says “ solely “, and the fourth report says “ principally “.
– There is a distinction without a difference.
– There is a world of difference, and a reading of the debate at that time indicated how much difference there was. There was this much difference: The leader of the Government in the Senate proposed an amendment. The Leader of the Opposition proposed that the recommendation should be recommitted. If the recommittal of a recommendation does not mean that there is a difference of view as to the recommendation made by the committee, then 1 do not know what does.
– To what section ot the recommendation are you referring?
– Sir George Pearce, as the honorable senator well knows, because he has read the debate, condemned the whole of this report with bell, book and candle. He did not support the four principles, so called, nor did he state-
– Order! The Minister’s time has expired.
– Voltaire once said, “ I do not agree with a word that you say, but I will defend to the death your right to say it.” I therefore move -
That Senator Paltridge be granted an extension of time.
– Is there any objection to the proposal? There being no dissentient voice, the question is resolved in the affirmative and an extension of time is granted.
– Sir George Pearce differed so much with the whole of the recommendation that he moved for its recommittal, and it was recommitted.
– Did he disagree with the four principles?
– Sir George Pearce disagreed, but if I can save the honorable senator any anxiety now, let me say that I accept what he refers to as the four principles.
– So much for bell, book and candle!
– This is an entirely different thing. What happened? The second report came up with recommendations completely different to those of the first report in respect of the point now at issue. There was no reference to the examination of bills. That had gone by the board. Why had it gone by the board? That was a deliberate action of the committee. The committee brought up its second set of recommendations promptly. The second report came forward and I have been interested to read some of the expressions of view by Senator Daly, Senator Barnes, Senator Johnson and Senator Colebatch who was an independent. All of these referred to the fact that this committee’s work was in respect of the examination of regulations that existed!
Let me return from there to the fourth report of the committee, in which it stated the principles that it would adopt, referring particularly to the four principles about which Senator Wright asked a question, by interjection, just a minute ago. I replied to him by saying that I thought usage over a period of years had established that the committee might well adopt these principles as its charter. The committee never at any time in its history, prior to March of this year, attempted to use the procedure in respect of a bill going through the Parliament. My research indicates that the only time at which the committee referred to major legislation was in respect not of a bill but of an act that had been passed some time previously. The first occasion on which the committee attempted to issue a report on a bill currently before the chamber was in March. The committee cannot claim usage or custom in that connexion. Prior to March, it had never attempted that form of report.
Great play has been made of the fact that the original committee, the report of which was not accepted by the Senate, laid stress on the need for preventive power. That is only a beating back to what the select committee said. The Senate said differently. If a preventive power is to be held by the committee, in the light of all that has happened since that first report, in the light of the debates that occurred in this Senate, and in the light of the committee’s second report, that preventivepower must have reference only to a powerthat springs from the warning that must go to a government when a committee of this nature challenges - particularly when? it successfully challenges - the regulations that have been made under existing legislation. I make the point, with the greatest emphasis at my command, that nothing at any time has ever conferred on the committee the right that it claimed in March last. Until then it never attempted, by virtue of usage or custom, to claim that power.
Reading the most recent debate on the matter in March last, I was interested indeed to see how closely some of the opinions then expressed compared with opinions expressed 30 years ago. I was interested indeed to read the comments made by the Leader of the Government in the Senate (Senator Spooner), and by Senator Sir Neil O’sullivan, whose emphasis on the fact that what the committee wanted to do was in fact a function of the committee of the whole echoed the opinion that 30 years ago was so frequently expressed during debates on this subject. I was interested to read that Senator Sir George Pearce, when answering a spate of interjections, replied in almost similar vein to Senator Mattner, who in the recent debate- said, by way of interjection, “ What you are doing is trying to filch the power of the Senate itself and place it in the hands of a committee “. If I may be permitted to say so, that does rather overstate the case.
I accept the point made by the chairman of the committee that the limit of the committee’s power is to report. But I say that it does not enjoy the power to report, on current legislation. The power to examine current legislation resides not in a committee of this Senate but in the Senate itself or in the committee of the whole. Thirty years ago senators - I am thinking mainly now of Labour Party senators and of Senator Daly in particular - indicated their complete objection to any principle that would remove that power from the Senate or from the committee of the whole and give it to a committee- even with the limited authority of making recommendations, and’ they pointed out that it was the duty of senators themselves to examine legislation. They went to the point of saying, that senators had’ no right to delegate that: power or authority to- any other senators in- the form of a committee, or to any other senator individually.
That, I think, covers my submission to the Senate. If I may, without giving any offence at all, I should just like to join with my leader, Senator Spooner, in the comment he made in respect of some of the language used in the report. This committee has done good work. It continues to do good work. It will do first-class work in the future. For my part - and I speak as a Minister - I welcome what I regard as its legitimate activity, but I do think that if it is to serve its best purpose and the best purposes of the Senate itself, it will do well to consider and attempt to match the language used in other reports which have emanated from committees of this Senate. I offer that as a constructive criticism. Having said it, I hasten to add that it is not in my mind that the chairman of the committee, Senator Wood, whose signature appears at the foot of the report, would consciously do anything which might derogate from the standing, stature, or reputation of the Senate, or of any committee of it.
.- 1’ believe that this debate on the fifteenth report of the1 Regulations and” Ordinances Committee of the Senate will be referred to for many years to come, in just the same way as Senator Paltridge has beenreferring to the debate on this subject about 30 years ago. I should like to remind the Senate that this matter goes right to the’ substance of the clash of opinions that is continually being hammered out between’ the Parliament, the Executive and the Public; Service. The mandate- for the Regulations’ and. Ordinances Committee-, is to be found in Standing Order No. 36a, which provides: - (1.) A Standing Committee, to be called theStanding Committee on Regulations, and Ordinances, shall be appointed’ at the commencement of each Session.
The Government does not appoint the committee. The Senate appoints it. Therefore, it is the responsibility of the’ committee to report back to the Senate, the body which appointed it. It is not responsible to report back to individual Ministers or to the Government. Its mandate requires it to. report back to the Senate.
– That is right. Nobody has suggested, otherwise.
– Yes, but the right of the committee to present reports is challenged and may be ruled out of order by the Government of the day if it has a majority in the Senate. When that is done, the whole purpose of the committee is subverted.
Standing Order No. 36a (4.) provides that-
All Regulations and Ordinances laid on the Table of the Senate shall stand referred to such committee for consideration and, if necessary, report thereon. Any action necessary, arising from a report of the Committee, shall be taken in the Senate on motion after notice.
That means that the Government, if it has the numbers, may say, “We do not like the tone of this report. It is a rather embarrassing report. It is too penetrating. It shows up weaknesses in our close advisers. We will move that the report is out of order on the ground that the committee has exceeded its authority as a Senate committee.” I think that Senator Willesee hit the nail right on the head when he said that if the Senate appoints a committee to act as a watch-dog, surely it should be allowed to bark when danger approaches.
So far as I can see, the function of the Regulations and Ordinances Committee is periodically to investigate whether certain undesirable influences are creeping into parliamentary and governmental procedures. The committee does that, and it barks very effectively until it becomes an embarrassment to the government of the day. I believe that the committee is to be commended for incorporating in its report reference to the tendency, not only with the ‘.Regulations .and Ordinances Committee, but with ,all the committees of the Senate, .for a dead hand to be placed on them and for some one to say, “These people are a .nuisance “. The Ministers do not like committees, although the members of the committees say, “We can help the Ministers in administering the affairs of this nation “. After all, committees may act as eyes and ears with which the Parliament may ‘see and hear in wider fields. I believe that such committees may make constructive recommendations to assist Ministers in the administration of their departments. I know that members of Senate committees feel, in a democratic way, that by serving on these committees they are sharing in the -functions of government. But as I have said, the Ministers of this Government do not like committees. They regard them as a nuisance. The senior members of the Public Service do not like parliamentary committees, either. They also regard them as a nuisance. They think that committees interfere with the normal turning of the wheel of administration.
Therefore, although the Senate believes that the appointment of committees will assist in the good government of this country, the Government thinks that committees should function only in name and that the moment they become inquisitive or begin to penetrate too deeply, they should be resisted. Therefore, Mr. Chairman, I say that just as Senator Paltridge referred to debates that took place in .1931, at some future date people will fumble back through the pages of “ Hansard “ and refer to this debate on .the Regulations and Ordinances Committee on 7th October, 1959. However, if the recommendations of committees such as this continue to meet with the resistance that they .ace meeting to-day, the committee system will not last for very much longer.
Its purpose will have been so frustrated that the members of committees - conscientious men endeavouring to advise and inform the Senate about what is going on - will feel that their efforts are not worth while, and, accordingly, their interest in committtee service will wane. That will happen unless challenges are made to this tendency to underrate the value of committees of the Parliament.
Tt is of little use to refer back to the position of the ‘twenties and the ‘thirties. We are living in changing times. When we look at the activities of this Parliament to-day, we see that they cover matters that were hardly thought of, in days gone by, as matters in which governments would be engaged. I refer to such things as commerce, agriculture, shipping, civil aviation and transport generally, trade, social services, repatriation, national development, administration of the Territories, defence production and immigration. All those matters have come within the scope of governmental activity.
– What about foreign, affairs? You will not join the Foreign Affairs Committee.
– Foreign affairs were important in earlier days, but they have never been so important as they are to-day. The Foreign Affairs Committee, I might add, is being stultified and circumscribed because only the Minister for External Affairs may place on the plate of the committee a little bit of chicken and say, “ Cut that up amongst you “. The Foreign Affairs Committee cannot go out as a committee and say, “ We want to have a look at this problem or that problem “. It takes what it is given. To be effective, a committee of the Senate should act as the eyes and ears of this chamber.
Each Senator who comes to this Parliament does so with a certain background. He may have been employed in industry, in agriculture, in commerce, or in some other sphere. He may have been a member of the legal profession, or of the medical profession, or he may have been a public servant. No matter what he was before he came here, his background can assist him in carrying out his functions as a representative of the people. The activities of the Government are so varied that an individual senator cannot specialize in all of them. But when a committee of the Parliament is being selected and honorable senators are chosen by their fellows to serve on the committee, those who are selected have placed in their hands responsibility to do a good job in the particular field with which the committee is concerned.
In choosing committee members, honorable senators may say, “ This man is a good one for the job. He knows a bit about the matter. We will have him on the committee.” Those who are appointed are expected to safeguard the interests of the Parliament and later to tell, in the form of reports, what they have done or decided. But it is futile to appoint such committees if their reports are not acceptable because of a technical point. It is not of much use to ask a committee to report if its report does not reach the Senate. Therefore, there is a tremendously important principle involved in this debate. It is whether the Parliament or the Executive is to be supreme. After all, the Executive consists of human beings. The mere fact that a mar becomes a Minister does not mean that he is elevated further towards Heaven than the ordinary mortal. Ministers can fall in the same way that all human beings can fall. The Ministers, not being supernatural, must rely on the advice of the public servants.
What more simple and democratic way could there be to preserve the parliamentary institution than to appoint this committee not for the purpose of destructive criticism but to watch the activities of departmental heads? They have a big responsibility and the committee has a duty to see that they act, both in the spirit and the letter, in accordance with the way of life that we hold so dear. I quite understand the concern of Ministers when a committee upsets the apple cart and offers some criticism. But senior public servants are not infallible and the Government and Ministers are not infallible.
– Nor is the committee.
– The committee does not claim to be infallible. It reports its opinions to the Senate so that the matter can be discussed. We all know what is in the report presented by the committee and we can offer our views on it. But if those reports are being resisted, then the very purpose of the Senate in electing committees to do its research work is defeated. That is really the purpose of these committees - to do research work among the departments. The reports of the committee, particularly the report which was debated earlier in the year, have performed a valuable service. They have brought the clash between the Parliament, the Executive and public servants into the forefront of debate, and the searchlight of the Parliament has been focused on it.
I commend the members of the Regulations and Ordinances Committee on their watchfulness and on carrying out their responsibilities and duties faithfully in accordance with the spirit in which they were elected by the Senate. I hope that they will continue to do so and to bring their reports to the Senate, unbiased and unabashed by any resistance they may meet. It is well said that this is a cause that needs assistance. I believe that the Regulations and Ordinances Committee is doing good work, and I commend it.
.- The essence of the committee’s existence is to ensure that the supremacy of Parlia- ment shall not be undermined by the Executive, to whom is delegated some of the power of the Parliament, acting through officials mostly, in framing subordinate legislation with expressions which do not truly represent the will of the people’s elected representatives. Whenever this Senate of the National Parliament deserts the trust it accepted on election as the representative of the people not only to watch vigilantly the expression of the statutes that are sent to Government House for the Royal Assent, but also to guard the powers contained in those statutes by which the Executive may make subordinate regulations, then this Senate will be doing less than its electors intended it should do. Especially is that so on the Liberal side of politics.
I emphasize that, because we have cherished the cause of individual liberty and the protection of the private citizen’s freedom. But the glowing thought that whelms the soul here to-day is that we have a non-party cause - a cause that is supported in such language of genuine expression as we have heard from Senator Willesee, Senator O’Byrne and Senator Cooke, matched as they have been by senators on this side of the chamber such as Senator Laught and Senator Wood. We have a cause that is completely non-party because the cause is the authority of Parliament, not in its own right, but as representative of the people, finally to express laws and to supervise the expression of delegated laws.
Mr. Chairman, the committee whose report the motion asks the chamber to take note of, emanated from debates in 1929. It is humiliating for me that I, as a Liberal, should hear one of the chiefs of the Executive authority of to-day, who is also a Liberal, wax with enthusiasm - and that is a commodity which is really a false guide on this occasion - with Pearce, with bell, book and candle, and inveigh against the proposition of the Senate which constituted a committee to vigilantly scrutinize regulations to ensure that they are in accordance with the statute under which they are made - that is, to ensure that they obey the parliamentary behest. Secondly, the committee was appointed to ensure that the regulations shall not trespass unduly on personal rights and liberties, a cause which I hope we shall all cherish and defend to the uttermost of our political existence if we are liberals - not in the party sense.
Thirdly, the committee was constituted to ensure that regulations shall not unduly make the rights and liberties of citizens dependent upon administrative, as distinct from judicial, tribunals. This reminds us of the stirring times when the judiciary was not independent and when old Cook, having been dismissed from his unprotected judicial office, walked into the Commons and led the Commons to pass the Petition of Right, setting down the four corners of liberty in language in which there is not an unworthy expression, and to recreate, as the revolution of 1688 did recreate, the independence of the judiciary. Since that time the common man of England has regarded the British judiciary as his bulwark and safeguard. The Senate, in its wisdom, when constituting this committee, of which I have the honour to be a member, charged it to see that regulations did not make individual rights dependent upon the judgment of officials or the Executive, but upon judicial decisions. Finally, the committee was charged to see that the regulations are concerned with administrative detail and do not amount to substantive legislation, which should be a matter of parliamentary decision.
The clause in the Civil Aviation (Carriers’ Liability) Bill, which was the responsibility of the Minister for Shipping and Transport (Senator Paltridge), and which evoked the resentment of the Ministry to the committee’s last report, was -
The regulations may provide for applying, with such exceptions, adaptations and modifications as are prescribed, the provisions of the Warsaw Convention and the Hague Protocol … to the carriage of cargo. . . .
We should remind ourselves that the Senate devoted three days to a debate, worthy of the Parliament, on the law that should apply to an airline’s liability in the case of passengers. The liability of an airline in relation to cargo was relegated to the Executive, to be expressed in any manner in which it thought fit to apply the Warsaw Convention or The Hague Protocol - treaties that had been agreed upon after international conferences in which this Parliament, as such, was not represented.
The committee, conceiving that it had a duty, not to usurp the powers of the Senate, but to inform the Senate of the existence of that regulation-making power, discovered that the Government regarded its expression of opinion as unwelcome. That bill was passed, but the committee, within recent weeks, reported the whole of the facts, from which springs the idea that it has a duty and. a privilege to express the basis of its outlook upon a clause such as the one to which I have referred. It brings before the Senate to-night a report in three parts. The first part deals with the duty of the committee to scrutinize clauses in a bill which gives extremely wide powers to the regulation-making authority. The report gives the history of the matter and demonstrates that the expression of the view of the Senate when the committee was originally constituted was somewhat incomplete.
The Standing Orders provide that the committee shall have referred to it all regulations and ordinances laid on the table of the Senate, but they do not confine the committee to the four points, the four qualities, that I have detailed. On the strict reading of the Standing Orders, the Regulations and Ordinances Committee would be entitled to take all regulations into its cognizance and report upon them if, in any parliamentary sense, they were objectionable to the committee.
In endeavouring to find the true purpose of its existence, the committee itself, a long time ago, in its fourth report - upon which the Minister for Shipping and Transport laid such emphasis- but by which, I think, he was not properly guided - said that it was only concerned with ensuring that regulations should conform with the essential rights of justice, in the spirit of the act under which they had been promulgated. However, finding in the report of the select committee a recommendation that the clauses of legislation ought also to come under the scrutiny of this committee, and finding that authorities external to Australia, have- commented upon the inclusion of that recommendation in the select committee’s report expressing the viewpoint that legislative clauses are germane to this committee’s consideration, the committee does not assert the view- that it has a- duty and, therefore, a responsibility^ to report upon those matters’, but it reports to the* Senate the whole of the historical proceedings and asks that the Senate now, in 1959, make up its mind.
I rejoice to. find that, outside of those who peculiarly represent the Executive outlook, there seems to be a growing insistence upon the rights of this chamber, in a completely non-party sense, in relation to this committee. I am proud to say that the idea of the party line never dawns upon the consciousness of any individual member We address ourselves to a consideration of regulations in the spirit of serving the Senate, as a non-party House for the purpose of preserving the rights of Parliament from being undermined by subordinate legislation. Without any assertion of right, we submit this question for the deliberate and thoughtful consideration by the Senate, undeterred by the ghosts of Pearce or other ghosts of the past, and conscious of the challenge that of subordinate legislation offers to this Parliament in 1959, particularly to a Parliament which has a liberal purpose in the non-party sense.
– The committee now has before it the fifteenth report of the Standing Committee on Regulations and Ordinances. It is in three parts. We ave confined at the moment to the first part. The report before us raises questions of fascinating interest and of first-rate importance. I express to the committee, as I have done on many occasions in this place, my personal gratitude, as a member of the Senate and as Leader of the Opposition, for taking from me what would otherwise be my responsibility to look at every regulation. The’ committee does that on. behalf of the Senate with very great thoroughness. I think that the members of this committee render a service, not merely to the Senate, but to the Parliament, and ultimately to the nation. They do discharge a vastly important function.
I hope that my grateful appreciation of the quality of the work of the committee will not be in the least affected if, on one point, I offer some criticism of the latest report of the committee. It is extraordinary to review, even in the past, the balance between the legislative acts of the Parliaments and the quantum of delegated legislation. This matter was1 referred to- in the report of’ the select’ committee at page 9. The Honorable J: A. Keating gave evidence before the- select committee- During the course of his evidence, he said that on looking through the records he found, that the Commonwealth Acts of Parliament from 1901 to 1927 covered no fewer than 3,708 pages, but, on going through the Commonwealth Statutory Rules- for that period, many of which were consolidations, he discovered that they ran into 11,263 pages. So that the laws up to that date governing, the Commonwealth lay rather in delegated legislation than in legislation by act of Parliament. From my experience in the intervening period, including the war period, of course, 1 should say that that trend has been not only maintained but accentuated and that the volume of regulations has grown apace in comparison with the legislation of the Parliament.
It is interesting to refer for a moment only to the history of the protection that has been accorded to the nation in the matter of delegated legislation. In the very leisurely days of the early part of this century, there was a Rules and Publications Act, which was passed in 1903. It provided that intention to make a regulation had to be notified in the “ Gazette “ for 60 days - I repeat, 60 days - in advance of the making of the regulation. Any member of the public was then free to make representations against the making of the regulation, which he could peruse in draft form.
– When was that?
– In 1903, I refer to the Rules and Publications Act of that year. The honorable senator will find it dealt with on page 20 of Professor Bailey’s evidence on 30th January, 1930. The professor was then Dean of the Faculty of Law at the Melbourne University and, as the Senate knows, is now Solicitor-General for the Commonwealth. It is also dealt with in paragraph 17 of the report of the select committee of the Parliament itself. That provision was repealed in 1916 and one can understand its abrogation in time of war, between 1914 and 1918, when the resources of the nation were marshalled for quick action.
The other great protection began in 1904 when section .10 was written into the Acts Interpreation Act. It required regulations and ordinances to be laid on the table of the Senate within, a. limited period and enabled the Parliament to’ disallow regula- tions: within fifteen sitting days. That latter provision threw the responsibility very heavily on to each individual member of this Parliament. I was very relieved when I came into the Senate to find that therewas in existence then a standing committee on regulations and ordinances to relieve me. of the heavy responsibility which I felt rested individually upon me.
The history of the matter, of course, is that we relied entirely upon individual members of this Parliament to watch the delegated legislation until the matter was raised by the Elliott select committee of 1929. Brigadier-General Elliott, was a very famous soldier. Some honorable senators may remember him. “ Pompey “ Elliott was his famous name. He had served with, very great distinction in the First World War. As his contributions to the debates, clearly show, he played an equally effective and prominent part in the deliberations, of. this place later on.
The select: committee was appointed toinquire into whether, amongst other types; of committees, a standing committee on regulations and ordinances should be established. There was that gap from the end of 1916 right up till then, when the responsibility for delegated regulations rested squarely on each member of the Parliament. That was followed by the Senate standing’ committee- which was duly established in the leisurely days of 1929 and submitted a* report in 1930. A second report, made in 1931, was returned to it, and, in d,ie and leisurely time; Standing Order 36a washammered out, and we have our present Regulations- and Ordinances Committee.
Primarily, then, the responsibility in the Parliament rests on that committee. Secondly, but nevertheless in a high degree, it rests on each member of the Senate. This committee, in the report now before us, claims the right to report, in what it deems to be a proper case, to this Senate, pursuant to its- authority, on. any clause in a bill which, appears to pass too much delegated power out of the Parliament. In other, words, it. reserves the right to: express the opinion - that, and no more - to this Senate that certain legislative powers which, in the opinion of that committee, should be: exercised by Parliament are being passed to departments- or. to- externe taw-making bodies.
So far in this debate, we have heard mainly from members of the Regulations and Ordinances Committee. I thought it proper to let the debate develop along those lines. We have heard from two Ministers. It was quite proper that they should intervene early in the debate to put their viewpoint. But all day they have been the only dissentients from the proposition that the Senate committee advocates.
The Senate committee rests first of all upon the wording of Standing Order 36a itself. There are no principles laid down by the Senate for the committee to observe. There are no particular exclusions. One thing is that rules and regulations which are tabled in this place stand referred to the committee. The committee might well argue, as I did when the point of order was taken on 18th March last, that that is not exclusive; that it does not confine the committee to that particular point alone. The Senate has concurred in that view in accepting from the committee reports enunciating the principles upon which it was proceeding. The Senate itself has concurred in the committee reporting outside the particular matters of ordinances and regulations.
Honorable senators will remember that the point of order arose suddenly on 18th March in relation to a bill. I have looked back over the debate and. although I did not then have the long opportunity I have had now to consider the matter, I find I do not need, really, to recall the view that I then expressed. I have already given expression to it in something that I have said to-day.
The committee points - and nobody as yet has adverted to this - to the practice in the Indian Parliament, one of the newest parliaments, which carefully reviewed all the procedures of the world. The Indian committee, charged with a similar purpose, has taken a similar line to that taken by our committee in the report which we are now considering. The Indian committee claims and asserts the right to bring in a report if, in anticipating trouble in a particular clause, it feels that the Parliament’s attention should be directed to it. That is an argument that must influence the mind of anybody addressing himself seriously to this question.
I know how carefully this modern Parliament reviewed every system in the world. It adopted standing orders similar to our own, and enables them to be interpreted in the way contended for by this committee. I think that is a tenable argument, but I regret that our committee rather marred its report by misquoting the terms under which the select committee was appointed in 1929. That is unfortunate, and I would agree broadly with what Senator Paltridge said in relation to that matter and to the opposition with which the first report of the committee met in this place. I am afraid that I am at one with the Minister in that matter.
I want to refer in particular to the contribution by Senator Spooner. He said he thought it would be a bad thing for the Senate if the power sought and contended for by the committee were to be granted. He gave four reasons. The first was that it was a fundamental practice of government that the Government was responsible for the order of business, that it would have to change that order to let the committee function. With .great respect, I cannot accept that argument. In the first place, very few bills are introduced in the Senate. When they are introduced, most are amended. Again, most do not have regulationmaking powers. In any event, the majority come to us from another place. A committee that was really alert would be watching the particular clauses in relation to which it had a responsibility long before they reached this place. When bills do reach this place they are read and carried to a second reading. The debate is then adjourned to a later day - often for a week - to enable party meetings to deal with them and so on. There is always a gap of at least a day or two, often of a week or two. After all is said and done, the committee has to answer - looking at a clause which authorizes the making of rules outside of the Parliament - but one simple question: Is the type of power that it is sought to confer outside the type of power that should be exercised by the Parliament itself? That simple question could be resolved, I suggest, with great speed. Therefore, on that, I am afraid that I cannot agree with Senator Spooner.
The second contention was that the committee’s examination would be hurried, that it would not have the benefit of legal advice.
What 1 have said in relation to the first point applies here with equal force, lt may be that their official legal adviser would not be available in some cases when he would be required at short notice, but on looking round the Senate 1 see legal luminaries who have graced the committee. Therefore, it would certainly not be left without competent legal advice. I repeat, that the committee has only to answer the simple question whether the legislative power is one which should be exercised by the Parliament itself. Surely that is a simple matter which does not demand lengthy consideration. It would be a great consolation to me to know that there was in this Senate, on every such occasion, u body of seven senators watching the position and making contributions to the debates. I would be very much happier if I knew that they accepted, with the concurrence of the Senate, this responsibility to report in a particular case. I really feel that I could rest easily in relation to such clauses.
– Order! The honorable member’s time has expired.
– 1 rise to intervene in the debate so that the Leader of the Opposition may continue his remarks.
– I thank the Minister. 1 shall be reasonably brief. The third point which Senator Spooner put to the committee was that it could make a selection of bills for its own purposes. Of course, it would. It would not worry about bills which had no rule-making clauses. It would not report on bills that it found satisfactory. It would be the odd - the outstanding - case, as in the past, that the committee would bring to the notice of the Senate. It would be well to have our own body of trained personnel watching those particular clauses at all times and directing our attention to them. The tendency is to concentrate on matters of high political content - matters at issue on a particular bill - and leave the regulationmaking power to take care of itself. I know that I would rest easier in my feeling about the responsibility that I would carry if I felt the committee had the primary responsibility. I would certainly’ never abrogate my personal responsibility” in relation to any matter which appeared in a bill. I am prepared to accept it and carry it, but it would be an enormous help if the committee, with the concurrence oi the Senate, were free to report upon such matters.
The fourth point which the Leader ot the Government made was that tradition sets a standard, that the standing and prestige of this committee might be adversely affected. That is purely a matter of opinion. Action by the committee on the lines it suggests, and which I am willing to concede to it, would enhance rather than detract from its reputation. It would help to build a tradition for the committee. Senator Paltridge indicated - I hope he will correct me if I am wrong - that the handing of this function to the committee would be an abdication of the Senate’s authority. I disagree entirely. After all, the committee is not only the creature of this Senate; it is also the Senate’s servant. The Senate does not obey its demands. The Senate has the advantage of receiving the committee’s reports, and those reports carry no particular weight so far as motions are concerned. It is for the Senate to take such action as lt thinks fit.
Surely, the Minister will recognize that the committee has a purely advisory function, and that it has built up a high reputation down the years. I put it to the Minister that, after all is said and done, such a committee has a preponderance of Government members.
– You know that you enjoy a present advantage.
– The Opposition does not. There are four Government and three Opposition members. That is the invariable constitution of the committee. Fortunately in this debate party considerations have not intervened. The matter has been approached very objectively. The same happy position obtains in the committee. We have had ample evidence of that. All I say to the Minister is that, in fact, there is a Government majority. Why should he hesitate to accept an advisory service from a committee competent and willing to advise? I can say without hesitation that I should welcome such advice under all conditions. It is not unusual for me to find myself opposed to the two Ministers who have spoken in this debate. I am also opposed to the body of opinion that certain other honorable senators expressed earlier. I think that we should be acutely grateful to the committee for raising this matter. When the point of order was raised on 1.8th March last it was done suddenly. A ruling merely disposing of the question by “ yea “ or “ nay “ was given- No adequate argument was indulged in, and no reasons were given.
– But that ruling was only on a point of procedure in the Senate.
– That is so - as the honorable senator argued at the time. 1 think that the Senate is indebted to the committee for raising the matter now, when it can be thrashed out as an abstract proposition in the objective way that we have seen during the discussion to-day. To sum up, I would welcome the Senate putting beyond doubt the power of the committee to .act in the way that it proposes. I think that, as things are already, .the committee has the necessary power, but it would be wise to put the matter beyond the bounds of dispute; and I would hope that, following the discussions in this chamber to-day, the Government would consider introducing a substantive motion that would put the committee’s power beyond doubt.
Senator GORTON (Victoria - Minister for the Navy) [9.39J. - At this stage in the debate -I hope that the committee will forgive me if I give my understanding of how the Standing Committee on Regulations and Ordinances operates at present, and lias worked without much question for a number of years. I think it is relevant to say that in order to point out how it works, because some of the things that have been said to-night indicate that it is, in its present form, virtually useless. All experience shows that it is anything but that. The way this committee works, Mr. Temporary Chairman, is that it has the right and the responsibility to examine all regulations made under delegated power and laid on the table of this chamber. The committee is charged with the responsibility of seeing that those regulations do not go beyond the ambit of the act that authorizes them, and do not in other ways interfere with the freedom of the individual or ^trespass harshly” upon his rights. I must say that, in the .’exercise of that responsibility, it seems to me that this committee - at any rate in the last ten years - has functioned more effectively and has more faithfully fulfilled its task than did any committee in the preceding ten or fifteen years.
Senator Willesee himself, in the course of seeking to question the use and value of the committee as it is at present constituted, pointed out at least two occasions on which it was able to fulfil its duty and to have regulations withdrawn because they did unduly trespass on the rights of the individual. So my first point is that this committee has power now to see that delegated legislation is not misused. Secondly, on the evidence of spokesmen for the committee itself, it has rightly and properly exercised that power. And I would add as a third point - since there has been some question during .the debate of this being a matter of senators versus the Executive - that during the term of office of the present Executive, this committee has been fostered, has been given every opportunity, and has not been thwarted at any stage, as far as I know, by the Executive in the exercise of its power to examine regulations and ordinances after they have been tabled.
The committee has now presented its report, stating what it believes to be the situation in regard to its powers and, I think, seeking to extend its powers beyond the right to report and advise on regulations after they have been laid on the table of the Senate. I think that paragraph 11 of the report indicates what the committee has in mind, when it .states -
The Committee regards as a proper demonstration of its function and its effectiveness, the drawing of the Senate’s attention to an example of what .appeared to the members to be a particularly wide ‘regulation-making ‘power in ‘the Civil Aviation (Carriers’ Liability) Bill 1959.
That is to say, it regards as a proper demonstration of its function, not merely the right to report on, to advise on, and possibly to condemn regulations after they are made, but to report on, advise on, and perhaps condemn provisions which might enable the making of regulations which the committee would not like.
– When expressed as a clause in a bill?
– Sometimes expressed as a clause in .a bill but, according to the terms of this report, not necessarily written into a bill. That, is the position as. 1 see it.
The argument advanced by the committee that this is the- present situation - I leave- aside, for the moment, the question of whether this should be the present situation - is contained in the first eight or nine paragraphs of the- report. It has already been fairly clearly pointed out, I think, that as the mover of the motion in relation to this report himself agreed, words which might have tended to indicate that the present position is that this committee has the right to examine legislation, were not in the motion which set up the select committee to examine this matter but were, in fact, removed from the proposed’ motion to set up the committee, not By accident but as the result’ of a long, debate in which senator after senator objected to the committee having, that particular legislative right.
– Minor, words were substituted.
– I would say that particular words improving the legislative, work of this chamber were included in this report - as they would- have been if I had been making the. report,, and had they been correct - to show that the Senate when it set up the. select committee did regard a part of the. standing committee’s, function to be, to. examine legislative- as well as regulatory law. Those words were removed, as I have said, not by accident, but after considerable debate. During, that debate on 5th December, 1929,. Senator Elliott said, towards the end: of his speech - and I recommend honorable senators to read the whole speech - as reported in “ Hansard”, volume- 122; at page 747 -
It would be an advantage to have a committee of this Senate responsible for perusing these regulations when they are tabled, to see if they are: consistent with the- act under which they are framed and not in. any way detrimental to the interests of the people.
He had indicated rather a wider, interest than that in his prefatory remarks and as a result of that rather wider interest Senator McLachlan, later in the debate, when speaking to Senator Elliott’s motion, said -
I suggest to the mover, who, I am sure, is, actuated by the very best, of motives,, that, since it is capable of interpretation- in a manner not- contemplated ‘ by. him, it should be somewhat modified. I understand- that it was not this intention to examine so much the legislative functions of this chamber, as the position which has arisen with regard to statutory rules and- ordinances, which- are presented by all governments in thischamber in such tremendous volume.
So’ it is reasonably clear, I think, that the words that, might have indicated that the Senate intended this: committee- to- examine: legislative functions were, not removed byaccident. The result, of course, was that a-, different motion was. brought in; but- the; select committee constituted by that- different motion still indicated that it thought the committee to- be appointed should havethe responsibility of seeing that the clause of each bill conferring regulationmakingpower did not; confer legislative power. That report was withdrawn, and now the present, committee in its Fifteenth Report states - I think again in error -
It is- of interest to note that. no. controversy existed in relation to paragraph- (d); -
That is the one to which I have just referred. It has- been pointed out that indeed’ a controversy did exist and that indeed paragraph (d) specifically was attacked by Senator Sir George Pearce. I agree that as Senator Wright has said, we can get too tied up with ghosts of Pearces and so on, but I am concerned with the wording of this present report which I think tries, in error, to show a position to exist which in fact does not exist.. The rest of the ground has, I think, been fully traversed. Because, the Senate would not accept the select committee’s first report, a second report was brought in, which the Leader of the Opposition says is not exclusive but states only that all regulations and ordinances laid on the table of the Senate should be referred to a committee for consideration and report. I do not believe that it is tenable for the1 mover of the present motion, Senator Laught, to say, as I understood him to say; that, the committee has a right- to regard as a charter a motion from a select committee which was rejected by the Senate as a whole.
– That part of it was not. rejected.
– That part which the honorable senator, was regarding, as a charter was rejected by the Senate as a whole and replaced with a motion of a, different- kind! and a report of a different - kind’.
– Does not that overlook the fact that in every report of the committee since 1930 it has stated its charter in the terms of the select committee’s report?
– I have not seen every report of the committee since 1930, but 1 have seen the 1938 report, which I believe is the fourth report, and in which the committee stated that because it did not know exactly how it should go about examining ordinances after they had been tabled, it had taken in the past and would take as its touchstones the four principles which are: To see that the regulations are in accordance with the statute, to see that they do not trespass unduly on personal rights and liberties, to see that they do not unduly make the rights and liberties of citizens dependent upon administrative and not upon judicial decisions, and to see that they are concerned with administrative details and do not amount to substantive legislation which should be a matter for parliamentary enactment. I would say that usage had established those four principles of action to be properly exercised by the committee in examining regulations after they had been tabled, and that is all that is claimed in the fourth report of the committee.
– But they are contained in the same paragraph as that sentence to which you object in the select committee’s report.
– No, they are four principles, numbered 1, 2, 3 and 4, in a special paragraph after (d). I do not think any one reading those could possibly imagine that when this committee said it subscribed to four specific principles it meant that it subscribed to five. Those four principles in themselves I would regard as right and proper, and the committee at this stage, or at any stage before to-day, has never claimed that those principles should be applied in any other way than in the examination of regulations after they had been made. Surely a committee of this kind, acting in the untrammelled way in which it has acted, and to the great benefit of this Senate and to the people of Australia, as regards delegated legislation, has in those four principles all the powers that the Leader of the Opposition said he thought it should have. He mentioned, if
I remember rightly, that he thought it should be able to see that regulations were not substituted for what should properly be legislative action. Principle No. 4, as applied to any regulation, is to see that the regulation is concerned with administrative detail and does not amount to substantive legislation, which should be a matter for parliamentary enactment. So, by applying that principle to any regulation which may be tabled, the committee has a full and proper right to do what the Leader of the Opposition said he thought it should do. One other point was made by the Leader of the Opposition when referring to the Indian House of Parliament. Indeed, it is a point that is mentioned in the report of the committee itself.
– Order! The Minister’s time has expired.
– I intervene in the debate merely to give the Minister an opportunity of concluding his remarks.
– I thank the Senate for its courtesy. It is quite true that the Indian House of Parliament or the committee appointed by it does have the right to examine bills as well as regulations after they have been made, but the very man who makes that point, Sir Cecil Carr, Q.C., in “ Public Law “ of 1956, when referring to the committee of which we are talking now, said -
The Senate at Canberra appointed a Scrutiny Committee in 1932 to which, under Standing Orders, all the regulations and ordinances laid before the House stand referred for consideration and, if necessary, report. This committee applies itself to ascertain that instruments . . . are in accordance with the four principles already enumerated. In the course of examining committees of this kind throughout the Commonwealth, he leaves no doubt that at least in his mind this committee is not of the kind mentioned as having been appointed in India, but is of the kind that has been appointed in the House of Commons.
So, I conclude my second point by saying that 1 believe this fifteenth report of the committee, taken in conjunction with all the debates and with all the resolutions that have been passed, shows to most impartial people that the situation at present is that this committee does not have, because it has not been given by the Senate and has not even claimed as a right of usage, the right to examine legislation other than legislation of the kind made by regulation under delegated authority. Whether or not it should have such power is another and a rather larger question. As I do not wish to trespass on the forbearance of the Senate, I shall say only that it seems to me that at present if the four principles enumerated are applied to all delegated legislation, all of which must come before this chamber, full protection will be given against any wrong regulation. That is what this committee is designed to give. I would fear, men being what they are and political parties being what they are, that if we sought to go beyond that protection against regulations - if we sought to move into legislation by one step and then another step, by a committee bringing in to this chamber a report to which it would stand committed and the matter going to a debate on a bill - not on a regulation which may be disallowed - the members of the committee would themselves be caused great embarrassment, and the intrusion of party politics, from which this committee is now so happily free, would lead alone to the ultimate decay of a committee that is doing so much good work at present. That is how I approach the question that is before the chamber to-night.
.- I did not intend to take part in this debate. It is against all my instincts to do so, because we see a valiant minority comprising Ministers fighting against an overwhelming majority. The minority is weak, both in numbers and in force of argument, and all my instincts and my Irish background would want me to go with the minority; but the fact of the matter is that while the weakness of the Ministers’ case makes me feel sorry for them it also encourages me to enter the debate. The Ministers have put up a gallant light. It has been a kind of Rorke’s Drift operation. The gallant English square that we have read about seems to be epitomized in the defence of the Ministers to-night on the weak ground on which they have tried to base their case. Senator Paltridge almost went to the extent of denying the right of the committee even to report to the Parlia ment. I could not follow his argument. However, I do not propose to get into a legal argument on this matter, because the legal aspects have been extensively covered during the course of a very long day.
Senator Gorton, in stating the four principles governing the appointment of the Regulations and Ordinances Committee, seemed to be able to take (d) away from the four clauses. He separated them, but I point out that (d) provides that -
Such Standing Committee shall be charged with the responsibility of seeing that the clause of each bill conferring a regulation-making power does not confer a legislative power of a character which ought to be exercised by Parliament itself, and it shall also scrutinize the regulations and ascertain;
– That is right. It shall also scrutinize regulations to ascertain their nature.
– But the principle does not end with a full stop. There is only a semi-colon. I cannot comprehend how it is possible to divide the principles in that way.
It amazes me that Ministers of this Government do not support a committee, the activities of which could widen the scope of Ministers and increase their imagination and power to see over a wider field. It seems that when a man becomes a Minister, instead of his approach to problems becoming wider, it becomes narrower. He seems to develop a self-protectiveness that should go with motherhood rather than with elevation to ministerial rank. We see Ministers in this chamber fighting the fight of self-protection. What are they frightened of? Cannot we apply some common sense to this matter and realize that the Senate as a whole wants to do the best job that it is possible to do? That is what honorable senators are here to do. References to what Sir George Pearce or Senator Daly may have said more than 30 years ago are not valid, to my way of thinking, in this year of 1959. So much has changed in the legislative life of the Commonwealth. Those who look back, over the early years of the Commonwealth must be struck by the fact that while Cabinets in those days were small, the amount of work that Ministers did was also small compared with the work that Ministers do to-day in a Cabinet three (times as large . as the Cabinet at the time of -federation. The work !bf Ministers has grown with :the growth and development of the -Commonwealth. Ministers to-day find it physically impossible to scutinize adequately even the bills that they are responsible for bringing into this chamber or into another place. As Senator McKenna stated so ably, .Ministers should be glad to feel that, if there is something they have missed and that could be .added to a bill for the purpose of ensuring that rights that have been laid .down .are protected, there ,is a bulwark, ,a second line of defence .behind them. Ministers ‘have to toe protected against themselves, because -.it is physically impossible for them, .in these days, to devote themselves to all the detail that their portfolios involve. Not only in (this country, although it is particularly -true of Australia, but elsewhere in ‘the world there is a rising tide of bureaucracy. I think, unfortunately, that bureaucracy is a bit like inflation. We cannot do away with it and perhaps there will always be a little more of it; but uncontrolled bureaucracy is like uncontrolled inflation.
We must give this committee not only -.encouragement to try ‘to be a watchdog in our democracy, but we must also .give it ;the power that it asks for, in order that it may be an efficient watchdog. All that the committee asks is that it ‘be allowed to function -efficiently. Senator Gorton has said that he wants to give the committee every opportunity ‘to afford protection against wrongful practices. Yet, ‘he resists the approach of the committee towards a widening of its powers. Surely the committee is .best able ito ‘judge how it may work most effectively. Can we rest any longer on quotations from well-thumbed copies of -“ Hansard “ of 30 -years ago? Sir George Pearce has been elevated in this Senate to the position of .a person of whose opinion we should ta’ke great notice, because he thrashed this matter bell, book and .candle. To me, with my little ‘knowledge of him - 5 saw %im at work in the ‘Senate- -=Si ‘George Pearce’s opposition to something would be a. fairly substantial reason for supporting it.
– That .is not the Opinion of history. He was one of the -best men who ever .sat in this Senate.
– Then that is mao luck -for a .lot of us.
– Tt is true.
– It is not true at .all. ;As a matter -of fact, the .full history of Sir George Pearce .has not yet been written, .but the history of .him that I have read does not support what -Senator McCallum says. It shows that, on the .contrary, he was a most conservative man and a most narrow man, -a man who, in a growing .country .such as Australia, did not play his part as he might in the leading position that he held for :SO many years.
– I have read his history.
– The honorable senator has his opinion, but in my opinion, the fact that Sir George Pearce opposed a proposal would -be .a very strong reason for our giving to it careful consideration and approving it.
As .1 have said, the only arguments that we have heard so .far to justify denying the committee the exercise of the powers that it feels .are necessary to it if tit is to work efficiently, .have been based on quotations from statements made 30 years ago. We are now facing ,in the .-government of this country a completely ‘different set of circumstances. The Senate, in its wisdom, has appointed a -special committee to watch -certain matters. It is :easy for -a Minister to lean back and allow regulations to be made in his department, against all the basic (democratic principles which. it is -the obligation (Of members of the Parliament to protect. After all, a committee only gets what it lights for. The ..-Regulations rand Ordinances Committee has .done a magnificent Job, without -the ‘slightest .taint of party political .bias. I -can .truthfully ;say that not one of the ‘Opposition supporters who ;has served -on .the committee -has put mp a proposition in order to embarrass the [Government. I think .it will be admitted that the members <of -the committee have approached the problems with which they :have - dealt, :in a- very high:minded manner. Some people may think that one .or .two Government supporters who are members of -the committee may have been ‘interested in embarrassing the -Government, but :I do ‘not ‘believe that that -is so. The .committee has made a name -for itself, and it sees ;mat there are ‘limitations to its powers. Senator Gorton stated that the ‘committee had already been able to achieve one or two things because it had brought matters to the notice of the Senate and of .the Ministers concerned. But it has always been in the most difficult circumstances that achievements have been made. Ministers have denied the right of the committee to interfere but then, as a kind of ex gratia payment, the alteration that the committee has suggested has been made. I do not think that the committee asks for much. It has a reasonably commonsense approach, in view of the particular difficulties created by the growing bureaucracy in government to-day. I do not say that offensively. Bureaucracy is a natural development. We see it occurring under our eyes because Ministers have not the time to supervise all the problems of their departments. I think all Ministers will admit that that is so. Therefore, this watchdog committee that was set up in the wisdom of the Senate years ago should be helped to do its work properly. Are the Ministers frightened of what they themselves call interference? Interference from whom. It is only from their colleagues in the Senate. It is interference from men who, like themselves, are elected to Parliament to do a job for the community. Are they frightened of interference from such men? It appears that they are. The Ministers have lined up against this committee consistently. They are righting a battle which, somehow, I find difficult to describe. It is not a battle of conviction but a battle which they feel they should fight .simply because they are Ministers. They are in an entrenched. position .and they feel that to listen to anybody or accept the .advice of anybody is a. sign of weakness. 1 assure the Government that it is not a sign of weakness but, .on the contrary, a sign of great personal .strength.
The more this elected body gets together to do the work of the people - as is evidenced ‘by the work performed by this committee - the better for everybody. It is strange, as has been evidenced to-night that no rank and file member on either the Government or Opposition side has done other than agree with the committee’s recommendation. The only ones who have spoken against the committee’s recommendations are the three Ministers who have taken part in this debate. It seems to me that they are forced into that position. As I say, when a man reaches Ministerial position he is frightened because when some mistake is pointed out in legislation for which he is nominally responsible he feels it as a personal affront. Nothing is further from the mind of any member of the Senate. Why should we wish to embarrass Ministers? We wish to protect Ministers, and in protecting them we are protecting the rights of the community as a whole. Reference has been made to the steady onrush of power moving from the elected body into the departments in the capital cities and in Canberra. That power is exercised by men who are anonymous and whom it is impossible to come to grips with because in effect they do not exist. When finally you may track one of these men down, the whole apparatus up to the head of the department defends the man, and even the Minister takes that line.
This debate has served a really good purpose. I could not resist adding my small weight to the arguments and persuasions which seem to have been lined up against the Ministers opposite, who have been the only ones in this chamber to try to deny the just claims of this committee.
– As I am the newest member of the Standing Committee on Regulations and Ordinances, and .consequently the junior member of the committee whose report we are discussing to-night, I think it is only fitting that I should be the last one of the members of the committee to speak. Two things please me as a member of the committee. The first is that all the speakers have expressed the thought that this committee of which I am glad to be a member is performing a very worthwhile function; and the second is that the debate has been almost entirely devoid of provocative statements. It .has been conducted virtually on a non-party basis, and as a result the Senate should be considerably enlightened about the -functions of the committee and encouraged, perhaps, to persevere with it in the future.
I reiterate that members of this committee have no desire at all to interfere with the functioning of the Senate. . The committee does not seek functions that would enable it to usurp any function of the Senate. It regards its task as that of bringing to the notice of the Senate, for any action it may see fit to take, recommendations on the matters that are referred to it. The committee had that experience just recently, and no doubt it will have it again in the future. Having brought any matter to the notice of the Senate, the committee feels that it has discharged its task. Members of the committee found it rather disconcerting that after carrying out their duties to the best of their ability, their actions were not regarded in that light, but were regarded as something in the nature of pin-pricking. I may be wrong in that feeling. I hope I am, but unfortunately that feeling did persist among members of the committee. As I said, I am the junior member of the committee. When I became a member, to use a phrase that is familiar to some of us, T decided that I would go on the committee not with the desire to rule and teach but rather to submit and learn; and I have endeavoured to live up to that rule.
My need as a member of the committee - and I feel it is also the need of various other members - is a clarification of the functions of the committee. It is quite obvious there is a conflict of opinion in that respect. At one stage the majority of the members felt that the committee had a preventive as well as a corrective function. Much argument has taken place on that point. Having looked at the select committee’s report I noted that that committee stated that in its opinion the standing committee should have a preventive function, but in its recommendation to the Senate it did not use those words. My feeling is that the committee has not a preventive function as was mentioned by the select committee. That is just my own opinion, and as honorable senators know, I am just a layman. However, that is my feeling about the situation at the moment. As has been disclosed to-night, various authorities have indicated that the committee has not only a corrective but also a preventive function.
– Opportunities for more work.
– That is so. At this juncture I should like again to emphasize the fact that all the meetings of this committee that I have attended - I have attended all those that have been held since I became a member - have been conducted on a non-party basis. I sincerely hope that if the horrible day should come that there is a change of government, such a state of affairs will continue and the committee will continue to function on a non-party basis, in support of what I say, at the last meeting of the committee Senator Wood was unavoidably absent and Senator Arnold took the chair in his absence. No one could have exercised the duties of chairman in a fairer manner than did Senator Arnold on that occasion.
I appreciated the remarks of the Leader of the Government (Senator Spooner) and the Leader of the Opposition (Senator McKenna), and I particularly appreciated the contribution to the debate made by Senator Willesee. I thought Senator Willesee put the case for the committee very well to the advantage and education of all of us. We have been given the history of the setting up of this committee. Perhaps it would be interesting to the Senate to know what witnesses were heard. They were Professor Kenneth Hamilton Bailey, Maurice McCrae Blackburn, M.L.A., the Honorable Sir Francis Grenville Clarke, K.B.E., M.L.C.. Frederick William Eggleston, Henry Chester-Master Garling, Sir Robert Randolph Garran, K.C.M.G., the Honorable John Henry Keating, Senator the Honorable Walter Kingsmill, the Honorable Sir Daniel Levy, K.B., M.L.A., the Honorable Daniel Lawrence McNamara, M.L.C., Robert Gordon Menzies, M.L.A., George Henry Monahan, C.M.G., the Honorable Sir John Beverly Peden, K.C.M.G.. K.C., M.L.C., Professor Ernest Scott and George Albert Watson. It will be seen, therefore, that the original select committee set up to report upon whether a committee such as this should be established, went into the question very thoroughly. I think it was Senator Laught who quoted the original recommendations made to the Senate at that time. Whilst that committee did mention that in its opinion the suggested new committee should have preventive powers, it did not mention the word “ preventive “ in its recommendations. It has been pointed out that the very recommendations made by that committee are incorporated in our present Standing Orders.
Another interesting point is the fact that the Honorable Sir John Beverly Peden referred to motions for disallowance. He said that during the years 1926, 1927 and 1928 there was only one motion for the disallowance of a regulation and one for the disallowance of an ordinance relating to the Northern Territory. He pointed out that both motions were unsuccessful. He went on to say that as 1,500 objections to new regulations were reviewed in 1926, 1,100 in 1927 and presumably 1,000 in 1928, it was obvious that the scrutiny of the regulations was not as close as was the scrutiny of acts of Parliament. That should give some idea of the impracticability of requiring a Minister to check rules and regulations after an act of parliament has been passed and it is one of the reasons why this committee was established.
Speaking as a member of the Senate, and as one. concerned with the future well being of the country, I sincerely hope that the day will not come when it is thought to be in the best interests of Australia to abolish the standing committee. I have no objection to changing the personnel if it is felt that the committee is not giving satisfaction, but I do believe that the existence of a committee such as this makes for good government under the democratic system that we favour.
I know that each of us has a right to look at any legislation brought forward in this place, and I believe that each member of the committee has an equal right to draw a Minister’s attention to the fact that, in the opinion of the committee, certain provisions of a bill might need reviewing at some future date. Some may argue that there is no need for the. committee to have preventive powers. As a member of the committee, I am not concerned about that, but I do think it essential that the Senate make up its mind as to what powers the committee should have. If we are to have both powers, then say so and we shall know where we are. If we are to have only corrective powers, then also say so and we shall know where we are. But I cannot emphasize too much that it is not our desire to take further power unto ourselves.
Here I point out that May’s “ Parliamentary Practice “ has something to say about standing committees of the House of Lords, and the following passage is worthy of note -
The House of Lords, during the sessions of 1889, 1890 and 1891, by standing orders Nos. 45- 53, provided for the sessional appointment of one or more standing committees to whom every bill should be re-committed after passing through a committee of the whole house, unless, on motion made when the bill was reported by the chairman of committees the house should otherwise order.
Apparently it was not felt by the Mother of Parliaments that the committees were usurping the functions of the House itself. Therefore, if the Senate should decide, in its wisdom, to give to this committee powers similar to those, I do not think any great harm will be done. But again I emphasize that I do not want it to be thought that 1 am pressing for the granting of greater powers to this committee. So long as I am a member of the committee, I am quite happy to act in collaboration with other members in carrying out the task as we see it, to examine rules and regulations, to report if we feel the need to do so, and to abide by the decision of the Senate.
Question resolved in the affirmative.
– I move -
That the committee takes note of paragraphs 14 to 17.
Those paragraphs of the report deal with regulations made in 1958 under the Customs Act and called prohibited export regulations. The substance of the report has the great merit of being briefly stated. Brevity of language was one of the plumes of the Leader of the Government (Senator Spooner) this afternoon. He kept alliteration going when taking objection, and it will be remembered that the alliteration was comprised of a string of “ b’s “.
We make it clear that we start off on this occasion with a parliamentary provision - section 112 of the Customs Act - which says in this blithe way -
The Governor-General may by regulation prohibit the exportation of goods from Australia.
That is to say, the Governor-General may, by regulation, prohibit the exportation of any goods from Australia. There are subsidiary provisions which leave the meaning of that unqualified.
In reporting to the Senate on these regulations, the committee took note of the fact that, in the first place, the regulations state -
The exportation from Australia of goods specified in the first schedule is prohibited absolutely.
In that schedule is a list of goods of which such a thing, as Indian hemp is an example. Another prohibited export is -
Other goods packed in a bag or sack being goods the weight of which, together with the weight of the bag or sack, exceeds two hundred pounds.
The committee, with characteristic, restraint, refrained from a single comment upon that particular regulation. The next regulation was in this blithe spirit -
The exportation from Australia of the goods specified in the Second Schedule is prohibited unless the consent in writing of the Minister to the exportation of the goods is first obtained.
As an illustration of the things to whose export the Minister must consent I would mention animals and birds native to Australia. Again, the committee refrained from comment. Then follow regulations No. 5 to No. 12. They indicate, similarly, that the exportation of goods specified in a number of schedules is prohibited unless an approval in writing issued by a department is produced to the Collector of Customs. In contradistinction to those regulations, regulation No. 13 provides -
The exportation from Australia of any goods specified in the Eleventh Schedule to a place specified in that Schedule … is prohibited unless the conditions and restrictions also specified in that Schedule . . .
To give the debate a little flavour I might say that the goods listed include a number of liqueurs. In a spirit of characteristic consideration, the committee found no fault with the prohibition of the exportation of liqueurs though the regulation provides that such a delightful beverage as cherry brandy should have an alcoholic content of 43 per cent. That schedule informs any one who manufactures liqueurs of the compulsory alcoholic strength. The same regulation says that he may export certain goods if the Minister consents. Some Ministers are fairly cantankerous. Others are remarkably co-operative but we, as a committee, have nothing to say about the complete submission of the whole exporting community to the Minister in this: matter of consent, because he is a defined person - a person of responsibility. Although I personally rebel against having to go on my knee to any Minister or official for consent to carry on my livelihood, I” repeat that we refrained from comment.
However, certain of these regulations provide that the exportation! of prescribed goods is prohibited unless the approval of. a department is produced. I emphasize, that the approval, must be obtained from a department. I shall cite a few of the things that are embraced in that prohibition. They include, barley grain, bone, dust, bran, breakfast foods made from or containing wheat, cattle, coconut oil, potatoes, sheep and wheat. The impact of those regulations is felt by a deserving section of the community. That section is not permitted to export its produce without the approval of a certain person - not the Minister, not a designated official such as a collector, or an officer designated by his office - but a department.
– Most of those products came under marketing boards, mostly under grower control.
– 1 would ask the honorable senator to let me go on and illustrate. what I have said. Those boards have advisory access to the Minister. The Minister may, or may not, control his department in the majority of cases. The point is that the law is expressed, and we, as legislators, have a jealous, regard for the proper expression of the law. The law is expressed to prohibit the exportation of any of those agricultural products unless the approval is obtained not of the marketing board-s-a distinct entity in the law whom we can chase up if a grievance is inflicted1 - and not of the Minister, whom we can hold responsible to the Parliament, but of the department.
In view of the reference this afternoon to the phraseology of the report I would read, with that mildewed disappointment which one has that, the flowering moments of the mind lose half their petals in our speech, what the report has to say. We say nothing as to the policy of the regulations, but comment thus -
But the form of this regulation illustrates the exclusive and ultimate aim of’ bureaucracy. The individual right of the citizen- to export is prohibited. But in respect of the exercise of the prohibition, he is. totally denied recourse, to the law courts. His right is determined and finally decided by the administrators. But even’ the responsibility which devolves on an administrator is evaded - because the regulations vest the power not in an officer but in the bureau itself - the department - with the result that the- official who actually refuses or grants approval is. not by law identified.
Consequently, the citizen- is wholly excluded from legal redress, in the law courts and the administrator can hide- behind the general; cloak of “ the department “ if the citizen having a grievance wishes to complain.
In- other words, this is- the form of regulation which expresses- bureaucracy in the ultimate. Ear a misuse of the authority given- the ordinary citizen, who feels himself aggrieved: has: neither legal of political, redress-. 1 submit that the brevity of that statement, rather than any abruptness,, is responsible for the impression that it may have caused. We clearly state that we abstain from criticizing policy, that policy is a matter for the Minister, for the Parliament, and for advice from a marketing board. However, where a regulation says, that you shall not export cattle unless you have the approval of a. department there is in the- case of am unjust refusal to- import no right of’ complaint in the- law court until you can chase down the culprit and identify him within his department. Only then, have you any real redress of a political nature either.
– If that is a necessary part of our policy, would you take into consideration the efforts to export our merino sheep?
– I am trying to emphasize for the understanding of my good friend, Senator Wade of. the Country Party in Victoria, that I am not in the slightest degree raising, in this debate, the matter of policy. I am dealing with, the form in which subordinate legislation should express the right of the citizen, if he: feels that, he has been unjustly discriminated against by an. official itv a department, to. have the responsible officer identified so1 that he may go to his parliamentary representative, whether in the Country Party, the Labour Party or the Liberal Party, and seek redress’.
So, the committee simply draws- to the attention, of the Senate the form which gives to a bureau - the department - a right of absolute prohibition. The committee feels that, not as a matter of policy, but as a matter of formal protection, if we are. jealous to prevent regulations which unduly infringe individual rights, this regulation deserves our serious consideration. In that spirit the committee humbly submits its report to this chamber. Without questioning policy in the slightest degree, it believes that subordinate: legislation should be expressed in a form which willi give the in dividual citizen who has a grievance, a decent chance of expressing that grievance, with result.
-. - I am’ one of those who feel that this committeehas a great purpose-, and that it has done air excellent job during- the life of’ this Parliament. I have welcomed the committee’s work whenever it has dealt with the department that I administer. I appreciate, the assistance it can give to a Minister in. scrutinizing regulations and rules. But, Sir, this is a standing committee of the Senate, and I join with the Leader of the Government in the Senate (Senator Spooner) in noting, with. some, regret, the extravagant, and flamboyant terms, of overstatement in. which this, report comes to, the chamber. I. think that any standing, committee of the Senate should, meticulously guard- the prestige of. the Senate, and that its. findings should be couched in temperate terms, in keeping, with the. dignity of the Senate. In- my judgment, Sir, this report hardly qualifies for inclusion in that category. If.” the. com.mittee feel’s that it has made a fair and a proper assessment of these regulations - in my opinion, it has over-stated the position - why is it that a. period of one year and. nine months was allowed to elapse after these regulations became law Before the committee directed the attention, of the responsible Minister to the matter? What help is. that to a Minister? If members of; the committee thought that these regulations were even one-two hundred and’ fiftieth part as bad as it describes them in this report, they had. an instant- duty to move for their disallowance in this chamber. The relevant, part of this, report is an extravagant over-statement, to catch headlines; that’ is. all it is. I say that the committee has set itself out to catch headlines. Senator Wright has referred to the flowers and the mildew. Judging by this report, the. mildew has. been at work, andhas soured the committee’s- terms’ of expression a little1.
Now, Sir, I want to put a point of view that has been expressed, by a. person- of some legal significance - the- AttorneyGeneral (Sir Garfield Barwick); When I first, saw the committee’s report three weeks ago, I? felt’ that I- should: have the assistance of such an eminent legal authority as Sir Garfield Barwick in any attempt to see whether these regulations are as bad as they have been painted in this report - I believe that the picture has been extravagantly over-painted - and in determining what steps I should take as the responsible Minister to rectify any position which it was thought needed rectifying.
I feel that I should point out that the committee expressly excludes regulation 4 of the regulations which relate to the Department of Customs and Excise. It states, in effect, that under the act the Minister is responsible. Therefore, we can exclude the Department of Customs and Excise, and consequently I can speak quite dispassionately about the matter. Under the Customs Act the Minister has power to delegate authority to the officers of the department. I point out that in Sydney and Melbourne alone between 700 and 800 permits are granted each month. Would anybody expect a Minister to deal personally with permits which, throughout the Commonwealth would number well over 1,000 a month? To deal with these permits, which, in the main, are completely routine matters, he would need to do nothing else for three or four hours a week. But as I have said my department is excluded. The committee has been good enough to accept the fact that, in this instance, the Minister is the responsible person. He is responsible to the Parliament and therefore, as far as the Department of Customs and Excise is concerned, political approach and redress are available.
However, in relation to the other departments, Sir, I think I have just enough time to read out the opinion of the AttorneyGeneral, which I think will interest honorable senators. Sir Garfield Barwick stated -
I have given some thought to so much of the Fifteenth Report of the Standing Committee of the Senate on Regulations and Ordinances as dealt with the Customs (Prohibited Exports) Regulations, on which in your letter dated 23rd September, 1959, you invited my comment.
The questions that arise seem to me to involve matters of policy rather than of law, but I confess that the Report does not, in my opinion, put the Regulations in proper perspective at all.
The Committee sets out its view of the Regulations in paragraphs 14-17 inclusive and sums up its view in the concluding sentence of paragraph 17 in the following words - “For a misuse of the authority given the ordinary citizen who feels himself aggrieved has neither legal nor political redress.”
I find the expression of this sentence ambiguous even read against the background of the preceding paragraph. The Committee may, of course, use the phrase “misuse of the authority” in a precise sense and thereby refer to a purported or invalid exercise of the authority, invalid because of the existence of an improper motive or the consideration of completely irrelevant matters. It may, on the other hand, and I strongly suspect that it does, also refer to an erroneous use of the authority, an exercise of it which is honest but mistaken.
So far as the sentence refers to an invalid exercise of the authority, it is quite incorrect to my mind to say that the regulations deprive the citizen of any legal redress which he would have if some person were named in the place of the Department. When the authority is purported to be exercised by or on behalf of the Department, it will of course be exercised by a person who will not be beyond identification. The impropriety or the entertainment of irrelevant considerations can be sheeted home to that person and through that person to the Department to the same extent as it could be sheeted home to a named person. It seems to me an exaggeration to say that the administrator can hide behind the general cloak of the Department. The citizen will have dealt with a person and approval will have been refused by a responsible officer of the Department orally or by a letter over his signature. No doubt to establish impropriety of motive or the entertainment of irrelevancy on the part of an official is difficult; but no more difficult than it would be against a named individual or against a Minister. The only difference is an ease - more apparent I think than real - of identification in the latter case.
There is, of course, no provision for the review of an administrative decision validity, though erroneously, taken. But the same would be true if the approval were to be given or refused by a designated person or by the Minister.
To the extent to which the Committee treat the words 1 have quoted as referring to an erroneous but honest decision of a departmental officer, it is incorrect in my opinion in stating that the citizen feeling aggrieved has no political redress. The relevant Minister is responsible to Parliament for every decision of his Department under the Regulations. Writing to you, I need scarcely emphasise the various ways in which a complaint may be brought to the notice of the Ministers and of the Parliament. This is, of course, equally true where the complaint is of an invalid exercise of the authority.
The TEMPORARY CHAIRMAN.Order! The Minister’s time has expired.
.- May I have the privilege of interpolating my remarks into the debate to enable the Minister to continue the citation?
– I thank the honorable senator for the privilege of continuing my citation of a legal authority whom I am proud to be able to cite in w,is chamber.
– We welcome your assistance.
– No doubt the honorable senator will be better informed when 1 have finished. The letter continues - . . the control of imports and exports has always been regarded as a matter pre-eminently for the Executive, with its special knowledge of and responsibility for the relationship to the public interest, from time to time, of the movement of particular goods into and out of the country, In Australia, the Customs legislation has been in substantially the present form in this regard, ever since 1901. It is, I suppose, a truism that the Australian economy depends greatly on the volume of exports, and it may be supposed therefore that in general approval will always be given for exports unless restriction is necessary in order to ensure adequate local supplies. But questions of this kind do not, I would think, lend themselves easily to review by courts. One of the consequences of the constitutional “ separation of powers “ is that the Commonwealth Parliament may not vest in courts exercising federal jurisdiction anything but strictly judicial powers, and powers ancillary to them: Boilermakers’ case (1957) Appeal Cases 288. The review, in point of policy, of an unqualified administrative discretion is clearly not a judicial function.
Quoting further from the letter -
The Committee singled out for special criticism the fact that the regulations vest the power to grant approval for exportation not in a designated officer but in the relevant Department itself, so that the official who actually refuses or grants approval is not by law identified.
The object of this provision, as I understand it, is to emphasize the political responsibility of the Executive Government, through the responsible Minister concerned; for the Minister must take responsibility for every act done by his Department and is both by law and by constitutional usage entitled to direct his Department in all matters. The position might be different if the regulations did specify an individual officer as the person in whom the discretion was vested. It has been held by the courts that in the exercise of a discretion vested by law in an officer personally, the officer is not amenable to direction from the Minister. Of course, the Minister could be required by statute to exercise his discretion subject to the directions of the Minister; but there would be no point in doing that, since it would make clear that he was merely the instrument of the Minister. The political responsibility of the Minister is best preserved by vesting the functions, as the regulations do, in “the Department “.
Ministerial responsibility for all departmental acts in granting or refusing approvals for export was plainly recognized by the High Court in The Queen v. McLennan (1952) 86 Commonwealth Law Reports 46. An Order in Council has added an item to the Third Schedule to the -Customs (Prohibited Exports) Regulations as they then stood, reciting in so doing the GovernorGeneral’s opinion that the relevant exportation, “except with the consent of the Minister of Trade and Customs” would be harmful to the Commonwealth. The regulations, however, required a covering approval issued, not by that Minister, but by “ the Department of Supply and Shipping”. The Court said (on page 59) that the disconformity between the Minister of Trade and Customs and the Department of Supply and Shipping “means only an immaterial variation in the choice of the Minister responsible for the exercise of the discretion “.
It may be asked why regulations 5 to 12 inclusive provide for approval to be given by the relevant “ Department “ while regulation 4 provides for the consent by the Minister. Perhaps the answer is that, if power to issue approvals were to be vested in the Minister, it might be necessary, unless the Minister were personally to sign each approval, to provide for a power of delegation similar to that which the Minister of Customs and Excise possessed under section 9 of the Customs Act.
That is the very point of power of delegation that I raised a little while ago. The letter continues -
By vesting the powers in “the Department”, the regulations make clear that the Minister’s personal signature is not required for each approval, though on the other hand formal delegations are rendered unnecessary.
Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Chairman do now leave the chair and report to the Senate.
Question resolved in the affirmative. (The Temporary Chairman having reported accordingly) -
Political Party Funds - Document Quoted in Debate.
The PRESIDENT (Senator the Hon. Sir Alister McMullin). - Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Senate do now adjourn.
.- I am compelled to detain the “Senate because of a statement made in another place on last Thursday evening, 1st October, by the honorable member for Watson (Mr. Cope). [ quote his exact words from a publication I have in my hand. He said -
During the last election campaign the statement made by the Deputy Leader of the Opposition (Mr. Calwell) that the Australian Democratic Labour Party received £22,000 from one of the oil companies, was never denied. Those funds were given to the D.L.P. only for the purpose of assisting . the Liberal Party to become the Government.
– Order! I must direct the honorable senator’s attention to Standing Order No, 416 which provides -
No Senator shall allude to any Debate of the current .Session in ..the .House of Representatives, or to. any Measure impending .therein.
– I desire to refer, Mr, President, to an allegation which appeared in the public press prior to the last genera! -election, to the effect that the Australian Democratic Labour Party had received from the oil companies a large sum of money, amounting to many thousands of pounds, apparently as a bribe to direct its preferences in a certain direction. I have seen a statement that this was never denied. I do not .know of any allegation that has been denied .more often, in more places, or more strongly, than that particular allegation. When .it was first made by Mr. Calwell, it appeared .in the press right throughout this country. ‘It was given wide publicity. The next day, I personally denied it in a long statement, and I thank the -press because it .gave the denial equal publicity. It was then denied over the radio in every State of .Australia except .Queensland. It was denied from the public platform in every .State, except Queensland, throughout the federal election campaign. I appeared on a television session with the honorable member for East Sydney (Mr. Ward) and I was asked a .direct question on the matter by one of the inquisitors. “I denied the allegation on that occasion. In addition to that, on 16th September, 1958, I denied it in ;the .Senate, ;and my denial and my references ito .the matter take up a page and a half of “:>Hansard “,
I am unable ‘to understand why any person should suggest that this allegation, which many honorable senators heard denied, had never been denied. I give a categorical denial to the statement that it had never been denied. I produce the evidence in “ Hansard “, and I refer to the press of this country Which contained the denial. I also deny again that any such payments were made to the party that I represent, and I refer the Senate, and any person who suggests that the allegation was not denied, to my statement in the Senate on 16th September, 1958, dealing with the matter. I again issue the challenge that I issued on that occasion, when I suggested that Mr. Calwell stop impugning the honesty of members of our party, because if he and his fellow members wanted to make the origins of political funds an issue we would be pleased to oblige them, but knowing what I knew I could say that their party would suffer far more from the discussion of that particular subject than would my party, I leave the subject there.
– Why not tell us what you know.
– If the Opposition will agree to my revealing facts which came under my notice in the last five years, I shall willingly enter into a discussion of slush funds’, but I do not want to reveal confidential information .if it is preferred that I should not do so. I conclude by saying .that ‘I think it was a most remarkable week for Mr. Cope to raise this subject, in that we had all read most interesting statements on the front page of the “West Australian “ with reference to .the destination of a sum of £5,000.
– I accept the accuracy of -what Senator McManus has said, ‘but I suggest ‘that if he ‘has a look at the rest .of ‘Mr. Cope’s -.speech he will see that the honorable member .referred to the fact-
– Order! The Minister also -must have regard to Standing ‘Order No. 4T6.
– May I put it another way, Sir? I wish to make only one point. I remind the Senate -mat over eighteen mouths ago the Department of Customs and Excise gave up the practice of using vouchers ‘for ‘beer kegs which were to he destroyed. We ‘have collected excise under a different system for the last eighteen months. Certain remarks to the contrary, also made in the speech to which Senator McManus has referred, were about as accurate as, apparently, were the remarks of which Senator McManus spoke.
– Earlier to-day, the Minister for Customs and Excise (Senator Henty) quoted from a certain document, but was not able to complete his reference to it before the consideration of the committee was interrupted. I wish to ask him whether he would consider circulating the unread portion of that document to-morrow morning so that honorable senators may have it before them.
– I shall be only too happy to do that. I will continue to read the document to-morrow so that it will be recorded in “ Hansard “.
– After an interesting day’s debate, for the purposes of the record I want to complete Senator McManus’s reference to the “ West Australian “. Like most people who are interested in that matter, I think that the press reached an all-time low in its reporting of the proceedings of the royal commission. Senator McManus’s reference to party funds obviously referred to the fact that the bookmakers’ association had paid a sum of money to the Australian Labour Party in Perth. To complete the record and to add to the humour, may I say that Mr. P. B. Healy mentioned at that stage that he had also given funds to the Liberal Party, and pointing to Mr. Downing, he said, “I handed it to that man in his capacity as president of the Liberal Party “.
– In reply to Senator Willesee, I should like to point out for the benefit of the Senate that the eminent royal commissioner, Mr. Justice Ligertwood, commented in a way which would meet with the approval of almost any one in Australia. He said that surely there is nothing wrong with an association of this type making payments to any political party at all, and that it only begins to be wrong when proper records are not kept and when receipts are not issued. I think that was the important point which Senator McManus had in mind when he spoke.
Question resolved in the affirmative.
Senate adjourned at 11.11 p.m.
Cite as: Australia, Senate, Debates, 7 October 1959, viewed 22 October 2017, <http://historichansard.net/senate/1959/19591007_senate_23_s15/>.