27th Parliament · 2nd Session
The PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 1 1 a.m., and read prayers.
Senator POYSER presented from 133 citizens of Victoria a petition showing that due to the higher living cost persons on social service pensions are finding it extremely difficult to live in even the most frugal way. The petitioners call upon the Commonwealth Government to increase the base pension rate to 30% of the average weekly male earnings for all States, as ascertained by the Commonwealth Statistician, plus supplementary assistance and allowances in accordance with Australian Council of Trades Unions policy and adopted as a policy of the Australian Commonwealth Pensioners Federation, and by doing so give a reasonably moderate pension.
The petitioners pray that the Senate will take immediate steps to bring about the wishes expressed in the petition.
Petition received and read.
– Is the Leader of the Government in the Senate aware of the reports that major petrol companies are negotiating with the South Australian Prices Commissioner for a 3c per gallon rise in the price of petrol throughout Australia? If this is granted, will it not mean that retail petrol prices will rise, if the Government has its way with the Budget, by 6c per gallon? Will the Government do something to initiate urgent discussions with the South Australian authorities with a view to firmly opposing this slug or any further slug on the motorist?
– I am not aware whether the major oil companies are or are not negotiating with the South Australian Prices Commissioner on the retail price of petrol. I am aware - as I have explained in this place on a number of -occasions and- as was explained by the Minister representing the Minister for National Development in answer to a question yesterday - that traditionally the retail price of petrol in Australia follows a determination made by the South Australian Prices Commissioner. Not only is it followed in the 6 States, but also it is followed in the Australian Capital Territory and the Northern Territory. What the honourable senator is suggesting is that in addition to the Budget proposals, which provide for an increase in the excise on petrol, an appeal to the Prices Commissioner, if it were successful, would mean that there would be another impost placed on the price of petrol. The honourable senator has asked the Commonwealth to intervene. I would need to refer the matter to the Minister for National Development. But I would express my own opinion that the Prices Commissioner would have regard to all matters when he makes his determination. What the honourable senator is suggesting is that we should pre-empt any determination that he may in fact wish to make. I belive that the Prices Commissioner would be fully aware of what has happened in relation to the price of petrol.
– My question is addressed to the Leader of the Government in the Senate who represents the Prime Minister in this chamber. Because of the serious economic harm that could come to Australia from the threatened national strike next week and because of the widespread difficulties and loss of wages it would cause, will the Leader of the Government in the Senate suggest to the Prime Minister that the Australian Broadcasting Commission and commercial radio and television operators be asked to make time available to the Prime Minister, the Leader of the Opposition, Mr Whitlam, and the Leader of the Australian Democratic Labor Party, Senator Gair, to make an appeal to all employees to resist the call for strike action, which is intended to be a protest against the Commonwealth Budget, as such action would not only harm Australians generally but would also delay the economic good effects that most reliable commentators expect to flow from the Commonwealth Budget? As this is a time of great national importance, should not the parliamentary leaders of the nation be asked to appeal to the widest possible audience so that their views may be universally known, because it is hoped to be a unanimous call to resist the strike proposal?
It is the Governments job to assess the needs of the nation as a whole and it is perhaps inevitable that some sections of the community will feel that some interest should have been given greater prioity. The Government, must have regard to the overall national interest. The Budget is aimed at promoting the sound economic growth of the country whilst meeting the needs of the State governments and our objectives in the fields of defence, social welfare and assistance to rural industries. In addition, of course, substantial income tax relief has been brought to those in the middle and lower income groups. As regards the call by the Australian Council of Trade Unions for a strike over the Budget, I cannot see how this could advance either the general welfare of the community or the welfare of that section of the community represented by the ACTU. As regards the Public Service and the call to strike, I would not be prepared to make any comment about that because it is a purely hypothetical proposition. Going on to the part of the honourable senator’s question in which he suggests that there should be an appeal to the nation through the-
– I rise to order. All I want to Know for my own information is whether this is a question without notice or a question on notice. As long as I know that I am perfectly happy to allow the Leader of the Government to speak.
– I have no way of finding out whether this is a question on notice or without notice, but Senator Sir Kenneth Anderson is replying.
I would think when looking at the Opposition that it should be a case of him without sin casting the first stone. I am not referring personally to Senator Kennelly. The fact is that I was coming to the second part of the honourable senator’s question. He suggested that in view of the implications there should be an appeal to the nation in which the Prime Minister and the leaders of the other political parties should be invited to speak about the disastrous consequences of this proposal. I would have some mental reservations as to whether certain of the Opposition senators - and I do not include Senator Gair in that - would want to make an appeal to the nation. But that is another matter. That is a personal view. I will put the views expressed by the honourable senator to the Prime Minister in the form of the question as he posed it.
– My question is directed to the Leader of the Government in the Senate. In view of the remarks made last night by the Chairman of the Australian Atomic Energy Commission, Sir Philip Baxter, to the Shoalhaven Progress Association on the possible nuclear power station at Jervis Bay, in which he used the works ‘if built’, can the Minister give an undertaking that this issue will be referred to Estimates Committee (D), having in mind the role of the Department of the Interior as custodian of the people’s land, to enable senators to obtain counter arguments to those of the Atomic Energy Commission from conservationists and scientists, since the proposal already has the tacit support of Mr Bissett, a former senior officer of the Atomic Energy Commission?
In response to the question by Senator Mulvihill I would like to give some information and to give that information I wish, of course, to draw from notes on the matter. Preparations for the construction of the Commonwealth nuclear power station to be constructed at Jervis Bay are proceeding on schedule. In response to the invitation of the Australian Atomic Energy Commission to bid by 15th June, 14 tenders have been received from 7 organisations in 4 countries, the United Kingdom, the United States of America, Canada and the Federal Republic of Germany. That tends to answer the first part of the honourable senator’s question. Both the Japanese and Swedish companies which had initially expressed interest in bidding for the construction of the reactor withdrew. A team of experts is now assessing the tenders received. Present indications are that a recommendation will be made to the Government by the end of next October. Meanwhile, preliminary work on the Jervis Bay site is progressing well. Overseas experts have visited the site - and I now come to the more particularised aspect of the honourable senator’s question - and consider it ideal for the purpose. A heavy duty access road is being planned and arrangements made for the supply of water and electricity during construction. Geophysical and geological surveys are yielding the necessary information on the surroundings and the foundations. I ask the honourable senator to note that other surveys are establishing the weather patterns and obtaining information on tides which will enable the outflow of cooling water into the sea to be planned to the best advantage. The station will not provide any hazards to the health of those living in adjacent areas, nor to marine, animal or bird life. The Government attaches the greatest importance to preserving the natural features and the native life of this beautiful area. Detailed surveys have commenced and will continue throughout the life of the station to ensure that there will be no serious disturbance to animal and vegetable life in the vicinity, whether on land or in the sea. This consideration has been kept to the forefront of all our planning.
– I direct my question to the Minister representing the Minister for External Affairs. Has the Minister seen a report in the ‘Australian’ that China will give military aid to supporters of Prince Sihanouk in their fight against the present Government of Cambodia? This could only be interpreted as aid to North Vietnam. Is it not a fact that Prince Sihanouk was removed from office by a unanimous vote of the democratically elected Parliament of Cambodia? Will the Government make every effort through the United Nations to get that body to intervene actively and assist Cambodia, a small country, in its fight to defend its neutrality and rights against the naked and brutal aggression against its territories and people by North Vietnam and Communist forces?
Senator Sir KENNETH ANDERSONThe honourable senator indicated to me that he intended to ask this question and, because it was a matter relating to external affairs in respect of which one needs to be very proper when replying, I am able to reply on the basis of the 3 questions he has asked. The Government is aware of the report. China has been providing assistance to North Vietnam for a long time in support of its aggressive aims throughout Indo-China. This assistance has already been going to Vietnamese Communist forces engaged in aggression against Cambodia. This so-called agreement seems to be designed mainly as a propaganda manoeuvre in an attempt to bolster the international credibility of Prince Sihanouk whose so-called government was set up in Peking under firm Chinese Communist control.
– Is this question on notice?
Senator Sir KENNETH ANDERSONI made my point at the start. Perhaps the honourable senator was not listening.
– This is the wrong time for this. It is a question on notice.
I remind the honourable senator of what I said about casting the first stone. It is a fact that Prince Sihanouk was removed from office by the unanimous vote of both Houses of the Cambodian Parliament which was elected in 1966 when Prince Sihanouk was still Head of State. In answer to the third part of the question, the Government has given careful consideration to this matter. It believes, however, that it would be unwise to bring the question of Cambodia before the United Nations at this stage because it might force certain members who have so far kept their options with regard to the Cambodian Government to take decisions that could be harmful to Cambodia’s independence. Because of these circumstances any helpful proposals would almost certainly be vetoed. I might add that the Cambodian Government itself, which is the party principally involved and which presumably has considered the matter with great care, has not asked the Security Council to take any action. However, both the Cambodian Government and the Djakarta Conference have brought the situation to the attention of all members of the United Nations.
– I address a question to the Minister representing the Minister for Primary Industry. Yesterday I received a reply from him to my question asking for particulars of the operation of the Farmers’ Assistance (Debts Adjustment) Acts in the States being complementary legislation to the Commonwealth Loan (Farmers’ Debt Adjustment) Act 1935-50. According lo that reply, of the $15,934,000 originally provided to the States by the Commonwealth for the relief of farmers affected by drought, there are credits totalling $7,698,201 standing in the States’ funds in the following amounts: New South Wales, $279,514; Victoria, $4,387,946; Queensland, $1,507,773; South Australia, $804,636; Western Australia, $430,244 and Tasmania, $288,088. Can the Minister inform me, firstly, whether these funds are being applied by the States in terms of the arrangement for the relief of farmers in the present rural emergency? Secondly, is it necessary to reactivate the legislation? Thirdly, if so, will the Commonwealth consult with the States with a view to making the funds available to primary producers? Fourthly, will the Commonwealth also provide further funds to these accounts where necessary, as Commonwealth payments were discontinued in 1943?
– I understand that the Minister for Primary Industry has been having a good look at this question, but I further understand that in some States the machinery has practically gone out of existence. But I will take the question up with the Minister and get some information for the honourable senator.
– Is the Minister representing the Treasurer aware of the general concern which is being expressed by the managements of many Australian companies that whilst the Budget Speech included an increased rate of 2i% in company taxation it was not generally recognised that this would be a retrospective tax and would in fact be payable on profits earned in the income year 1969-70. 1 ask the Minister whether this is normal practice when income taxation or company taxation is increased. Will the Minister suggest to the Treasurer that this principle of retrospectivity of tax incidence is an abhorrent principle and that the increased tax should apply only to the current year of income and not to an accounting year which in many instances is already finalised?
Senator Sir KENNETH ANDERSONTo my knowledge the principle enunciated in the Budget in relation to the company tax variation whereby it will apply to the tax for the year 1969-70 is the normal practice. For as long as I can remember, whenever there has been a variation this has been the procedure. I see no point in referring the matter to the Treasurer. It is a decision of the Government represented in the Budget Speech. For that reason I can do no more than to say that it is normal procedure and repeat that it is a decision which the Government has taken and which is represented in the Budget proposals.
– Will the Minister representing the Prime Minister consult with the Prime Minister with a view to negotiating with the Australian Broadcasting Commission and commercial television stations for the purpose of allowing spokesmen for the H million pensioners of various types to speak to the nation about the ridiculously cynical attitude of the Government in making a miserly adjustment of 50c a week or about 7c a day to pensions when at least $1.50 is required to hold the purchasing power of pensions at their existing inadequate level?
Quite obviously the senator is asking me what we would all recognise, and what I am sure anybody listening would recognise, as a political question, and one calculated to be a political question. He expresses in the question his views. They are certainly not my views and certainly not the views of the overwhelming majority of the community in relation to what the Government has done in terms of social service benefits. He chooses to take one item out of the whole social service programme and to make play with it. I suggest that he put the question on notice if he still wants an answer, because I feel there is no need at this point of time to make the representation for which he asks. Of course, if it goes on notice it will be processed in the usual way.
– My question is directed to the Minister for Civil Aviation. Can he indicate whether any plans have been finalised in relation to the development of the Port Hedland Airport to cope with the rapidly expanding traffic in that area? If not, can he indicate whether any investigation of further development is being undertaken?
– I do not have in my head the exact figure but I believe about $1,600,000 has been spent at Port Hedland in the last few years. There is a proposal to spend some more money there shortly. This figure is approximately $230,000. What the honourable senator says is correct. Traffic is rapidly expanding in that part of Australia and Port hedland is a very significant airport. Accordingly, I am going there to have a look at it myself as soon as I can. I will find out precise details for the honourable senator on past expenditure and any future proposals.
– My question is directed to the Leader of the Government in the Senate. Has the Australian Government any proposal before it or any intention to change Australia’s immigration laws by legislation or regulation because of pressure from Japanese companies who, it is claimed, speak of the possibility of greater mineral purchases from Australia if we relax our immigration laws and allow a greater number of Japanese into Australia?
I know of no proposal to relax our immigration laws. Clearly the honourable senator is asking a question on policy. I offer my own contribution: I know of no such proposals.
– I direct my question to the Minister representing the Minister for Shipping and Transport. If the shipping companies in the Australia-United Kingdom-Europe shipping consortia continue to press for increased freights on wool will the Minister continue to give every assistance to wool shippers to look for alternative shipping lines which can offer a service for wool at a cheaper freight rate?
– I can assume without any problem at all that that is what the Minister for Shipping and Transport will certainly do. He would be watchful at all times for the interests of the Australian exporter and importer and do what he could to keep the shipping rates as low as possible. Equally he would have some problems in withstanding the natural increases in cost as they come along. I will direct this question to the Minister. If any other information can be made available to help the honourable senator in the interests of the Australian wool growers 1 will see that he obtains it.
– I direct a question to the Minister representing the Minister for Customs and Excise. Has the Minister issued a permit and/or licence to Esso-BHP to export 1 million tons of liquefied petroleum gas from Bass Strait? Does the permit or licence contain details of sale price per ton of the LPG? If so, will the Minister advise the Senate the price per ton at which this natural resource is being sold overseas?
– On behalf of the Minister for Customs and Excise I gave an answer yesterday which I imagine contained some of this information. But this will have to be checked. I will have to see whether the question needs further answer. If it does I will direct it to the Minister and have an answer made available for the honourable senator.
– My question is directed to the Minister for Civil Aviation. Is it a fact that personnel operating control towers at Devonport and Wynyard airports are unqualified? Is it also a fact that navigational aids at both these airports are inadequate and that additional VOR beacons are necessary? Will the Minister ensure that fire fighting equipment at Wynyard Airport is up to standard?
– I am completely unable to accept the propositions of the honourable senator. The honourable senator has asked me whether the matters he raised are in fact correct. I cannot say whether they are correct, but I shall certainly have inquiries made to determine whether the statements he has made are accurate. If they are accurate, I will see that steps are taken to rectify the situation. If the honourable senator’s statements are inaccurate, I trust that in due course he will acknowledge that his suppositions are ill-founded.
– My question is directed to the Leader of the Government in the Senate in his capacity as Minister representing the Prime Minister. Is the Minister aware that the Australian team that competed at the recent Commonwealth Games returned from Edinburgh with a record number of gold medals, but $16,000 in the red? Will the Minister agree that these young Australian sportsmen and sportswomen were the best ambassadors that Australia possibly could have, and that because of their tremendous athletic prowess and high qualities of sportsmanship they not only brought great credit to Australia but also aroused abroad much interest in and enthusiasm for this nation? Having regard to their very great service to Australia, will the Commonwealth Government consider meeting the deficit of $16,000 incurred in sending the Australian team abroad?
– I have some personal knowledge of the Australian team that competed at the Commonwealth Games in Edinburgh because I represented the Prime Minister and the Commonwealth Government at a farewell function to the team. I there met many members of the team which went to the Games. It is true, as the honourable senator has said, that they performed magnificently. They are wonderful young Australian athletes who did much for our reputation, both as sportsmen and sportswomen and as ambassadors for Australia. The honourable senator also referred to the financial side of the trip and indicated that following contributions by the Commonwealth Government and the general public a deficit had been incurred. I think he used the expression in the red’. Statements have been made by the team manager on that subject. In fact, he made them at the function I attended, and in my presence he was rather critical about the Commonwealth’s contribution.
I subsequently saw a report of a statement by Sir Harold Alderson which pointed out that they were not in the red in terms of the finances of the organisation, and that they could meet the situation from funds that they had. I think the clear implication of that statement is that, treating in isolation the raising of funds for the Commonwealth Games tour, they may have had a shortfall, but that they were not in fact in the position of having a shortfall in relation to their overall funds. I believe that the Commonwealth made a reasonable contribution. If the general public want to see Australia well represented at these meetings I believe that they also have an obligation to contribute financially. It is probably true that in the short term there was a significant shortfall for the Edinburgh Commonwealth Games. The Commonwealth has to look at all aspects of contributions it makes to a whole variety of organisations. I believe that in the circumstances the Commonwealth made a fair and reasonable contribution in this instance.
– I direct my question to the Leader of the Government in the Senate, but he may feel that it should be directed to another Minister or other Ministers. I ask: Will the Government give urgent consideration to the alleviation of the harsh cost burden imposed on diabetics who require special dietary preparations, medicines and surgical equipment to enable them to lead useful and satisfying lives? As these necessities for a diabetic appear to attract prices in excess of comparable normal foods, particular so far as dietary preparations are concerned, would the Government consider measures designed to effect a price reduction for these special consumers?
– As the honourable senator indicated, it may well be that the proper thing for me to do is to refer his question in the first instance to the Minister for Health. I understand his question and I think all of us appreciate the fact that dietary problems associated with special diseases raise their head in every hospital, particularly general hospitals where there is a special need. I gather from the question that the honourable senator is referring not so much to inmates of hospitals but to people at home who have dietary requirements not covered under the national health scheme and who are in need of special consideration. I will refer the question to the Minister for Health.
– Will the MinisterinCharge of Tourist Activities indicate whether he considers the Bass Strait passenger ferry services and the ‘Empress of Australia’ to be vital links in the development of the tourist industry in Tasmania? Would the Minister be prepared to use his good offices to ensure that no steps are taken by the Australian National Line to increase the passenger fares on those services and thereby perhaps reduce their utilisation and the development of the tourist industry in Tasmania?
– The honourable senator would recognise that the ships to which he referred have made a significant contribution to interstate tourism, especially to Tasmania. It has been a matter of great regret that those services were disrupted to a remarkable degree in the past season by industrial disputes. I have heard no indication that passenger fares are to rise but I am thankful to my colleague for stimulating me to make an inquiry about them. I shall certainly use all my influence to discourage such a proposal, if there is one.
– My question is addressed to the Minister representing the Minister for the Army. Do Army operations include activities necessitating knowledge of agricultural science? Could agricultural science graduates called up for military service in the Army be employed in work requiring use of their particular skill? If such employment is possible and is beneficial to Army operations will the Minister ensure that the skills of such graduates will be more beneficially used than they are at the present time?
– Whereever possible the Army endeavours to use the civilian skills of a trainee. However, in order to obtain further information I will take the matter up with the Minister for the Army and give the honourable senator a considered reply.
– The Minister for Civil Aviation will know that discussions relating to the property adjoining the new Melbourne jetport have been under way for some time. Is the Minister aware of the fact that owners of freehold land whose properties are adjacent to the jetport have been unable to dispose of or use their properties on terms wherein the future approved use of the land can be properly described? Has the Commonwealth any part in this decision to restrict the free use of this land? Is the Minister aware that this situation has applied for a period of well over 12 months and that it is most unfair to land holders? Does the Minister consider this delay is reasonable? If the Commonwealth is involved in any decision in this matter, will the Minister seek to prompt the hastening of a decision so that freehold land may be used as is thought best?
– At the moment it is not possible to give a detailed answer toall the points raised, because there are many of them, but I think I should make some general observations which will assist the honourable senator. Senator Webster and all honourable senators will know that the Commonwealth writ in this case runs only to the boundary of the airport, which is Commonwealth land. Some 2 or 3 years ago a Victorian airfields committee was set up in order that the Commonwealth’s interest in civil aviation and in Melbourne’s, new international and domestic airport at Tullamarine could be joined with interests of the Victorian authorities which have responsibility over the land outside the airport, and, where possible, with those of local government and locally interested people. That committee report has not long been presented. It takes into account some of the points raised by the honourable senator. It is an attempt to resolve the problems of people who live near the airport boundary and to deal with the waysin which they may be affected. The honourable senator may rest assured that I am trying to ensure that the public interest in these matters is protected adequately and properly.
– I direct my question to the Minister representing the Treasurer. Was it an oversight that the Treasurer failed to indicate any upward adjustment of child endowment payments in the 1970 Budget? If this omission was not an oversight, can the Minister explain why an upward adjustment was not announced?
Senator Sir KENNETH ANDERSONThe Budget stands in its own right. It represents the judgment of the Government as to what the shape of things should be in the next 12 months in terms of taxation, social service benefits, defence and the needs of all departments. The Government has introduced its Budget and accepts full responsibility for its proposals.
– Can the Minister representing the Minister for National Development inform the Senate what progress has been made with the investigations into the known deposits of phosphatic rock in the Yelvertoff area near Cloncurry in Queensland?
– I cannot inform the honourable senator about this interesting matter, which is one of great consequence to Australia. I shall take it up with the Minister for National Development and obtain an answer for the honourable senator as soon as possible.
– Is the Minister representing the Minister for the Interior aware that the Commonwealth car pool at Canberra is seriously undermanned in relation to both staff and vehicles? Is he also aware that because of the lack of vehicles and drivers local taxis are required to do many thousands of trips each year with Commonwealth fares and that as a result the civilian population of Canberra is inconvenienced frequently because of long waiting periods for cabs? What action do the Minister and the Department propose to take to rectify the position?
– I am not aware of the matters mentioned by the honourable senator, but I am grateful to him for having drawn them to my attention. I shall see that the Minister for the Interior hears of them and I shall get an answer for the honourable senator as soon as possible.
– I direct a question to the Minister-in-Charge of Tourist Activities. Has a decision yet been made as to a venue in Canberra for the permanent display of the Byrne Kingsford-Smith memorial which was presented to the Commonwealth and displayed in King’s Hall earlier this year?
– It is my pleasure to inform the honourable senator, as I have informed the public and the Senate by public statement, that the Government has accepted this very impressive display. It is my view that it will form the nucleus of a display of aviation history to the Australian public in due time. But at the present time there are no proposals by the Government for its display or for the creation of any place where it could be seen by the public in any significant degree. It will be of interest to the honourable senator, however, to know that several people are in communication with me, advancing the view that is implied in his question, namely, that some such display should be created. I believe that the influence of those people will accumulate. They certainly will have my encouragement.
– I direct a ques tion to the Minister for Civil Aviation. What powers does he possess in granting charter flight rights between Australia and Europe, to ensure that the passengers involved have adequate meals en route and are not forced to follow a policy of bringing along a cut lunch?
– I am not sure of my capacity to see that people have cut lunches or full scale dinners. But I appreciate that the honourable senator’s question is a serious one and that there is known to him a charter flight on which people were not looked after properly. If he will give me the details of it afterwards, I will find out, firstly, what my ability to improve things is and, secondly, why something better was not done if, indeed, it should have been done.
(Question No. 517)
asked the Minister rep resenting the Postmaster-General, upon notice:
Is it a fact that the facilities of the PostmasterGeneral’s Department are being used to telecast an address to the nation by the Prime Minister; if so, will the Postmaster-General make the same facilities available to the Leader of the Opposition on his return from his present overseas visit, and at such other times as the Prime Minister avails himself of opportunities to report to the nation.
– The Postmaster-General has provided the following answer to the honourable senator’s question:
The facilities of the Post Office were made available to telecast and broadcast an address to the nation by the Prime Minister on18th June, 1970. This is in accordance with Post Office policy whereby relay facilities are made available without charge for the coverage of events which are classified as being of national importance and includes such events as visits to Australia by Royalty and other dignitaries from overseas countries, speeches and press conferences by the Prime Minister and funerals of world figures.
Concerning the suggestion that the same facilities be made available to the Leader of the Opposition, the position is that a programme of this kind, featuring the Prime Minister, certainly has a special significance for the public. He speaks for the Federal Government directly to the Press and indirectly to the people of Australia about the Federal administration for which he and his Ministers are responsible. The same considerations do not apply in respect of any other Member of Parliament. It is therefore not practicable to accede to your request.
(Question No. 402)
asked the Minister representing the Postmaster-General, upon notice:
– The Postmaster-General has provided the following answer to the honourable senator’s question:
(Question No. 485)
asked the Minister representing the Minister for Customs and Excise, upon notice:
– The Minister for Customs and Excise has provided the following answer to the honourable senator’s question:
Chief Censor- $9401-9747 (Class 11) per annum.
Deputy Film Censor- $7439-7670 (Class 8) per annum.
Six members (each)- $6743-7207 (Class 7) per annum. (a female member of the Board receives $428 per annum less than her male counterpart)
The Higher Salaries Committee of Cabinet has approved a fee of $800 per annum for the part time Appeal Censor.
(Question No. 486)
asked the Minister representing the Postmaster-General, upon notice:
In view of Report No. 5/1970, Berlin Information, which draws attention to the Telephonic
Health Services Report of Success’ and which points out that 100,000 telephone calls to this service have been made in West Berlin in the last 12 months, would the Postmaster-General consult with the Minister for Health and give consideration to introducing a similar system in Australia, whereby subscribers could call for information on such subjects as those in the system operating in Berlin, for example (a) early recognition of cancer, (b) diabetes, (c) child care, (d) poliomyelitis, (e) health tips for travellers, (f) diet for the elderly, (g) dental care, (h) the misuse of drugs, (i) tips for expectant mothers, (j) the noxious effect of nicotine, and (k) the dangers of left-over drugs in medicine cupboards.
– The Postmaster-General has provided the following answer to the honourable senator’s question:
The Post Office is prepared to co-operate with the Department of Health, or any other interested body, in providing message services for the public. The Post Office is aware of the medical health hints service operating in several large cities throughout Western Germany. There are certain conditions to be met concerning the length of a message which are necessary to avoid exchange congestion inconveniencing other telephone users. An approach will be made to the Department of Health to assess the feasibility of the Post Office providing a similar type of service.
My question is directed to the Minister representing the Postmaster-General and it refers to the Australian Broadcasting Commission regional station 5MV at ‘Renmark, South Australia. Is it a fact that the station is underpowered and has such limited range that many people in the area who should be able to receive this regional station are unable to obtain satisfactory reception? Will the Minister have the matter investigated with a view to increasing the power and the range of station 5MV?
The Postmaster-General has now furnished me with the following information in reply:
The Australian Broadcasting Control ‘Board states that national broadcasting station 5MV Renmark was designed to provide local service to the Renmark, Berri, Loxton, Waikerie area of South Australia. The area to the east is adequately served by station 5CK Crystal Brook. The Adelaide stations also provide a service in that area in daytime. The Board also states that the national station SPA commenced transmissions on 29th June, 1970, from a new location near Naracoorte with changed operating conditions including increased power from 2,000 watts to 10,000 watts. As a result the parts of South Australia with which the Honourable Senator is concerned are now provided with an adequate national broadcasting service from either the Adelaide national stations, 5MV, 5PA or 5CK. In the circumstances no change in the operating conditions of 5MV is proposed.
(Question No. 447)
asked the Minister representing the Minister for National Development, upon notice:
Has the Atomic Energy Commission Research Establishment undertaken any research programmes on ceramics since 1960; if so were the programmes major research projects.
– The Acting Minister for National Development has provided the following answer to the honourable senator’s question:
The word ceramics has many meanings. The Commission has been and is concerned with the use of certain refractory oxides, which may be regarded as rather unusual ceramics. These are the oxides of beryllium, uranium and thorium.
Until 1966, a research project of the Materials Division of the Atomic Energy Commission was concerned with ceramics based on beryllium oxide, which has special moderating properties in nuclear reactors. This project involved an investigation of the technology of beryllia and berylliabased nuclear fuels to establish whether the unique physical and nuclear properties of beryllia could lead to practical applications in high-temperature gas-cooled reactor systems. Summary reviews of the work have been presented in Commission Annual Reports to Parliament and the work has been reported in detail in Commission Technical Reports and in scientific journals.
More recently, increasing attention has been given to the ceramic fuel, uranium dioxide, which has become the proven fuel for use in many present day nuclear power stations. These programmes might be described as major in the Commission’s Materials Division.
– I lay on the table a report of the Third Conference of Presiding Officers and Clerks of the Parliaments of Australia, Papua and New Guinea, Nauru and Western Samoa. The Conference took place in Melbourne from 1st to 3rd April 1970.
– by leave - The 1969-70 season was an exceptionally difficult time for the wool industry. A drastic fall in wool prices combined with a continuing rise in costs was compounded by severe drought in large parts of Australia which in some regions had reached a calamitous stage. The Government has been concerned at the plight of the industry not only because of the hardship suffered but also because of the great importance of the industry to the Australian economy. If wool is to continue to provide a major share of Australia’s export income as well as to remain the basis of livelihood for much of the rural areas of Australia, it is essential that the industry’s viability be preserved. The present crisis in the industry requires a comprehensive approach which involves both immediate and longer term measures. Prolonged drought and low wool prices have placed many wool growers in an almost impossible position where they require emergency financial assistance.
Honourable senators will be aware that wool incomes have fallen markedly over the last year. Aggregate realisation on shorn wool sold has declined by some $100m to S687.2m in 1969-70. However, the severity of the fall for individual wool growers is not generally appreciated. Some 90% of this decline occurred in Queensland, Western Australia and New South Wales. In Queensland the wool cheque was 36% down, representing an average fall of about $8,000 per property. In Western Australia wool proceeds were 23% lower or $3,000 per property. These are only average figures with many wool growers faring much worse. Although Government aid has been of material assistance in drought areas, many producers have also had to bear costs of drought feeding, losses from forced sales of stock at low prices and the death of a proportion of their flocks. The Government has been giving detailed consideration to the problems being experienced by wool growers and the ways which are open to place the industry on a sound basis. The Government has before it a number of proposals. However the total approach is essentially long term. Further improvements to wool marketing, research toto industry problems and debt reconstruction and farm adjustment necessarily take time. Short term urgent measures are clearly needed to prevent a loss of confidence in the industry, which would reflect throughout the whole economy.
The Treasurer (Mr Bury) has announced the decision to provide emergency assistance for 1 year to those wool growers who are largely dependent on wool and whose incomes have fallen markedly in 1969-70.
The assistance will be given by way of a grant within a total amount of §30m. Because individual entitlements will depend upon the number of applications lodged, it is not possible to announce the extent of entitlements. The payment to any individual will, as a maximum, be no more than $1,500. To assist in the speedy processing of claims, it is not proposed to pay those involving an amount of less than S50. The Government is most concerned to ensure that the assistance be directed primarily to those most in need. It is the intention to assist all growers who have been unduly affected by the drought and by low prices. On the other hand, it is reasonable to expect the wool grower to carry some of the loss as a normal hazard associated with the production of wool. With this in mind, the assistance will be based on half the average fall in wool prices in 1969-70, that is, 8%. The amount of assistance will be related to the difference between gross wool income in the year ended 30th June 1970 and 92% of the wool income for the previous year.
In order to ensure that only those wool growers who are largely dependent on wool for their living receive a grant, assistance will be confined to persons receiving a substantial proportion of their total income from wool. Eligibility for full assistance will be limited to growers whose gross income from wool made up at least 50% of their total gross income from all sources in the year ended 30th June 1969; but there will be a phasing out arrangement, with assistance ceasing where gross income from wool is 334%. From the foregoing it can be seen that applications should be made only by woolgrowers who obtained at least one-third of their income from wool in the year ended 30th June 1969 and who suffered a fall in gross income from wool of more than 8% between the years ended 30th June 1969 and 1970. Under these conditions, a large part of the grant will be going to persons in Queensland, New South Wales and Western Australia who have been affected by drought. The Government has been mindful of the views of the Advisory Committee of the Australian Wool Board that immediate relief was necessary, and has taken account of the principles enunciated by the Committee, in formulating the principles on which the assistance is to be given, subject to administrative feasibility and simplicity. As this assistance is to meet an emergency situation it is essential that it be made available as soon as possible. If we are to avoid any undue delay it is inevitable that some anomalies may well be unavoidable. Where these can be shown to have a particularly adverse effect because of the circumstances of an individual woolgrower these will be considered as sympathetically as possible. Further details of the grant will be made available to woolgrowers iri the near future. It is not possible to calculate the total entitlement of woolgrowers until all applications have been lodged; accordingly it is proposed to make an early interim payment on each claim.
In order to ensure that payments are finalised as soon as possible, woolgrowers must submit their applications by 30th November 1970. Claims for assistance received after this date will be considered only if the total fund has not been exhausted. Application forms for assistance will be available at post offices within the next few weeks. I must ask eligible woolgrowers to submit these promptly. This scheme should materially assist hard-hit woolgrowers to survive the immediate crisis. However, the emergency assistance outlined here today can be only a first step. As I stated earlier, the Government will be seeking appropriate longer term measures to overcome the fundamental problems of the industry.
As my colleague the Treasurer has said, the need for reconstruction in the wool industry will be examined as a matter of urgency. The problem of debt and debt servicing is a critical one for many people particularly in the drought stricken areas. For some farmers such measures as debt reconstruction would offer a way out of present difficulties. Arrangements now being operated in some States or operated prewar illustrate some of the possibilities to be considered. The selection of appropriate arrangements needs to bc carefully considered or the result could well be to put some woolgrowers into deeper trouble, with an even bigger financial millstone around their necks. Long term debt reconstruction would be of assistance only to those producers whose businesses are basically sound and have good prospects of servicing the capital value of their debt after debt reconstruction has taken place. The problems of many producers finding difficulty in meeting their debts can be solved only by more fundamental reconstruction of their properties. Debt restructuring must therefore be tied in with farm adjustment. The Bureau of Agricultural Economics has been asked to investigate and report to me on the immediate and longer term needs for debt reconstruction and farm adjustment. While the necessary investigation of all aspects of these matters will require some time, the Minister for Primary Industry (Mr Anthony) has asked the Bureau to make a preliminary report to him at the earliest possible opportunity for consideration by the Government.
The Government recognises that any total approach to the problems of the wool industry entails close attention to wool marketing. It has before it a proposal submitted by representatives of the wool industry for the establishment of a statutory wool marketing authority to administer the marketing of the Australian wool clip. The plan was prepared by the Advisory Committee of the Australian Wool Board at the request of the Australian Wool Industry Conference. The Advisory Committee was under a great deal of pressure to complete its report. The Minister had asked it to provide a quick picture of the total wool scene including reference to the marketing structure proposed by the industry. As the Treasurer mentioned in his budget speech, the Government has under examination all aspects of the setting up and operation of such an authority. A close analysis of the proposal is required and this is being undertaken by the Government as a matter of considerable urgency. On behalf of the Government the Minister will be in consultation with the industry on the marketing plan and when the details have been finalised it can then be put to the Government and the industry for consideration. In the interim the Minister trusts that the various sectors of the wool industry will not prejudge the issue but will wait until the details have been worked out.
Close attention has also been given to the potential benefit of technical innovations in the marketing of wool. To assist the industry in its own efforts to reduce the present high costs associated with the handling and sale of wool, the Government has agreed to guarantee approved loans obtained by the Australian Wool Board for the construction and equipping of integrated wool selling complexes where these can be shown to provide benefits to the industry. Further, the application of objective measurement of wool prior to its sale could well lead to the sale of wool by sample which offers the prospect of considerable cost savings and other advantages. To this end the Government has agreed to provide a sum of about$1. 5m over 2 years to finance research and trials into the feasibility of introducing pre-sale objective measurement of wool on a commercial basis.
The measures which the Minister has outlined above will operate concurrently with the assistance which has been announced earlier, namely, the halving of the levy paid by wool growers for promotion and research and a doubling of the Government’s contribution in this field as well as the financial aid given by the Government for the operation of the current wool marketing price averaging plan. All these measures, together with those which the Government has under immediate consideration represent a concerted approach designed to deal with the real and pressing problems of wool growers and to restore confidence and prosperity in Australia’s major rural industry. I move:
Debate (on motion by Senator Devitt) adjourned.
–by leave - I propose to make a statement relating to the future programming of the Senate. It would be within the knowledge of honourable senators that last night in another place it was resolved to move into a programme of sitting days, a programme which will not take effect until the beginning of October after the House has completed its first series of sittings of 3 weeks. I think it proper that I should say to honourable senators that consequent upon the other House agreeing to a proposal to have a 3-weeks cycle, made up of a 2-weeks work load, including sittings on a Friday and Monday, and then a break of one week, we in the Senate would need to give consideration to this question.
I propose to have a conference with the Leader of the Opposition (Senator Murphy) and the Leader of the Australian Democratic Labor Party (Senator Gair) to see whether we can get some ideas on how we should react to this programme and then I propose to bring the matter on early next week for discussion by the Senate. When the matter comes before the Senate for discussion I suggest that any proposals relating to our programme should be considered on a non-Party basis and decided by an open vote. It may well be that having regard to what is proposed by the other place commencing in October we would need to take some action. I shall have a conference with Senators Murphy and Gair and we will all confer with members of our parties so that next week we can come into this place to debate the matter and arrive at some finality. I also want to say that concurrently with that I think we in the Senate in our own right need to be looking at the question of our Standing Orders not only in relation to hours of sitting but in relation to hours of debate.
– And length of speeches.
We should also be looking at the length of speeches. We face the extraordinary situation with debate on the Budget proposals
– The Address-in-Reply.
On the Address-in-Reply a senator may speak for 1 hour and get a1½ hour extension or an unlimited extension. This may have been good in the early days of federation, but now the tempo of political life and our way of living is such that we do not need to do it. I think we need to look at that. I would like to have a discussion with the leaders of the other parties to see if we can bring this matter on for debate next week and have a free vote on it.
– by leave - In speaking on the questions of sitting days and times I speak for myself because the attitude taken by my Party is that these matters should be questions on which we should vote freely. That was done in the House of Representatives last night and I have no doubt that it will be done here. The days we should sit is a matter that affects us all. There is no party political difference on it. There may be individual approaches to the matter and they should be reflected in a free vote. So, speaking for myself, 1 would like to say that we raised these matters earlier in the year, f think the Leader of the Government (Senator Sir Kenneth Anderson) may have overlooked this fact, but the proposition which has been debated by the House of Representatives was actually advanced in this chamber earlier this year and was not proceeded with because we came to the conclusion that it was impossible for this House to change the days of sitting without a corresponding change in the House of Representatives. I think the Leader of the Government may now recall the discussion. The specific proposition was advanced here, but in the way that these things work out it circulated around the place and came up in the House of Representatives.
As a matter of common sense we should certainly consider adopting exactly the same kind of pattern that the House of Representatives has adopted in order that party meetings may be conducted without senators having to come here when the Senate is not sitting simply for the purpose of attending party meetings. The question of times allowed for debates should also be looked at. If the time for such debates as the debate on the Address-in-Reply is shortened it will not limit the participation of members in debate. It will mean that there will be more opportunity for debate, more chances of speaking and more topics discussed. Again speaking for myself I think the Senate would be a very much better chamber if we cut down some of the time on the understanding that where it was necessary the Seante could give leave - I think this is freely done here - in order to achieve a better debate on more subjects.
– Does the Leader of the Opposition believe that any consideration has been given by either House to the effect on committee sittings?
– T do not think we should really canvass the issues now.
– I think that should bc done. I do not know whether enough consideration has been given to this, but it should certainly be considered. What those who would like a change in the days of sitting are aiming at is to spend more time here, whether it is in the chamber itself or in committees, and as far as possible also to spend more time in their electorates. The solution to what seems a paradox is that we spend less time in travelling up and down. A tremendous amount of time is consumed in travelling. If, by a reasonable rearrangement of the sitting days, we can cut down the days of travelling we can achieve both those purposes of more time spent here and more time spent in the electorate. I, for one, look with favour upon this proposal. The Australian Labor Party is anxious to have an early consideration of the matter.
– I ask for leave to contribute to the discussion before the Chair.
The DEPUTY PRESIDENT (Senator Bull) - There being no objection leave is is granted.
– It will suffice for me to say that my colleagues and I are in full accord with the suggestion that some discussion between the leaders of the parties should take place as early as possible to arrive at some plan or programme for the better working of the Senate with regard to sitting times, days of sitting, length of speeches, and such like. Senator Murphy, at the conclusion of his speech, made a point regarding the elimination of unnecessary travelling time and travelling itself, which is a very desirable objective. We who have to travel so regularly between our home States or cities and Canberra are really unconscious of the effect and toll that air travel takes of each and every one of us. We take it for granted. We get on a plane and get off it. T think that in the ultimate it has an ill effect on us. I do not know whether it is imaginary on my part.
– It is noticeable in the Western Australians.
– That is so. I have the greatest sympathy for the Western Australian representatives who travel so far and for members such as Mr Fulton. Mr Katter, and others from the northern part of Queensland who have to travel long distances. If we can come to an arrangement which will eliminate to some degree this unnecessary travel we will have achieved something. I feel the Senate could work more satisfactorily and with better results without interfering with our democratic rights in this very important forum if there were a stricter application by the Chair to points of relevancy and tedious repetition. Two standing orders can be applied with very good effect. In debates here we have speakers one after another just repeating what the first fellow said. They go on and on. The other case is where honourable senators get away from the point altogether. No semblance of relevancy is contained in their speeches at all. I would like to see stricter application of the Standing Orders with regard to relevancy and tedious repetition. We might have better results. I rose to indicate the willingness and readiness of the Australian Democratic Labor Party to confer. We appreciate the necessity of doing something for the better working of the Senate.
The DEPUTY PRESIDENT (Senator Bull) - Is it desired to rearrange the business?
– Yes, I would like to rearrange the business. Whilst I am dealing with the matter I would like to suggest the removal of certain items from the Notice Paper. I move: That Orders of the day Nos 2 and 3 take precedence of Order of the day No. 1. It is not proposed to debate the Budget because that will wait until the Leader of the Opposition in the other place (Mr Whitlam) speaks and then the Leader of the Opposition in the Senate (Senator Murphy) traditionally speaks. That will probably be next Wednesday. We therefore would not deal with the Budget until next Wednesday. In suggesting the rearrangement I had in mind that we could this afternoon debate orders of the day Nos 2 and 3 together, although it is questionable that we would get to that stage. Senator Willesee secured the adjournment of the debate on those items, each of which concerns Vietnam. I think we could dispose of them together and vote to take note of the papers. They could be then removed from the notice paper simultaneously. If an honourable senator has spoken on one of the matters, he could exercise his right to speak on the other, so that there would be no difficulties with Standing Orders in that respect. If any honourable senator has spoken on each of the papers, that would create a situation, but I do not think that has arisen.
– It would involve tedious repetition.
Senator Sir KENNETH ANDERSONYes.
– Perhaps we could join order of the day No. 13, which concerns a ministerial statement on Cambodia, and debate the 3 statements together.
Senator Sir KENNETH ANDERSONI would be happy to do that, because they each concern foreign affairs.
Senator Sir KENNETH ANDERSON (New South Wales - Minister for Supply) - I move:
I have suggested the removal of order of the day No. 8 because it is simply related to the appointment of the Aboriginal Aged Persons Homes Trust. As the Trust has been appointed and is now operating I do not see the logic of debating the ministerial statement.
– Unless someone wishes to criticise the appointment.
– 1 have no purpose other than to tidy up the notice paper. If somebody wishes to speak on that matter we will simply leave it on the notice paper. I have suggested the removal of order of the day No. 9 because it has been overtaken by events. Resolutions have been carried to set up the Standing Orders Committee and this item concerns the related machinery. Order of the day No. 12 can be removed. 1 suggest, because it relates to the Royal Commission on the Barrier Reef which in fact has been set up and is functioning. Orders of the day Nos 14 and 15 relate to Government Business taking precedence after certain hours at night. These items involve certain procedures that the Government normally seeks to introduce in the closing stages of a session. 1 see no justification for leaving them on the notice paper. If the Government feels that it is necessary to raise this matter on future occasions it will take the appropriate action. These items concern procedures which historically have been invoked towards the end of sessions.
– I would agree that orders of the day Nos 9, 14 and 15 should certainly be removed from the notice paper. There is no purpose in keeping them on the notice paper. They have in effect become mute by the action that has been taken on them. No. 8 concerns the appointment of the Aboriginal Aged Persons Homes Trust and No. 12 concerns the Great Barrier Reef Royal Commission.
– lt has now been set up and is functioning.
– Someone may want to criticise them. Why do we not adjourn this until this afternoon?
– I suggest that we get rid of Nos 9, 14 and 15 as there is no question about them, and deal with the others at a convenient stage this afternoon. There is the possibility that an honourable senator will be interested in the question of the Barrier Reef.
Senator Sir KENNETH ANDERSON (New South Wales - Minister for Supply) - I am perfectly happy to agree to that suggestion. The Leader of the Opposition in the Senate (Senator Murphy) is suggesting that we leave Nos 8 and 12 on the notice paper because some honourable senators who are not present at the moment may wish to speak to them. 1 therefore amend my motton to include only orders of the day Nos 9, 14 and 15.
Question resolved in the affirmative.
Senator Sir KENNETH ANDERSON (New South Wales - Minister for Supply) - 1 move:
That the Senate adjourn al S p.m. this day.
I understand that negotiations have taken place between the Parties as to an adjournment at 5 o’clock this afternoon and resumption on Tuesday of next week at the usual time. It may be that some honourable senators will wish to leave before 5 o’clock in order to catch aircraft. In that event we would obviously seek to accommodate them. The only important matter that is to be debated today concerns the disallowance of a regulation. I think it would be proper to dispose of that matter before we leave today. I understand from Senator Devitt that today is the last day for the disallowance. That matter can be brought on for debate as soon as we dispose of the matter we are now debating. If we are to vote today on the disallowance of the regulation, it should be done by 4.30 this afternoon.
Senator MURPHY (New South Wales - Leader of the Opposition) - I do not accede to the proposition that the only important matter for debate is the disallowance of a regulation.
– lt is the most important matter.
– The Leader of the Government in the Senate was not using his usual facility in describing the position. It is true that it is a most important matter to be considered. If it is not disposed of by vote today, it will be disposed of in any event, which would suit the Opposition. Apparently the majority of the Senate takes this view and I will not offer any opposition to it.
Question resolved in the affirmative.
– I move:
I think it would serve the purposes of the Senate, and in fact would be necessary to enable a full and complete understanding of this matter, if I were to set out the sequence of events which has ensued from the time of receipt of the regulation to the present time. I think I should first point out that the Regulations and Ordinances Committee was established by the Senate. It is a standing committee, the composition of which is 4 senators from the Government side and 3 from the Opposition. The function of the Committee is to examine subordinate legislation, to submit it to the closest possible scrutiny. In a few words, it is to act as a watchdog on subordinate legislation. It should be understood that legislation in substantive form comes through the 2 chambers of the Parliament and is submitted to very close scrutiny. The Regulations and Ordinances Committee has this function, duty and responsibility and it takes its role very seriously.
The order in which the Committee considers matters which come to its notice is, firstly, that a regulation or an ordinance, as the case may be, is gazetted. It comes to the Committee which then passes it on to a legal adviser who is a constitutional lawyer of very high repute. The legal adviser examines it and determines whether, on the basts of principles long established and accepted by the Senate, the’ piece of subordinate legislation referred to him meets the standards, requirements and principles upon which the Committee makes its judgment. In due time the regulation or ordinance comes back to the Committee, together with the legal adviser’s report on it, and the Committee determines whether it meets the standards. They are very high standards and very important standards. The Committee decides whether it should recommend that the regulation or ordinance be allowed or disallowed.
I will now indicate the purpose of the particular piece of legislation which is now before the Senate and which I have moved should be disallowed. I will commence by indicating to the Senate the particular sections of the Public Service Act which have a relationship with regulation 112. There is no dispute that section 97 (1.) of the Public Service Act gives to the Public Service
Board authority to make regulations. Section 53 of the Public Service Act, which deals specifically with questions of promotion and transfer within the Public Service, gives authority for the making of regulation 112. In other words regulation 112 stems from authority provided by section 53 of the Public Service Act which deals with appointments to the Second and Third Divisions of the Public Service. It is couched in certain language and, as I shall indicate to the Senate shortly, it is the form of language which it is hoped to be incorporated and followed in the new regulation 112. The situation is that section 35 of the Public Service Act deals specifically with appointments to the Public Service; section 53 of that Act deals with questions of promotion and transfer from the Fourth Division of the Public Service and gives authority for the making of this new regulation 112.
Section 53 of the Pubilc Service Act requires the gazettal of all determinations made by the Public Service Board in accordance with regulation 112. The Public Service Board has made it known that it requires the repeal of regulation 112’ and its replacement with this proposed new regulation. Perhaps it would serve the purposes of the Senate if I indicated briefly to it the reasons given to the Committee in the course of evidence taken from officers of the Public Service, which I will deal with in a moment or two. The Regulations and Ordinances Committee made inquiry and took evidence as to the reasons for this new regulation. I refer to the evidence of Mr Nordeck, Acting Commissioner, Public Service Board, who said:
Cur purpose in seeking amendment of regulation 112 in the present situation was because the regulation provisions themselves -
That is the old regulation: had become somewhat outdated . . .
Further on in his evidence he said:
To wind up this introduction of the various points I want to make-
This was the introduction to the subject of our inquiry: - I think the basic purpose of the change to regulation 112 which we are seeking is to ensure that that regulation conforms or is in harmony with the provisions of section 35 in relation to appointments to the third division of the Public’ Service.
As a consequence of the observations of the Committee’s legal adviser it was thought desirable to have officers of the Commonwealth Public Service attend a special meeting of the Committee and to inform it of the reasons why this new regulation should be made, to answer any other questions and to clear up any doubt in the minds of Committee members as to the reasons and the justification for this action. At this stage I would like to read to the Senate the observations made by the Committee’s legal adviser on the subject of Statutory Rules 1970 No. 42. He said:
Regulation112(1)(b) states for the purposes of the Regulation an officer holds the appropriate educational qualifications for transfer or promotion to the Third Division if the Board has certified that the officer has passed, under conditions approved by the Board in such subjects in a public examination approved by the Board, has satisfied requirements determined by the Board for transfer to the Third Division. Paragraph (b) of the subsection is to be read disjunctively with paragraphs (a) and (c). The result is that paragraph (b) of the subregulation purports to set one of the qualifications necessary for transfer or promotion. What that qualification is is far from clear.
I want the Senate to understand the meaning and importance of the observation made by the legal adviser. I repeat: . . the subregulation purports to set one of the qualifications necessary for transfer or promotion. What that qualification is is far from clear.
That concludes the remarks on this subject by the legal adviser. As a consequence of this advice the Committee felt it very desirable and necessary to endeavour to ascertain from the Public Service Boardwhat it proposed to do and what the proposed new regulation 112 would add to the present requirements in the Public Service. The Public Service Board’s witnesses were Mr Nordeck, Acting Commissioner, and Mr MacDonald, Assistant Commissioner. Both witnesses were sworn and gave evidence on oath. In the course of evidence to the Committee they pointed out that there must be a large area of discretion to the Board. 1 acknowledge this. The Committee took this very much into account in reaching the decision that it did. Perhaps I should refer to one or two observations which Mr Nordeck made in the course of his evidence. On page 3 of his evidence he said:
I will later on draw to the attention of the Com mittee the fact that when section 35 of the Public Service Act was enacted in 1960 the then Prime Minister made it very clear to the Parliament in his second reading speech that the standards, qualifications, appointments, etc., to apply in the Public Service were to be determined bythe Public Service Board by administrative action. This is acknowledged. He went on:
Those comments by the then Prime Minister also accorded with the views expressed bv the Boyer Committee ,in 1958.
Further on in his evidence he said:
As a matter of interest, the recent Fulton Committee in the United kingdom, when in 1968 indicating what it thought should be placed within the hands of the Public Service administration, expressed somewhat similar views.
I mention these points merely to indicate that the Committee had the advantage of all the evidence which it thought was available to it. As a consequence of that, having weighed those points and the other factors which came within its range of consideration, the Committee made a decision which led ultimately to disallowance of the regulations. At this point I move to the requirements of the Regulations and Ordinances Committee and to the standards or principles upon which this Committee acts. I. shall spell them out quickly. They are four in number. The first is that the regulation or ordinance - in other words, the subordinate legislation - must be in accordance with statute. The second principle is that these measures should not trespass unduly on personal rights and liberties. The third principle upon which the Committee acts is that this subordinate legislation should not unduly make the rights and liberties of citizens dependent upon administrative rather than judicial decisions. The fourth is that it should be concerned with administrative detail that does not warrant substantive legislation which would be a matter for parliamentary enactment.
At this point I suppose that we ought to ponder, very briefly perhaps, whether the proper course to take in a matter of this kind would not be to effect the wish of the Board by substantive legislation in view of the fact that section 35 of the Public Service Act deals with appointments to the Public Service at another level without any reference to regulations. I want honourable senators to bear that in mind when they make up their minds on the merits of the action which the Regulations and Ordinances Committee has taken. 1 have indicated the course of events which flow from the receipt of a regulation or an ordinance by the Committee. I have indicated the course of events which in this instance flowed and the observations of (he Committee’s legal advisers. We took evidence. The transcript of evidence is in the possession of the Committee and would be available to anybody who wanted to peruse it. lt seems to me and to the Committee, particularly in view of the principles upon which the Committee acts and particularly in view of the fact that in one instance legislation is all that seems to be necessary to effect the purposes of the Board so far as appointments to the Service are concerned, that there would be no reason why it ought not to be possible similarly to effectuate the intentions of the Public Service Board by legislation. In this event the attempt to correct the situation which the Board considered had come about should be made by regulation. The Board pointed out to the Committee that the great problem which confronted it was to lay down established criteria within the limits of which it could work in making judgments upon the promotion or transfer of people in the Fourth Division of the Commonwealth Public Service. I understand from what had taken place before that hitherto difficulties had arisen.
One can see that in the particular circumstances and in the context in which this system operates there may be difficulties because from time to time the educational standards in the States vary. The nomenclatures used to describe the levels of scholastic attainment vary. When one takes into account the tremendous range of disciplines or activities within the Commonwealth Public Service and relates this to the problem of spelling out in precise detail the types of examinations which would be necessary to enable people to qualify for movements within the Service, one can readily concede that the Board has a tremendous difficulty in trying to establish these criteria, in trying to set them down and in trying to keep up from time to time with amendments which would be necessary to meet such a situation. I do not want to be held to specific figures on this, but I understand that there are well over 100 sheets of gazettal pages involved in making readjustments to the situation from time to time and that in the last 12 months - please do not hold me specifically to this; 1 merely mention that this is the range of things that happen in the Public Service to indicate the problem which the Committee accepted as being the case - on something like 8 occasions the need arose to lake action lo adjust the situation to the then prevailing position.
The Committee failed to see why, having established the principle upon which it has operated over a great many years and having adhered pretty rigidly to those standards, it should now, despite these other problems which I have just mentioned, lower its standards or move away from the position which it has taken and which it has maintained pretty rigidly. The Committee felt that the circumstances of the case did not warrant this action being taken. -
In passing I refer briefly to the fact that it was possible only yesterday to finalise the drafting and presentation of the 33rd report of the Committee. I apologise to the leaders of the parties for the fact that time was so short. There were breaks in the sittings and other difficulties which confronted the Committee in its very intense desire to do justice and to give full and complete consideration to this matter. We met on a number of occasions last week in an attempt to determine whether certain lines of action should be taken and whether it was necessary to seek further evidence before compiling the report. It was quite late in the piece when a decision was made. On behalf of the Committee, 1 apologise. Those were the circumstances of the case. We had very little option if we were to pursue our work and do our duty, as I know the Senate would want us to have done.
In a moment or two 1 propose to provide the Senate with a summary of the Committee’s reasons for moving for the disallowance of this regulation. I think I should remind all honourable .senators that the duty and responsibility of the Senate Regulations and Ordinances Committee is to act as a watchdog and to scrutinise closely all subordinate legislation to ensure that it meets standards and criteria which have applied for a great many years, which have stood the test of time and the clear justification for which has been amply demonstrated on many occasions.
Sitting suspended from 12.45 to 2.15 p.m.
– In order to show that the Regulations and Ordinances Committee performs a very worthwhile and very valuable work in the institution of the Parliament, I point out that recommendations for amendments to regulations and ordinances, the repeal of regulations and ordinances and the substitution of legislation for regulations have been accepted and adopted in any number of instances. I believe that this has led to the perpetuation of a system that is very worthwhile. These standards are quite demanding.
On all occasions in the past, as 1 understand the position, the Senate has either disallowed the regulations or accepted the amendments which have been suggested and which have followed as a consequence of the judgments made on subordinate legislation from time to time. Continuing to abide by these standards provides the Senate with an assurance that this Committee has a vital and essential role to play in ensuring that the quality and type of subordinate legislation is maintained. This is an essential part of the work of the Committee, as I understand it. I would be very reluctant and very unhappy to see any action taken to erode the authority and level of performance of the Committee.
Perhaps I should pause at this stage in order to refute one or two suggestions that have been made to me to the effect that there has not been unanimity of approach on the question of this regulation. I give the Senate an unqualified assurance that at no stage in the course of our proceedings has there been any disagreement among the members of the Committee as to the procedures that have been followed or, in fact, as to the judgment that ultimately was made; that is, to recommend disallowance of this regulation. That was a unanimous decision. I regret very much that Senator Greenwood is not here today. He is away through sickness, as we all know. He was one of those who insisted most strongly that this was a bad regulation; that it ought not to be countenanced; that it ought to be disallowed.
– Was there complete unanimity on the Committee?
– Yes, there was no disagreement at all among the members of the Committee. We believe that the regulation is bad and that it offends the principles upon which the Committee makes its judgments. The Committee is not at all certain that in fact the regulation is a worthwhile one or is one that ought to be persisted with. In fact, when one considers the fact that, section 35 of the Public Service Act does not have supporting regulations - that is for appointments to the Public Service - one wonders why it is necessary to have regulations flowing from the provisions of section 53 of the Act. That deals with the question of the unanimity of the judgment of the Committee on this matter.
The Committee prepared a summary of the evidence that was given to it by the representatives of the Public Service Board. For the information of the Senate, I propose to read that summary, as set out in paragraph 5 of the Committee’s report.
– Is this an excerpt from the evidence or from the digest?
– This is what the Committee had prepared for the information of the Senate.
– The summary of the evidence?
– Yes. It reads:
In ils evidence and submissions to the Committee, the Public Service Board made the following points:
The new regulation 112 is virtually identical in its language to Section 35 of the Public Service Act, and it was designed to achieve “ harmony “ between that Section, which deals with appointments to the Second and
Third Divisions, and regulation 112, which deals with transfers and promotions to the Third Division.
That tends to indicate that the old regulation 112 is less offensive to the attitudes of the Regulations and Ordinances Committee than is the proposed new one. The summary continues:
Determinations of the Board made under regulation 112 are required by Section53 of the Public Service Act to be gazetted. Section S3 empowers the Board to determine qualifications and conditions for transfers and promotions of all kinds, and the new regulation 112 is made under this Section.
I have already referred to that. Here I should like to sound a warning, if any warning is necessary, that rejection of the Committee’s proposal to disallow this regulation, the grounds for which action I will now detail to the Senate, may well have the effect of diminishing the Committee’s role and effectiveness and may set dangerous precedents for varying attitudes merely for the sake of expediency. This would amount to an erosion of the Committee’s high standing, and it should be rejected out of hand.
– In other words, you are saying that all recommendations of your Committee must be accepted: otherwise its standing is destroyed. Then why bring the recommendations here?
-I am saying that the recommendations of the Committee are based on criteria which the Committee has established and the Senate has accepted over the years and from which, to my knowledge, there has been no departure. These are standards that are laid down.I believe that if we are to depart from them they ought to be changed.
– They may be your interpretations.
-I am giving my interpretation. I thought that was clearly understood. Nodoubt the Minister will be giving his in due course. To do what 1 have referred to would be to do a great disservice to a Committee which has carried out its work on the basis of clearly established principles of action which have been accepted and upheld by this chamber and which have been pursued to the end of maintaining an excellent record of performance of its functions.
I now put to the Senate the bases upon which the Committee reached its decision to recommend disallowance of this regulation. The Committee’s report states:
The Committee is not concerned withthe policy of the regulation, but is concerned to scrutinise regulations to ensure: (a)that they do not unduly make the rights and liberties of citizens dependent upon administrative rather than upon judicial decisions; and
The point I want to make is that if it is necessary to have these powers they should be conferred by the legislative process of passing legislation through the Parliament rather than through the medium of a regulation. The report continues:
That is, making rights and liberties of citizens dependent upon administrative rather than judicial decisions - because the Public Service Board is not bound by any objective criteria in making its determinations under the regulation. While it may not be possible to incorporate the Board’s determinations in the regulations, some indication of the factors to which the Board is to have regard in making its determinations ought to be included in the regulations. At present the regulations merely state that the conditions of transfer and promotion to the Third Division are left to the unfettered discretion of the Board.
Under the second of the above-quoted principles, the new regulation 112 is objectionable because:
Third Division ought not to be ‘harmonised’ by regulation. This should more appropriately be effected by substantive legislation, particularly having in mind that the two matters are at present covered by different sections of the Public Service Act. (b) Regulations ought not merely to repeat the language of the statute.
This is one of the principles upon which this Committee has proceeded back through the years. The report continues:
They should give some indication of the administrative practices which are intended to be adopted under the statute. 9. For these reasons, the Committee recommends the disallowance of Statutory Rules 1970, No. 42, Amendments of the Public Service Regulations.
I do not think there is any more I can say, except to reiterate that the Committee subjected this matter to the most exhaustive examination, and this was one of the reasons which made it necessary for me earlier in my speech to indicate the reason for the delay in submitting the report to this chamber. There has been complete unanimity. I regret that Senator Greenwood is not here because he was a very strong advocate for the disallowance of this regulation on the grounds which I have just spelled out. I have no doubt in my mind at all that if the Chairman of the Committee, Senator Wood, were present he would adopt a similar attitude. However, I will leave it to the judgment of the Senate. I sincerely hope that honourable senators will take full cognisance of the problem which will arise if they knock over this move to disallow the regulation.
I know that the argument will be advanced that if we do disallow this regulation it will revive the old regulation 112. This point is open to debate. There has been a quite considerable argument on it. Opinions have been expressed. Of course, opinions have been given previously on matters concerning regulations and ordinances. I refer to a recent occasion when the provisions of section 127 of the Defence Act was invoked, If that is the correct term to use, to give substance to an argument that the power under that Act to make regulations included the power to make regulations not only for salaries but also for allowances. The Leader of the Government in the Senate (Senator Sir Kenneth Anderson) then indicated that he had advice to the effect that the power to make regulations as to salary also included the power to make regulations as to allowances payable to senior officers of the defence Services. But the advice which was given to the Regulations and Ordinances Committee was completely contrary to that. I suggest that there can always be differences of opinion as to interpretations and applications of sections of the law. I suggest that we could argue this point up bill and down dale.
I return to the point 1 made earlier, that the proposals contained in this regulation offend against the principles for which the Regulations and Ordinances Committee has been established - principles which have been accepted in the past and which I strongly suggest to honourable senators ought not to be interfered with at this time. We cannot have changing standards in these matters. I think I mentioned that there may be some reliance on the provisions in section 46A or section 7 of the Evidence Act to support the view that the repeal of this regulation means the repeal of all regulations. I do not think that that is such a terribly bad thing, anyhow, because I believe that if there were the will so to do, it would not take more than a week to produce a new set of regulations to meet the criteria, requirements and principles on which this Committee has operated over the years.
– They could be made retrospective.
– They could be made retrospective as, in fact, we know that regulations are. I do not think there is any doubt about that. First of all, a case has to be made out as to why it is necessary to have regulations made for provisions in 1 section of the Act dealing with the movement of people in the Commonwealth Public Service and why it is not necessary to have regulations to cover section 35 of the Public Service Act which deals with the subject of making appointments to the Commonwealth Public Service. Do not honourable senators think that if we perpetuate this system, which is wrong, we are adding to the proliferation of legislation which is extremely difficult to understand, and do not they think in all conscience that this is a point-
The DEPUTY PRESIDENT (Senator Bull) - Order! It being 2 hours after the meeting of the Senate, the debate is now interrupted under standing order 127 to call on the Orders of the Day.
Motion (by Senator Sir Kenneth Anderson) agreed to:
Thai Orders of the Day be postponed until disposal of the business of the Senate, Notice of Motion No. 1.
– I just make my concluding remarks-
– How long are you going to be?
– As long as the Senate allows me.
– It was a fair question. How long are you going to be?
– Wait a minute. I think that the honourable senator gets a bit toey at this time, but he will have to put up with me for a few minutes. In all sincerity, 1 suggest to the Senate that it is quite possible, feasible and proper not to proliferate legislation which is extremely difficult to understand, as is pointed out in the Committee’s report which honourable senators have read. The time may well have arrived when this particular area of the Public Service Act might be looked at with a view- to bringing the provisions of regulation 112 into harmony not only with section 35, but also with section 53 - section 53a may even have some bearing upon it - so that the whole area is cleaned up. I strongly urge the Senate to disallow this regulation for the reasons that I have given and because there cannot be any great damage done as. I understand, the regulation affects only 10% of the people in this area. The other 90% of the people moving in this area of the Public Service are not affected by this regulation. I strongly urge that we disallow the regulation.
[2.32] - I do not want to prolong this debate because it is desirable that we should reach a decision today. If we do not reach a decision today it will be equivalent to voting in the affirmative for the disallowance of the regulation because today is the last day on which we can consider it. I indicate at the very outset that the Government does not support the move for the disallowance of the regulation. Anything I say, I hope, will be directed towards pointing out why this proposed disallowance of the regulation should not succeed. I agree with Senator Devitt that because of a set of circumstances we have arrived at a point where this is the last day for consideration of the matter. This is not altogether the responsibility of the Regulations and Ordinances Committee. I accept some responsibility for not asking the Committee to bring this matter on for debate earlier.
We have had a break in the sessions. The motion for the disallowance of the regulation was on the business paper of the Senate of 9th April 1970 and the adjournment was taken. There has been a series of adjournments of the debate. The Senate resumed after the recess with 3 days in which to discuss this motion. Now we come to the very last day on which it can be discussed, lt is unfortunate that we have come to the point where we have to reach a decision today. Whether we like it or nol, whatever we do there will be a decision today. Senator Devitt who led in the debate talked about the unanimity of the Committee’s decision. I notice, for instance, that at the sitting of the Committee in June in fact only 4 members of the Committee were present - not the 7 members who constitute the Committee. The Chairman was not present.
– You are not questioning our decision?
– No, but J am pointing out that although Senator Devitt talks about unanimity, the Chairman of the Committee was not present at the meeting on 2nd June. Senator Cavanagh and Senator Wheeldon also were not present.
– Senator Cavanagh will support the Committee.
– I know. Please do not try to muddy the waters because 1 am going to say what I have to say, regardless of whether or not we lift at 5 o’clock. When Senator Devitt says that there was complete unanimity in the Committee, it is proper and fair for me to make the very relevant point that on the day on which the Committee took evidence on 2nd June, the Chairman, Senator Cavanagh and Senator Wheeldon were not present. Senator Devitt went on to point out-
– What about the subsequent meeting?
Senator Sir KENNETH ANDERSONIt is obvious that they would be at subsequent meetings and the fact that the honourable senator makes that remark shows that he is a little on the defensive. But the truth of the matter is that Senator Devitt pointed out that they did in fact have evidence before them from members of the Public Service Board. He gave the names of those members who were present. What he did not go on to say when he was telling his story today was that there was in fact an understanding - and I propose to read his very words from the transcript in a moment - that the officers would in fact be brought back.
– If required.
Senator Sir KENNETH ANDERSONIt now becomes apparent by way of interjection that they were not required.
– They understood that to be the case. .
– Yes. lt is a pity they were not required because I am about to demonstrate to the honourable senator the extraordinary position he has now put himself in in relation to this disallowance. But just to put it on the record, what Senator Devitt said - of course, he did not mention it this morning - at the point where the witnesses withdrew, was:
Gentlemen, on behalf of the Committee 1 express our very sincere thanks for the comprehensive way in which you have presented the detail and documentation to us. It will help us quite considerably in our further consideration of this question. Perhaps wc should suspend further consideration of statutory rule 42 at this stage. In due course the Secretary of th: Committee will be in touch with you again, and I hope that we can have your services again for further clarification.
I think it would have been more appropriate in the interests of everybody to have that fact established. 1 feel bound to say, of course, that Senator Wheeldon was not there on that occasion and neither was Senator Cavanagh. Had they known that those words were spoken and what was going to happen as a result, perhaps they would not have been at a subsequent meeting - which obviously they were at - so ready to add their support to the recommendation.
I want to put some historical matters on the record and I then want to go back, if I may, to some matters at issue and the circumstances in which we find ourselves in relation to this matter. I think I should stick to the script I have before me because I think that it would be the quickest way to deal with the matter.
Statutory Rules 1970 No. 42 were made by the Public Service Board on 27th February 1970. They were approved by the Governor-General on 20th March 1970 and came into force on that date. The effect of the Rules was to revise regulation 112 of the Public Service Regulations, in relation to the conditions for transfer - including transfer on promotion - to the third division, that is to say, the movement into the third division of permanent officers of the fourth division of the Commonwealth Service. Pre-existing regulation 112, made in 1955, itself contained substantial discretions for exercise by the Board. That is a point it might be appropriate to remember.
The explanatory statement circulated in relation to Statutory Rules 1970 No. 42 included the following comments:
Thi basic approach in the revised regulation is designed to achieve a harmony between the expression of the qualification provisions of regulation 112 and those of the Public Service Act relating to appointment of new recruits to the third division.
The revised regulation also taker, account of the following main points:
As a result of changes in secondary education systems of various States, certain qualifications specified in the existing regulation are out of date. In the appointment provisions of the Public Service Act, educational qualifications are described in broad terms and this approach has been adopted in the revised regulation.
The existing regulation contains references to some designations which are now obsolete. The revised regulation, like the appointment provisions of the Act, avoids references to a variety of designations.
This harmony was particularly with section 35 of the Public Service Act, which provides for the general educational qualifications for appointment to the Third Division of persons from outside the Service; allowing for minor drafting points, its provisions are identical with those of regulation 112(1). Appointments constitute 90% of the third division intake and transfers and promotions 10%. There are more than 50,000 third division staff spread over more than 1,000 designations. So we are dealing with quite a considerable number of people whose rights and privileges would be, under this disallowance, very much circumscribed. When section 35 was enacted in 1960, following the Boyer Committee of Inquiry into Public Service Recruitment, the then Prime Minister said in his second. reading speech:
Appointment to the Public Service will remain in the hands of the Public Service Board, as an independent authority and within the principle of open competition . . . The standards for appointment will be set by the Board from time to time and notified in the ‘Commonwealth Gazette’. The Public Service Board will retain authority to conduct its own examinations or to use the standards of education authorities and provision will be retained for promotion within the service so that the most junior officers will have the whole field of the Public Service open to them, provided they are able to meet the standards which are set for promotion within a division or, of course, advancement from one division to another.
The Prime Minister went on to say:
The Government has adopted the Boyer Committee recommendation that the leaving certificate standard should be the firm minimum requirement for entry to the third division of the Public Service. and added -
It would be difficult to bring down legislation owing to the need to take account of the variation in educational standards as between the Slates, and, as was pointed out to mc by a colleague recently, as between one country and another, because there may be some people here who had the preliminary education in another country. Hence, the Government feels that it would be preferable for the Public Service Board to give effect to this recommendation by administrative action.
Having regard to our migration programme over the last 2 decades I am sure the significance of that comment is very real. The Prime Minister continued:
The legislation therefore leaves it to the board to determine the standards of entry, but it is the clear intention that an examination at the level and standard of the New South Wales leaving certificate will be the firm minimum standard for entry to the third division of the Service, with equivalent examinations in other Stales - for example, the senior public in Queensland. This minimum standard will apply both on first appointment to the third division and on transfer from the fourth to the third division. . .
This basic policy continues to be followed by the Board in relation to appointments, transfers and promotions to the third division subject, of course, to the need for meeting specialist qualification require ments for certain positions. The discretions in regulation 112 are also in harmony with other Public Service Board discretions in relation to educational qualifications already embodied in the Public Service Act and Regulations.
The exercise of a wide variety of discretions by a central personnel agency is a fundamental feature of administration of non-political career public services in Australia and overseas, as recognised, for example, in the Boyer Committee Report and the more recent Fulton Committee Report in Britain. The Board regularly notifies in the Commonwealth Gazette the wide variety of qualifications determined in exercise of its discretions. The basic principle underlying the legislative provisions is one of merit advancement in accordance with uniform qualification standards. Qualification requirements are, in accordance with gazetted conditions, common to all who wish to compete for the position in question.
Finally, if each and every educational qualification for the various purposes of the Public Service Act and Regulations had to be specifically prescribed by regulation a considerable volume of additional drafting work would be required to cope with the variety of acceptable qualifications in Australia and overseas, which in total are in a state of constant evolution. This would be likely to delay recruitment in some cases.
If that is the case in relation to the regulations, how much stronger would be the case if in fact as one of the conditions of the move for disallowance it was said that it should be found in the statute. How in fact one could purport to produce this in a statute to me defies comprehension. I will not spend a great amount of time on this because there are other speakers, members of the Committee themselves and others, who want to make a contribution. I have made the point that the witnesses from the Public Service Board had a clear tinderstanding that they were to be recalled, and I have repeated what Senator Devitt said as recorded in the. transcript. The report from the Committee, which no doubt is a truncated summary, does not necessarily or satisfactorily present the Board’s case. That can be demonstrated at some point if it becomes necessary to do so. In any event, the report is in error. As an example I refer to paragraph 5.4. The Board’s documents made it clear that the head of power for regulation 112 is section 97(l)(e). The subject matter is not, as was stated by Senator Devitt, suitable for judicial decision. 1 believe that the whole pattern with this regulation has been to take it out of politics and out of the statute and to give authority and a wide discretionary power to the Public Service Board. All that has been done in this instance has been to transfer the discretionary power which appears in the Act in relation to appointments from outside the Service as distinct from appointments from within the Service. A point has been made about what is happening in the education system in Australia. There is a tremendous divergence between States in educational standards and in the description of qualifications. I remind the Senate that qualifications need a description, whether they are embodied in a regulation or in a statute. It would be a very brave man who would write a regulation “and prescribe educational standards without knowing whether within a few months those standards were going to be altered because of the great changes being made to standards of education. It is a while since I went to school, but I do know of the Wyndham report in New South Wales and the changing provisions in relation to the Leaving Certificate and Matriculation. I know that changes are being made in primary education and that a great variety of changes are coming in education at the tertiary level. That is the reason why there is a need for discretionary powers in relation to descriptions of qualifications.
Let us consider what will happen as from tomorrow morning if the motion to disallow the regulation is carried. I remind the Senate that if we do nothing the regulation will automatically come into being, but a disallowance of the regulation will not revive the old regulation 112. The Government has legal advisers on these matters and their best legal advice - this is important because it rebuts with particularity what Senator Devitt said - is that disallowance does not revive the old regulation. I want the Senate to realise the significance of this. If by a vote, of the
Senate we disallow this regulation there will be no machinery provisions to enable promotions from the Fourth Division to the Third Division until something else happens. I shall come in a moment to the something else which could happen. The Committee, presumably understanding the situation, has deliberately brought in a regulation, for which it seeks approval of the Senate, which will deny promotion from the Fourth Division to the Third Division of a large number of men in the Public Service.
– Only because of your inaction, because you will not put another regulation through.
– I shall come in a moment to the question of putting through another regulation. 1 ask the honourable senator not to anticipate what I will say but to wait for me to say it. The honourable senator knows enough about regulations to know what can be clone. However, I am grateful for the interruption because it will demonstrate how much thought has been given to this matter. The position is that if we carry this motion for disallowance or the Senate rises without doing anything, a great mass of people in the Public Service - we hear great speeches in this place from time to time about protecting members of the Public Service by looking after them . . .
– Has there ever been an objection to regulation 112 by the Public Service unions.
– Not so far as I know. They were informed when the regulation was proposed and they did not object to it. But I come back to the point that I was making, that if this motion for disallowance is carried, tomorrow morning anybody in the Public Service who was entitled to promotion and in respect of whom promotion was imminent from the Fourth Division to the Third Division would not be able to get that promotion or the emolument that it attracted until something else happened. I come now to the something else that might happen. 1 remind honourable senators of the provisions of the Acts Interpretation Act which is referred to in ‘Australian Senate Practice’ where Mr Odgers summarises the situation. Section 49 of the Acts Interpretation Act provides: (1.) Where, in pursuance of the last preceding section, either House of the Parliament disallows any regulation, or any regulation is deemed to have been disallowed, no regulation, being the same in substance as the regulation so disallowed, or deemed to have been disallowed, shall be made within six months after the date of the disallowance, unless -
The effect of that is that although it may be suggested that another regulation can be brought in tomorrow, another regulation in substance the same as the one disallowed cannot be brought in. Therefore a regulation different in substance would have to be introduced. The legal advisers to the Crown say that the mere disallowance of the proposed regulation will not leave the original regulation standing, so there will be a hiatus.
– Did they state where they derived that view?
Senator Sir KENNETH ANDERSONWhen I say that I have received legal advice it will be understood that my legal advice comes from the Government’s legal advisers. It is true that a legal officer is provided for the Regulations and Ordinances Committee and I suppose it is not unusual for lawyers to disagree.
– Did the AttorneyGeneral give this opinion?
I am stating the legal advice which was given to the Public Service Board. Obviously that is advice which has come from the legal advisers of the Crown.
– Do you mean the Attorney-General himself?
The honourable senator is trying to play with words.
– No, I am not playing with words. I was asking whether it came from the Attorney-General.
When the legal advisers of the Crown give advice it is not advice that they seek elsewhere but is advice which comes from their own legal advisers. Their advice is that once a regulation is disallowed the original regulation does not stand in its place. I suggest to the Senate that this proposal for a disallowance of the regulation challenges the discretions which are an essential ingredient in this matter because of the whole variety of changes throughout our education system. The discretions in the old regulation were never under challenge presumably, yet there were wide discretions in that regulation. But the moment that we try to tidy up the regulation to meet contemporary conditions and contemporary schooling procedures there is a motion for a disallowance, the effect of which, if carried, would be to create a hiatus in promotions from the Fourth Division to the Third Division.
– Is the Minister sure that it is not possible for the old regulation 112 to be revived?
That is the advice that I have been given. Obviously I sought advice because I had to state a case. I have quite clearly in my notes that the best advice that the Crown has is that the disallowance of this regulation would not revive the old regulation.
– That is not the question asked by Senator Davidson. He asked whether it was not possible for it to be revived. He did not ask whether a disallowance would automatically revive the old regulation. He asked whether it was possible to revive it.
– My advice is that it could be revived tomorrow. Then the matter would have to run the gauntlet and the Committee would have to decide whether it wanted to look at the old regulation, because the discretions that have been complained about in the old one are to some extent in the new one. Senator Devitt, who is the Acting Chairman of this Committee, has pointed out - and I do not challenge this fact - that the Regulations and Ordinances Committee has a long history in cases where it is not happy with something of saying that it believes there is too much discretion in a regulation or that in its judgment a certain power should be found in a statute. But what did the Committee do on this occasion? lt alerted the Senate, lt then interviewed people from the departments, lt indicated as late as yesterday that because there had been an acknowledgment that there was a necessity for something to be done it had deferred its movement for disallowance. That is normal practice. 1 have been here for 16 years and the Committee has been doing it that way for 16 years. In this case the Committee took evidence. The Acting Chairman said that he would invite the witnesses to come again and give further evidence, but he did not invite them to come and give that evidence. Now he is moving for the disallowance of this regulation.
– The Leader of the Government has a wretchedly weak argument when he puts that forward.
The truth will always stand. Would Senator Devitt like me to read again what he said? Perhaps Senator Murphy was not here when I read it. I will read it again for his benefit. Senator Devitt said:
Gentlemen, on behalf of the Committee-
– We have heard that.
Senator Sir KENNETH ANDERSONI will read it again whether Senator Wheeldon heard it before or not, because it will be on the record for the second time. Senator Devitt, the Acting Chairman, said:
Gentlemen, on behalf of the Committee I express our very sincere thanks for the comprehensive way in which you have presented the detailed documentation to us. It will help us quite considerably in our further consideration of this question. Perhaps we should suspend further consideration of Statutory Rule 42 at this stage.
There is an implication in the suspension of the rule at that stage, is there not? He went on:
In due course the Secretary of the Committee will be in touch with you again and I hope we can have your services again for further clarification.
– What does that show?
Senator Sir KENNETH ANDERSONI will show the honourable senator. The trouble with him is that he is about 7 laps ahead of himself. I will show what has happened in the past. What happened on this occasion is quite consistent with what the Committee has always done. Had the
Committee called the witnesses again as had been promised, no doubt it would have reached the same conclusion that it has reached with most other references.
– What is that?
Senator Sir KENNETH ANDERSONlt would have been borne home to the Committee that there is a time problem in this, lt may well have been that the Committee would have said: ‘We are only trying to get the end result’. We could have given the Committee time in which to make further examination and possibly a compromise could have been reached to draft some new regulation that would have met some of the objections that the Committee made. But that was not done.
– We were under the assumption that the old regulation 112 would be revived and retained.
– If Senator Davidson acted on that assumption 1 suggest that he should not vote for the disallowance this afternoon, because he has given his support to a document on the wrong assumption. I would not want to vote for anything if I were under a wrong assumption. The legal officers of the Crown are quite clear that the legal view is that the old regulation becomes nonexistent. The Public Service Board has indicated to me as Leader of the Government in the Senate that if regulation 112 is to be retained in its present form it will consult with the Office of Parliamentary Counsel, which is a new organisation, on a form for a revised provision. That would have the effect of holding the situation. It would not be prejudicial to those public servants who may be caught up in the hiatus. It would give the Committee further time to look at this question which Senator Davidson has brought up. He gave his support to the disallowance on an assumption which legally is still questionable, putting it at its lowest level. If regulation 1 12 is retained that will give us time, and it will certainly give the Office of Parliamentary Counsel time, to look into the matter. I give an assurance - and I accept responsibility for it - that a revised provision will be immediately examined.
– Can we have the terms of that assurance again?
– The Public Service Board has indicated to me that if regulation 112 is retained in its present form, that is if it is not disallowed, it will consult with the Office of Parliamentary Counsel - that is the new office for the advisers in relation to regulations and Acts - on the form of a revised provision. In any event it is desirable to resolve this matter this afternoon. I would not like it to be talked out. It is proper that we should vote on it. I hope that the Senate in its judgment on this occasion will not vote for the disallowance, because if it does not and regulation 1 1 2 stands I have given an assurance, with authority, that the regulations will be . immediately looked at again.
– 1 rise fairly early in the debate, speaking on behalf of the Democratic Labor Part)’, to indicate the attitude of my Party to the motion for disallowance of this regulation. The attitude of the Democratic Labor Party is that in the circumstances of this case the motion for disallowance should not be supported and that the regulation should stand. Quite often we find difficulties arising in our consideration of this principle. Difficulties arise very frequently now in the discussion of many matters that come before the Senate. It is this question which has arisen also in relation to the fixation of salaries, more particularly of allowances, of officers, particularly senior officers, of the Commonwealth Public Service, where there has been some disputation in this place between those who feel that these should be fixed by statute and those who feel, that they should more properly, and perhaps more conveniently, be fixed by regulation. Both views are firmly held and held with integrity. In either case it becomes a matter of interpretation as to the limits of the authority and discretion that may be vested in the public administration. Approaching it from different points of view, different conclusions were reached. This is another example of the dichotomy that arises in the approach to the determination of this question.
It is unfortunate that this matter has to be considered in that twilight zone where there is a fear that a lacuna will occur. A hiatus will arise if this regulation is disallowed because that ultimately must, as a matter of practical public administration, affect the determination of this body, whereas perhaps it is not right that k should be permitted to so affect the determination of this body, because after all the Senate has a power and a responsibility to disallow a regulation if it offends certain principles. That discretion and that power should be able to be exercised in a condition of complete impartiality and quite divorced from the practical consequences which may arise if the regulation is, in a particular situation, disallowed. As a practical body functioning in the Parliament we have a duty to see that the public administration is allowed to proceed. Actually that is the unfortunate dilemma that arises in this case. But quite apart from that a substantive question arises as to whether this regulation does offend the principles which are traditionally laid down as to the functions of the Regulations and Ordinances Committee whose members have brought a great deal of thought and enthusiasm to this matter.
In the Public Service Act the formula by which appointments are made to the Second and Third Divisions of the Public Service is laid down by statute. It is a formula which has received the legislative approval of both Houses of Parliament. It remains undisturbed in the statute. I am advised that the purport of the proposed legislation is to do in relation to Third and Fourth Division officers what the Parliament itself has done by statute in relation to the appointment from outside the Public Service of Second and Third Division officers. Perhaps the Parliament has erred in the way in which it embodied the formula in the legislation or in the formula that it embodied. Nevertheless that is the decision of Parliament and that stands until the legislature itself moves to abandon or replace that formula or to qualify it. If we disallow this regulation the Parliament would be put in the very strange position where one chamber has enunciated a body of principles quite out of harmony with the opinion expressed in legislation by the Parliament as a whole. If we find dissatisfaction with the formula as embodied in the section and as reflected in the proposed legislation, the proper approach is to review the statutory enactment to ensure that the formula does satisfy the demands of the Parliament in relation to the protection of individual rights of members of the Public Service. That becomes more evident when I think of the developing lacuna in the event that this regulation is disallowed. As a matter of practical administration I can see the difficulties which are inevitably associated with an attempt to spell out in great detail the criteria which will be called upon by the public administration in its approach to the exercise of its administrative discretion.
In these days of great movement of people and the tremendous immigration that has taken place persons who may be in the Third and Fourth Divisions and transfer from the lower to the higher grade may come to the Commonwealth Public Service endowed with a multiplicity of qualifications from an enormous number of institutes of learning in all parts of the world - perhaps different language institutes from one country or another - and it is a question whether the qualifications of the technical institute of education in X city and Y country are comparable with those of a similar level of education in Australia and whether they could properly be accepted in this country. In view of the multiplicity of all these institutions, qualifications and standards surely it is impossible for any regulation to lay down any worthwhile workable and viable criteria which could be followed without ultimately doing grave injustice and disservice to the people it was proposed to benefit.
I have been provided with a set of what we might call the guidelines which are followed by the public administration in a host of offices within the Public Service. These are not merely guidelines for the administration but are available to prospective applicants who. consulting them, might see, in a general sense, whether they have qualifications which approximate to those or which might be held to be compliant with them. Looking through those guidelines I think it would be totally impossible in any practical way to embody the criteria in any regulation or ordinance which would have any value at all. One is working in a constantly changing scene. Educational standards are changing. The qualifications issued by educational institutions are constantly changing. The types of examination are changing. They are being abandoned, replaced, upgraded and downgraded. We know that in this country the public examination system has been discarded for the internal certification system by the institutes of learning. In this constantly changing scene if we attempt to spell out criteria in the statute as is suggested in the motion, in a very short period of time the statute would be totally unworkable. The Parliament would be asked day after day and hour after hour to amend these minor criteria in the section embodied in the legislation. That would be not only very bad parliamentary practice but also it would be totally bad public administration practice. 1 do not criticise anybody for this, but undoubtedly we must attempt to find some proper reconciliation between a proper and adequate protection of the rights of the individual and the exercise and imposition of discipline, public order and the function of the administration. That is the problem which has to be resolved. I cannot see that here there is any violation in any degree at all of what might be called the proper and adequate protection of the people whom it is intended to protect. There was some interjection across the chamber. A question asked whether the union concerned was interested in this proposed regulation and whether there was any objection. Senator Wheeldon asked by way of comment whether it would be expected that a report of the Regulations and Ordinances Committee should be in every case referred to the appropriate body of employees. That is a fair question, but 1 do not think it is the question. It is not Whether the report of this Committee should be referred to an appropriate body but whether the fact that the proposed regulation when brought to its attention attracts no resentment is at least an acceptance by thai body that individual rights are not impugned. 1 admit that that is not necessarily the final test.
– They may have different criteria.
– The unions may have different criteria from the Regulations and Ordinances Committee. Its criteria would not occur to them. It is a question of the powers of the Parliament as against the powers of the Executive. That is a matter which properly comes within the ambit of the Committee’s interest or duty. The other aspect is whether there is a trespass upon the rights of the individual concerned. Surely the fact that the union made no response, knowing of the regulation, knowing of its implication and knowing the regulation which was repealed, is some support for the suggestion that there is no trespass on the rights of the individual.
– It is an indication that they have not recognised it.
– That may be so. That is a refinement. I presume that this body is equipped, that it has advisers, that it is alert and that it is sensitive - as we know trade union organisations are and should be - to trespass upon individual or group rights.
– On the rights of their members. We may be strong; others may be not.
– That may be right but nevertheless it is. support for the suggestion that there is no undue imposition upon the rights of the individual that the union itself has not been concerned. I do not propose to pursue this matter at any great length. While I acknowledge the sensitivity of the Committee in this field I think we have to be careful of one thing and that is that sensitivity on rights of this kind does not move into the field of academic theory so that it finds itself totally out of harmony with particular administration. All of these things must be reconciled. Senator Gair and others who have had the responsibility of public administration know that Ministers must be vested with discretion. It has been said of frauds in the banking system that all the audit systems in the. world and . all financial controls will break down when an individual fails in. his trust. Where discretions must be given it is necessary to rely on their being, in the majority of cases, properly exercised. If all discretions were to be removed from the. Public Service Board or, as has been suggested today, they were to be removed from Ministers and fixed rigidly in legislation, public administration would inevitably begin quickly to come to a standstill. For those reasonswere not find it possible on this occasion to support the motion for the disallowance of the regulation.
Senator CAVANAGH (South Australia) ([3.16] - I support the motion. It seems that I am one of the members of the Regulations and Ordinances Committee who was not present at the vital meeting. It has been said that I was not present. If my memory is correct, when the meeting was held I was up in the clouds waiting for the fog to lift at Canberra airport, on my way to attendthe meeting. I think that Senator Wheeldon was similarly placed on that occasion. 1 wish to say a few words about the prestige of the Regulations and Ordinances Committee which has, in the past, been eulogised by honourable senators for the work it has done over the years in examining regulations and reporting on whether they have involved an infringement of civil rights. In the Committees TwentyNinth Report, which it submitted to Parliament this year, it said in paragraph 7:
The Committee has always held that where regulations confer- upon an authority a discretionary power affecting the rights of individuals, that authority should be bound by some criteria set out in the regulations in exercising its discretion.
No-one is suggesting that the Regulations and Ordinances Committee is infallible, that it cannot make mistakes. When it does make mistakes, it is the responsibility of the Senate to knock out the Committee’s recommendaion for disallowance of a regulation.
– That is what we propose to do today.
– IfI could get the silence of Senator Gair I might be able to speak some words of wisdom that even he could understand. I am suggesting that while the Committee is not infallible, it works on the basis of case law; that principles have been established by the Senate over a number of years in upholding recommendations of the Committee. If a particular regulation offends against the principles that have been adopted by the Senate - perhaps recommended by the Committee and adopted by the Senate - the Senate should uphold the principles it has previously established unless to do so would be to cause injustice. The principles were firmly established in the Committee’s Twenty-Ninth Report. The Committee accepted that where an authority is given a discretionary power affecting the rights of the individual, that authority should be bound by some criteria set out in the regulations in exercising its discretion. That was upheld by the Senate. Today we must determine whether the regulation in question confers upon an authority a discretionary power which affects the individual. If so, some criteria must be set out in tha regulations. That is mandatory, in view of the actions of the Senate in upholding the Committee’s decisions on previous occasions. The Committee also stated in its Twenty-Ninth Report:
The Committee appreciates the problems of the Draftsman as outlined in the evidence attached to this Report and is sympathetic to the case for leaving to the determination of an administrative body those matters of detail which are of relative unimportance and those matters which are subject to frequent change.
In paragraph 13 the Committee went on to say:
However, the Committee ls of the opinion that basic criteria should be set out in the regulations for the guidance of such a body in the exercise of its discretion, and for the protection of the rights and liberties of the subject.
Is the regulation we are considering an infringement of the rights and liberties of the subject? If so, it should be disallowed unless that would cause such hardship as would justify the taking of a different view on this occasion. Senator Devitt has said that it could be an infringement of the rights and liberties of an individual. The only reply we have had to that assertion is an insinuation that perhaps the Committee did not act properly or, alternatively, the hardship that would be caused by disallowing the regulation would be so great that we should overlook such an infringement on this occasion.
On the point whether the Committee acted properly, if the regulation infringes the rights and liberties of the individual, no matter how the Committee operated the Senate should be concerned to see that there is no such infringement, irrespective of whether the Committee was at fault. There may be an infringement. There seems to be some recognition of this possibility because an appeal has been made to the Senate to this effect: ‘If you will let it go on this occasion and permit an infringement of the rights and liberties of the individual, the Public Service Board will discuss with the responsible organisation the question whether we can fall into line to remove such an infringement.’ That is to say, having acknowledged the infringement, where we would not previously have permitted such a breach we are now prepared to permit it on this occasion and will attempt to rectify it subsequently.
When the witness from the Public Service Board came before the Committee, as I said before, Senator Wheeldon and I were not present. Senator Sir Kenneth Anderson has said that it is unfair to say that the Committee was unanimous on the question because 2 of its members were not present. There was certainly unanimity amongst the 4 members of the Committee who were present. Those members in their loyalty to the Committee are obliged to support its recommendation in the Senate. Senator Wheeldon and I, because we were not present at that meeting of the Committee, are exonerated from such an obligation in respect of this regulation. We may desire to submit a minority report, as it were, on this occasion. It cannot fairly bc said that there was not unanimity. If anybody is to be excused on this occasion, that licence can be given only to Senator Wheeldon and myself.
On the relevant occasion Senator Devitt was acting as Chairman of the Committee. He said to the witnesses that they would be recalled if further clarification was required. I am given to understand by Senator Devitt that that was clearly understood at the time. The next meeting of the Committee decided that no further clarification was necessary. We knew the regulations full well. Consideration may well have been helped had Senator Wheeldon and I been present. Someone may have contributed something in an area where there may have been some doubt previously and this may have cleared the matter up so that it would have been unnecessary to call any witnesses.
– A great wealth of material was provided by the representatives of the Board and we were able to study it later.
– Yes. We have the material before us here. Senator Sir Kenneth Anderson quoted to some extent from one of the documents which the witness provided. After perusing the material that the witness had left obviously it was not necessary to call further witnesses. There was no discourtesy to the witness and there was no desire on the part of the Committee not to obtain full information. Senator Sir Kenneth Anderson quoted the purpose of the Board. He referred to the statement by the then Prime Minister, Mr Menzies, when introducing the relevant amendments to the Public Service Act
The Boyer Committee report was referred to. The then Prime Minister, in his second reading speech, said:
Hence, the Government feels that it would be preferable for the Public Service Board to give effect to this recommendation by administrative action. The legislation therefore leaves it to the Board to determine, the standards of entry, but it is the clear intention that an examination at the level and standard of the New South Wales leaving certificate will be the firm minimum standard for entry to the Third Division of the Service.
Mr Menzies laid down the clear intention and a criteria - the leaving certificate standard of the New South Wales education system. That is the criteria that had to be established. Yet here we have a regulation which does not adopt an equivalent standard. Whatever may have been the difficulties under the previous regulation - I realise that the names of examinations have changed - this proposed regulation does not set out any equivalent standard but leaves it to the Board to decide the whole issue.
We must remember one thing: This proposed regulation 112 does not give power to transfer or promote. We are told today that there can be no transfer or promotion if this proposed regulation is disallowed unless there is another regulation 112 in existence. The Regulations and Ordinances Committee met this morning and I think the majority opinion was that that was the correct interpretation. Most of the members present were not legal men but 1 firmly hold to the belief that the old regulation 112 would no longer apply. But this does not affect the right of transfer. The proposed regulation 112 is not a regulation relating to transfer. It relates to whether an officer holds the appropriate education qualification for transfer and whether he can demonstrate that he holds . it as required before transfer to a higher grade of the Public Service. There may be a number of men who hold the qualification necessary for transfer but their transfer and promotion is determined by section 35 of the Public Service Act. Section 53 (1.) of the Public Service Act states:
The Board may, by instrument in writing published in the Gazette, determine that an officer shall not be transferred or promoted to a specific office, or to an office included in a specified class of offices, unless the officer possesses such qualifications, and complies with such conditions, as are specified.
Of course, the Public Service Board has done that. Regulation 112 has been repealed and although I do not know I am inclined to think that the legal interpretation now is that the Board can, in the absence of regulation 112, make promotions without the approved examination qualification. The appointments can be made until such time as the Board establishes the qualification or establishes the examination for qualification. The regulations state only that the Board requires that the man has the educational standard for transfer or for promotion. Section 53a (3.) states:
An officer who passes an examination for transfer or promotion to an office in respect of which the Board has made a determination under sub-section (1.) of this section shall -
That section gives him automatic right of promotion if he has a certificate from the Board stating that he has passed the examination. Sub-section (4.) of that section states:
Where two or more officers have passed tha same examination, those officers are entitled to bo transferred or promoted according to the order of merit in which they passed the examination.
Therefore we can now see the whole intention of the legislation. It is not for the Board to say who shall be promoted; it is up to the individual according to his merits upon examination.
This is the very thing that Mr Menzies, as he then was, meant when he said that the Government would establish criteria and take matters out of the hands of the administration. He meant that promotion in the Public Service would be promotion according to ability and capability and not by the Public Service Board. That is the whole purpose of the legislation. Mr Menzies said that public servants would have to pass an examination equivalent to the New South Wales leaving certificate. But do tha regulations say anything about an equivalent examination? The Senate will recall that I said that it is a question of demonstrating whether the person concerned has the qualifications. For the purpose of this regulation an officer holds the appropriate educational qualifications for transfer or promotion to the Third Division if the
Board has certified that he holds them. That is the first essential, the sine qua non, of promotion in the Public Service. Therefore a person could pass all the examinations for entry to all the universities in Australia but, unless he had a certificate from the Board stating that he had so passed, under this legislation he would not be eligible for promotion. Of course, that is the first infringement.
We are dealing with discretionary powers because someone may gain out of the operation of the Act. Therefore it is necessary to leave the way open for a right of appeal in case a wrong is done to somebody. As the Minister said so many times, when there are discretionary powers in existence someone may be treated unjustly, no matter how innocent the action may be, and therefore there has to be a right of appeal to a higher authority. Even if an injustice has not occurred there is always a possibility of someone believing that aa injustice has been done by that particular authority.
– That sounds like Senator Brown and the Federal Executive of the Australian Labor Party.
- Senator Brown will have a right of appeal. There must be a basis of appeal for the purpose of clarifying where there is an appeal. A person cannot appeal against an injustice done to him because he had better qualifications than the appointee, because the Act specifies that the appointee has to have a certificate issued by the Board. We have not set criteria whereby, if a person has better qualifications, he can make a case for appeal on those qualifications. He may have all the qualifications in the world, but he has not the certificate of the Board. The case is decided by the Board. The Board sets the educational qualifications for transfer or promotion to the Third Division. It has to certify that:
I do not know what a public examination is. I do not know whether the examination arranged by the Board is a public examina tion. Whatever a public examination is, the officer does not have to pass the public examination to qualify. He has to pass such subjects of a public examination approved by the Board. Therefore, the Board decides the subjects that he must pass in a public examination. It may not be necessary for the officer to attend the public examination. He has to pass such subjects of a public examination as satisfy requirements determined by the Board for transfer to the Third Division. No-one can appeal against an apparent injustice because whenever an appeal is made these questions aTe asked: ‘Were the subjects approved by the Board? Was this an examination by the Board? Was a certificate issued by the Board?’ The answer is: ‘No’. If I am a better scholar than someone else, that is not evidence and has no validity if I appeal against the appointment of someone else. These are principles which impinge upon the liberties and rights of individuals. The Senate has repeatedly upheld these principles. Regulation U2(l.)(c) reads: the officer has been admitted, or is eligible to be admitted, to a degree . . .
That is one of the qualifications. An officer has a certificate that he has been admitted or is eligible to be admitted to a degree of an Australian university. The regulation continues: . . or to a degree of an overseas university, being a degree that in the opinion of the Board is of a standard at least equal to the standard of a degree conferred by an Australian university.
I think Senator Byrne said that a degree from the university of X city in Y country may or may not be of the same standard as a degree from an Australian university and that that scholar should not be admitted ahead of a scholar with a degree from an Australian university. The person with the overseas degree must be given the right to prove that his degree is of equal standard. He should not have to prove that it is of superior standard before he is permitted entry by the Board. Should the Board have the right to decide what educational standard is equivalent to our university standard? His appeal would have no chance of succeeding if the opinion of the Board were to the contrary, f submit that the Board should not have that right. I submit that that takes away from the individual his right.
While I admit that the Public Service Board has confirmed its willingness to overcome the objections of the Committee, if we give it time, we are stating that it has done nothing until this time. Today is the last day. The Leader of the Government in the Senate said that regulation 1 12 was made by the Public Service Board on 27th February and received the GovernorGeneral’s assent on 20th March. On 21st May Senator Devitt gave notice that he would move to disallow the regulation. Perhaps the Public Service Board understood that before we would act on it we would recall its witnesses, but I do not think there is justification for that understanding. From 21st May until today nothing has been done to rectify the position, No attempt has been made to rectify it. Only when we are debating the matter at the eleventh hour has the Public Service Board said that it will do something in the future. All we have is a promise. We do not know whether that will be satisfactory or not. There is no reason why regulations which do not . offend against the Standing Orders could not have been implemented to overcome the situation. Regulations of a similar nature could have been implemented easily, to take effect from a retrospective date if possible. No difficulties exist in the introduction of new regulations.
I conclude by saying that I do not know whether the regulation has been brought to the notice of the union concerned. 1 do not know whether the union takes an interest in a regulation only when one of its members is affected. I appreciate that the union has to protect the interests of its members, but the Committee has to protect the rights and liberties of the individual, whoever he may be. The majority of the Committee were members of the Liberal Party. One could not expect them to hold the same views as a trade union would hold in these matters. My plea is made not because of any question of upholding the prestige of the Committee. If the motion is defeated, it is defeated; the Committee still operates. On the basis that in the past the Senate has upheld such principles, this regulation offends against those principles. If it offends against those principles, we should disallow the regulation. . If the motion to disallow the regulation is rejected on this occasion, that offends against the principles and the Committee must be very concerned whether it should continue to recommend the disallowance of regulations that impinge upon human rights and liberties because the Senate has established a precedent on this occasion.
Senator Sir KENNETH ANDERSON (New South Wales - Minister for Supply) - I ask for leave to intervene to make a statement in relation to an assurance that I gave during my remarks.
The ACTING DEPUTY PRESIDENT (Senator Sir Magnus Cormack) - is leave granted? There being no objection, leave is granted.
– I gave an assurance which, it has been pointed out to me, was in fairly general terms. I want the Senate to be quite clear that it got the assurance right. I will inform the Senate of the assurance. The Board advises me that it would be prepared, if regulation 112 is retained, to reexamine the provisions of the regulation in consultation with the Office of Parliamentary Counsel with a view to amending the regulation within 3 months to meet, so far as is possible to do so, the objection of the Regulations and Ordinances Committee; such new regulation to be, in the normal way, a reference to the Regulations and Ordinances Committee and subject to possible disallowance.
– Why did you not do this before the Government was about to be defeated?
– It has not been defeated yet.
– I support the motion moved by Senator Devitt for the disallowance of this regulation. He has set out admirably the reasons why it should be disallowed. I believe that we have reached a stage where there is no real contest in this chamber about the merits of disallowing the regulation. As I understand the position, it seems to be fairly well agreed that the regulation ought not to be allowed to stand. The Leader of the Government in the Senate (Senator Sir Kenneth Anderson) has said to us: ‘If you proceed to disallow this regulation, that will cause some upset or confusion’. That is his argument. It is said: ‘Although you have the power and you have the duty to act in accordance with your lights under the Acts Interpretation Act and in accordance with the principles that the Senate has established, you should not exercise the powers that have been conferred upon this chamber and you should not perform your duty because by doing so you will cause some confusion’.
I would not accept the proposition that we should refrain from carrying out our duty even if that would cause confusion. But it will not cause confusion. Senator Davidson asked the Minister a very pertinent question. There has been some controversy over the effect of disallowing the regulation. The Minister has said that the disallowance of the regulation will have the effect of automatically reviving the former regulation. He has said that he has some legal advice. He has refrained from telling us from where that legal advice came.
Unfortunately, because of illness we do not have with us today Senator Greenwood, who is an eminent Queen’s Counsel. We do have Senator Wheeldon with us. He was on the Regulations and Ordinances Committee. He is also an eminent counsel from the State of Western Australia. But we know that the members of the Committee took the view - they had legal advice and, of course, their own reflections on the matter - that the old regulation would revive. I have had very little opportunity to consider the matter. It would have been helpful to the Senate, if the Government was so confident of its position, for it to have produced the legal advice, the basis of it and the name of the person who gave it. But the Government seems very reluctant to do so.
In the great cases there are passages that suggest directly the opposite of what is being put to us here. The old case of Dignan, reported in 46 Commonwealth Law Reports, has, in the judgments at least of Mr Justice Dixon, as he then was before becoming Chief Justice of’ the High Court of Australia, and of Mr Justice Rich, passages that suggest that ceasing to have effect under the Acts Interpretation Act would have the same effect as formerly - I stress the word ‘formerly’ - the repeal of a statute would have had. The statement is made there that that would be, in effect, to obliterate the regulation as if it had never existed- meaning that the repeal of the former one would also disappear.
I do not want to say any more on that point because it seems to be unnecessary to worry about it. I do not think it is disputed at all that there is no problem in reviving the former regulation. If a new regulation were not the same in substance - I understand that to be the Government’s viewpoint - the Government could introduce it this evening, if it wants to, or tomorrow morning with no troubles at all. The regulation has been drafted, and it could be introduced. So, there should be no hiatus at all. If it were the same in substance, I would undertake that, if any resolution was considered to be needed for greater precaution, on Tuesday we would facilitate with the necessary approval the introduction of such a regulation. So, there is no need at all for any confusion to arise. The Government can continue under the old regulation. If the Government wants to, it can introduce a regulation - the old one is the obvious one to introduce - and it can carry on without any hiatus.
I would regret it if the members of the Regulations and Ordinances Committee were to be induced by the assurance given by the Leader of the Government to resile from their former position and not to support the Committee. It is quite clear - I challenge the Leader of the Government to dispute this - that if this regulation is disallowed by the Senate there will be no obstacle at all to the Government immediately reintroducing the former regulation. That can be done even if it is not the fact that the former regulation would automatically revive.
Leaving aside the disputation as to whether it would automatically revive, there is no doubt that it can be revived by the simplest of means and that that could be done tomorrow without any trouble. If there were any necessity for a resolution or if the Government wanted the assistance of a resolution for greater precaution and to facilitate the matter under section 49 of the Acts Interpretation Act, we would pass the resolution. But if action is not taken to disallow this regulation, the matter falls outside the control of the Senate and the Senate fails to exercise the duty that it has. This means that once more the Public Service, which is responsible for introducing a regulation which, it is conceded on all hands, is objectionable and ought to be disallowed, has succeeded, in effect, in putting it over the Parliament.
– There is no Public Service objection to it.
– When 1 refer to the Public Service’ I am speaking of those persons in it who are responsible for drafting or promoting this kind of objectionable legislation in which a departure is made from the standards required by the Parliament and in respect of which conditions were to be prescribed in a regulation and for that they substituted discretion to be exercised by themselves. That is quite unsatisfactory. It ought not to be tolerated. The Senate ought resolutely to exercise its powers and cany out its duties to deter that kind of conduct on the part of people who ought to have more regard for the standards that have clearly been set out by the Senate’s Regulations and Ordinances Committee over the years.
I believe that it is quite regrettable that when regulations are considered by the Senate’s Committee an endeavour always is made, by means of this kind of assurance or that kind of assurance, to induce the Senate not to disallow the regulations and, in effect, not to perform its duty. In a case such as this, in which no difficulties can occur and it is simply a matter of carrying on under a revival of the old regulation, the Senate’s power ought to be exercised. If some honourable senators are prepared to accept this assurance, I regard that as most unfortunate. It means an erosion of a power which ought to be exercised in the interests of the public. No excuse has been given for the enactment of this kind of objectionable regulation, and I think we ought not to hesitate to exercise the power and carry out the duty.
– The 33rd report of the Regulations and Ordinances Committee which is before us sets out, by way of advice to the Senate, the result of its inquiry concerning amendments to many features of our legislation. The one we are discussing concerns amendments to the Public Service Regulations. The Committee, in its report, sets out once again its various functions with which, of course, the Senate is familiar. They are 3 or 4 in number and they deal with various facets of regulations. They are to ascertain that the regulations and ordinances are in accordance with the statute; that they do not trespass unduly on personal rights and liberties; and that they do not unduly make the rights and liberties of citizens dependent upon administrative rather than judicial decisions.
Regulation 1 12 is the one before us this afternoon. The blue explanatory note that accompanied this regulation drew attention to the fact that one of the basic objectives of the revised regulation was to achieve what is called harmony between the expression of qualifications relating to regulation 112 and the provisions in the Public Service Act relating to the recruitment of Third Division officers. The Regulations and Ordinances Committee duly considered this point, and it also took into account the advice which it received from its legal adviser. The point was emphasised that regulation 112(l.)(b) stated that an officer holds the appropriate educational qualifications for transfer or promotion to the Third Division if the Board has certified that he has passed a public examination, that is, a public examination approved by the Board and held under conditions also approved by the Board. The officer is also required to satisfy further requirements which are determined by the Board.
Paragraph (b) of the sub-regulation purports, 1 think, to set out one of the qualifications necessary for transfer or promotion. The legal adviser to the Regulations and Ordinances Committee indicated that in his view that qualification was not quite clear. But it seems to be that an officer will have met the requirements if he has at a public examination passed subjects of which the Board has approved. The public examination and the subjects have to meet with the complete approval of the Board. To sum ail this up, the result is that everything is left to the Board. The Board has the power to select the requirements for transfer. Tt has the power to select the subjects to satisfy the requirements; it has the power to select the public examination; and it has the power to set out what other conditions it thinks are necessary.
The Regulations and Ordinances Committee, considering its functions and examining the regulation and advice which it received on the matter, was concerned with the regulation and with one or two of its main principles. When the Committee looked at the principles it was concerned as to whether the regulation did not unduly make the rights and liberties of citizens dependent upon administrative rather than judicial decisions. It took the view that regulation 112 had certain objections to it because it gave the Public Service Board the right to make decisions and, according to the advice given to the Committee, the Board was not bound by any objective criteria in making its decisions under the regulation. So this matter has been brought forward today. The question is also related to a paragraph within the Committee’s 29th report, wherein it stated:
The Committee has always held that where regulations confer upon an authority a discretionary power affecting the rights of individuals, that authority should be bound by some criteria, set out in the regulations, in exercising its discretion.
The Committee was concerned about the absence of criteria in this instance, so the motion for disallowance of the regulation was brought forward. However, at a very late hour this morning prior to the meeting of the Senate, the Committee received an opinion that if the new regulation 112 were disallowed the old regulation 112 would not be revived. My recollection is that this is the first occasion on which this kind of advice has been given to us. It had always been my understanding that if the regulation before us were disallowed the old regulation 112 would automatically continue >‘n its place.
It is true that there were some features of the old regulation 112 which did not satisfy the Regulations’ and Ordinances Committee, but we felt that perhaps the new regulation 112 offended rather more than the old regulation 112. I listened to the Minister for Supply (Senator Sir Kenneth Anderson) this afternoon. Honourable senators who were present will recall that I interjected - I think on 3 or 4 occasions - in order to get emphasis placed on the point. One must assume that the legal advice which is available to the Government is of a superior kind of which the Government will take notice. This is no reflection on the legal advice that is given to the Regulations and Ordinances Committee. But, after all, the Government has to make decisions, and it makes decisions on the legal advice which it receives. The
Minister, speaking in the name of the Government, was at pains to emphasise to me, with some continued emphasis and perhaps a little heat at times, that if this regulation were disallowed the old one would not be revived and this would, in effect, have a disfranchising effect on a large range of people within the Public Service.
Honourable senators will appreciate the fact that this throws new light upon the entire picture. As a member of the Regulations and Ordinances Committee I was in some considerable quandary because, after all, I examined the regulation together with the other members of the Committee. When we work things out together and come to a decision, naturally one likes to be loyal to the decision. But when one is confronted wilh the situation in which a quite considerable section of the community is going to be disfranchised and placed in a difficult position, it places a senator and a member of the Committee in a problem situation. Therefore, this matter has been the subject of some considerable conversation. We heard the Minister intervene in the debate earlier to give an undertaking that if regulation 112 were retained the Board would be prepared to re-examine its provisions.
The Board will have perceived from the report and from the debate today that some of the provisions of the regulation are causing the Regulations and Ordinances Committee some considerable difficulty. The Board is prepared, in conjunction with the Office of Parliamentary Counsel, to consider the regulation which we find troublesome and to amend it - what is more - within 3 months to meet, as far as it is possible to do so, the objections which the Committee has raised. This means that when the new regulation is brought forward it will go in the ordinary way to the Committee which will subject it to the same kind of scrutiny as it has given to the regulation that is before us today. Of course, it also means - I think this is important to point out to the Senate - that the new regulation will be subject to possible disallowance if this matter proceeds along the lines which the Leader of the Government in the Senate has mentioned and which I have endorsed in a few sentences. Now, I think that in the face of a very difficult situation in which we have been placed today the suggestion which the Leader of the Government has put forward to the Senate meets the problem. It meets it insofar as there is a recognition by the Board that the Regulations and Ordinances Committee feels quite strongly about the regulation which is in dispute this afternoon. The recognition of the Board has been manifested by the fact that it is prepared - and it has said this through the Leader of the Government who takes responsibility for this - to examine it in consultation with the Office of Parliamentary Counsel and to meet, as far as it is possible to do so, the objections of the Committee. Having done all that, it will refer it, as it must do to the Committee and run the risk of a possible disallowance. For those reasons which I have already explained to the Deputy Chairman of the Committee, I will support the proposition which the Leader of the Government has put forward, accepting his assurance of responsibility that a new regulation will be brought down and bc subject to the examination which I have outlined.
– 1 would just like to add a few words. 1 was undecided as to which way to vote but after listening to that most hypocritical speech by Senator Davidson I have decided that there is only one way a man can vote. I will not go into the legal details and so on, but when we are informed that 2 members of the Committee who are both absent today are adamant that this regulation should be disallowed then ] will vote with the people who say that. I am sorry that Senator Davidson had so much pressure put on him that he has now seen the light.
– in reply - This debate has been a most interesting one in which I believe it can be said that the Parliament has asserted itself. The mere fact that we have come before this chamber to state as clearly as possible the reasons for the attitude taken by the Regulations and Ordinances Committee, the attention which this attracted from honourable senators and the quite late - if I may put it that way - decision of the Leader of the Government in the Senate (Senator Sir Kenneth Anderson) - and I take it that this was indicative of the Government’s attitude - all indicate that there may be an area of doubt. So there are doubts, and I suppose one can say that there are doubts on both sides about these things, lt always seems to happen that immediately one promotes a legal argument one promotes all sorts of difficulties and one can go on with them forever. I have as much regard as anyone else for the fact that the clay is going on and that certain arrangements were made earlier in the day about rising and so on, but before I make my final comment on this whole proposition I want to take the opportunity, which I think is proper, to indicate to the Senate the circumstances which intervened to make it unnecessary for the Committee to call the Public Service Board representatives before it on a subsequent occasion. I suppose the way I made my observations at the time may have caused a misunderstanding. This quite often happens when one has witnesses before a committee and particularly when the information is of such a nature, of such depth and of such far ranging consequence as it was on that occasion. However, it occurred to me that it might very well be possible that we would need to call further evidence from the officers of the Public Service Board. I acknowledge that and I thank the officers very sincerely for what they did. As a matter of fact, they gave to us such a wealth of information that it was completely impossible, within the limits of time under which this Committee works, to read even part of it, let alone digest its full implications.
I acknowledge that the Public Service Board went to a great deal of trouble indeed to acquaint the Committee with all the facts relevant to the matter. I think it is quite wrong to suggest that there was impropriety, if that was what was suggested, in my not having called the witnesses again in my capacity as Deputy Chairman when I had indicated that the witnesses would be called again. What I should have said was: ‘You may be called again.’ lt would be quite improper to suggest any impropriety. Indeed it would be a reflection, 1 believe, on the Public Service Board and its representatives at that meeting because it would indicate that they may have had some information which was withheld and which they may have brought to the attention of the Committee to change the decision the Committee may l ave reached at some particular point of time. I have no doubt at all that all the evidence that could possibly be collected and provided to the Committee was provided. At a subsequent meeting when I raised the question whether the officers of the Public Service Board would be needed again members of the Committee said: Look, we have the information we want and there is no point in bringing them back. We are able to make a judgment on the basis of the evidence which has been given to us, the answers to questions and this great wealth of documented material which was provided to us.’ So, of course, it was not necessary for them to come back. It would have been quite stupid really to say: ‘Well, I told them I would have them back again so we had better have them back again.’ There was no point in doing that. I just wanted to clear that point up.
– It looks as if you could have recalled them with some good effect because you would have been better informed.
– No, I think we were quite well informed. There was no question that-
– The whole thing just discloses the lack of experience and knowlege of the Public Service and its workings.
– I know we will never reach the extent of knowledge, experience and wisdom that the honourable senator has attained. Then quite late in the debate the Senate was provided with an assurance that certain action would be taken. The assurance was given and is accepted in the terms in which it was offered to us, that is that there may be some doubt somewhere. I assume that this was the reason which prompted the Leader of the Government in the Senate to give us an assurance that the matter will be looked at. I cannot recall the precise terms of the offer that was made.
– That there will be another regulation.
– That is right, that there will be another regulation brought forward and it will run through the whole range of examination, scrutiny, judgment and so on which is normally given to regulations and ordinances. We must at this point have some regard to the observations which were made by the Leader of the Opposition (Senator Murphy) who, let it be remembered - I do not think anybody would doubt this - has a very high regard for the work of the Regulations and Ordinances Committee and is very concerned to see that there is no erosion of the range of operations of this Committee and no taking away from it the undoubted position which it has and the responsibility which it has to judge subordinate legislation. Quite properly, I think, Senator Murphy made the point that the Committee having made a judgment on this matter the Senate ought to proceed to take a vote on the basis of the recommendation that was made, that is, that the regulation be disallowed. I can understand and appreciate this. Senator Murphy is very much of a purist in these matters. He is a man of great legal knowledge, ability and experience and I think probably he realises a great deal better than many of us just what is involved in questions of this kind. However, the members of the Committee have always attempted to judge the merits of regulations without regard to party positions. I do not know whether parties have positions in relation to judgments on subordinate legislation, but if such a situation should arise it is traditional for this Committee to bring the individual judgment of all its members to bear upon the solution of a particular problem. I acknowledge that throughout the piece every member of the Committee has done just that. At no point of time could anyone judge the political persuasion of any member of the Committee from what he has said or the judgment he has made on the merits of the issue.
Consistent with that view, I and my colleagues on this side of the chamber have had discussions among ourselves, as a result of which we were able to persuade the Leader of the Opposition that we should accept the offer which was made to the Senate by the Leader of the Government and which will enable the Regulations and Ordinances Committee, a unit of the Senate, to make a judgment on a subsequent resolution. We make this concession in the knowledge that there would be great difficulties for public servants and in the operation of the Public Service if action were taken which would deny to members of the Commonwealth Public Service their rights under the Act. In those circumstances and on the basis of the assurance which has been given to us that new regulations will be provided, we on this side of the chamber are prepared to accept that assurance and to allow the proposed regulation to come into being. Therefore I ask for leave cf the Senate to withdraw my motion for disallowance.
The ACTING DEPUTY PRESIDENT (Senator Sir Magnus Cormack) -Is leave granted?
Motion - by leave - withdrawn.
[4.16] - I move:
That the Senate do now adjourn.
During the debate this afternoon, by misadventure and through inadvertence, I quoted from the transcript of evidence of the Regulations and Ordinances Committee. I have been informed that ( committed a technical breach by doing so. In the circumstances I think it was natural that it should happen and I have an idea that Senator Devitt to some extent inadvertently made the same technical breach. I merely wanted to make that point.
– The Leader of the Government (Senator Sir Kenneth Anderson) mentioned to me the matter which he has just raised. I think we all would agree that his action was completely unintentional and that if Senator Devitt made the same error, that was unintentional also. No-one would think other than that. It was very gracious of Senator Sir Kenneth Anderson to mention that to the Senate. If excuse were necessary, we all would excuse him.
Question resolved in the affirmative.
Senate adjourned at 4.19 p.m.
Cite as: Australia, Senate, Debates, 20 August 1970, viewed 22 October 2017, <http://historichansard.net/senate/1970/19700820_senate_27_s45/>.