23rd Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 11 a.m., and read prayers.
– By way ot preface to a question directed to the Minister for National Development, I direct the Minister’s attention to a statement published yesterday in a leading newspaper, featuring a new development in America, namely, a process for converting salt water into fresh water on a massive scale at about half the present cost. It was claimed that the world’s arid areas could become fertile farm lands within ten years. Reference was made to millions of acres, in the Alice Springs and Tennant Creek areas, of excellent red loam soil, identical in many respects with that of Mildura and other fruit-growing centres in the Murray valley, with only water lacking. The American plan to convert sea water could mean exciting developments for this wonderful but neglected part of the Commonwealth. The newspaper report envisages a vast central Australian food bowl, growing lucerne, vegetables, citrus fruits and grapes, and being used for cattle fattening. I ask the Minister: Will he investigate the new discovery and report to the Senate on the possibility of its practical application to the development of these areas in central Australia?
– Whilst I did not see the newspaper report to which Senator Wardlaw refers, I have seen a number of reports of a similar character, stating that the conversion of salt water to fresh water opens up a new vista and a new era. The matter is of such consequence that I feel it would be wrong on my part to attempt, in reply to a question without notice, to express any personal opinion upon it. The consensus of advice that comes before me indicates that the claims that are being made are appreciably over-stated. But the question concerns a big and an important matter, and if Senator Wardlaw does not mind, I should prefer him to place his question on the notice-paper. I shall ask my department, in its reply, to give some sort of an appraisal of the work that is being done in Australia and elsewhere. Whether the scientific officers of the department will be prepared to go further and express an opinion on the ultimate results of the investigations that are going on, is I think, a matter for them rather than for us in this Parliament to determine, but I believe it would be useful to have the facts presented to us.
– I preface a question to the Minister for National Development by referring to a press statement to the effect that the Government will not relax its attitude to the lifting of the embargo on the export of iron ore from Australia. This attitude presumably is for the purpose of conserving, for the future use of Australia, all the known ore deposits of this country. I ask the Minister: Has a complete survey of the iron ore deposits of Australia been made by the Government from its own resources, or in conjunction with the various State governments? If such a survey has been made, will the Minister supply me with information concerning the quantity of iron ore in Australia of a quality of 40 per cent, iron content or greater; the quantity of iron ore of a quality of 40 per cent, or greater in Western Australia; and the quantity of iron ore in that State of a quality of 40 per cent., 50 per cent., 60 per cent., 70 per cent, and over? If no such survey has been made, either by the Government from its own resources or in conjunction with State governments, will the Minister undertake to make such a survey?
– It is true that there has been a Government decision to the effect that it will not relax the present embargo on the export of iron ore because of the need to conserve Australian resources of that very important commodity. I am afraid I cannot give Senator Cant an assurance that the particulars for which he has asked will be made available. There is a good deal of estimating in ascertaining all such information. The only way in which one could give a completely factual answer would be, I assume, to drill the various iron ore deposits and make a survey of them. I am sure that Senator Cant will appreciate that it would be a tremendous task to attempt to define accurately what is in each iron ore deposit. The Government,, on. the. facts and information before it;, has. stated that it would not be justified in permitting exports; of iron ore. lt is very difficult to do< mors than make that decision on: what: is- known at the. present time,, and on what the professional, officers think might be the possibilities in. the future. I think it would be difficult to persuade the professional officers to pin themselves down without carrying out the very big programme that would be involved in making a detailed survey.
– Has the Minister for’ Customs and Excise studied1 the recent comment of the Tariff Board wherein- it expressed the belief that a critical examination’ should be made of the existing antidumping legislation of the- Commonwealth? I point out that the board went on to- say that there was’ a- need for’ amending legislation to- make- the- provisions more effective; and that if -no- amendments were made; the safeguards for Australian industry against certain trade practices of overseas exporters to the Australian market might be- impaired: C’an< the- Minister’ assure methat such an examination1 will be made and that any necessary action will be- promptly taken?
– Yes. I have read with great interest the comments in the annual’ report of the Tariff Board concerning, the Australian Industries Preservation Act. The matter is currently under consideration by the department. We are examining the board’s comments and considering’ what amendments could be made to tighten up the act. In due course I shall be able to report back to the Senate the- Government’s decisions on the matter.
– Is the: Minister for Shipping and Transport aware: that a trial consignment of Tasmanian potatoes, was landed/ im Melbourne by the “ Princess, of Tasmania”, and then: driven overland to Sydney? Can- the Minister say what space will be1 available, on the “ Princess of Tasmania.” for the- carriage of potatoes in trucks if” this: should; prove: a successful method, of marketing Tasmanian potatoes? What space will be available on the “ BassTrader “ when it is in operation? Will the Minister see that a. fair proportion of the space on this ship will- be- available to meet the needs of the Tasmanian. potato industry?
– A trial consignment, consisting of two truck loads of potatoes;, was’ carried on the initial commercial voyage of the “‘Princess ofTasmania “. Preliminary- reports as to. their condition on arrival in Sydney, indicate, that the’ experiment was: quite successful. The”‘Princess of Tasmania” is, of course, primarily a passenger vessel. For that reason . priority- nos the allocation of space is. given to) the cars: of passengers;. However,, as opportunity offers the AustralianNational; Line: will allocate space to> commercial, vehicles– I must- say that until: the; “Bassi Trader,” comes into- operation it isnot expected that all! demands will- be met.. The Australian National tine: has allocatedspace; during- the- next two months to a. number of master: carriers; with whom, the Tasmanian potato: merchants’ and dealers are co-operating., The capacity of the. “ Bass:. Trader “ willi be. about the same: as. that of the “ Princess- of Tasmania “,. but it will, not carry passengers:. The Australian! National Line has been in touch with- theTasmanian potato interests and is: satisfied that it will- be able to meet any demand: for space that, the industry might place upon- it in. respect of the “ Bass Trader “ when she comes into commission.
– I desire to ask the Minister for the Navy a question without notice. Will he tell- me why he is determined’ to destroy “Chatsworth”, at 22 Wylde-street, Potts Point? At the moment, “ Chatsworth “ houses 26 people in eighteen rooms, and the Minister, who, I- understand, from letters he has written to various members on both sides of the Parliament is adamant on the matter, proposes to shift’ these people and to spend £15,000 on renovating the building in order to> house four officers of the Navy. Does not the Minister consider that the destruction of this palatial place - I have a photograph of it here, if the Minister would like to have it- - arid the expenditure of £15;000 on it for the purpose 1 have mentioned will be a wilful waste of money? Does he -believe that the disturbance of the people at present housed there is warranted?
- Mr. President, “ Chatsworth “ is not to be destroyed but, as was indicated by the honorable senator himself in his question, it is to cease to be a boarding house and is to be turned into quarters for four senior officers and their families. The history of “ Chatsworth “, as far as 1 -have it in my mind at the moment - I was given no advance notice of this question - is that it was one of a number of buildings acquired by the Government in that area of Sydney in 1938 or 1939 - or some time around then - so as to obtain land frontages in order to be able to build <the Captain Cook graving dock at Garden Island. At that time, this building and a number of other ‘buildings passed into the possession of the Commonwealth Government, and they have remained in the possession of the Commonwealth Government ever since. Some time soon after that, the other buildings were disposed of gradually by the Department of the Interior, but the Department of the Navy at that stage stated a .requirement for this building for the purpose for which it is now going to be modified.
The fact that this building did belong to the Commonwealth Government and would be eventually required by the Navy has been known to the tenant of this building for very many years. While in the possession of the Commonwealth Government, it has been run by this tenant as a boarding house ion a yearly tenancy - for the last five years, or so - and the situation, clearly, is that if the Navy did not now carry out the plans which it has had for so .long for the use of this building, the Commonwealth Government would ‘be bound to get rid of it anyway, since it is not a part of the Commonwealth .Government’s function to run a boarding house as an ordinary business occupation.
That is the background to the question that has been asked by the honorable senator. I wish I had more detail in my mind, but 1 am afraid I have udt at the moment. “Hie answer, simply ,and -shortly, is that the ;Navy is .-now carrying out the .plan made -so long ago for this particular purpose.
I may add that the officers whom it is proposed to accommodate in this particular area are the Flag Officer commanding the Australian fleet, with his family, the Captain ,of the Port of Sydney, the Chief Staff Officer to the Flag Officer in Charge East Australian Area and the General Manager of the Garden Island Dockyard. The reason for having them in this particular spot, of course, is that it is immediately adjacent to the administrative centre of the Navy for the whole of the Eastern area of Australia.
– J desire to ask the Minister .for National Development the following questions: What effect has mechanization in the coal industry had on production and employment? What has been done to rehabilitate miners displaced by mechanization, and, where necessary, to provide displaced personnel with new skills to enable them to undertake other employment? Has the’ coal industry sought the co-operation of other industries to solve the problems arising .from the trend towards automation and its effect upon employment?
– Senator Mattner told me a few days ago that he wanted some information on this subject, and I asked the Joint Coal Board to obtain some information for me. The board has given me a statement containing detailed information which I think will be of interest to honorable senators. Instead of attempting to summarize the statement, I shall, with the consent of the Senate, read it. It is as follows -
The effect of mechanization on production in the New South Wales coal industry can be best exemplified by comparing the position to-day with what it was in 1950. In 1950, 39.4 per cent, of production was mechanically produced. The latest available figures for 1959 show that 89:9 per cent, is now being mechanically produced. In 1950 the output per man shift worked was 2.95 tons. In the second quarter of 1959, the output per man shift worked was 4.89 tons. The foregoing figures relate to production from underground mines in ‘New South Wales. Total production of coal in New South Wales in 1950 was 12,798,000 .tons. In 1958, production amounted to 15,850,000 tons.
Mechanization has had a dramatic effect on the number of collieries ^operating and on the total .employment ,in .the industry. In 1950, there were 150 collieries in production in New South Wales. ‘In June, 1959, this number had been reduced to 106. Employment in the industry in 19S0 was 18,200. It rose to a peak of 20,800 in 1952 and currently is about 13,380.
The net decline in the numbers employed in the industry in the last seven years has been about 7,000. But of this number there are only about 400 displaced miners currently registered for employment and practically all of these are in the Cessnock district. Alternative employment opportunities have been provided - public works projects, notably in the Cessnock-Newcastle district on roads, water and sewerage schemes. Substantial numbers have been found employment in private industry, particularly in the steelworks. A significant number of the men displaced have been re-employed in the coalmining industry itself.
Some of this re-employment has been given without involving men in any change of residence, but an important number of men has moved from the northern districts to the southern districts. The Joint Coal Board has given financial assistance to about 250 of the men who have thus moved their residence. In addition, the Joint Coal Board has in the last five years invested with the Hunter District Water Board £1,300,000 from funds with which it is concerned. This has greatly assisted the Water Board in providing employment opportunities.
The Commonwealth Government also concurred in the Joint Coal Board making a grant of £150,000 to the New South Wales Government for roads projects in the Cessnock-Newcastle area. The Joint Coal Board has also invested £125,000 with the Aberdare County Council in connexion with the new gas undertaking being developed at Cessnock.
No retraining in new schools has been found necessary for the men actually displaced from the industry prior to their obtaining alternative employment. However, a significant number of men who formerly were concerned with hand mining have been retained in the industry as a result of their being trained to use the new machinery that has been installed.
Insofar as automation is to be understood relating to automatic control of production, there is as yet relatively little in the total activity concerned with coal production which can be included in the category of automation. However, during the last twelve months, there have been some important developments in the transport of coal, notably from the face to the pit top by belt, which can be regarded as perhaps a first step towards more automatic processes being installed. At this stage, however, it seems unlikely that automation, as such, is a major factor in the coal-mining industry for some time to come. As in the answer to the first question, however, there is a very high degree of mechanization in the actual production of coal.
– Has the Minister for Shipping and Transport any information in reply to a question I asked him some weeks ago as to whether the Senate Select Committee on Road Safety would visit Tasmania and, if a visit was to be made, when the committee proposed to go to that State?
– Yes; I have consulted with Senator Anderson, who is the chairman of the committee, and he has informed me that arrangements have been made for the committee to hear evidence in Hobart from 6th to 9th November. For the information of honorable senators, I mention that it is proposed to hear evidence in Canberra on 23rd October, and to visit Western Australia, Queensland and South Australia as soon as suitable times can be arranged in the near future. Evidence extending over eight sitting days has been taken already in Sydney and Melbourne. Thirty-two witnesses have already appeared before the committee.
– I direct to the Leader of the Government in the Senate a question in relation to education. Is the Minister aware that the Teachers Federation has, after meeting, stated that Commonwealth aid should be given to the States for education? The federation is very concerned because the educational standard is not as high as it should be and the wage standards of its members are far lower than they could reasonably expect. I ask the Minister whether he is aware that the federation was encouraged to take action by a statement of the Prime Minister in these terms -
Education is at present, for all practical purposes, a State matter. But the uniform tax laws have meant that the States can no longer regard their direct revenues as flexible, while they have no powers of indirect tax at all. Under these circumstances, if the educational needs of our people are to be satisfied, a measure of Commonwealth financial assistance will be required. There is much to be done in the improvement of country educational facilities, in technical and university education, in adult education, in the raising of the qualifications, status and remuneration of the teaching profession.
The Liberal Party, if returned to power, will confer with the States with a view of devising ways and means of supplementing the States’ financial capacity to make a real attack upon these problems. Indeed we cannot be satisfied that we are beginning to build a post-war world unless we can say that the training of the minds, bodies and characters of boys and girls for useful intelligent and unselfish citizenship is taking a leading place in our policies and actions.
Did the Western Australian Government seek a conference with the Commonwealth Government for the purpose of having an inquiry made into these matters? Did the Teachers Federation approach the Government with the object of having effect given to the policy so clearly and adequately stated by the Prime Minister? If so, what was the result?
– I feel sure that the statement that Senator Cooke attributed to the Prime Minister was not recently made. It must have been made some years ago. The Prime Minister made a statement a few months ago which I made available, I think, in the Senate because of the importance of the topic. That statement was made following representations from a number of sources. I am quite certain that the Teachers Federation made representations. I do not recollect the Western Australian Government’s doing so, but I would not dispute that it did do so. The general purport of the Prime Minister’s statement was that education was a major State activity and that the provision of schools and other education facilities was one of the really great matters with which the States were concerned. It was, therefore, proper from every point of view, including the point of view of the sovereignty of the States as well as of financial considerations, that this matter should be entirely under the control and jurisdiction of the States, and taken into consideration and provided for at the annual meetings of the Australian Loan Council and of the Premiers, at which tax reimbursement and loan moneys were allocated. My recollection is that the Commonwealth stood firm upon the principle that, from all angles, primary and secondary school education was a matter that was best left to the care and discretion of individual State governments.
– Has the attention of the Minister representing the Minister for Trade been directed to the passage in the
Thirteenth Annual Report of the Australian Apple and Pear Board, which was tabled in the Senate recently, to the effect that the board was firmly of the opinion that the fruit industry was already severely handicapped by the current freight rates and could not bear any additional impost without serious consequences, particularly in the light of marketing experiences this year? Further, although the Minister for Trade has told us that he awaits an invitation to attend the bargaining of the Australian Overseas Transport Association with the Overseas Shipping Representatives Association, before intervening, will he make now a timely assessment of the situation, so that if an adequate programme of shipping cannot be procured without an increase in freight, he will be ready immediately to consider whether an export bounty should be provided to meet the impost?
– I acknowledge Senator Wright’s great interest in this question of overseas freights, particularly as they relate to the apple and pear industry. I cannot add a great deal to what I have already said. Basically, the matter is one for negotiation between the people representing the export industry and the shipping companies. I can only refer Senator Wright to Mr. McEwen’s statement made elsewhere that in the past he has not intervened personally until either there has been a deadlock or a satisfactory conclusion to negotiations has not been reached. I cannot speak for him as to his views on this occasion. Without any discussion with him, I would say that he would be watching just as keenly as Senator Wright himself the progress of the negotiations, realizing the importance of their effect upon our export industry.
Concerning the proposal that if freight rates are increased some bounty arrangements might be contemplated for the apple and pear industry, I can only remind Senator Wright that it is well established that bounties and duties depend upon, first, an examination by the Tariff Board and, secondly, a favourable recommendation by the board to the government for the time being.
asked the Minister representing the Minister for Trade, upon notice -
– The Minister for Trade has now informed me as follows: -
Statistics of the type referred to by the honorable senator are not recorded. Although the statistics asked for by the honorable senator are’ not kept, the following comments on each of his questions are offered in the hope that they will be of some assistance to him.
For items in the administrative category special licences have always been issued irrespective of whether the licensee was a prior importer or not, whenever essential need was established.The imports involved have been mainly raw materials and equipment for industry. As pressure on our overseas balances has lessened, a wide range of. items has either been freed from licensing controls completely or put into the replacement category. For all of these goods there is no restriction upon who may obtain an initial right to import. There are now about 430 items either freed from licensing completely or licensed on a replacement basis. These items represent approximately half of all our imports.
The progressive widening of the replacement category and the freeing of many goods from licensing, has opened up opportunities for new importers who are encouraged to take advantage of these facilities. The extent to which newcomers can be admitted into the importing field for goods licensed under the so-called quota categories depends mainly on two considerations. The first is a problem of simple arithmetic, which boils down to how much exchange is available at the particular time. The second is the concept of equity to traditional importers who would have imported much more in the absence of licensing. This must not be impaired.
In examining new importer applications, every endeavour is made to sort out the genuine case from the applicant who is merely seeking to take temporary advantage of a restricted supply situation and who would not be a genuine stockholding importer in the absence of import restriction. It is against this background that the Department of Trade and the Import Licensing Advisory Review Boards operate. The task is not easy, but concessions are made to bona fide new importers where they can be made without inequity to traditional importers. Unsuccessful applicants to the department have a full right of appeal to the review boards, upon which sit two prominent businessmen and one official. Five hundred and eighty new importer applications for. quota goods have been received since August, 1957. Concessionshave been granted in 89 cases and licences issued to the value of £165,000.
Sale of Vessel
asked the Minister for Shipping and Transport, upon notice -
– The following answers are now supplied: -
asked the Minister representing the Postmaster-General, upon notice -
Postmaster-General has furnished, the following replies: -
asked the Minister representing the Minister for the Interior, upon notice -
Minister for the Interior has now furnished the following- replies: -
asked the Minister representing the Postmaster-General, upon notice -
Is it compulsory under the Broadcasting and: Television Act for a licensee to televise programmes at full strength, or is the power strength’ used by a television station optional?
Postmaster-General has furnished the following answer: -
Television stations are required to conform tothe standards for the technical equipment and operation of television stations determined by the Australian Broadcasting Control Board pursuant to its functions as prescribed in. section- 16, division 2, of the Broadcasting and Television Act 1942-1956. The standards provide that, except in. the case of a serious fault, a station shall nor, without the approval of the board, be operated with power lower than the authorized power for more than. 12 hours- per week. In the case of new stations, experimental transmissions have been- permitted wim power lower than the authorized power, prior to the commencement: of regular services, to facilitate testing and the demonstration of receivers.
asked the Minister representing the acting Treasurer, upon notice -
– The acting Treasurer- has provided’ the following answers: -
asked the Minister representing the acting Treasurer, upon notice -
With reference to a recent announcement to the effect that the Treasurer has completed negotiations in New York for a loan of 25,000,000 dollars, will the acting Treasurer inform the Senate of the rate of interest payable on the loan, in terms of the effective equivalent of the Australian pound?
– The acting Treasurer has furnished the following answer: -
The coupon rate of interest payable on this loan is 5i per cent., and the loan was issued, at a price of 97 per cent., for a term of twenty years. The rate of interest involved is the same whether expressed in terms of dollars or in terms of the Australian currency equivalent of the amount of the loan.
asked the Minister representing the Minister for Health, upon notice -
– The Minister for Health has now furnished the following replies: - 1, 2 and 3. As the provision and administration of hospitals is a State responsibility, I am not aware of the extent to which the matters stated constitute a significant problem for hospitals. Some published reports on these matters contain an element of exaggeration. I can say, however, that any difficulties being experienced are not due to any deficiency in the Commonwealth hospital benefits scheme, which, on the -contrary, has gone far towards solving the problem of hospital finances.
asked the Minister representing the Minister for Health, upon notice -
– The Minister for Health has now furnished the following replies: -
asked the Minister representing the Minister for Health, upon notice -
– The Minister for Health has now furnished the following replies: -
asked the Minister representing the Minister for Health, upon notice -
– The Minister for Health has now furnished the following replies: -
asked the Minister representing the Minister for Health, upon notice -
In view of a letter which appeared recently in the “ Australian Medical Journal “ expressing doubt as to the value of anti-tetanic serum when used prophylactically, will the Minister advise the Senate as to the amount of anti-tetanic serum produced by the Commonwealth Serum Laboratories each year?
– The Minister for Health has now furnished the following reply: -
The information requested is as follows: -
Senator ARNOLD (through Senator
Willesee) asked the Minister for Health, upon notice -
– The Minister for Health has now furnished the following replies: -
– On 3rd September, Senator Wedgwood asked the following question without notice -
I ask the Minister representing the Treasurer: Is it a fact that the major trading banks in Australia are now lending more money to the rural sector of the economy than for several years past, and that other business loans have fallen in terms of the percentage to total advances? Can the Minister inform the Senate of the respective percentage increase and decrease in bank advances to these two sectors of the economy?
The figures requested by the honorable senator are given in a table which has been compiled from the detailed classifications of major trading bank advances within Australia published by the Commonwealth Statistician. The figures for the end of June, 1959, are preliminary figures which have only just been published. The table is as follows: -
My question is directed to the Minister representing the Postmaster-General, without notice. Is it a fact that the Sydney “Daily Telegraph” is attempting to .gain control of the television licence in Canberra through its representative in Canberra? Is it also a fact that Dr. John Burton, Professor Oliphant and Sir John Crawford have formed, or are forming, a company to obtain the Canberra television licence?
The Postmaster-General has now furnished me with the following information in reply: -
Applications for the grant of licences for commercial television stations in the areas for which applications were invited in the “ Commonwealth Gazette” of 21st May, 1959, including Canberra, closed on 30th September, 1959, and the PostmasterGeneral has issued a statement containing a list of applicants.
The Postmaster-General has asked me to add that Sir John Crawford has informed him that while he is interested in proposals for community development of television programmes and services, especially in their educational aspects, he has notified two groups which approached him that while he is in the Public Service it is not practicable for him to take part financially or otherwise in the development of any television company.
I direct a question to the Minister representing the Postmaster-General. Tn view of the proposed increase of postal charges, will the Minister consider giving a better service to business .and other residents in suburban areas of Western. Australia, by arranging for a letter clearance later than 4 p.m. on week days and 11 a.m. on Saturdays, so that mail posted after the general closing hour of business houses - that is, 5.30 p.m. on week days and noon on Saturdays - may catch the air mail of the same day which does not close at the General Post Office, Perth, until 9 p:m.i? In keeping with the spirit of Christmas, and bearing in mind ;that millions of Christmas cards are posted each year, will the Minister consider retaining the cheaper postal rate for Christmas cards?
The Postmaster-General has now furnished me with the following information in reply: -
All letter receivers in the Perth metropolitan area are cleared each morning, afternoon and evening, Mondays to Fridays, and on Saturday morning -and Sunday ‘evening, ‘such clearances being timed -to enable mail to ‘catch the principal despatches by .road and rail and air. Clearances at 4 p.m. on week days and 11 a.m. on Saturdays are from official post .offices only and are being examined in conjunction with other aspects of, the new scheme for speeding the flow of mails. It is also now possible to use the Trans Australia Airlines morning services out of Perth for mail not received at the General Post Office in time for despatch on the night air services.
The suggestion that a cheaper postal rate be retained for Christmas cards received careful consideration when the new charges were being studied. It was found, however, that it is impracticable to separate Christmas cards from other letter-form mail and the handling costs arc, therefore, similar. In the circumstances and having regard to the fact that Christmas cards of appropriate size will be transported by air in the same way as other letter-form mail, the Government decided to adjust postal charges on the basis recently approved and no further change could be considered at present.
I have received a reply to a question that I asked of the Minister representing the PostmasterGeneral recently. The material provided by the Australian Broadcasting Commission was misleading; it was an -insult to ‘the Postmaster-General and also to the Minister who had to give the reply. I now. ask .the Minister to check on whether Mr. Finlay is not No. 3 Acting General Manager. I also ask the Minister to inquire whether Mr. Bearup, who is in London and has been there for some years, is -not >paid ,as Assistant General Manager. As I have .the (transcript of evidence given by Mr. Moses, will the Minister meet une in his room at 5 o’clock this day and have a look at the transcript of that evidence given before the Arbitrator?
The Postmaster-General has now furnished me with the following information in reply: -
The reply given to the question referred to by the honorable senator was not misleading nor was it an insult to the Postmaster-General or the Minister who represents me in the Senate. Whilst the reply was brief, the honorable senator will appreciate that unless an extremely full explanation had been .given, anything other than that provided would be incomprehensible to .honorable senators.
Mr. -Finlay is not classified as No. 3 Acting General Manager. The Postmaster-General reiterates what was said before in -reply to a previous question from the honorable senator that Mr. Finlay remains as Assistant General Manager at his former salary.
The position simply is that due to the increasing responsibilities of the executive brought about by television responsibilities and the general growth of the organization, two other senior officers have been raised to the assistant general manager level, at a salary lower than Mr. Finlay’s, and the flow of work is distributed amongst the three. This procedure is similar to that adopted in many Commonwealth Government departments.
Mr. Bearup, who was appointed some years ago to the London office, from the position of Assistant General Manager, was given an assurance by the commission at that time that he would not be disadvantaged financially as a result of the change. He is still paid at the same rate as that which applied when he was Assistant General Manager.
– I present the following report of the Public Accounts Committee: -
Joint Committee of Public Accounts - Fortysecond Report - Treasury Regulation 52 - and move-
That the report be printed.
As honorable senators are aware, Treasury Regulation 52 was introduced for the purpose of protecting the people and the Public Service from malpractice when the Government is arranging tenders for the purchase of millions of pounds worth of goods and services each year. Some years ago the then Treasurer agreed to have his department submit to your committee from time to time for consideration, some of the more important proposals for amendment of the Audit Act.
It was in accordance with this arrangement that earlier this year the Treasury informed your committee that proposals had been made to amend Treasury Regulation 52 by increasing the amount of £200 specified in Treasury Regulation 52. It was suggested that the committee might examine the regulation. We accepted the invitation. What commenced as a relatively minor inquiry developed into what is probably one of the most important that your committee has yet undertaken. Broadly, Treasury Regulation 52 provides that tenders should be publicly invited for individual contracts involving expenditure of more than £200, and as such establishes the basis on which Commonwealth Government contracts for constructural projects,
F.86S0/59. - S. - -
stores and supplies totalling more than £150,000,000 per annum are let. Since our inquiry commenced the same subject has become highly controversial in another area of Government activity.
In general the proposals for change, as submitted to your committee, were not acceptable to us, but we also found that the present procurement system as prescribed by Treasury Regulation 52 was not entirely satisfactory. Thus, your committee came to the conclusion that the present arrangements for controlling expenditure on works, supplies and services should be completely reviewed. We have felt that something could be gained by introducing a system, referred to as the trades list procedure, which we think would give safeguards equal to those of the present public tender system but result in more effective procurement and as well give better control in the lower levels of expenditure at present relatively unprotected against patronage and malpractice. But the trades list system is relatively untried in the Commonwealth sphere, and we have therefore recommended that a departmental working party be established to fully explore all the factors involved in the introduction of the system.
In the course of our examination, a number of disturbing features emerged. Our inquiry was preceded by an interdepartmental investigation, which culminated in certain proposals being submitted to the Government. The same departments submitted their proposals to us. In the main, we found those proposals unacceptable. Many of the supporting arguments and reasons submitted to us could not withstand critical examination and were erroneous or misleading. We were forced to the conclusion that some, at least, of the departments had supported proposals for change without proper investigation and without fully understanding the purpose or effect of Treasury Regulation 52 or the interrelation between the regulation and other Treasury regulations concerned with the expenditure of money. In general, we found that the problems about which these departments complained so much were not a product of Treasury Regulation -52, but were of their own making.. , _ .
As well, we discovered that, with the concurrence of the Treasury certain departments had been acting outside the existing law for a number of years. We also found that, in part, the present Treasury Regulation 52 is invalid.
Your committee is sure that honorable senators on both sides of the chamber will find much in this report to interest them, and commends it to them.
– Is the motion seconded?
– I second the motion. Debate (on motion by Senator Wright) adjourned.
Motion (by Senator Paltridge) agreed to -
That the Senate, at its rising, adjourn till Tuesday, 20th October, at 3 p.m., unless sooner called together by the President by telegram or letter.
In committee: Consideration resumed from 7th October (vide page 981), on motion by Senator Wright -
That the committee takes note of paragraphs 14 to 17.
– When our consideration of this matter was interrupted last night, I was reading an opinion that 1 had received from the Attorney-General (Sir Garfield Barwick). The final part of the opinion reads -
Politically and constitutionally, however, the Minister’s full responsibility remains. I do not know how, in practice, discretions are exercised by the Departments concerned, but imagine that fairly full guidance and direction is given by the Minister to the officers who will, in practice, grant or refuse approval. Presumably, it is always open to the citizen aggrieved by a refusal to seek review by the head of the Department, or by the Minister himself. On these matters, however, you will be fully informed.
It follows from what I have said that the Committee is, in my view, incorrect in saying that the citizen’s right “ is determined and finally decided by the administrators “ - by which latter I think they mean the departmental officers. The final decision, if the citizen wishes, will have to be made by the Minister.
Sir, I should like briefly ; because I am trespassing on borrowed time ; to traverse the procedure which takes place in practice in the department. In the three years that I have been the Minister for Customs and Excise, very few applications for review have been received. The Customs (Prohibited Exports) Regulations provide that application shall be made to the Minister. Not many of the matters involved come directly under my control; other departments and Ministers are concerned. When I receive an application, I write to the person concerned in these terms: “ The matter in respect of which you are seeking an export licence comes directly under the Minister for suchandsuch a department. I have forwarded your letter to him and asked him to reply to you direct on this matter.” I refer direct to the Ministers and the departments concerned matters that are not handled by the department I administer - that are not under my control. That is the procedure at the present time. Very few people who feel that a refusal to permit them to export was not justified have communicated with me.
The regulations came into being in 1946, after the war-time practices finished. That was thirteen years ago. They were renewed in 1957 merely by substituting the new names where the names of some departments had been changed. For instance, the Department of Commerce and Agriculture ceased to function under that name, and so in the regulations the names “ Department of Trade “ and “ Department of Primary Industry “ were substituted for “ Department of Commerce and Agriculture “. At the same time, a number of prohibited items were taken off the list. The Prime Minister (Mr. Menzies) set up an inter-departmental committee in 1951 continually to examine the list of prohibitions. From time to time, that committee has recommended the removal of items from the list of prohibitions. The committee is continuing to examine the list in the light of the Prime Minister’s direction to recommend the removal of items whenever such prohibitions became no longer necessary. I finish by saying that if the work of this committee was considered to be important in 1930, it is trebly important to-day because of the vast number of activities that have come within the Commonwealth’s ambit since 1930 and which call for a greatly increased number of rules and regulations. I trust that the committee will continue to work within the charter which it has been given, and that it will be of great assistance, not only to individual Ministers, but to the Senate as a whole.
– Nothing could be more reassuring to the Senate and its Regulations and Ordinances Committee than the observations with which the Minister for Customs and Excise (Senator Henty) concluded his speech. I am sure that all honorable senators will agree with him. Not only has the number of activities coming within the scope of the federal authority greatly increased, but the impact of those activities upon the daily lives of individuals has been intensified. Therefore, one cherishes any opportunity to examine closely and, if need be, critically any further intrusion into the rights of the individual.
The Senate would have a false idea of the scope and activities of the Regulations and Ordinances Committee if it believed that the committee was able to scrutinize closely every one of the huge number of regulations and ordinances that are issued. Even with the aid of our legal adviser, who makes reports upon all regulations and ordinances submitted, it is a very complex task to examine them in the setting of previous regulations and ordinances, the statutes authorizing them, and the Constitution. I was glad to hear Senator McKenna say yesterday that he does not regard the existence of this committee as relieving him of his individual responsibility to exercise some supervision of subordinate legislation, although he does regard the committee as an aid. He made that quite plain.
The other matter to which I wish to refer before dealing with the more relevant parts of the Minister’s submission is the comment that these regulations were made eighteen months ago and that the only notice that the committee took of them was to make a report upon them. The trend of that argument seems to be that if the regulations were objectionable, the committee should have . moved. within fifteen sitting days of their tabling, to disallow them.
– That it had a duty to move for their instant disallowance.
– I am obliged to my colleague, Senator Laught, for his inter jection. Provocative as some of us are, and perservering as some of us hope we will be, we disclaim any duty, in the case of each regulation which we think to be invalid or to contravene the four principles which we regard as our charter, to move instantly into the chamber to support a motion for disallowance. The action that should be taken is a matter for judgment by the committee. When the regulations prohibiting certain exports were taking on a new form in 1958, in that they were being altered to conform with the new nomenclature of various departments and that advantage was being taken of that opportunity to cut out dead wood, as it were, in relation to some prohibited imports, the committee took evidence from the department to inform itself of the actual operation of the regulations. Consideration was then given to the question whether or not it was appropriate to move for the disallowance of the regulations. The committee stressed in its report that a matter of important policy was expressed in the regulations, and that it was concerned as to their form from the point of view whether they denied legal or political protection to an individual who might be affected by their operation. As an act of deliberate decision - and, so far as I am concerned, of some conscious restraint - no motion for disallowance was decided upon by the committee. If the members of the committee erred in judgment then, the emphasis placed on that point in this debate will correct us on the next occasion. As far as I am concerned, I will not be reluctant to make that correction.
I draw a marked distinction between the action that was taken with regard to the export prohibition regulations and the action that was taken - I think in 1956 - with regard to the import licensing system. The import licensing system had then been in operation for some four years. We had had that experience of what had been expected to be essentially a temporary system. The passage of four years seemed to indicate that the system was going to drift into permanency. I hope that honorable senators will agree with the judgment of the committee that that was a most appropriate occasion on which to bring those regulations before the Parliament, to determine whether or not they were in a correct form. It will be conceded by all of us, I think, that the regulations gave expression to an entirely obnoxious system which could be excused only by the exigencies of post-war trade, but was never contemplated as a system to be accepted in peace time. I think, therefore, that the import licensing system deserved the attention that was given to it. The report on that occasion, recommending the disallowance of the regulations, brought about some improvement of procedure, inasmuch as it led to the Department of Trade to establish review tribunals in import licensing. I am pleased to say that that procedure has since been adopted by the Department of Customs and Excise in an analogous field.
Before addressing myself to Sir Garfield Barwick’s opinion let me say that an opinion from him is, of course, considered with great respect. I express my disappointment that the first knowledge I had of the opinion was when it was read by the Minister for Customs and Excise after I had made my first speech on this section of the report last night. The Minister was good enough to give me the Commonwealth Law Report referred to by the Attorney-General in a note last night. But only within the last fifteen minutes have I received a copy of the remainder of the opinion, which was then not read in the chamber last night, and which has since been read this morning. I acknowledge that that puts me at an altogether too great a disadvantage to do adequate justice to the consideration of an opinion from the Attorney-General. I am handicapped in giving it the consideration it deserves. But, nevertheless, from the point of view of this debate, one may rely upon the express text of the opinion in making a few observations of interest.
We note that the Attorney-General has dealt only with the last sentence of the committee’s report to this Parliament. He noted that that was a matter of some ambiguity. We of the legal trade would not be surprised to find that comment because, with the ingenuity of interpretation contributed by the gentlemen of our profession, there is scarcely a text or combination of English words that cannot, after some consideration - and it is some consideration which the Attorney-General gave to bur report, in his terms - which could not pro duce a variety of meanings. So, that there should be some ambiguity, is not necessarily a blemish; it is just one of those handicaps with which the lawyers must begin to work. The Attorney-General recognizes that by putting it in the forefront of his opinion.
Then, so far as I can understand his analysis of the meanings of this term “ misuse of authority”, he poses the interpretation that we mean that it is invalid because of the existence of an improper motive or the consideration of completely irrelevant matter. In other words, the Minister states that if an officer of the department, when confronted with my potatoes for export overseas, says, “ You are the so-and-so who is on this Regulations and Ordinances Committee; you can produce your spuds indefinitely and they might as well rot in the ground; I will never give approval to their export “, it would be an invalid exercise of authority. A refusal of approval made for malice, or for fraud, or for bribes, or because of a consideration of completely irrelevant matter would be invalid. For instance, the officer might have had occasion for some conviviality with a higher official who wanted an embargo placed on the potatoes. He might have dined with a Minister and devined, after dining, that the Minister wished the embargo to be complete. They would be completely inadmissible legal considerations. If you could prove that the officer was actuated by any such thing, the law would look upon it as a fraud approval. In law, we cut it out and say it does not exist.
But what would the law do? The Attorney-General did not say in his opinion, but I would not expect that he would dispute the proposition - if so, I shall be glad to be informed either here or hereafter - that the remedy would be by what we call prerogative writ. You could either have a certiorari and quash the decision not to approve - in which case your potatoes are still on the wharf - or you could take out a writ of mandamus against this miscreant creature of the department who had the dislike of the member of the Regulations and Ordinances Committee.
– What about a shillelagh?
– I leave that to the visitors to the East. The mandamus would simply say, “You shall consider Wright’s application for the export of his spuds according to law “. By that time, the whole of the armoury of the Canberran law authorities would be gathered round this hapless officer who would be advised as William Morris Hughes was advised on one occasion. He was proud to be reminded that he was advised during war-time, thus, “ You go into that box and say, ‘ I refused approval for the export of those potatoes,’ but do not give a hint or suggestion of one reason why “.
– Order! The honorable senator’s time has expired.
– I rise to intervene in the debate in order to give Senator Wright an opportunity to continue his very interesting discourse.
.- I am obliged to the Senate. The official would be told, in effect, “Do not make the slightest disclosure of your reasons because, if they are improper we are for it, and the court could act. If they are proper the court may take a different view from you as to propriety and we still may be for it. So just say, ‘ We refused approval of Wright’s application to export potatoes ‘.”
That is the first proposition. If the meaning is that the unfortunate individual was without a right, I understand the AttorneyGeneral does not deny that the proposition is correct. But he says -
No doubt to establish impropriety of motive for the entertainment of irrelevancy on the part of an official is difficult.
Anybody who understands the problem of proving that against an official of any degree of experience will know that it is almost impossible. It is a matter of the greatest difficulty even in respect of a named official. We have experience of that with the Collector of Customs. He can form an opinion that goods have been lost from bond by negligence, and, so long as he sticks to that opinion, he can impose a liability on the importer to replace the customs duty on those goods. It is only on the odd occasion that he will vouchsafe his reasons. If they are invalid reasons, then in some cases he refrains from pursuing his demand. But one is very proud of the occasion when, in conducting correspondence as to the inadmissibility of the reasons, he admits that they are: inadmissible.
– The shipping company has to replace the duty.
– Not always.
– In 99 cases out of 100 it does.
– What the shipping company pays is passed on to the importer; he is the little trader, and he is the man whom I want to see protected. After saying that in that case it was difficult, the Attorney-General says in the next sentence that it would be -
That is a sentence which I submit has been used by the Attorney-General only after some thought, but with not adequate consideration. I say with very great respect that I think the Attorney-General would be the first to concede that it is much more difficult to attribute to a department fraud, irrelevancy and malignancy of motive. If there are in a department four men, A, B, C, and D, I say, first of all, “ A bears me malice “, but they say, “ No, the effective decision was made by D “. I then chase D down through the shadows of the corridors of the department, but he says, “ Really, the effective decision was made by C. I only gave the final formal approval.” That it is no more difficult to prove against an unidentified and un-named officer, irrelevancy of consideraton and malignancy of motive, is a proposition that I would dispute with all my force. It is not a matter of legal acumen. It is a matter of sober judgment as to the ways of men, and that is why I address the Senate on that proposition. I think I am entitled to invoke in support of that argument the subsequent passage of the Attorney-General’s statement, which reads -
I do not know how, in practice, discretions are exercised by the Departments concerned, but’ ‘I imagine that fairly full guidance and direction is given by the Minister to the officers . . .
The Attorney-General says that he does not know how a department exercises a discretion, and it is almost an imponderable proposition for a court to examine whether or not a department has exercised a discretion for irrelevant or inadmissible motives.
So much for the first sense in which the Attorney-General is pleased to interpret the expression “ a misuse of the authority “. We said that that denied to the subject in law any redress in those tribunals in which the British subject has come to regard it as traditional and as his birthright to be protected - courts where, independently of the Executive, of politics, and of all considerations other than that of the true meaning of the law, decisions are given.
There are those who say that the individual has a political redress. The point there made is that Ministers can prohibit the export of goods. If they do so, one has no legal redress. If they do so faithfully in accordance with policy, one’s political redress is ineffectual. The private right fails against the government policy. What we wanted to point out was that if this discretion is given to a Minister or to an occupant of a named office, such as a collector of customs, or to a person who holds the chief position in a certain department in every port of export, one can identify the person who is responsible, and it is no answer to the committee’s claim that there is an absence of political redress to say that the Minister is responsible for the whole of his department.
Elementarily, in the first year of constitutional law, in the first year of campaigning in politics, one learns the doctrine of indivisible responsibility of the Cabinet and that the Cabinet Minister takes responsibility for everything done in his department. What is that in terms of reality and redress? What is the position if I come here to make a motion of no confidence, or for redress from the Minister, because the third clerk in the port of Burnie has refused approval, wrongly, erroneously - as the Attorney-General says - but nevertheless within the law, for the export of my potatoes? That is the point of view that the committee seeks to present to the Senate. In reality, if the department, an innominate body consisting of hundreds of officers, can claim to exercise a discretion in relation to an individual right, it is an impossibility to pursue the culprit and sheet home to him - that is the point - liability for a proper redress of grievance on the part of the producer whose goods have been, say, erroneously exported.
I would only have wished for an opportunity to prepare an opinion of that sort, with the consideration that it deserves from me, but with the inadequate analysis of the Attorney-General I still remain unconvinced that the committee should retract one word or one syllable. Insofar as it is a matter of phraseology, when people start to criticize the methods of expression of others, let us remember that one’s method of expression is like the nose on his face. It is something that is individually indicative of each one of us, and one might prefer his own nose to the nose of another.
– In the debate on this section of the report, we have heard from the Minister for Customs and Excise (Senator Henty) a very lengthy statement of the opinion of the Attorney-General (Sir Garfield Barwick). Another legal personality, Senator Wright, has given, I think, a very interesting reply to that opinion. In matters of law, of course, the layman is more or less in the wilderness. Therefore, we as laymen can only look at the position in our simple, layman’s way.
In this section of the report the committee considered the rights and liberties of individuals and the justice to be meted out to them. Despite what has been said, great difficulties are in the way of the exporter, just as there were great difficulties in the way of the importer at the time the committee reported on import licensing. The Minister and the department know the routine and the methods by which these provisions operate. Big importers, and probably big exporters, also know their way about the department. That was brought very clearly to my mind when the argument on import licensing took place between the committee and the Minister of the Government. Eventually, as a result, an import licensing appeal board was established which, it was stated quite freely, would give a better opportunity to the small importer. It was pointed out to me then, as chairman of this committee, that a big man came to interview the Minister, accompanied by his secretary and advisors. He knew the ropes, whereas the small man did not. The same can possibly happen in the case of exporters. It is not necessary for a man who wants to export to be in business in a big way. He may not have the office assistance and advice available to a big exporter. The committee, therefore, must look at all aspects. I think that Senator Wright’s reply indicates fairly and strongly the difficulties of an individual in tracking down the person who is responsible for any decision that might affect him adversely. The Leader of the Government in the Senate (Senator Spooner) and the Minister for Customs and Excise (Senator Henty) spoke about the strong words used by the committee in its report. They thought more temperate words should have been used. I take it that their references were made particularly in connexion with paragraphs 16 and 17. Paragraph 16 commences -
But the form of this regulation illustrates the exclusive and ultimate claim of bureaucracy.
Paragraph 17 begins -
In other words, this is the form of regulation which expresses bureaucracy in the ultimate.
While those may be strong words, Mr. Chairman, I suggest that they express in no uncertain terms just what was meant. I do not know that the words used by the committee were such that they lowered in any way its status in bringing forward its report.
I have always thought that so long as a person uses reasonably good English and expresses himself clearly, it does not matter whether his views are expressed forcibly or in a much weaker manner. The main thing is that the import of what a person is saying should get through to the mind of the person he is addressing. Earlier to-day, the report of another parliamentary committee was presented to us. As I listened to the remarks of Senator Wedgwood in presenting the report, I thought that some people might have considered them somewhat strong.
– That committee said that departments presented misleading cases.
– Yes. That committee used some rather strong words, too. It is recognized that parliamentarians who go about during an election campaign must make a strong approach if they are to instil in the minds of the people an appreciation of what they are putting. Likewise, the Regulations and Ordinances Committee, in presenting its report, has to make the: necessary impact on the minds of the. people.
– In an election campaign we are talking to the electors, not to the Senate. That is the point I made.
– The Minister, at the beginning of his speech, indicated that the report had been drawn up in this particular instance to catch the headlines. I think that that was an unfair statement, Mr. Chairman. If the Minister were a member of the committee, he would find that it consists of temperate people. I do not think that any one would describe Senators Laught, Arnold, Cooke, McKellar and Willesee as other than temperate individuals, although some people might want to exclude Senator Wright and me in that respect. Although the committee may have on it some people who use strong language at times, I think it must be agreed that the members of the committee, generally, are people of very temperate minds. To say that the committee set out to present a report for the purpose of catching the headlines is unfair to it. Knowing the way in which the committee goes about its work, I think that it is unjust to make such a comment.
As I have mentioned, this matter has now got very much into the realm of legalism. As a layman and as chairman of the committee I feel that I should say that I stand behind this report of the committee. After all, the rights and liberties of the individual are involved. We know, as the Ministers know, that the liberties of the people can be prejudiced most unfairly by the actions of departmental officers. That may be due to the particular kind of thinking of an officer; but where the rights of an individual are unfairly trespassed upon it is necessary that some people in authority should stand up and say so. Therefore, when this Regulations and Ordinances Committee finds that regulations of the character we are discussing have trespassed unduly and unfairly on the rights of the people, it has a duty to bring the matter forward and state its case firmly and strongly; and it is the duty of the Government to state its case just as strongly in reply.
I think that the committee has done its duty in acting in the way it has acted. The fact that it has taken some time to bring forward its report does not constitute a charge against it. I well remember that when the committee brought before the Parliament a certain import licensing regulation there was quite an argument. The move for the disallowance of that regulation caused quite a stir; so much so, that the committee, in dealing with the regulation that we are now discussing, took cognizance of policy and the events that occurred at that time. The committee has brought forth its case in the light of the report it has made and which, as chairman, I stand behind.
Sitting suspended from 12.45 to 2.15 p.m.
.- I do not propose to detain the committee very long, but I do want to say that, because of the increasing complexity of the matters with which Parliament has to deal, there is an increasing danger of the growth of what we might term bureaucratic control. Most of us have had experience at times of what uncontrolled bureaucracy can do. For that reason, I have a lot of sympathy with the committee which, in producing this report, has contributed something of value to all of us.
I do not think that the ministerial strictures directed against the committee have been altogether justified. After all, it consists of senators from both sides of the chamber who appear to be very united in their stand. If one examines their record I do not think one will find that they have often taken exception to regulations brought forward. As a matter of fact, the number of instances in which they have acted has not been very great, and they have always been able to put forward very solid arguments in support of what they have done. I appreciate the desire of the Ministry to ensure that parliamentary business and the passage of legislation arc conducted efficiently, but I can see a good deal of value in having a committee which acts as a kind of watchdog and which, every now and then, directs attention to a tendency which, if not checked, may prove dangerous.
I might not have spoken on this subject had not Senator Wood referred to the import licensing regulations. I have not had a. great deal of experience of import licensing because, early in my parliamentary service, I came to the conclusion that it was Useless to make representations on behalf of any one who wanted a licence. Consequently, I haVe made representations only when people have implored me to do so on very strong grounds. Usually I tell people that I think they would be wasting their time. However, in one instance a very strong case was put to me concerning the importation of olive oil. I was shown conclusively that, because of the way in which the import regulations operated, a ring had been formed among sellers of olive oil. It was being imported at a comparatively low price, and being sold at extortionate prices because there was a ring among the people who had the import licences. I suggested that one way to deal with that would be to issue more import licences, thus breaking the ring, and I put forward the claims of one man who appeared to me to be bona fide and to have a very good case. There is no doubt that he was given a splendid hearing. He was heard here and he was heard there. He was referred here and he was referred there. Finally we were told that there was an appeal board to which he might go. He went to a great deal of trouble to prepare an excellent case for the board. He went before it and was given a splendid hearing. Having listened to his splendid case the board told him that the appeal could not be upheld because it would be against the policy of the Government to do so in his case. He was back where he started.
A few months later we were told that there was to be some liberalization of import licensing in that respect, so we decided to try again. The applicant was again refused but, with a little more plugging, a letter was sent suggesting that he should prepare a case for the appeal board. I said, “ He has already been to the appeal board. What is the good of his going to the appeal board when he was told on the last occasion that it was against the policy of the Government to give import licences to any one other than traditional importers; that no matter how good his case might be his appeal could not be upheld? “ The reply that I received was, “ This correspondence is now closed “.
Surely, administratively something can be done to prevent that kind of thing from happening. If we are to have regulations operated administratively in that way there is all the more need for a committee which will take action, when it feels that to be necessary, in regard to regulations placed before the Parliament. I am not losing sight of the fact that the implementation of the import licensing regulations is somewhat difficult. It is not a job that I should like to do in any circumstances, and I can well appreciate the difficulties of the Minister for Trade (Mr. McEwen) and the Parliamentary Secretary to the Minister for Trade, Mr. Swartz.
We have had import licensing regulations for a long time. Dissatisfaction concerning them has been continually expressed, and it seems to me that the Government might well have a look at the possibility of improving them, of streamlining them in some way so that people would not have to accept treatment which can only exasperate them.
I do not know anything about the allegations that have been made concerning import licensing. I have no evidence on the subject, nor have I any charges or allegations to make, other than to say that I feel that there is a good deal of truth in the statement that there has been trading in some of these licences. One need only look in the advertisement columns of the newspapers to see that. Though I appreciate the difficulties inherent in import licensing the regulations are open to improvement. If a solid effort were made to improve them I am sure that it would bring satisfactory results. For those reasons I support the attitude that has been taken up by the committee. I do not think that it has been unduly difficult. I do not think that it has wished to harass the Government. Indeed, I think its attitude was what could be expected from a body which was eager to carry out the work with which it had been entrusted. In short, the committee has taken a proper view of its responsibilities, and has done a very good job indeed.
– I only wish at this stage to intervene for a very few minutes to make what I feel is a proper reply to one’ or two statements that have been made during the. debate. The first was Senator McManus’s suggestion that strictures had been passed on the committee. .As. Senator
McKellar said the other night, this debate, taken as a whole, has been conducted without provocation and in an intelligent effort to discuss the questions at issue - without heat or strictures either way. I do say that that has been the character of this debate and that I, at any rate, have certainly not heard strictures being passed on the committee, or on the work that it has dane. I think that that is a fair description of the way in which the debate has been conducted.
The other point to which I should like to refer, again in an endeavour to keep the record straight, is that raised by Senator Wood. It has undoubted validity. It is that the committee is rightly concerned with seeing that the rights and privileges of citizens are not unduly interfered with by civil servants acting in a way which Parliament did not intend, or in a way which contravened what might be termed natural justice. But 1 want to go further than that and say that concern over those particular rights is not a monopoly of the committee or the members of the committee only. It is the concern of very many - if not all - senators in this chamber, and it is the concern of those senators we know are members of the Executive. I think one of the reasons why this committee has been so encouraged by this Government, as it has been, is that we all share that concern for the rights of a citizen as against the arbitrary exercise of power.
On the particular point before us now, Sir, it seems to me that the argument really turns on two matters. The first is: Does the ordinary citizen, under the regulations as they are now drawn, have political redress if those regulations are administered harshly, unjustly or improperly against him? Would he have more chance of political redress if some person were named as responsible for administering those regulations rather than having the department named as responsible? Sir Garfield Barwick has given a legal opinion that a person does have as much political redress under the regulations as they are now drawn, as he would have if they were altered to designate particular persons.
Senator Wright has indicated a legal opinion that he does not think a person has as much political redress. But it is again, I think, a matter in which a layman can express a layman’s opinion based on common sense and I should think, without being dogmatic about it - because law does come into the matter - that if a person has a just cause of complaint against the administration of the regulations by a department, then the Minister who administers that department can be called to task in this place with just as much force and subject to the shouldering of just as much responsibility as he could be called to task by these people if some named person under him had taken the action complained of. In either case, it is for the Minister who is responsible to stand up to political pressure and questioning, whether the thing was done by a named or an unnamed person in his department. The case can be aired. The responsibility is the same, politically, in either case, and I should think that from the point of view of a layman and from a common sense point of view there is just as much political redress - leaving aside legal redress - in one case as in the other.
The second and more difficult point on which the argument hinges is: Does a person have as much legal redress if the decision is made by a named person? There, the argument has been put forward by the Attorney-General that it is easy to track down in the department the person who has made a decision. Senator Wright has made an argument of some force against that by submitting that that person could say, “ It was not I who made this decision really; it was somebody else who made the effective decision. I only signed the final authority.” But if you had a designated person who signed the final authority, he could just as easily say, “ It was not I. It was somebody else who made the effective decision. I was only the man who signed the final authority.” In either case, it would be the man who signed the final authority, I suggest, who would be the man held responsible, subject always to the ministerial overriding responsibility.
T am a little out of my depth about the legal interpretation of the second point, but I point out that if there is as much political redress now as there would be if you had a named person, and if there is as much legal redress now as you would have if there were a named person, then the grounds on which the committee bases its complaint are simply non-existent.
– lt bases its complaint on the point that this is bureaucracy in the ultimate.
– And the grounds of complaint, if what I have said is right, are non-existent. Those are the two points on which, it seems to me, these things hinge. I would be inclined, for the reasons I have given here, to the belief that both political redress and legal redress are just as easily obtained now as they would be if, instead of saying “ department “ we said “ Collector of Customs “, or “ Comptroller “, or somebody else.
– I appreciate the remarks of the Minister for the Navy (Senator Gorton) about the spirit of tolerance that has been displayed in this debate. I also noted the many caveats he lodged as he spoke - “ If this was done, or if that was done, we would be wrong “. I disagree with him on the “ifs”. I think there has been one unfortunate departure from the spirit of tolerance. That was when the Minister for Customs and Excise (Senator Henty) alleged that the purpose of this report was merely to catch headlines in the press. I am sorry he said that. I think that, on mature reflection, he would not say it again. I invite anybody who thinks along those lines to look back, particularly over the last six or seven years, during which time, I think it is true to say, more reports have come from the Regulations and Ordinances Committee than ever before in its history. There have been ample opportunities for members of the committee to get headlines during that time if they wished to do so. But not on one occasion has there been a press statement made, except by the chairman of the Regulations and Ordinances Committee. I suggest that on every occasion the statement issued has been restrained and factual. The statement has never entered the political or the departmental fields and has been issued merely to announce the points that the committee itself has made.
I am amazed at the insistence with which some honorable senators have taken exception to the language employed in the first group of paragraphs of this report and the second group. I think the grounds on which they took exception to the language have been ably disposed of by Senator
Wright. All I say on this occasion is what I said when we were considering the first bracket of paragraphs, that is, that we have to make the language fitting. It it offends the susceptibilities of some people, that is too bad. After you examine a thing of this kind over a long period of time - we have been chided for that - you come to the conclusion that it is your duty to report upon it in the way you think fit. If, as a member of the committee, I were invited to review my attitude in the light of this debate, I would not withdraw one line, or remove the dot over one “ i “ or the cross from one “ t “.
We have listened to a legal opinion that was read to us by the Minister for Customs and Excise (Senator Henty). Like Senator Gorton, I move into this legal field with all the reluctance of a layman. The committee cites these regulations as an example of bureaucracy in the ultimate. I am a little at a loss to understand the attitude that was adopted by Senator Henty and the Leader of the Government in the Senate (Senator Spooner). I thought it somewhat incongruous that the Ministers said that the committee’s language was extravagant, and the Attorney-General (Sir Garfield Barwick) described it as ambiguous. If there is one thing that the language in the report is not, it is not ambiguous; I think it is the most unambiguous language that has been used in the committee’s reports for a long time. I reiterate my denial that the purpose of this report was merely to get headlines. I hope that is not an incentive to the committee in the future.
– Is that meant to be a stricture?
– No, I do not say that. As I have said, I hope that that assertion by the Minister was not intended as an invitation to the committee concerning its behaviour in future.
As a layman, Mr. Chairman, and adopting a commonsense attitude to this matter, 1 think an important point has been missed. lt is important that the citizen should have a right to legal and political redress, but it is possibly more important that he should feel that he has that right. After all, in these matters you are not dealing with Q.C’s. and eminent counsel; you are dealing with people untrained in the law and un trained in politics. You are dealing with small people who are so busy in their own little businesses that all they want is results. I think it is most important, not only that these people should have a right to redress, but also that they should feel that they’ have it, and that it is available to them quickly and readily.
I think that the present trend is a bad one. I think that even Ministers agree that that is so when considering departments other than their own, but when the matter touches their own departments, they take the view that they must stand up and put on a show about it. I think we agree that it makes for clarity and for better feeling by the person affected if the Minister is named. It is bad to move away from the doctrine of ministerial responsibility. It may be said that in the legal sense we are not moving away from that doctrine, but I contend that in a practical sense we are moving away from it.
This ground is not new ground for the committee. The objections that have been raised on this occasion - by Ministers only, as Senator Armstrong pointed out last night - are almost exactly the objections that were raised to our action in respect of import licensing. I do not say this unkindly, but I wondered at one stage whether Sir Garfield Barwick had given an opinion or was arguing a brief. I think that Senator Henty would have been on much sounder ground if he had not sought his legal advice from a fellow member of the Cabinet. As I see it, lawyers are called upon either to give opinions or to argue briefs. In the industrial field, dealing with demarcation cases and so on, I have seen opinions by lawyers which have been widely different.
I am not sure whether it was Sir Garfield Barwick or Senator Henty who said that these regulations had been in force since 1901, implying that, 58 years later, we should not start to worry about the form of them. Exactly the same thing happened’, with the import regulations, but in that case the Government’s position was stronger,, because the import regulations, unlike those we are discussing now, were specifically in the act. Nevertheless, in the case of the import regulations, the Minister, in his wisdom, introduced a system of committees comprised of business people and civil servants. I understand that the committees are working fairly effectively. I do not say that the system is perfect, but nevertheless it is an improvement on the previous situation. That action was taken then, notwithstanding that regulations of that type had been in operation since 1901.
Senator Gorton says that this committee has received a great deal of encouragement from this Government. If it has, the Government has tried to conceal that fact by taking action of this kind and resisting the committee now.
I Gome back to the question whether these matters should be handled by anonymous civil servants or whether they should be handled by the Minister, thus giving citizens clear legal and political redress, if necessary. Bearing in mind the doctrine of ministerial responsibility, I put this question: What has the Government got to lose by acting clearly and unambiguously rather than in the ambiguous way in which it is acting now? I do not want to repeat what Senator Wright said. I look at the problem as a layman, not as a legal eagle. To me it is perfectly obvious that once you make a clear statement naming the Minister or the person responsible, the matter becomes much more clear and easy. I repeat that the important thing is that the individual should feel that he has protection, and that is not so under the present system.
– I rise to take part in the debate on this section of the committee’s report primarily as a compliment to the committee, because of the attention that it has directed to this important matter. I feel that it is right that the committee should have directed attention to these regulations, but I raise the query: Why are we hearing from our standing committee in October, 1959, in respect of regulations that were promulgated on 9th January, 1958? Certainly a long time has elapsed - sufficient, I would say, to deprive the Senate of the opportunity of disallowing the regulations, if it thought fit to follow that course. Quite frankly, I think that some representative of the committee should tell us the real reason for the delay. We have been told that conferences were held with the department.
– We did not have conferences. We took evidence from officers of the department.
– That was what was said. I did not put my proposition quite accurately. I realize that that may have taken time, but, in a matter of such importance, one would have expected the committee to deal with the regulations in time to give the Senate an effective voice in the matter. There may be a complete explanation. All that I am indicating is that I have not yet heard an explanation for the long delay.
I think we are entitled to expect, in a case where a major principle is involved, to have advice and a report from our committee in time for the Senate to take effective action. If I am right in saying that the time allowed for moving for the disallowance of the regulations has elapsed, there is now only one remedy available, and that is to bring in a bill for an act to amend the position. Otherwise, the Senate can take no effective action. I say quite objectively that I should like to know why there was such a long period between the time when the regulation was gazetted and the time when our attention was directed to this very important matter.
– That was dealt with in the debate this morning.
– I think I heard the whole of the debate this morning, but I would indicate to the honorable senator that what I heard was not an adequate explanation for the delay, so far as I am concerned. If I could be further informed on that point, I certainly would be relieved. I think the honorable senator will concede that, as individual senators, we rely on this committee. We rest content in the thought that if there is anything seriously wrong, the committee will advise us of it in time. The only point I make is that in this case we have not been advised in time, and I am posing the simple question: Why? I should like to hear about that.
Let me turn to the regulations themselves. One does not cavil at the thought that the export of certain things, such as arms, explosives and drugs, should be prohibited. One expects the export of those things to be prohibited as a matter of public and national policy. Nevertheless, one gets a shock, on referring to the schedules, to see the type of things, the export of which may be arbitrarily prohibited by a department. There are no principles laid down for the department to follow, and there is nothing to prevent the most deliberate discrimination between individuals, between firms and between products. A man might be refused a licence, so far as the regulations go, because he has blue eyes, not brown eyes. I hope the Minister will appreciate the legitimacy of the criticism. There is nothing at all in the regulation to set a standard for a department or an officer in a department to determine whether barley, cattle, copra, fertilizers, molasses, sheep or even wheat may be exported without the consent of the particular department. It may well be that there are elaborate rules laid down for the conduct of officers and departments in relation to each of those matters.
– I think you will find that there are.
– I would not doubt that. There would have to be some principles. But it would be of advantage to me if the Minister felt disposed to address us a little more particularly on that point. When one looks at the Constitution, one finds a broad protective provision under section 99 which says that no law of trade or commerce shall discriminate between States, or parts of States. In other words, there is in the Constitution a prohibition against discrimination.
It is quite certain that the export of all the commodities named in this regulation is part of trade. The principle of prohibition of discrimination as contained in section 99 in relation to States or parts of States ought to be carried on down to the realm on individuals wishing to export. As one who knows nothing about departmental regulations in this matter, 1 ask: What principle guides the department if it is decided that only a portion of a commodity shall be exported? Is everybody who has been an exporter in a selected base year entitled to a quota or proportion of the commodity to be exported? Or is a completely arbitrary decision made, as I emphasized could be done under these regulations?
I have no doubt but that there are rules and regulations that reduce it to some degree of control and propriety; I do not question that. But the regulations that we authorize enable discrimination of any kind to be practised in the department. Power is given in those terms. Even though I am given the complete assurance by the Minister that discrimination is not practised, that there are departmental rules to prevent it, and so on, I should say not only must right be done in the department but it must appear to be done in the law. That is the defect I see in this matter.
I think it was Senator Wright who drew attention to regulation 13 which prohibits the export of certain commodities except upon conditions that are laid down in the regulations themselves:, in the schedule. That provision reads -
The exportation from Australia of any goods specified in the eleventh schedule to a place specified in the schedule opposite to the description of the goods is prohibited unless the conditions and restrictions also specified in that schedule opposite to the description of the goods are complied with.
That is completely clear. It is in stark contrast with what is covered in regulations 5 to 12 where, according to the regulations, the matter is left completely to the decision of the department. There are no conditions, restrictions, provisions for the absence of discrimination or undue preference, and so on. It is left completely at large. I say it is no answer to say that was the provision in the old regulations from 1946 up till now. We are looking at the matter to-day, and it is proper and objective criticism to say there is scope under these regulations for discriminate and undue preference. I think that the committee is quite right in drawing attention to these aspects.
I do not agree with the committee when it. says there is no political redress. 1 should say there is no better example of the fact that there is such political redress than the debate which is going on at the moment. That is proof positive of the fact. One would imagine that anybody offended by departmental action under these regulations would eventually find his way to a member of Parliament who would be exceedingly vocal in this place. One thing that rather convinces me that these regulations are being administered fairly, is the complete absence of that type of thing in the Parliament.
But whether the regulation is working well is not the point; the point we are concerned about, as legislators, is that it could work badly as at present worded, and the law ought to be in such a form as to eliminate even the possibility of discrimination and preference. And I should expect Ministers to be as eager as the committee itself to prevent any aspect of that particular matter! 1 confess that my mind falls down somewhat on the side of the criticism the effect of which is to say that the committee has been rather over-dramatic in the presentation and phrasing of its report in this Chamber. I think it might have been more effective had it analysed the difficulties a little more and broadly been a little more analytical in its approach and the terms it used. I say that in all kindness, appreciating the full value of the contribution the committee has made.
On the question of legal redress, Sir Garfield Barwick has very usefully addressed his very good mind to the problem. I should say that legal redress in the case of matters covered by paragraphs 5 to 12 would be more notional than real. I cannot imagine any of the court prerogative writs such as mandamus, certiorari and so on being employed against the department. 1 agree with Senator Wright- confirmed by the less strong words of Sir Garfield Barwick - when he says that it would be almost impossible to get any evidence of wrongful behaviour where a departmental officer is not obliged to give a single reason under these regulations for a decision that has been taken.
Sir Garfield Barwick puts it at the lower term in saying that it would be most difficult to get evidence, assuming there is some legal redress. From the practical viewpoint, I should say there is none under these regulations. I think political redress is fully available.
– Does the legal redress aspect alter by virtue of the fact that the department rather than a specified person is named?
– 1 should say nol. 1 would agree with Sir Garfield Barwick on that point. I think ministerial responsibility is preserved whether the Minister is named or whether the department is named. That is my view. But 1 add that 1 think it is infinitely, better from the. public view point to name the Minister and not the department. Naming the Minister brings it directly into the political arena and draws people’s attention to it. In form and broad principle, it is much better for the particular trader, who is not aware of the principle of Ministerial responsibility in the way that we in this chamber are, that these regulations should be drafted from the viewpoint of the clear understanding of the people who are affected by them. So I say to the Minister that I do not draw any distinction between naming the Minister and naming the department in legal effect, but I do think the Minister should be named. That is the conclusion I make in the matter.
– Is there any distinction on the political level?
– I think that more or less the same comment I have made with regard to legal redress should apply there. I think the members of the public would be more concerned with directing their minds to the political level if the Minister were named than if the department were named. To members of the public, the department is an anonymous, amorphous body, which they feel they cannot readily approach or shift, but the Minister conjures up in the minds of the people the image of a person who is approachable and who, in addition, may be named far more easily and readily in proceedings.
– Order! The honorable senator’s time has expired.
– I rise merely to give the Leader of the Opposition an opportunity to continue his remarks, if he so desires.
– I should like to comment on only one more matter. I agree entirely with the proposition that has been put to the Senate, that the operations of these regulations are by their very essence not matters for courts at all. It is essentially a matter of policy whether this country is to prohibit the export of a particular article, or commodity, live-stock, drugs or anything else. It is so much a matter of policy that I do not see the invocation of a court being a very real proposition in relation to it all. The matter has to come back ultimately for legal redress. I do not think the situation could be coped with by a court except in the case - which is very rare, as everybody admits - where an officer or department has acted with a completely wrong motive. That would be an exceedingly rare case in the view that I take- I do not think it is a matter for invoking courts and appeals to courts. It is entirely a matter of policy as to whether things, for example, fissionable materials, are or are not to be exported from the country. I feel obliged to the committee for raising this matter. I do not disagree with its conclusions. I should like an explanation of why the report has been delayed for so long. I think political redress is available to anybody offended by the regulations, but I do press upon the Minister the view that the regulations could be put in a better form from the public relations viewpoint.
– In speaking to this section of the report, as a layman one must defer to legal opinion. As usual, we have not a onehanded solicitor. The position is: On the one hand, so and so, and on the other hand, something else. Redress at law will always be a matter of conjecture. I am of opinion that political redress is very remote. I am not so rash as to say that there has not been need for political redress in relation to these matters.
The exporting of scrap metals is a very important aspect of this country’s trade. I know quite definitely that in Western Australia the Midland Railway Company had a very good case for redress over a period of years, but it was advised that, politically, it would be in the best interests of the people who felt aggrieved if nothing were done. That advice was given by a member of the board which was making recommendations as to who could and who could not export. In consideration of my client, I did nothing, politically, about it, but the matter was thrashed out. A person who is engaged in legitimate business, whether importing or exporting, may feel that sections of regulations are vexatious. Whether or not these regulations are right or just, they are designed to implement Government policies, but in many instances they are vexatious. We have men coming to Western Australia to hear appeals, but virtually their authority is only to say, “ No “. They say that something might be done when they go to Sydney. Our traders, therefore, say, “ We, too, will go to Sydney “. A fairly current expression in Western Australia is that it is far easier and cheaper to go to Sydney to see somebody who carries his business in a handbag or purse. These people in Sydney have licences which can be had for consideration. Delay is avoided, and at that point the matter is allowed to rest. One person said to me, “ I do not want to make a political scene of my business. I do not want to offend people, but persons in eastern States will allow me portions of their supplies.” My best advice was that he should not raise a political or legal question but should pay the piper. I am being quite fair when I say that this has been the experience of quite a number of people. We cannot deny it.
I do not blame the Ministers. We have been under restrictive legislation for a very long period. For very many years there have been restrictions in relation to the export of base metals. Men with mining concerns have put metal on the surface only to be told that they could not export it, that the Broken Hill Proprietary Company Limited had requirements that had to be satisfied, and that reserves had to be held. I know of one person who, unrestricted, would have been able to remain in business and carry on but who, as a result of restriction, could not continue. He could not even make wages. In those circumstances, a man goes out of business, but as a result of a change of government or departmental policy another person who comes in may have a remarkable advantage in being able to get base metals away from Australia.
This is the kind of thing that has occupied the minds of members of the committee and of other people who are interested in the manner in which regulations and departmental control of very high and important policy decisions affecting the life and” industry of Australia are administered.
Perhaps the Minister might have a good case in theory, but in practice it does not work out. My own personal experience, which has also been the experience of others, is that when a case is put before the Minister one is told that as a matter of policy something cannot be allowed, and there is no redress. Applicants may go to established agents in other States and get supplies, although it may cost a little money. They do get results that enable them to carry on their businesses.
– You are talking about imports?
– Yes, and the same thing has been done in regard to exports, particularly in relation to the export of scrap steel. On one occasion a metal buyer came to Kalgoorlie from an eastern State, bought a considerable amount of metal in the goldfields area and railed it to the coast. A regulation provided that metal required for industry within a 12-mile radius of Kalgoorlie could not be exported. He had got a lot of it away before the matter was brought to the attention of the Government, which made a survey of the requirements of industry in Kalgoorlie and reserved the usable scrap metal required. But there was that hiatus. Although every other metal dealer in Western Australia was complying with the law, this man got a licence, got away with the metal, and made quite a lot of money on it. Persons who saw me about it at Kalgoorlie had no legal redress, and they felt that if they approached the department for redress they might be more seriously prejudiced than if they had not opened their mouths at all. The system is a very difficult one to handle. If the Minister were named and it was clear that he had the responsibility, the position would be better. It is very unsatisfactory in any circumstances to have a department responsible, although it may be very necessary. Senator McKenna has suggested that when government policy is operating against a person, it is very difficult to sustain a case for redress even though - it appears to a court that injustice has been done. If we had a situation in which a person could have his case openly and clearly decided, without running the risk of prejudicing his trade or business by offending the department, it would be much better. I have no hesitation in saying that, rightly or wrongly, people who are affected by these measures have a degree of reserve amounting almost to fear when it comes to ventilating fully the difficulties under which they operate. They know, from instances that occur, that if they do so they may prejudice themselves, and that they will then have to spend a lot of time trying to regain their position and their money while their business deteriorates. We have reached that stage. The Regulations and Ordinances Committee cannot suggest to the Senate a remedy for this state of agairs, but it can suggest that the position is a bad one and calls for close examination and, probably, re-orientation of policy and practices.
Senator PALTRIDGE (Western Australia - Minister for Shipping and Transport and Minister for Civil Aviation) [3.61. - The section of the report that the committee is now discussing, as was the case with the first section, has been dealt with very comprehensively. I do not want to delay the committee for a great length of time, both because of the full treatment that the matter has received and because naturally 1 am somewhat reluctant to address myself at all to what is so largely a question of law and of legal interpretation. I have, Sir, as I do not doubt that other laymen have, the layman’s somewhat chronic prejudice to legal interpretation. To me, it is reminiscent of the story of the Yankee’s gun - you do not want it very often, but when you do, you want it very badly. In this particular instance we are blessed, or cursed, with at least two legal interpretations now before the committee.
I draw some encouragement from the remarks that were made by the Leader of the Opposition (Senator McKenna), to make a suggestion which I have in mind. I begin, Sir, by referring to the last passage of the report on the Customs (Prohibited Exports) Regulations, which states -
In other words, this is the form of regulation which expresses bureaucracy in the ultimate. For a misuse of the authority given the ordinary citizen who feels him aggrieved has neither legal nor political redress.
In an opinion which was presented to us by the Minister for Customs and Excise (Senator Henty), the Attorney-General - no less a legal personage than Sir Garfield Barwick - controverted that expression of view. The Attorney-General said that the action df which the committee complained r- the naming of a’ department rather than the naming of a Minister or a specified person - did not in fact affect the political position, nor did it alter the legal position. With that view before the Committee of the Whole, it has occurred to me that the Regulations and Ordinances Committee might further consider its report in the light of that opinion. 1 am well aware that Senator Wright has said, in his characteristically forceful style, that for his part he would not alter one word of the report; but in the same speech he said that he had been unable, in the time available to him, to give the opinion of the Attorney-General the comprehensive consideration that we would like to give to it.
– You misunderstand me if you think I will not give it the closest consideration at leisure, after this debate.
– I do not doubt that. But how much better it would be, and how much more satisfactory, if the committee considered it now and then came back with a report in the light of that further consideration. If it then felt, as Senator Wright has expressed himself as now feeling, that it should not alter the report, at least we in this Committee of the Whole could be assured that the opinion of the Attorney-General - I suggest, a valuable opinion - had not been discarded on the merest and most casual examination.
– That is the only kind of examination we could make of it.
– I do not blame the committee for one moment. I acknowledge that Senator Wright said! that he did not have the opportunity to hear the opinion of the Attorney-General-
– That goes for all the committee.
– Yes. I speak of Senator Wright as a member of the committee. I am not pointing the bone at any particular member of it. I accept Senator Wright’s statement that he did not have an opportunity to see the opinion. At the same tme, now that I am reminded, I ask myself why the committee did not make itself acquainted with a view which, I am sure, would have been available to it had it asked.
– The committee obtained the Solicitor-General’s opinion, through the then Attorney-General. But we do not bring professional opinions to the floor of this chamber unnecessarily.
– Only when you agree with them.
– Not at all. I discussed it with you, Mr. Minister, and said that I thought that a professional opinion should be brought in only as a last resort.
– Outside professional opinion, you said.
– But surely this is a matter on which a professional opinion is of the first importance. Surely, to use Senator Wright’s phrase, this is a question very largely of legal interpretation. If that is not a professional opinion, then I do not know what is. I am sure that Senator Wright would not adopt the rather unusual attitude of accepting my interpretation as being the equal of professional opinion.
– I merely say that before us we now have an opinion that is a valuable one and deserving of the greatest consideration by the Regulations and Ordinances Committee. I suggest, and I commend to that committee, the proposal that it should withdraw this section of the report until the opinion of the AttorneyGeneral has received what Senator Wright described as adequate examination.
.- As chairman of this committee I should like to bring forward two points before we proceed any further with the discussion. In the first place, I should like to thank Senator McKenna for his two very fine contributions to the debate on this committee’s report. I think it is generally agreed that he made a very well-reasoned speech on both occasions. He asked directly why the committee took so long in bringing forward this recommendation. I am conscious of the fact that it is quite reasonable to ask why it was not brought before the Senate within the time for disallowance of the regulations - that is, within fifteen sitting days of the tabling of the regulations.
I should like to point out that we commenced consideration of these regulations, we took evidence, and we obtained opinions. The committee felt that it should not take the drastic step of moving for disallowance, and that if the matter were brought before the Senate and discussed fully, as it is being discussed now, a full realization of the import of the regulations would be brought before honorable senators.
– Without bringing a debate on related policy into it.
– Yes, without bringing into it any debate on policy. We remembered distinctly that when we brought the import licensing regulations before the Senate, we were accused of intruding in policy matters, so we bent over backwards in an endeavour to avoid being charged on this occasion with intruding on the policy of the Government.
– When did the committee first start to look at it?
– Quite a considerable time ago. We decided that we would not proceed to move for disallowance.
– The period is one year and nine months, is it not?
– In the circumstances, there was no urgency about bringing it forward, because, as I have mentioned, our purpose is only to bring the light of day to bear on the regulations by a debate. The committee goes to quite a lot of trouble at times to obtain opinions. On occasions, we do not get replies from the departments as quickly as the Minister might think. Various other delays take place.
– Three months out of 21 months.
– If you want us to bring forward a motion for the disallowance of these regulations, instead of giving the Government some leeway in the matter, the committee will not be as timid as it has been in the past. The Minister wishes us to have more strength. We will speak more strongly in future.
With regard to the reference by the Minister for Shipping and Transport (Senator Paltridge) to Sir Garfield Barwick’s opinion, we had already, as Senator Wright has pointed out, an opinion from the former Attorney-General. Honorable senators know that there was a change in that portfolio.
– Was it from the Attorney-General?
– It was given through the Attorney-General’s Department?
– Speaking from memory, the Attorney-General gave the opinion and the Solicitor-General’s signature was appended.
– The committee, unlike some Ministers, is open to suggestions. We keep an open mind. The committee normally would take into consideration a very good suggestion such as that which has been made by the Minister. He may be assured that the committee will treat Sir Garfield Barwick’s opinion with the greatest respect, knowing his great qualities.
Those are the points that I thought should be cleared up now. There has been a delay, but there are various reasons for it. We will accede to the Minister’s request.
– Will the committee report on Sir Garfield Barwick’s opinion?
– Not on the opinion, but in the light of it.
– We will be quite happy to submit a report at any time. I am pleased indeed to know that the committee is viewed by the Senate with such favour that it is now being asked for reports. We shall supply them.
– Before we finally dispose of this section of this very valuable report, I should like to clear up a few points. I wish to refer to a matter which I thought I had made clear, but apparently I did not do so. Let me explain again why the Minister is not named in these regulations. The regulations are administered under the Customs Act. I, as the Minister for Customs and Excise, have power to delegate my authority to the Collector of Customs, but that position does not apply in other departments. The Ministers administering other departments do not have power under the Customs Act to delegate their authority to the Collector of Customs. There is nothing sinister about this in any shape or form. A minister is completely responsible for his department and for the actions that his department takes. The system was designed to enable the department to use the services of the Collector of Customs who has an office at every port, and in that way to effect speedy administration.
Speed is often the essence of this matter. A man may receive an inquiry from a foreign country for a commodity which may be a prohibited export. He may believe that in the particular circumstances of the case he should be able to obtain an export licence, but he cannot wait for weeks while the department catches up with the Minister, who may be somewhere in the Northern Territory or in New Guinea, to obtain his signature. The exporter wants a speedy answer so that he can get the order. If he has to wait for any great length of time before he receives an export permit, the foreign inquirer may be no longer interested.
– Would there be an objection to a regulation that approval may be given by the Minister, or an officer of his department authorized by the Minister, in writing?
– But then you would have to get the Minister to authorize it in writing. On the other hand, you could give an officer a general administrative order, as I do in my department. What is the difference? If a department has a general administrative order - a delegation of power to the department - the department can give a decision. What is the difference between the department giving a decision and an officer of the department, who has delegated power, giving a decision without reference to the Minister?
– That delegation of power is to the permanent head of the department, is not it?
– Or to the officers. What is the difference? I tell you frankly that in the practical field of administration, speed is of the essence.
– It is desirable.
– Justice is desirable, too.
– Speed is of the essence. The honorable senator has said that justice is a desirable thing.
– What about justice and the rights of individuals? Are they not desirable?
– I grant that rights must be protected, but rights are protected if a decision is given by the Minister and they are protected also if the decision is given by the department, which has been given a blank cheque by the Minister. It is exactly the same thing.
– Apparently the committee does not think so. lt does not agree with you.
– I do not agree with it. I am speaking from the viewpoint of practical administration. When we consider that ‘ 700 or ‘800 decisions -are made in a month in Sydney and Melbourne alone, we see that the committee would strangle proper administration with theoretical red tape.
– The department is strangling individuals now.
– That is not so. The individual can get a speedy decision now. and he has the right to approach the Minister in charge of the department, but you would strangle him with theoretical red tape.
The honorable senator will be able to put his views in a moment. I have now had three years’ experience of these matters involving 700 or 800 decisions a month. From memory, only three cases have come to me in which people have been dissatisfied with the way in which these regulations operate, or with the speed with which decisions are given. If I remember correctly, two related to iron ore, and the decisions on them were made not by the Minister at all, but by the Government. They went straight through to the Government because they concerned a matter of top-level policy. I have told honorable senators what is done in the course of practical administration to ensure that these things get to the Minister. As I have told the committee, these provisions appear under the Customs (Prohibited Exports) Regulations, which relate to a number of departments. Because the first word is “Customs” any person who is dissatisfied says, “ Right. I am going to take this up with the Minister for Customs and Excise “. When he does so and mentions the particular commodity I write to him and say, “This matter does not come under my department. I am directing your communication to the. responsible Minister “ - who may be the Minister for Primary Industry, the Minister for Health or some other Minister - “ and he will reply to you direct “. How can any one suggest that a citizen has not political redress in such matters? To do so is to display one’s lack of knowledge of the practical administration involved - of the way these things work. The regulations in question were introduced in 1946 by a Labour government. They have been perpetuated by the LiberalAustralian Country Party Government. Governments of both persuasions have used them for thirteen years.
– The same civil servants have been there.
– Not necessarily. There have been many changes.
– Is it not a fact that many people do not think in terms of going to a political figure, or writing to the Minister, after they have been refused?
– That is a valid question. There may be people in that category. We cannot say.
– Do doubtful cases come to you?
– Always. If there is any question concerning anything to do with the department it comes finally, of course, to the Minister. I cannot answer for other departments because there are so many involved. Honorable senators will see that if they look at the list.
– That makes it especially difficult for the Minister.
– Not really, because I refer the inquiry to the department concerned. In all good will, I would suggest that there have been very few complaints - always bearing in mind the very valid point that some do not come to any one’s attention.
– They do not go to a political figure.
– The type of person who accepts a rebuff and does not come back, would not be concerned whether the Minister or the department was expressed in the regulations as the authority.
– That is not the important thing. It is a denial of his legitimate right.
– We are at cross purposes. The point is whether the authority expressed in the regulations should be the department or the Minister. Senator
Dittmer raised the very valid point, “ What about the people who were refused? “ They would not know what was written in the regulations. Whether Minister, department or something else were written into the regulations, they would take the knock-back just the same. I believe that every honorable senator would like to know that no one would take knock-backs, but would, instead, go to his member of Parliament and have the matter sorted out.
– They usually know what they are after.
– That is so. The committee said that it did not wish to deal with policy. The points which Senator McKenna raised were indeed policy matters. He said that the policy governing these regulations should be laid down precisely and specifically. I do not see how that would be possible, because the factors involved are unpredictable. A drought may occur suddenly and wheat may become scarce in Australia. We must then prohibit the exportation of wheat, bran and other byproducts of wheat. We may be advised by a commodity board that supplies adequate for domestic use are not available and that further exportation should be prohibited. Events overseas may have a similar result. The exportation of certain commodities to a particular country may be prohibited overnight. Trade agreements are made, and there are day-to-day administrative decisions on policy. I do not think that the principles involved can be put down precisely in the way suggested-
Certain honorable senators have said that they have not had the opportunity of seeing what I believe was a very valuable contribution by the Attorney-General (Sir Garfield Barwick). Senator Wright suggested that the committee received a report from the former Attorney-General and the SolicitorGeneral.
– We received an opinion, not on this general matter, but on a specific matter.
– Was it on this specific matter of export controls?
– I have not consulted the opinion for nine months. I would not like to say.
– I have sufficient respect for the honorable gentleman’s recollection to be able to say that if there were such a reference he would remember it.
– From memory, we sought a legal interpretation of the expression, “ the department “.
– In that case, it was on this particular matter. I think that the committee would be well advised if it reconsidered the matter. The debate on the committee’s report and the report itself will igo into the archives of the Senate and will be looked at from time to time for many years to come. Every one will be able to see how this matter was dealt with. I do not believe that any committee - especially a committee of the standing enjoyed by this body - would not react to the suggestion that it could take this section of the report, re-examine it in the light of the very valuable contribution by Sir Garfield Barwick and come back again to the Senate saying, “This is our opinion now on this matter, having consulted these things “, and giving its reasons for so doing.
– I would think that the committee would be very anxious to face up to that responsibility.
– I am glad to hear that the committee reacts favorably to the suggestion of Senator Paltridge in this matter.
– We are asking the Senate to take note of what the committee has submitted.
– I understood you to say that you would adopt Senator Paltridge’s suggestion.
– We will submit another report, I have no doubt.
– Undoubtedly you will. The other point made by Senator Wright and Senator Wood related to my query as to why the committee did not deal with this matter immediately and bring back to the Senate a proposal for the disallowance of the regulations. Senator Wright commented on my remarks this morning, but left out the relevant conditional part of what I said.
– Order! The Minister’s time has expired.
– I intervene formally so that the Minister may continue.
– I thank the honorable senator. The condition that I made was that if the committee really believed that these regulations were as bad as the flamboyant and extravagant terms of expression used in the report indicate, it should have brought them back. I did not chide the committee for not having done so. I said that if these things were as bad as this flamboyant language suggests, I thought that they should have been brought up before.
– The committee is adhering to the view that things are as bad as the words in the report state.
– Senator Wright said this morning that he prefers his own nose. My reply to his interjection is that I prefer my own nose.
Question resolved in the affirmative.
– I move -
That the committee takes note of paragraphs 18 to 22.
Mr. Chairman, I shall endeavour to be commendably brief. I think that anybody who has read these paragraphs will agree that they are self-explanatory. In this group of paragraphs, anonymity becomes so vague as to disappear altogether. Because of the setup of the legislative councils in the Territories, the ordinances of those bodies are virtually enactments. That is, they are the subject of public debate and become the opinions of the councils. They are returned to the Minister foi Territories for his approval. No committee of this Parliament - either of the Senate or the other place - has power to disallow these ordinances. We do not think that that should be the case merely because the ordinances of the Territories come virtually from their own parliaments.
I underline the contention of the Regulations and Ordinances Committee that these ordinances are the creatures of the Minister himself. These legislative councils are made up of elected and nominated members and the Minister, who is able to nominate the majority of members, can control th; will, the spirit or the policy of the councils. Even if something did misfire along thi line, the ordinances have to come to him for approval. So the Minister who is handling these things is in a position different from that of any other Minister. A department makes regulations and the Minister concerned has them tabled in each House. The regulations are examined by the Regulations and Ordinances Committee and either House has the power to disallow them. The Minister for Territories is not subject to that scrutiny. He has the power to control the will of the council by his appointments, and he has the ultimate power of veto when the ordinances come back to him. No House of this Parliament, or committee of this Parliament has any jurisdiction at all in the matter.
I think that a constitutional anomaly would persist if the position were left as open as it is now. Members of the Regulations and Ordinances Committee merely draw the attention of honorable senators to the matter. I think it is one of the matters that the Cabinet should have a close look at because provision for the scrutiny which all British parliaments have been so accustomed to maintain over regulation-making power is absent here. This is a regulationmaking power that is twice removed from the parent Parliament. We are making no recommendations. We feel that it is our duty to direct attention to this anomaly.
[3.38]. - I am quite certain that all honorable senators have taken a great interest in this debate on the Fifteenth Report of the Regulations and Ordinances Committee. I have always looked upon this committee as a very important body. Its work is interesting, if not spectacular, and it has quite a bearing upon the general work of the Parliament. I can claim a close knowledge of the Regulations and Ordinances Committee because I was a member of this chamber when the original recommendations, as a result of which the committee was established, were brought in in 1929.
– That would be a sole honour, Mr. Minister, would it not?
– I think it is. I well remember the strong arguments that were advanced in relation to the committee itself, and it is quite true that paragraph (d), which was to confer on the committee authority with respect to regulation-making power, was left out. This was the provision -
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 scrutinise regulations to ascertain . and then four principles were set out. That provision was taken out of the recommendations of the select committee which examined the matter.
I was a member of the Regulations and Ordinances Committee from 1935 to 1949, so I had a fair run. It was a most interesting experience. We gradually got more facilities for the better working of the committee. At one time, we did not have a legal adviser, and we had to do the work ourselves. Initially, recommendations and explanations did not come forward from the departments, but we managed to get them as time went on. It was never envisaged, during the time that I was a member of the committee, that any committee would have the duty or would be entitled to bring into its work the provisions of paragraph (d) which had been taken out.
– What was the full content of paragraph (d)?
– The report of the select committee which recommended the establishment of the Regulations and Ordinances Committee reads as follows: -
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 -
There then followed the four principles, which were as follows: -
Those principles were taken as a guide to the committee, and they have so remained. I do not think that a recommendation has ever been put before the Parliament that those principles should be a part of the charter of the committee, but they have been acted upon right up to the present day. However, the conferring of power to consider the clauses of a bill was never envisaged at any period when I was a member of the committee.
As honorable senators have said, this is an interesting committee, and I appreciate the work that the present members of the committee have done. I think that one of the most successful periods of the existence of the committee was when Senator Spicer was its chairman. He put a great deal of work into the committee and imbued the other members with his spirit of enthusiasm. Prior to that, Senator DuncanHughes, from South Australia, was chairman of the committee. Senator George McLeay also was chairman for some years.
In order to be fully conversant with the matters that are dealt with in the latter part of the report now before the committee, I discussed the question with the Minister for Territories (Mr. Hasluck). He has given me the department’s, or, more correctly, the Government’s point of view, and I propose to read from the document that he gave to me. It is as follows: -
It is agreed that the committee has reached a sound conclusion when it says, “ The general purpose of this committee is not felt to be to supervise the powers of the Territory Legislative Council “…
That is in section 19 of the report - and when it also says that the committee takes the view that it has no responsibility to scrutinize the ordinances of the Legislative Councils in the Territories for the purposes set out under the terms of the Senate Standing Orders constituting the committee.
That is in section 20 of the report. The document goes on -
A close examination of the history of the making of ordinances for the Northern Territory, Norfolk Island, Papua and New Guinea, Cocos Island and Christmas Island, shows that it is a well-established principle that when the power to make ordinances in a Territory is vested in the Governor-General in Council, the prerogative of disallowing those ordinances is given to Parliament; but when Parliament itself, by an act of the Commonwealth Parliament, creates a subordinate legislature and confers on it powers to make laws for a Territory, then Parliament surrenders its power to disallow the ordinances made in respect of that Territory. In other words, by creating a subordinate legis lature the Commonwealth Parliament delegates full responsibility to that legislature for making the laws which apply only in the Territory.
– From what are you reading?
– After discussing the matter with the Minister for Territories, I received this document from him. He gave me his opinion and, I take it, also the opinion of the Government and the department. As this was a legal matter, I wanted to be quite clear when dealing with it, so I obtained a submission that has the full authority of the department and the Minister. It goes on to say -
When the Commonwealth Parliament has created a subordinate legislature, as it has done in the Northern Territory and in the Territory of Papua and New Guinea, it has provided in its own acts that the ordinances should be tabled in the Commonwealth Parliament in due course but it has not reserved to itself the power of disallowing the ordinances. Thus, by its own action, the Commonwealth Parliament has fairly expressed the view which is also expressed by the Senate Committee.
The question remains whether the Commonwealth Parliament, by its requirement that ordinances should be tabled in the Parliament, has retained to itself any functions in respect of the scrutiny of those ordinances. Presumably it would be competent for Parliament at any time, after the tabling of an ordinance, to initiate a debate on any ordinance and it would certainly be competent for Parliament to introduce legislation which, if passed, would supersede the legislation of the Territory. This right of debate and this superior power to legislate for the Territory would appear however to be exercisable by Parliament rather than by a Committee of Parliament. What the powers of the Committee on Regulations and Ordinances might be in respect of initiating such a debate or promoting such legislation, would appear to be governed by the terms of the appointment of the Committee. Generally speaking, committees of Parliament may report on matters confided to them for inquiry but the initiating of the business of the House is not within the scope of a committee’s functions except insofar as it may present a report.
– Order! The Minister’s time has expired.
– I intervene in order to allow the Minister to continue.
Senator Sir WALTER COOPER (Queensland - Minister for Repatriation) [3.54]. - The document continues -
There does not appear to be any contention regarding the conclusions which the Committee reached in paragraph 20, namely that it has no responsibility to scrutinize the ordinances of the Legislative Council for the purposes set out in the terms of its appointment.
In paragraph 21 of the Committee’s report, however, some statements are made which do not seem to the Government to be in exact accord with established practice. In paragraph 21 the Committee says that if a Minister enacted legislation in the form of regulations, the Committee would be bound to take the regulations into consideration but that if the Minister, by reason of his power to appoint a majority of the Council members, directs and procures the enactment of ordinances by the Legislative Council, those ordinances are exempt from scrutiny. In effect, this is not an exact description of what happens. I am informed the ordinances introduced into the Legislative Councils in the Territories are drafted in the Territories themselves, except in those exceptional circumstances in which the technicality of drafting is beyond the resources of the Crown Law Officers in the Territories. Also, before any legislation is introduced in the Territory it has to pass the scrutiny of the officers of the Administration who form the majority in the Legislative Council. In practice, a clear distinction is made between those ordinances which have to be reserved (by the law passed by this Parliament) for assent by the Governor-General. The administrative rule is that ordinances which can be assented to by the Administrator need npt receive the prior approval of the Minister unless the Administrator wishes to direct attention to some major point of policy. In the case of ordinances which do require the assent of the Governor-General, the practice has been established that they should be cleared by the Minister before their introduction in order to avoid embarrassment if the Minister had to recommend the withholding of assent to what are virtually Government measures. In practice, as the records will show, under the present Government at least, a considerable measure of freedom has been allowed to the legislative councils for the Territories in the amendment of ordinances and there has been a very limited use of the powers of disallowance.
Even if this administrative practice were not being followed, however, it would seem that the view taken by the committee is not quite exact. The position surely is that the Minister, and indeed the Government, are answerable to the Commonwealth Parliament, and at any time, using its own procedures, the Commonwealth Parliament has the power to examine, discuss and require an account of all the actions of the Executive. The Minister can be questioned or criticized in Parliament and can be called upon to justify his actions to Parliament. In the extreme event that any action by the Minister or the Government is such as to forfeit the confidence of Parliament, and the Government loses its majority, it can be overthrown. The theory of responsible government lies in the fact that the Executive must be able to command at all times a majority in the Parliament.
Therefore it .seems that in its comment in paragraph 21 the Standing- Committee, on Regula tions and Ordinances has correctly taken as its starting point that it does not have power to disallow the ordinances of the subordinate legislatures which the Parliament has created, but it was wrongly moved to the conclusion that it has shed all power. The Parliament has power to pass laws which would supersede the laws passed by a Territory Legislative Council and it certainly has power to scrutinize the actions of the Executive. Those powers seem to reside in Parliament and apparently Parliament has not been willing to confide the exercise of those powers to the committee.
.-1 should like to emphasize the extreme importance of this part of the report because its real significance may not be fully appreciated by honorable senators. I direct attention to the fact that the majority of the members of the legislative councils of the Territories are nominated by the Minister concerned. I submit that honorable senators should give careful consideration to this matter because some may hold the view that, as he appoints the majority of legislative council members, the Minister, in effect, enacts the legislation of the Territory in the form of regulations. I throw this point into the discussion because we want an opinion from the Parliament on the matter. In paragraph 20 of its report, the Regulations and Ordinances Committee says - - . . .
The view which the committee has taken is that it has no responsibility to scrutinize the ordinances of the Legislative Councils for such purposes.
The committee feels that its general purpose is not to supervise the legislation of a legislative council of a Territory. As I was sitting behind the Minister for Repatriation (Senator Sir Walter Cooper), who read a statement containing the considered view of the Minister for Territories (Mr. Hasluck), I did not catch all that was said, but I point out that we have a duty to these Territories, some of which are Trust Territories. Already certain aspects of our administration have been criticized by speakers at the United Nations, and I think this matter should be examined very thoroughly by this chamber. We want the opinions of other honorable senators on this question and I hope that this point will not be passed over without a great deal of thought.
.- I wish to make a few comments on the debate because I regard the Territories, those of Papua and New Guinea in particular, as being of vital importance to Australia in the next 25 years, especially in the light of recent events. The legislative control which this Parliament establishes for the development of Papua and New Guinea is of first importance.
The report of the Regulations and Ordinances Committee deals with one small aspect of that, and here I want to acknowledge my indebtedness to the Minister for Repatriation (Senator Sir Walter Cooper), who read to us a statement containing the considered views of the Minister for Territories. Of course, those views demand more adequate consideration than one has been able to give them immediately, but I did understand him to express the view that the committee was correct when it stated in paragraph 20 of its report that it had taken the view that it has no responsibility to scrutinize the ordinances of the legislative councils for the purpose of seeing whether they conform to the criteria that the Regulations and Ordinances Committee has laid down as proper for subordinate legislatures. I want honorable senators to note that we put that view forward to obtain the sanction of this chamber to the abandonment of an area of responsibility. That thought should balance any idea that, in the first part of the report, we were making a bid to scrutinize bills out of mere desire to increase our authority. By the same token as we wish to have authoritative direction from the source of our authority - the Senate - as to whether it charges us with the responsibility of scrutinizing the regulation-making clauses in a bill, so, too, in part 3 of our report, under the heading “ Ordinances of the Territories “, do we direct attention to the altered constitutions of some of our Territories which have developed to the stage where legislative councils have been provided for them with an element of local representation but a majority of government appointees.
Although our Standing Orders require that all ordinances laid on the table of the Senate stand referred to our committee and, under the text of the Standing Orders, we would, by strict legal interpretation, be charged with the responsibility of examining all ordinances, we say, with what I hope will be considered to be a full sense of modesty and of the fitness of things, that we would like to be freed from the incongruity of our being required, as one chamber of the Parliament, to examine the product of a legislative council in Port Moresby, a product which had been arrived at after debate in public by people’s representatives and government nominees. Once an assemblage of this sort has expressed itself in legislative form, this does seem to us to be a type of ordinance that should no longer be subject to criticism by an ordinary Regulations and Ordinances Committee of one chamber of this Parliament. Taking that view, we do not acquit ourselves automatically of responsibility. We acquit ourselves of that responsibility only if the Senate supports that view. I understood the Minister for Repatriation to give us the opinion of the Minister for Territories that that is the correct view.
I wish to leave the matter at that, except for one observation, which is contained in paragraph 21 of the committee’s report. I am very pleased that the Minister for Territories, in the view that Sir Walter Cooper has expressed to the Senate, has dwelt upon that paragraph. It, too, is remarkably brief, because I have an abhorrence of the general tendency of draftsmanship in this place to continue into twenty pages when two would be sufficient and twenty times more effective. There is intended to be condensed in that paragraph the idea that this Parliament might devote more time to the legal and constitutional nexus between this Parliament and the territorial Legislative Council. Unless there is an agency within this Parliament specifically charged with integrating the legislation of the Territory with the legislation of this mainland, say, in a matter of income tax, the only link is the ministerial link in the Department of Territories, and he is the Minister who has the appointment of the majority of the members of the Legislative Council. The Minister, quite naturally, disclaims the idea that, deriving from his right of nominating a majority, he has such influence as, in effect, to procure the legislation of his own pleasure. Naturally, he shrinks from accepting that view, but anybody who knows the functioning of a nominee legislature knows that, in vital, critical matters, that might be the situation. Therefore, simply because the will of a
Minister, through a legislative council, is made manifest in the form of a legislative council ordinance, it escapes our scrutiny, but nevertheless in another form it is the legislative product of the Minister himself. I am not criticizing that situation. I have given some thought to it, not only in the Regulations and Ordinances Committee, in the last three months, since the income tax legislation has been of vital political import, and I confess that I am at a loss to suggest an improvement.
I do suggest before we leave this report, that if this Parliament sanctions our abandonment of our responsibility to look at those ordinances, it is a challenge that is most timely to the Parliament itself to see that the constitutional link with Parliament should be something additional to the mere ministerial link of the appointment of a majority. Then, if the Legislative Council for Papua and New Guinea brings in legislation that contravenes the wishes of the national Parliament, the only corrective method is a statute of this Parliament. I think that this is a constitutional proposition that is not answered by saying that we went through the experience of graduating from crown colony to legislative council and then full representative government on the Australian mainland in the ‘forties and ‘fifties of the last century. It may be appropriate in 1959 to have some new thinking on a subject like that so as to give proper expression to territorial de,velopment, at the same time exercising proper control through the judgment of this national Parliament.
– Although I certainly do not want to delay the committee at all, I must say that I could not be more enthusiastically in agreement with Senator Wright’s statement that the next twenty to 25 years will be a period of great importance to Australia and the Australian Territories. Having that in mind, I wondered if, before the committee had drawn its conclusions, it had availed itself of any evidence from any persons who may have been able to assist it in matters of this sort as they have possibly occurred elsewhere in the world. I have in mind the rather unusual position of the Territory of New Guinea, as distinct from
Papua. I take leave to inquire whether the committee had before it any constitutional authority or evidence before it reached the conclusions expressed in this report.
– This section of the report calls for the very early attention of the Senate. I think it is agreed by the Minister for Territories (Mr. Hasluck), by our committee, and up to the present by the Senate, that the Regulations and Ordinances Committee, as an appointed body of the Senate, cannot disallow or even make an effective examination of regulations and ordinances of the Legislative Council for Papua and New Guinea. At what stage will they come into the Parliament? If they are laid on the table, when will they be examined, and what possibility is there of challenging them? We must direct our minds to the composition of the Legislative Council. The nominee section of the council is in the majority and the elective members in a minority. In scrutinizing regulations and ordinances of that body, we would not be actually scrutinizing the work of a fully democratic body. A Minister operating on his own would be under the direct supervision of the Senate and its committee. As the Minister nominates a majority of the council, his policy may be just as effectively endorsed by the council, if he mobilizes his nominee members, as if he made a regulation himself in accordance with the policy he desired the administration to pursue. I think it is a very important matter. There will always be some degree of difficulty in relation to remote control, particularly if the ordinances have to be tabled in this chamber. It would be interesting if the committee were to get some authority upon the matter. I think the matter devolves upon a much higher branch of the administration than the committee. The Ministers of the inner Cabinet should reconsider this matter and give a direction or make a report to Parliament in relation to protection given in that manner.
– As Senator Wright has said, now that the Regulations and Ordinances Committee has pointed to the incongruity of the position we have been discussing, the field is to be vacated. The Minister for
Repatriation (Senator Sir Walter Cooper) seems to be agreeable to that course, after consultation with the department and the Minister whom he represents. I think that Senator Cooke finished on the right note. The last point that he made has to be faced by the Parliament. Either we have a greater link, as Senator Wright suggested, between the mainland of Australia and the very important Territory of Papua and New Guinea - which I commend to the authorities that I hope will examine this matter - or we adopt Senator Cooke’s suggestion that the position be examined with a view to instituting a suitable system of parliamentary checks, in which I believe so much. The longer I am here, the more strongly will I believe in such a system. I hope that we shall be able to introduce a system that will take the place of one that has ceased to be effective because of the effluxion of time.
The Minister, in referring to the script that he had before him, stated that Ministers could be dismissed and that public opinion could bring about the dismissal of a government. That, of course, applies to every field of administration. I content myself with saying that while that is true, most Ministers have available a system of checks which has been proved effective over hundreds of years of British history. The matters that have been emphasized by Senator Wright, and also by Senator Paltridge, make this discussion very important indeed. I suggest to the Minister that the discussion that has occurred in this chamber should be brought to the attention of the people responsible for administering the regulations. I ask whether he could assure us that in the future we may expect to hear from either himself or the Leader of the Government in the Senate (Senator Spooner) that the discussion that has ensued in this place yesterday and today has been taken cognizance of, and that something has been done to improve the position.
Question resolved in the affirmative.
.- I move-
That the report from the Committee of the Whole be adopted.
May ]. be permitted to say, Sir, on behalf of the Regulations and Ordinances Committee, that the debate has fulfilled the ex pectations of the members of the committee. We wish to thank honorable senators for their interest in the debate and, if 1 may so describe it, the old world courtesy that was extended at the end of every quarter-hour to allow speakers to continue. As far as I know, so much interest has never previously been displayed by Senate Ministers in a debate in this chamber. Most of the time there has been present a full panel of five Ministers, and more often than not there have been four. 1 think the Senate may be interested in a few statistics. Since 1932, more than 2,500 ordinances and more than 5,500 regulations have been passed. All of those have come before either the present committee or its predecessors. Last year, 130 ordinances and 130 regulations were passed, and this year, to date, there have been 68 ordinances and 97 regulations.
– The motion now before the Senate is that the report from the Committee of the Whole, agreeing to take note of the fifteenth report of the Regulations and Ordinances Committee, be adopted. In other words, the Senate is being invited to agree to the resolution of the Committee of the Whole to take note of the report. I point out that, by the very nature of the motion, the Senate does not commit itself to a decision either approving or rejecting the subject matter of the fifteenth report of the Regulations and Ordinances Committee. We have had a useful debate. I indicate to the Senate that the matters dealt with in the report, and the views expressed by honorable senators during a most interesting debate, will receive the consideration of Ministers in the Senate.
Question resolved in the affirmative.
Debate resumed from 23rd September (vide page 701), on motion by Senator Laugh t -
That the following paper: -
Tariff Board Act- Annual Report of the Tariff Board, for year 1958-59, together with summary of recommendations - be printed.
– I sought leave the last time this matter was before the Senate to continue my remarks. I have studied with great pleasure the annual report of the Tariff Board which was submitted to the Senate within the last few days. Honorable senators may be interested to know that, in accordance with section 18 (1.) of the Tariff Board Act, the Tariff Board is obliged to submit a report to Parliament each year. The report that was submitted recently shows that in the financial year which has just passed, 50 references were made to the board, whereas in the previous year there were only 31.
In addition to the 50 normal references submitted to the board, there was a tremendously important reference in May last, when the Minister for Trade (Mr. McEwen) submitted to the board a request that it inquire into and report on the question whether the most-favoured-nation rates of duty could be reduced on some 275 tariff items. The board was requested to report by 30th June, 1960. Of course, such a tremendous reference as that which entailed the obligation to inquire into 275 tariff items called for considerable re-organization of the work of the board. But from my observations and from inquiries I have made, it appears that the board is well geared for this additional work. Thanks to matters that have been raised in the Parliament of the nation, and thanks to questions that have been asked by manufacturers and men of commerce, considerable re-organization has taken place. I shall deal with that as I deal with the report.
Certain procedures within the board have been speeded up. New methods of transcription of notes of evidence have been adopted. There has been a new grouping of the members of the board. Some retirements have occurred, and younger and more vigorous men have taken the place of those who have retired. With those things in mind, I think that the Tariff Board is well able to undertake the large national duty that has been given to it.
I am fascinated each year by the report of the Tariff Board. In the earlier part of the report we find a general discussion of the economic background, and then there are specific references to the inquiries that have been made. To me, the appendices at the end of the reports are quite invaluable in many other tasks to which I apply my mind during the year. I think that the Senate should give some thought to the first: chapter of the report now before it, which relates to the economic background of the year 1958-59. This interesting statement occurs -
Throughout the history of tariff-making in Australia, and certainly in post-war years, the board has seldom carried out its functions against such a generally favorable background.
The functions of the board, of course, are to inquire into the necessity for tariff or bounty assistance. Another function is to recommend action under the Customs Tariff (Industries Preservation) Act. Yet another is to review tariff classifications. If the Minister so desires, he may refer to the board requests for concessional by-law treatment.
Reverting to the Tariff Board’s interesting statement that last year was the most favorable, economically, since 1921, when the board was constituted, I may say that I was interested to receive through the courtesy of His Excellency, the American Ambassador, a copy of a speech that he made on 29th September, a little more than a week ago, in San Francisco. Mr. Sebald is an eminent gentleman who has been in Australia for about two years now. Before he came to this country he led a very distinguished diplomatic life in Asia and the Japanese area. I should like the Senate to take particular note of some of the things that he said. Addressing an audience in San Francisco, he said -
Australia now is virtually exploding into industrial strength. Consider, for example, that in 1958 income from the export of Australian wool declined by more than 40 per cent. A decade ago this drop would have served a disastrous blow upon the Australian economy. And yet last year, in spite of this dip, there was no significant decline in the national income.
The reasons are not difficult to find. They lie, basically, in the spectacular growth of industry during the past ten years. Production last year was 240,000 new cars. There is one automobile registered for every 3.75 persons. The ratio in the United States is one automobile for every 225 persons. . . . Houses and apartments are being built at the rate of 80,000 per annum. Australia is producing over 3,000,000 tons of steel each year. And the price of this steel landed in the United States is 10-20 per cent, lower than the price of equivalent steel manufactured in this country. Thus our West Coast-
The west coast of the United States - is becoming an importer of Australian steel products.
It is here that I turn to the Tariff Board report appendices to justify a look at the steel position in Australia at present, compared with that in other parts of the free world. On page 24 of the report we find that in 19SS the domestic price per long ton of pig iron in Australia was £19 12s. 6d. It is now £21 2s. 6d., a rise of £1 10s. in the last five years. In the United Kingdom the price has increased from £19 10s. to £26 12s. 6d.- a rise of £7 2s. 6d.” In 19SS the price in the United States was £25 4s. 6d. It is now £29 13s. 9d. - a rise of £4 9s. 3d. The figures that I have given are expressed in Australian currency and are based on delivery at producing points in the case of the United States, and on net c.i.f. State capital ports, in the case of Australia. It is, as nearly as possible, an exact comparison. Honorable senators will see that in Australia the rise over that five year period in the price of foundry pig iron has been £1 10s. In the United Kingdom it has been £7 2s. 6d. and in the United States - which has the dearest steel of the three countries - it has been £4 9s. 3d. In the same period the price of steel merchant bars rose in Australia by £5 7s. Id., in the United Kingdom by £9 15s. 7d. and in the United States by £13 15s.
If we take the Australia price as the base we find that the price in the United Kingdom of foundry pig iron is 26 per cent, higher, of merchant bars 24 per cent, higher, of structural steel 23 per cent, higher, of hot rolled steel strip 12 per cent, higher and of tin plate 16 per cent, lower. In the United States of America, foundry pig iron is 41 per cent, dearer, merchant bars are 44 per cent, dearer, structural steel is 40 per cent, dearer, hot rolled steel strip is 20 per cent, dearer, and the price of tin plate is exactly the same as in this country. That is a matter of great interest to this Senate.
What I should like to illustrate is that the Tariff Board has played a most interesting and exact part in regard to steel. We have been able, through our natural resources, and the know-how and great commercial ability of Broken Hill Proprietary Company Limited, whose scientists are continually doing research work to produce that spectacular result. Mr. Sebald highlighted that fact. I think that we might have a little more of what Mr. Sebald said, because he has had an unrivalled opportunity of observing Australia during the past two years. He went back to the United States on furlough, and then returned to this country. He said, in this speech on the way home -
Australia is now a mass-producer of refrigeration equipment, washing machines, plastics, tires, and even that great American phenomenon - television - not to mention such diverse items as heavy chemicals and drugs of all kinds, ships and jet planes. The important thing, of course, is that there is a growing market for these products not only in the Australian domestic market, but also in the developing countries to the north.
During the course of the past decade coal production has risen SO per cent., the generation of electricity is up 120 per cent., many industrial chemicals have increased by from 80 per cent, to 300 per cent., cement production is up 130 per cent. … the production of copper has trebled . . .
He made a most interesting comparison of our production with that of the Communist Chinese. It should be remembered that he has had diplomatic experience in the Far East. He said -
We have heard a great deal recently about the “great leap forward” of Communist China. I submit that Australia’s record is such as to make that leap look somewhat silly, the more so because it has been effected in a free economy so similar to our own and without the tragic dislocation of human beings to which the Chinese Communists have so ruthlessly resorted.
And then he refers to the new industries - these spectacular industries that are being developed. Here, I must apologise to the senators from Victoria, because I am going on to refer to Victorian industry. He said -
You may recall that a 52,000,000 dollars petrochemical complex is being constructed in the State of Victoria to utilize the virtually limitless brown coal deposits available. These same deposits also provide fuel for huge thermo-electrical generating plants and plants manufacturing gas for the Melbourne area. I have heard this valley described as the future “ Ruhr of Australia “ - a description which might well be realistic.
If Senator Spooner were here, he would be interested in Mr. Sebald’s next statement -
Oil refining capacity is expected to expand from 10,500,000 to 14,500,000 tons annually.
Senator Scott will be interested in the comment that followed: -
As of now, no commercially feasible oil deposits have been found in the country, but Australian,
British, and American prospecting teams are working hard, and, like prospectors everywhere, are optimistic that oil will be found.
Mr. Sebald went on to refer to the Snowy Mountains Scheme. At this stage, I shall interpolate statements contained in the Tariff Board’s annual report for 1958-59 concerning the generally favorable economic background of the present situation. The Tariff Board, of course, interests itself in the import requirements of the country. It made a statement to the effect that the present ceiling of imports is £800,000,000 f .o.b. Clearly, in the next decade, the needs of industry and the requirements of a growing population will reach a higher level than that ceiling, which was recently raised to £850,000,000. I know that it is generally felt that the great increase of immigrants - the new intake is about 125,000 each year - will also increase our import requirements. I believe that the figure could well reach £1,400,000,000 within the next ten or twelve years. There is a great challenge to increase production to the extent that will be necessary to support such necessarily increased imports.
The investment needs of the country are referred to in the next section of the report, in these terms -
Australian development is dependent on expansion of industry. Continued expansion requires a high and rising level of investment to increase industry’s capacity to produce and to increase output by raising the productivity of the various factors of production.
The following observation is interesting -
Domestic investment also appears to have increased and total private investment was estimated at £1,141,000,000 in 1958-59, an increase of £85,000,000 over the figure for 1957-58.
On the question of investment, it is interesting to note that Mr. Sebald, in his speech at San Francisco, referred to the bountiful inflow, as it were, of capital. He referred to the Snowy Mountains Hydro-Electric Scheme, on which the Government is currently spending the equivalent of 100,000,000 dollars each year. He said that bountiful opportunities for investment exist in this country, and then went on to say -
Indeed, the rate of inflow of capital in the second half of 1958 was reported to be almost twice as high as it was during the same period <of the previous year.
That is something that the Tariff Board, in its report, referred to as being absolutely essential.
There are references in the Tariff Board’s report to problems that are arising at the present time. In the few minutes that remain to me, I want to talk about one particular problem that the board has been bringing forward year after year. This is the problem of dumping in Australia. The Minister was good enough at question time this morning to give me a most encouraging reply to a question that I had asked. It should be noted that during the last year there have been three inquiries by the Tariff Board under the Customs Tariff (Industries Preservation) Act, which is the antidumping legislation of the Commonwealth. The first inquiry concerned paperboards. The second inquiry was on polyvinyl chloride resin, and the third inquiry was on printed cotton piece goods. I shall not go into the details of those inquiries, but I point out that the third inquiry I mentioned shows that the Tariff Board is active on the question of anti-dumping. It held three important inquiries.
I think that the Senate should observe some strictures that were added by the Tariff Board in its report, in the polite manner that the board is so accustomed to adopting in relation to existing legislation. It stated -
In its report for the year ended 30th June, 1954, and in a subsequent report, the Board drew attention to certain difficulties it had met in carrying out its responsibilities under the Act.
In other words, the tools were not sharp enough -
During the past year, the Board dealt with cases of alleged dumping in which it faced the problem of reconciling what appears to be the intention of the legislation with the mandatory but deficient provisions of the Act.
In other words, the board says that the act does not mean what it says and that it does not give effect to the obvious intention of the legislation. The statement continues -
The Board feels that it has an obligation to refer once again to the desirability of making a critical examination of the Act and the need for amending legislation to make its provisions more effective. If a critical examination were made of the Act as a whole, the Board would be in a position to inform the Government of its views on particular matters of detail. If no amendments are made,-
This is important, Sir - the safeguards to Australian industry against certain trade practices of overseas exporters to the Australian market may be impaired.
At this stage, Mr. President, I ask for leave to continue my remarks at a later date.
Leave granted; debate adjourned.
Motion (by Senator Paltridge) proposed -
That the Senate do now adjourn.
.- It is my painful task this afternoon to rebut certain statements, attributed to a very respected colleague, Senator Buttfield, which appeared in the Adelaide “ News “ on 3rd October under the heading, “ S.A. Senator hits out at Country Party colleagues. Tourism bid stifled “. Senator Buttfield, very regrettably, singled out Australian Country Party senators as, to use her words, “ stifling moves to build the tourist industry into a major currency exchange earner “.
Many other Government senators hold the view that is held by Country Party senators, who are few in number. There was no opposition whatsoever on the part of any Government senator to the acceleration and development of our tourist areas or to the provision of increased financial assistance to attract tourists to Australia from overseas. All Government senators were as solid as a rock on that point.
There was, however, strong opposition to the appointment of a select committee of the Senate, at a high cost to the taxpayers, to inquire into tourist problems which are thoroughly understood in every Government Tourist Bureau in every State. Government senators who opposed the proposal took into account that tourism is a domestic power of the States and that there could well be resentment on the part of many States at an encroachment on State rights by a Commonwealth Senate select committee.
State Ministers interested in the intensification of our effort to attract more overseas tourists will be meeting very shortly - towards the end of this month, I understand - and no doubt, as a result of their experience in tourist problems, they will make recommendations to the Common wealth Government for an increased financial allocation and will devise a modus operandi to attract overseas tourists to Australia. They are competent to do so, and are much better equipped for such a purpose than would be a select committee of the Senate.
They may recommend that more use be made of the Australian National Travel Association, which has been doing splendid work in this field. The Commonwealth Government contributes £100,000 a year to that association and has two representatives on its honorary board. This travel association is doing good practical work in developing Australia’s tourist trade, and it provides a close working partnership between the travel industry and the Commonwealth and State governments. Last year, through this combination of organized effort, more than 60,000 overseas tourists were attracted to Australia, and spent mors than £10,000,000 here.
Many Government senators believe that a select committee of the Senate could make no useful contribution in the tourist field, and I belong to the group which holds that view. As a member of the Australian Country Party, I wish to conclude this brief statement by saying that I make it clear that our parliamentary members, and our party organization outside, are solidly behind, and most enthusiastic, about the promotion of tourism by common sense methods, but we do not favour the setting up of an expensive select committee of the Senate to tour Australia for the purpose of gathering information which is already known and which has been collated by the tourist agencies in the various States.
There were some other matters of an equally regrettable character mentioned by Senator Buttfield, but I think they are of such a nature that they could be more properly dealt with in the party room.
– in reply - Senator Buttfield is absent through illness I understand. At the first opportunity I shall bring to her notice the remarks made by Senator Maher.
Question resolved in the affirmative.
Senate adjourned at 4.50 p.m.
Cite as: Australia, Senate, Debates, 8 October 1959, viewed 22 October 2017, <http://historichansard.net/senate/1959/19591008_senate_23_s15/>.