12th Parliament · 1st Session
The President (Senator the Hon. W. Kingsmill) took the chair at 3 p.m., and read prayers.
page 2336
Motion (by Senator Foll) - by leave -agreed to -
That leave of absence for one month be granted to Senator Lynch on account of urgent private business.
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– On the 30th April last, the Senate passed a resolution that the correspondence between the Government and the Commonwealth Bank regarding the guaranteed price of 3s. per bushel, f . o.b. for wheat be laid on the table. I wish to ask whether the Government intends to comply with that resolution, and, if so, when ?
– The documents are the property of the Commonwealth Bank. The Government has communicated with the Bank in accordance with the resolution carried in the Senate, but up to date, has had no reply. I am sorry that I cannot give the honorable senator any further information.
page 2336
– I should like to ask Senator Colebatch who has just given notice that he intends to move for a 20 per cent. reduction under the sugar agreement whether he will include in his motion a proposal to reduce the annual grant to Western Australia by 20 per cent. ?
– When my motion is discussed it will be subjected to any legitimate amendment any honorable senator wishes to propose.
page 2337
The following papers were presented : -
International Wheat Conference - Summary of official report.
Dairy Produce Export Control Act - Regulations amended - Statutory Rules 1931, No. 55.
Canberra University College Ordinance (No. 20 of 1929) - Report of the Council of the Canberra University College for the year 1930, together with the Canberra University College Calendar for the year 1930-31.
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Has he noticed in the report on the International Wheat Conference, by Mr. F.L. McDougall, the Australian representative thereon, a statement to the effect that the overseas and European wheat exporting countries propose to have a special conference in London on the 18th May?
Has such a conference been held?
Was Australia represented there; and, if so, by whom?
Have the Government received any advices as to the decisions arrived at; and, if so, will they make them public?
– The answers to the honorable senator’s questions are as follow : -
London, 23rd May.
The principal result of the International Wheat Conference will be the establishment of a secretariat, representing all wheat-exporting countries, to continue exploration of world problems.
The conference found that the existing difficulties were due to the general world trade slump. The possibility that some countries are producing more wheat than can be absorbed will be discussed at another conference later, when further problems may be dealt with.
On the conclusion of the conference this afternoon, Mr. F. L. McDougall, the Australian representative, stated that the Australian delegates, in common with the Canadian, European, and Argentine representatives, were disappointed that no more definite plans had been made for a concerted effort to improve marketing, owing to the United States having refused to adhere to recommendations for the regulation of exports. “ However, we feel that considerable progress was made in getting the United States and the Soviet to agree to an organization for constant consultation,” Mr. McDougall added, “As a result, an improved situation may be forthcoming.”
The Canadian High Commissioner (Mr. Ferguson, chairman of the conference) said that a week was not sufficient in which to deal with the problems facing the conference. He hoped that further conferences would be held from time to time, in order to develop international co-operation, and prevent undue oscillation and uncertainty in trading conditions.
A communique summing up the results of the conference attributes the difficulties of the situation to the world-wide depression. “More wheat is being produced that can be profitably sold in the absence of adequate information regarding movements and requirements, and the existing uncertainty of the market,” the communique says. “ The conference believes that an understanding of these matters would substantially solve the problem. The reduction of crops, where possible, should be undertaken, and all avenues for the greater use of wheat as food and for other purposes should be exploited. Current information regarding supply and demand movements should be assembled for the purpose of orderly marketing.
The conference accordingly decided to establish a committee comprising each wheat-exporting country to submit to the various governments proposals, under the supervision of the conference, for a clearing house to receive information regarding unloading, the areas sown, and crop prospects. The standing committee will develop contracts and draft an agenda for further meetings in London.”
When a full report has been received from the Australian representatives it will be given publicity, and the recommendations of the conference will be considered by the Government.
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Representations to Royal Commission
asked the Minister representing the Prime Minister, upon notice -
– The answers to the honorable senator’s questions are as follow : -
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Regulations: Motion to Disallow - Address to the Governor-General.
Senator Sir GEORGE PEARCE (Western Australia) [3.10]. - I move -
That Statutory Rules 1931, No. 58, Transport Workers (Waterside Workers) Regulations, be disallowed.
– Is the honorable gentleman anticipating the debate on the motion ?
– I am appealing for your ruling on the point of order which I am raising that the motion is out of order, for reasons which I am endeavouring to explain to the Senate. In his judgment in the recent waterside workers’ case Mr. Justice Starke expressed the view that the regulation then under consideration - a regulation similar to the present regulation - was substantially the same, in effect, as regulations previously disallowed. I formally mention that the previous resolution has not been rescinded. It, therefore, appears to be necessary for the Senate to rescind the previous resolution before this motion can be moved.
– In reply to the Leader of the Senate (Senator Barnes). I understand the contention has been raised that the regulations now before the Senate are not the same in substance as those previously laid on the table. I, therefore, consider that the motion submitted by the right honorable the Lea der of the Opposition is in order and rule accordingly.
SenatorKNEEBONE (South Australia) [3.14]. - I cannot allow this motion for the disallowance of regulations gazetted under the Transport Workers Act to pass without a protest on behalf of the State which I assist to represent in this chamber. It seems to me that the intention of the right honorable the Leader of the Opposition. (Senator Pearce) is, firstly, to defend the constitutional rights of the Senate and of Parliament, and, secondly, to ensure to a section of the community the continued protection promised it by a preceding Government. As to the constitutional aspect of the question at issue, I should hesitate to offer an opinion except to say that, as a layman, it seems to me that, if authority is given in legislation to the Executive to issue regulations, and if authority is also given to the Senate to disallow such regulations, no wrong has been done to this branch of the legislature. I have followed with interest the discussion in this chamber, and I am not convinced that the Executive is prevented from gazetting regulations substantially the same as regulations previously disallowed. Nevertheless, I believe that some legislative action should be taken to overcome this farcical proceeding of the Senate meeting only to disallow regulations that are gazetted by the Executive.
– Hear, hear!
– Of the several remedies that might be suggested, the one which appeals to me is an amendment of the Transport “Workers Act to limit the number of regulations to be issued under that statute, or, alternatively, an amendment of the Acts Interpretation Act to preclude the repeated gazettal of regulations which are substantially the same as regulations previously disallowed. We appear to be getting into a state of confusion because the Executive and the Senate are at cross purposes. On the industrial side it has been explained that the Transport Workers Act was passed for the purpose of meeting a certain situation that arose during an industrial crisis. The Government which introduced that legislation gave an undertaking to the volunteer workers, as they were called, that protection would be given to them in the future. That Government is not in office to-day. A little over eighteen months ago it was displaced by a Labour Government after an appeal to the people, who refused to endorse the promise given by the previous Administration. I, therefore, contend that Parliament is no longer under an obligation to ensure to volunteer workers continuity in employment on the waterfront or protection from victimization. The Transport Workers Act’ was emergency legislation. I gather, from my study of the debates, that it was passed through both branches of the legislature in record time for the purpose of ensuring peace in one of the most important industrial activities in the Commonwealth. The right honorable the Leader of the Opposition, when, speaking yesterday to the motion for the adjournment of the Senate, referred to certain views expressed at the conference of the Australasian Council of Trade Unions in Sydney some months ago, and also gave the Senate a somewhat garbled account of the proceedings of the Labour party caucus. I attended the Australasian Council of Trade Unions’ conference as one of its vice-presidents - a position which I esteem it an honour to occupy - and I can assure honorable senators that it is not fair to the industrial movement of Australia to say that the Government of the day was compelled to pass the Transport Workers Act as an emergency measure. It was passed ostensibly to deal with an abnormal condition in the industrial history of the Commonwealth, for which I contend the working classes were not entirely responsible. The Leader of the Opposition also said that the action of this Government, in repeatedly gazetting fresh regulations, only to have them disallowed by the Senate, was suggestive of a condition of affairs that obtained in Great Britain under the Stuarts’ regime. I remind him that the Government of which he was a member was responsible for the legislation under which these regulations are gazetted, and that, therefore, he must accept some share of responsibility for the unexpected developments that have taken place. Senator McLachlan suggested yesterday that these regulations might, later, have a boomerang effect. The honorable senator, apparently, is resentful because legislation to which he and other honorable senators opposite attached so much importance, is now being administered by a Labour Government to give effect to its industrial policy. The Prime Minister at the time (Mr. Bruce), submitting the Transport Workers Bill to another place, said -
Parliament is on the eve of dissolution.
The condition politically may be similar to-day. He went on to say -
It is therefore essential that certain powers should be entrusted to the Executive for the continuance of these services.
He was referring to the services on the waterfront, and to transport services generally.
– He promised that if his Government were returned it would bring in legislation to replace the regulations.
– He went on to say that the Executive of the day desired the power to make these regulations; and he added that Parliament would be safeguarded under Section 10 of the Acts Interpretation Act. The final paragraph of that section reads -
But if either House of the Parliament passes a resolution of which notice has been given at any time within fifteen sitting days after such regulations have been laid before such House disallowing any regulation, such regulation shall thereupon cease to have effect.
It appears to me that the authority which should rightly conform to that procedure is the Government, and that it is not properly the function of the Opposition surreptitiously to place upon the table of this Senate any regulations, and to move that they be disallowed. The Executive of the day, having made regulations, should table them within the time prescribed.
– On a point of order, I submit that the honorable senator is not in order in saying that the Opposition surreptitiously laid regulations upon the table of the Senate, when that action was taken in conformity with a motion of the Senate.
– Neither as a matter of fact or of parliamentary procedure were the regulations laid on the table of the Senate surreptitiously.
– Then I shall say that in my opinion they were improperly laid upon the table of the Senate.
– The President has ruled that the action was taken properly.
– This Senate has agreed to it.
– And the High Court has ruled that the regulations were properly laid on the table.
– It is clear that the regulations need not have been laid upon the table of the Senate in order to have them disallowed, but that they could have been disallowed immediately they were made.
– A s soon as a point is suggested, honorable senators opposite speak with half-a-dozen different voices concerning it. My view of the position is that the Government of the day should table the regulations within the stipulated time, when they would become the property of Parliament and could be dealt with. I believe that, unintentionally, we are proceeding along wrong lines in permitting these regulations to be disallowed when, if my view be correct, they have not properly been brought before Parliament. That is one point which should be cleared up. Unless it is, the problem that confronts us will not be solved; because, if the present regulations are disallowed, there apparently is nothing to prevent the Government from issuing a further set, following practically the same lines, to-morrow.
The present Leader of the Opposition (Senator Pearce), who at the time was Leader of the Government in the Senate, moving the second reading of the Transport Workers Bill on the 22nd September, 1928, went back to the origin of the transport workers’ disputes in 1917, in order to justify the acceptance of this hasty legislation, which in some respects has proved very unpleasant.
– They were eleven years of continuous trouble.
– I regard that statement as an exaggeration; but the Leader of the Opposition is entitled to his opinion. The right honorable gentleman went on to say -
Its administration will be directed by the Government with a sense of responsibility to the electors and to Parliament. But Ministers will not hesitate to use to the full, every power it gives them to secure the carrying on of essential services for the community, to ensure the employment of those who are willing to work under the law, and the protection of lawabiding workers from victimization.
That is the object of the regulations that we are now considering - the protection of law-abiding trade unionists in this country against perpetual and determined victimization.
– Resolutions that were passed in Sydney yesterday do not appear to he very law-abiding
– I am not dealing with Sydney at the present time. When the measure was before another chamber, the present Attorney-General (Mr. Brennan), in his criticism of it, stated that Parliament was being asked to hand over its responsibility to the Executive Government; and he quoted section 9 of the Peace Officers Act to show the difference between the regulationmaking authority in those two measures and in other legislation. The Transport Workers Act laid it down that-
The Governor-General may make regulations which, notwithstanding anything in any other act . . shall have the force of law . . .
– The honorable senator must take the act as it stands, and deal with the regulations that have been made under it.
– I am doing so, to the best of my ability. This is an exceptional piece of legislation, which gives the Government extraordinary power.
– That act was superseded by another, which embodied all the regulations in the act itself.
– I know that; but so far as I can gather, the power to issue regulations was not altered, and in the direction of making regulations more power was given to the Executive than is given in other acts.
– No, it is exactly the same.
– The present Attorney-General, on the occasion to which I have referred, said that the power given to issue regulations would over-ride the Acts Interpretation Act and any other acts, and that whatever regulations were made under it would have the force of law.
– That obviously was a foolish statement.
– Honorable senators opposite now contend that the Government is over-riding the Acts Interpretation Act.
– Our contention is that the Government is overriding Parliament.
– That is a distinction without a difference. The honorable member for Batman went on to say that, in effect, Parliament was being asked to sign a blank cheque; that its rights and privileges were being abrogated, and that it was sought to give to the Government a secret concession to do what it liked when Parliament was not sitting. That sweeping authority, he contended, was not given under ordinary legislation. It seems to me that we have reached our present unhappy position because of this hasty legislation, which was introduced at a time of crisis by another Government, and administered by it until the people elected the present Government.
I had the pleasure of reading this morning an illuminating article on this subject written by Senator Colebatch; but I was disappointed to find that itconsisted merely of an attack upon the present Government, as though it had done more than any preceding Government in the direction of carrying on administration by regulation.
– It is the first Government that has re-gazetted a regulation which has been disallowed.
– The Government is vested with exceptional authority, and that authority was conferred by legislation introduced by a previous Government.
– That is quite right; but Parliament still retains the right to disallow any regulation that it may make.
– I am prompted by Senator Rae to remark that things which are different are not the same. Had another government been in power, I am confident that the Senate would not have disallowed its regulations. When this subject was under discussion yesterday certain honorable senators opposite said that the present industrial position on the waterfront was due to the action of the members of the Waterside Workers Federation, who had defied an award of the Arbitration Court. Although those honorable senators profess to be champions of arbitration they support the action recently taken to deprive hundreds of thousands of trade unionists of the benefits of arbitration.
– To what is the honorable senator referring?
– Approximately 500,000 trade unionists are working peacefully under awards of the Arbitration Court or industrial agreements.
– In what way have we interfered with the system of arbitration?
– I do not place the blame directly upon honorable senators opposite, but when the employers approached the Arbitration Court for a reduction of 10 per cent, in the wages of trade unionists, and succeeded in getting such a reduction honorable senators opposite did not offer any protest.
– That was the result of a decision of the Arbitration Court.
– Honorable senators opposite cannot seriously suggest that wages were reduced as the result of arbitration. The decision to slash workers’ wages to the extent of 10 per cent, was the result of an appeal made by the employers.
– I again ask the honorable senator to bring his remarks within a reasonable approach to the subject under discussion, which is the disallowance of certain regulations issued under the Transport Workers Act-
– It is difficult to discuss the subject before the Chair without raising the points I have mentioned.
– That does not justify the honorable senator in referring to acts and actions which have nothing to do with the subject.
– I am endeavouring to show the inconsistency of hon.able senators opposite in .supporting the disallowance of regulations framed with tin? object of providing employment for trade unionists, and at the same time saying nothing concerning an action which was taken to deprive the workers of this country of approximately £40,000.000 in wages. Surely that is an injustice. Senator Colebatch, in the article to which
I have referred, and Senator Reid, when speaking on this subject yesterday, referred to the Senate being elected by the whole of the people of the Commonwealth, and claimed that it had equal rights with the other branch of the legislature. That is admitted. I submit, however, that as another place is. elected on a more democratic basis than is this chamber it should be allowed to carry out the policy of the Government. In a tussle between the two chambers the popular House should be supreme.
– That is not what the Constitution says.
– I am aware of that. The Constitution provides for much which does not meet with the approval of the people to-day. Senator Colebatch, in his article, said that if the less populous States had not been guaranteed six representatives each in the Senate they would not have entered the federation.
– I must ask the honorable senator, and also honorable senators who are interjecting, not to introduce into the debate irrelevant matter.
– I submit, with ‘ respect, that since Senator. Reid was yesterday allowed to champion the claims of this House, to claim that it was representative of the people of Australia, and that its authority should be recognized, I should have the right to put the position, from my view-point.
– If the honorable senator considered that the position was being misrepresented by Senator Reid he should have objected, at the time.
– I submit that, the Senate should allow the policy of the Government, as endorsed by the people, to be carried into effect, and that by disallowing these regulations the Opposition will be thwarting the will of the people, as recently expressed. I contend that the other chamber is elected on a more democratic basis than the Senate. One-third of the people of Australia return six representatives to the Senate, and onethirtieth also return six senators.
– Does the honorable senator want to repudiate the Constitution ?
– I want to amend it. If the people were consulted they would favour the abolition of not only the State Parliaments, but also the Senate.
– The honorable senator knows that he cannot amend the Constitution on this motion.
– I have nothing further to add.
Question - That the motion be agreed to - put. The Senate divided. (President - Senator the Hon. W. King smill. )
AYES: 16
NOES: 5
Majority . . . . 11
AYES
NOES
Question so resolved in the affirmative.
Senator Sir GEORGE PEARCE (Western Australia) [3.40]. - I move -
That an address be presented by the Senate to His Excellency the Governor-General, as follows: -
Your Excellency,
The Senate of the Commonwealth in Parliament assembled presents its humble duty to Your Excellency and begs to present the following petition: -
That Your Excellency will be pleased to refuse to approve, during the present session of Parliament, of any regulations presented to the Executive Council being the same in substance as regulations which the Senate, in the lawful exercise of its powers as defined by Parliament in the Acts Interpretation Act 1904-1930, has, in this session, already disallowed.
We would respectfully point out to Your Excellency that, under the Constitution of the Commonwealth, the function of legislation is a function of the Parliament and not of the Executive, and that Parliament has delegated to the Executive a limited power of legislation, namely, the power to make regulations under an act of the Parliament provided such regula tions are consistent with the act, but that Parliament has expressly reserved to either House the power to disallow such regulations.
We would further point out that in regard to the power of legislation by the Parliament it is the practice of Parliament, as set out in May’s Parliamentary Practice, Thirteenth Edition, pages 292 to 302, that- “ It is a rule in both Houses, which is essential to the due performance of their duties, that no question or bill shall be offered that is substantially the same as one on which their judgment has already been expressed in the current session.”
If, therefore, a bill has been rejected by the Senate, the same bill cannot be introduced again in the same session except in accordance with the provisions of the Constitution and of the Standing Orders.
We submit that it is not consistent with the practice and privileges of Parliament, as thus expressed in respect to the original power of legislation, that the Executive - in the exercise of the delegated power of legislation, namely the making of regulations - should be free from a restriction that is imposed on the legislature.
We submit, further, that it is inconsistent with the spirit and intention of the Constitution that the Executive should again present, for Your Excellency’s assent and approval regulations the same in substance as those which the Senate has already disallowed in this session.
We therefore humbly pray that Your Excellency, having regard to the respective powers of the legislature and of the Executive as conferred by the Commonwealth Constitution, will refuse to sanction further regulations, during this session, being the same in substance as those already disallowed.
Excellency as to the exercise of his executive functions. An invasion by the legislature of the functions of the Executive is as much a violation of the Constitution as is an invasion by the legislature, or the Execlutive, of the functions of the judiciary. If this motion is carried, there will be precedent for the Senate to set up a right to advise the GovernorGeneral on. any or all matters of administration. Should it be urged that the interference of the Senate in this case is justified on the ground that it concerns regulations, which in one aspect may be regarded as a form of legislation, the answer is clear - such interference would not be justified even in a case of direct legislation. An address by the Senate to His Excellency, praying him to disallow a bill passed by the Parliament, clearly would be unconstitutional.
– As to the claim by the Leader of the Senate that the substance of the address is out of order, there are two precedents which I can at once recall. The first is that of an address moved by Senator McGregor on the 17th of June, 1914, concerning, if I remember rightly, the question of a double dissolution, wherein advice was undoubtedly tendered to the then Governor-General. Again, a few days later, the same gentleman, in circumstances very much akin to those which at present exist between the two Houses of Parliament, offered advice to the then Governor-General concerning a referendum for six bills to amend the Constitution. “We may rest assured that, if any remarks in this address are improperly made, His Excellency the Governor-General will at once call attention to them and refuse to give an answer.
– I was about to point out that there was ample precedent for the course proposed to be taken, but as you, Mr. President, in your ruling have referred to them, I shall not again make mention of them. This address to His Excellency the GovernorGeneral does not mention the Transport Workers Act. It deals with what we on this side regard as a serious invasion of the rights of Parliament by the present Government, which is without precedent since the inauguration of the Commonwealth. On many occasions the Senate has disallowed regulations; but there is no instance of those regulations having again been submitted in the same form. On the 29th May, 1914, I moved to disallow a regulation made under the Defence Act. The motion was strongly fought by the Government of the day. The division list shows that sixteen senators voted for my motion and eleven against it. That Government did not again bring in the same regulation. On the 4th November, 1910, and again on the 11th of that month, Senator St. Ledger moved to disallow regulations under the Census Act. There were several divisions, the result being close in each instance, namely thirteen for and eleven against the disallowance of the first sub-section, and fourteen for and eleven against each of the three following sub-sections. Notwithstanding its defeat by so narrow a margin in each case, the Government of the day did not again bring in the regulation.
– That does not prove anything.
– It proves that the present Government is the first to break the rule.
– That does not necessarily mean that it is acting wrongly.
Senator Sir GEORGE PEARCE.On the 14th February, 1917, Senator Gardiner successfully moved to disallow a regulation under the War Precautions Act. His motion was agreed to by seventeen votes to sixteen, a majority of only one. The regulation thereby disallowed was again brought in, but not in its original form. It was amended to conform with the views expressed by the majority of senators who voted against its disallowance. In other words, the Government of the day, even when charged with the responsibility of carrying on a war, had regard to the will of the Senate, and amended the regulation to conform with its decision. The present Government claims the right to legislate by regulation in a manner in which it can not, or will not, legislate by means of an Act of Parliament. In other words it declares : “ We think that Parliament will not pass an act, and we are going to abuse our regulationmaking power to do by regulation what we cannot do by act of Parliament;” although in its policy-speech Labour dis- tinctly promised the people that it would accomplish what it is now trying to accomplish by regulations, the repeal of the act.
I come now to the constitutional aspect of this question. I want to be brief, but there are one or two quotations that I wish to give from recognized authorities. The first from which I quote is Dicey’s Law of the Constitution. Dicey defines Parliament as consisting of the King, the House of Lords, and the House of Commons, which, of course, in the Commonwealth, means the GovernorGeneral, the Senate, and the House of Representatives. He then proceeds to say -
Parliament thus denned, has under the English Constitution, the right to make or unmake any law whatsoever, and, further, that no person or body is recognized by the law of England as having a right to over-ride or set aside the legislation of Parliament.
It may be argued that Dicey is there referring to legislation by means of bills, but further on he says -
A law may for our present purpose be defined as any rule which will be enforced by the courts.
He has, therefore, in his mind not merely bills but also regulations. On page. 48, dealing with the powers of the various branches of the legislature, he says -
The absence of any competing legislative power. - The King, each House of Parliament, the constituencies, and the law courts, either have at one time claimed, or might appear to, claim, independent legislative power.
That is exactly what the Commonwealth Government is claiming to do - lt will be found, however, on examination that the claim can in none of these cases be -made good.
That applies exactly to what this Governmnent is claiming. Dicey says further -
The King. - Legislative authority originally resided in the King in Council, and even after “the commencement of parliamentary legislation “there existed side by side with it a system of royal legislation under the form of ordinances, -and (at a later period) of proclamations.
These had much the force of law, and in the year 1539 the Act 31, Henry VIII., c.8, formally empowered the Crown to legislate by means of proclamations. This statute is so -short and so noteworthy that it may well be quoted in extenso : “ The King,” it runs, “ for the time being, with the advice of his Council, or the more part of them, may set forth proclamations under such penalties and pains as to him, and them shall seem necessary, which shall be observed as though they were made by act of Parliament -
Again, exactly what this Government is trying to do - but this shall not be prejudical to any person’s inheritance, offices, liberties, goods, chattels, or life;, and whosoever shall willingly offend any article contained in the said proclamations, shall pay such forfeitures, or be so long imprisoned, as shall be expressed in the said proclamations; and if any offending will depart the realm, to the intent he will not answer his said offence,’ he shall be adjudged a traitor.”
This enactment marks the highest point of legal authority ever readied by the Crown, -
Until this year of grace, 1931 - and, probably because of its inconsistency with the whole tenor of English law, was repealed in the reign of Edward VI. It is curious to notice how revolutionary would have been the results of the statute had it remained in force. It must have been followed by two consequences. An English King would have become nearly as despotic as a French Monarch. The statute would further have established a distinction between “ laws “ properly so called as being made by the legislature and “ ordinances “ having the force of law, though not in strictness laws as being rather decrees of the Executive power than acts of the legislature.
Could anything be clearer? Could the attitude the Government has taken up, or the power that it is claiming for the Executive as against the legislature, be set out more clearly than Dicey has put it in this quotation?
I want now to read a few paragraphs from Anson’s Law and Custom of the Constitution, Volume I. Parliament. On page 258, I find the following -
As the distinction between Statute and Ordinance became manifest the Crown came to assert definitely as a part of the prerogative the right to legislate independently of Parliament. The Royal Proclamations of the sixteenth and seventeenth centuries form the battleground of the old controversy which is fought under changed names, and the right of the Crown to tax or to legislate without Parliamentary sanction is asserted and disputed in one form or another from the Ordinance of the Staple to the Bill of Rights.
Again, on page 340, I find -
The Constitution of our Parliament, and its action in legislation, have now been described. It may be a matter of interest, though that interest is almost- entirely historical, to note the direct invasion of the rights of Parliament by the Crown in the sixteenth and seventeenth centuries; and the indirect, but none the less potent influence brought to bear upon the legislature by the Executive when the door of direct encroachment had been closed by statute.
The Crown, as being at once the Executive and a ‘branch of the legislature, is also that branch of the legislature which <at one time assumed to itself legislative powers which wore incompatible with the sovereignty of Parliament, at another has endeavoured to obtain by influence those powers which statute had taken away.
The Crown has (1) tried to legislate independently of Parliament; it has (2) tried to nullify legislation effected in the entire Parliament by dispensing with the operation of statutes in individual cases; or (3) by suspending their operation altogether.
The rest of this paragraph is not appropriate to the subject with which we are now dealing. On page 341 is the following:
Legislation by ordinance, which had been denounced at the end of the fourteenth century, disappeared during the fifteenth, but revived in the sixteenth in the form of legislation by Royal Proclamation.
In this part of his boole, Anson is dealing with the Bill of Rights, which was brought in to put an end to the controversy between Parliament and the Crown, and the final paragraph I wish to quote is as follows
The Bill of Rights accordingly made short work of the suspending power, enacting-
That is the power of the Executive to suspend laws - “ that the pretended power of suspending of laws Or the execution Of laws, by regal authority, without consent Of Parliament, .is illegal.”
It has remained for a Labour Government, which talks of democracy, to try to go back to that state of affairs, to try to revive in. Australia, under our Constitution, a defiance of parliamentary government by the Executive that was settled, as I said yesterday, hundreds of years ago.
Parliament has the undoubted right to address Hrs Excellency the GovernorGeneral. The paragraph which the Leader of the Government in the Senate quoted a little while ago referred to His Excellency the ‘Governor-General as the head of the Executive, and as part of the Executive. But he is also part of Parliament. The Parliament of Australia consists !of the Governor-General, the Senate, and the House of Representatives.
– That is only a fiction.
– -It may be a fiction in both cases, but it is something that has a very real meaning in connexion with our system of parliamentary and responsible government. I suppose there is no one in the Senate who will challenge the statement that the authority of Parliament in the making of laws is not shared with the Executive, but is absolutely supreme. The Executive has no law-making powers, except such as are delegated to it by Parliament, and then Only to the extent that they are so delegated by a particular bill.
– The Executive has the right to act under the power given to it by Parliament, and that is all it is doing in the present instance.
Senator Sir GEORGE PEARCE.Outside the limited power bestowed .by Parliament upon the Executive, the authority of Parliament is supreme. Parliament gives the Executive the right to make regulations ‘consistent with an act, but reserves to itself the right to disallow those regulations. If the Executive wrongfully uses the power conferred upon it; if it goes outside its delegated and limited right, the Senate’s only redress is to present an address to His Excellency the Governor-General, unless it takes the extreme step of refusing to grant Supply in order to bring the Government to .an end. Parliament’s right to address the Crown has .always been recognized in British history, and has many times been used when it has been deemed that tlie Executive was transgressing the rights of Parliament or exceeding its own power in respect to any limited authority delegated to it by Parliament. From the Laws of England, fey the Earl of Halsbury, 21st volume, page 617, paragraph 1066, 1 quote the following : -
Even in cases whore it delegates ‘to another authority, such as a public department, the power to make rules and regulations or to formulate schemes and draft orders, Parliament usually reserves to itself some measure of control over the exercise, of this .power by the authority in question.
There is a very significant foot-note, as follows: -
And, in cases where an Order in Council is required to carry out .a scheme formulated by an authority under powers conferred by statute, -the act which confers such powers sometimes provides that the scheme in question shall , not be carried into effect until a prescribed period of- time has elapsed, during which either House of Parliament, by agreeing to an address hostile to the proposed scheme, cun prevent the order being made (e.g., see Endowed Schools Act, 1873-36 and 37 Viet. C. 87-3. IS.)-
It is not dealing with an order that has been made; it is seeking to prevent that Executive from making an order - or until both Houses have agreed to an address to the Crown praying that the required order may be made (e.g., see Military Manoeuvres Act, 1897-60 and 61 Vict. C. 43 - s. (1) 3).
Here is another significant paragraph -
Where a form of objection is not prescribed by statute, the usual method by which either House of Parliament can object to any rule, &c, made by an authority is by means of an address to the Crown.
It seems to me that if our powers are the same as those of the English legislature - I think they -are - either chamber of the Commonwealth Parliament has the power to prevent the Government from making regulations, and that a proper means of doing so is by presenting an address to the Crown. The question then arises - is the Crown impotent? Is the Governor-General impotent? ls he bound to act on the advice of his advisers? If that be so, of what value i3 this privilege of an address to the Crown ?
– The Crown need not necessarily act on the advice of its advisers.
Senator Sir GEORGE PEARCE.If it did in every instance, this right of address would be useless, and the procedure that is outlined in the authorities which I have quoted, might, be regarded as mere camouflage. But surely it does mean something. In my judgment, the Governor-General is part of the Parliament, and under our Constitution, Parrliament has the right to make addresses to the Crown. This Senate, therefore, is within its rights and is acting in a strictly constitutional manner in directing the attention of His Excellency the Governor-General to the Government’s flagrant defiance of the Senate in the lawful exercise of its power to disallow certain regulations. The Executive, in promulgating fresh regulations, the samiin substance as regulations already disallowed, is assuming a power superior to that of Parliament. On these grounds 1 ask the Senate to agree to the motion for the presentation of this address to His Excellency the Governor-General.
– I second the motion.
– I oppose the motion. Since it deals with a matter that is strictly constitutional I, like the right honorable the Leader of the Opposition (Senator Pearce), find that I must proceed carefully. In opposing the motion I remind the Senate, in the first place, that legislation is a function of Parliament. Parliament has, however, delegated to the Executive a limited power of legislation, and the Executive is exercising that limited power of legislation, strictly in accordance with the terms of the delegation. It is a rule of both Houses that no question or bill shall be offered that is substantially the same as one on which their judgment has already been expressed in the current session. The Government has not infringed that rule; It has not offered any question or bill to the senate. It is not inconsistent with the practice or privileges of Parliament that the Executive, in the making of regulations, should be free from a restriction that is imposed on the legislature. The Executive, in. exercising its functions, has its own practice and privileges, and it is not bound by those which the legislature imposes on itself. It is the practice and privilege of the Executive, when at first it does not succeed, to try again. Were it otherwise, the story of Bruce and the spider would lose its point. The Standing Orders of the Senate do noi govern the proceedings of the Executive Council. If the right honorable senator’s argument applied to one standing order, it would apply to all, and the making of a regulation would require notice to the Executive Council of intention to introduce a regulation, a first and second reading in Executive Council, consideration in committee of the whole Council, adoption of the report of the committee, and a final third reading. The leisurely methods of Parliament would not be conducive to efficient administration. As to the impropriety of the Executive being free from a restriction which is imposed on the legislature, the restriction on the Senate, to which the Leader of the Opposition refers, is one which the
Senate imposes on itself by its own Standing Orders. If the Senate wishes to be free to have the same question or bill referred to it once a week, it has only to amend its Standing Orders to that effect. Does the right honorable gentleman suggest that the Executive, in the exercise of its functions, should consider itself bound in honour to observe all the restrictions and self-denying ordinances which the Senate may choose to impose on itself ? The suggestion seems to savour rather of the ancient rules of chivalry than of practical administration. It is argued that it is inconsistent with the spirit and intention of the Constitution that the Executive should again present regulations the same in substance as those already disallowed by the Senate. The right honorable senator is not well advised in referring to. the spirit and intention of the Constitution. It is not the spirit and intention of the Constitution that a single gesture by the Senate should,, for a whole session, paralyze the arm of the Executive. The petitioners pray that His Excellency “will refuse to sanction further regulations, during this session, being the same in substance as those already disallowed.” The prayer is of an unusual nature. In the first place, the petitioners assume the functions of His Excellency’s advisers - a function which, not only by Ike spirit and intention of the Constitution, but also by its letter, is entrusted to the Executive. In the next place, it offers advice, not upon a matter at present before His Excellency for decision, but upon one which may come before His Excellency in the future. Also, it asks His Excellency to tie his bands, on a matter of public policy, for the space of a whole session. It is stated in May’s Parliamentary Practice, page 70, that the Commons, in addresses to the Crown, “-oftentimes, under Richard II., Henry IV., and Henry VI., did propound matters to the King which were not given them in charge to treat of.” The motion, if carried, will be a more modern instance of a similar indiscretion by the Senate.
– Is the Minister’s statement intended as a joke?
– Certainly not. It is intended as a serious contribution to the debate, and to supply reasons why, in the Government’s opinion, the motion should be rejected. The proposal is an extraordinary and ridiculous one. It asks the Governor-General to take a stand against something which does not exist. I feel sure that His Excellency will be at a loss to understand just what the Senate wishes him to do. This chamber should not impose such an indignity upon him. I hope that the motion will be defeated.
– I am amazed at the line of reasoning followed by the Leader of the Senate (Senator Barnes) in this matter, which he dismissed with an airy wave of the hand, suggesting that His Excellency the Governor-General, when the address was presented to him, would inquire whether it was intended as a joke. I can assure the honorable gentleman that it will not be regarded as a joke by His Excellency, nor is it so regarded by the Senate, or those who have studied the practice and procedure of constitutional government in the Commonwealth and the Motherland. Earlier in the day, the Leader of the Senate admitted the soft impeachment as to the advice which the Executive would tender to the GovernorGeneral. When taking a point of order on the motion submitted by the Leader of the Opposition (Senator Pearce), for. the disallowance of the latest regulations issued under the Transport Workers Act, he admitted that the regulations in question were, in substance, the same as the regulations previously disallowed. That is the point which is emphasized in the address. The Leader of the Opposition has, I think, demonstrated beyond all doubt the supremacy of Parliament over the Executive, and that only in so far as Parliament has parted with that power, has it lost control. Parliament has delegated to the Executive power to make regulations having the force of law, subject to certain conditions. Once a regulation has been disallowed, it cannot be re-enacted except under the conditions indicated by the Earl of Halsbury, whose views were cited- by the right honorable the Leader of the Opposition a few moments ago. The Executive Government of this country makes a regulation to-day ; it is disallowed to-morrow; and it immediately makes another, which, in the language of the Leader of the Government, is substantially the same. I put it, that apart altogether from the practice of Parlia- ment, apart from the requirements of the Standing Orders, such a rejection having been made it renders any subsequent regulation utterly inoperative. I put the matter in that way for several reasons; but before embarking upon their recital, may I say that the case put up by the Minister is not a parallel one. This is government by executive act, which is entirely different from government by legislative act. The power of the Government is limited not only by the provisions of the Acts Interpretation Act, but also by the right of this and the other branch of the legislature to address His Excellency in regard to the exercise of that power. Is it to be assumed that, having granted this power to an executive government, that Government is thereby made a despot ? That is what was claimed in the days to which Senator Pearce has referred. The Minister has argued that no piece of legislation is involved. This matter is outside the scope of such considerations. What is called in question is the limitation that is imposed upon the powers of the Executive Government. Oan it be said that this Parliament, having given this power, has stripped itself for ever of any control over the exercise of it? According to the judgment of Mr. Justice Starke, that would be the effect of the Executive bringing into force regulations similar to those that had been disallowed. If the Executive is right in what it is doing, it can absolutely transgress not only the principles of that legislation which limits its powers, but also the transcendent power of Parliament. The whole of its power to make regulations is derived from Parliament, and it can. function only within the four corners of the limitations that are imposed upon it by the Acts Interpretation Act. It is impossible for any executive government to defend such action. The power which it derives from its masters, the Parliament, can be exercised only in conformity with the terms of the statute under which it has been granted. It would be a travesty on constitutional government, as well as on the rights and privileges of Parliament, were the Government to be enabled, simply by resorting to the trick that has been practised in this case, to avoid the direct limitation that has been placed upon the power of the Executive.
Let us conjure up the position as it would exist under such circumstances. To-day a regulation would be made by the Executive Government; to-morrow or on the following day it would be disallowed by the Senate; and on the next day it would be brought up again and passed through the Executive Council. Is that the spirit which guided this Parliament when it passed the Acts Interpretation Act? The Government is establishing a position which, if persisted in, will strip the Executive of every vestige of its power. Parliament is not going to be deprived of its right to control regulations. By resorting to the device to which reference has been made, the Government could keep constantly in force a regulation that had been disallowed by one branch of the legislature. I do not think that, altogether apart from the more drastic remedy to which Senator Pearce has referred, Parliament has stripped itself of any controlling right; and it still possesses the right to address His Excellency in regard to such questions, and thus cause a return to the spirit of the law as any reasonable human being would interpret it.
I draw the attention of the Senate to the following observations of Mr. Justice Starke : -
But then it is said that a regulation can only be disallowed if a resolution be passed to that effect after notice of it has been given at any time within fifteen sitting days after the regulation had been laid before the Houses. The purpose of the provision, however, is to fix a period of time beyond which disallowance should not take place, not to impose it as a condition on the power of disallowance. The opposite view would enable the regulation-making authority to delay the presentation of any regulation to Parliament, and thus keep it in force for fifteen days at least, and, if disallowed, then re-enact it and delay presenting it to Parliament for another fifteen days. By this method a regulation might be kept in perpetual operation, and, in fact, it seems to have been adopted in the present ease. On the 20th March, 1931, the Senate disallowed the regulations, 1930 Nos. 158 and 159, and on the same date the present regulation, 1931 No. 34 was made, having, as I think, substantially the same effect. This procedure was entirely subversive of the control of Parliament over regulations, which is the main object of section 10 of the Acts Interpretation Act 1904-30 to preserve.
Surely those observations, by themselves, furnish sufficient justification for this Senate presenting an address to His
Excellency, as the head of the Executive Government, to ascertain whether our views on the matter are right.
-What did the Chief Justice say ?
– Unfortunately, he did not say anything. Surely, if the Government were not blinded by party prejudice, it would not seek to force this position upon Parliament ! It is fundamentally wrong. It is an attempt to take out of the hands of Parliament control over what, in ordinary circumstances, had Parliament not been so minded as to give to the Executive Government a certain limited amount of power, would require legislation. All this talk about bills and the proceedings in relation to bills has nothing whatever to do with this point, which is a constitutional point, and which concerns the rights and privileges of Parliament. It is not a question of procedure or of practice. The power of Parlialiament is well established. For centuries there have been efforts to subvert it, but those efforts have failed, to the undoing of their originators ; yet now, at the instigation of the present Government, a further attempt is being made to give to the Executive that power for which so many have reached in vain in the past - that control which Parliament alone possesses, control over the lawmaking machinery of this country. Certain power having been delegated, that delegated power can be exercised only so long as such exercise is strictly in accordance with the terms of the delegation as well as of the wishes of Parliament.
– The Senate has exercised its power by disallowing the regulations.
– Does the honorable senator suggest that it is proper for the Executive Government immediately to submit substantially the same regulations? Such a contention is too ludicrous to be considered for a moment.
I assure the Minister that I am confident that His Excellency will not regard this as a joking matter. I do not know whether the Government so regards it. It is no joke to those who study the principles of constitutional government.
I venture to think that, unless the Senate wants government to be brought to the level of a kindergarten, the only proper, dignified, and legal course open to it is to address His Excellency in the terms referred to in the motion moved by Senator Pearce. Only one question is involved, and that is the supremacy of Parliament.
SenatorRAE (New South Wales) [4.34] . - It appears to me to be plain that the Opposition is raising more problems than it can settle by this proposalto petition the GovernorGeneral. It has been stated by the President that petitions were presented under somewhat similar circumstances to the Governor-General in 1914. I point out, however, that the status of the GovernorGeneral has been changed considerably since that date. His Excellency, like His Majesty, now acts more definitely on the advice of his Ministers than he did in 1914. It is not my purpose to discuss at length a question that is one for a legal man and not a layman to dogmatize upon; but it seems to me that the Opposition is attempting to create an extraordinary position. The Governor-General, we are told, is supposed to follow the advice of his Ministers. If the GovernorGeneral can disregard the advice of his Ministers and act entirely upon his own initiative, then he can do what honorable senators opposite desire, without any notice from this chamber. If he cannot act on his own initiative it appears to me that he can act only on the advice of those who have the right to constitute themselves his advisers. Although the Executive is appointed and given certain powers under the Constitution, we are told that the Governor-General must disregard its advice and follow the direction of a set of self-elected political partisans.
– Self-elected ?
SenatorRAE. - Self-elected in the sense that they have elected to undertake this duty.
– If action were taken in the direction proposed it would be in accordance with the wish of the majority of the Senate.
SenatorRAE. - The Senate is only one branch of the legislature.
– The legislature possesses greater powers than the Executive.
– The honorable senator forgets that on this occasion the Executive has the full force of a majority of members of another place behind it, and, therefore, it is the representatives of the major portion of the Parliament of this country who are responsible for these regulations. Yet the minor portion is endeavouring to outwit the Executive, and to defy the power which is, undoubtedly, possessed by another branch of the legislature. The members of another place, having come much more recently from the people than the members of this chamber, with a direct mandate on the subject, have - in spite of the cobwebs of constitutionalism which have been brought before us - more right to decide this matter than a partisan body.
– The mandate of honorable senators opposite was to uphold the arbitration system.
– It is true that the mandate which the Labour party received included the preservation of the federal arbitration system against an attempt of the previous Government to destroy it. As stated by an honorable senator on this side of the chamber earlier in the day, honorable senators opposite are not unduly anxious to preserve the rights of trade unionists.
– The honorable senator has attacked the arbitration system.
– I have. I contend that while I intend to do my best to perfect the present system as much as possible I have a right to show its weaknesses, its boomerang effect during periods of depression, and how much better off the workers of this country would be under another system. I am responsible to the party to which I belong and not to the honorable senator for any actions I take in the matter of arbitration.
To return to the point I was making, I ask honorable senators opposite if they believe that His Excellency can, of his own volition, disallow regulations.
– That is not the point.
– It is my point. Can the Governor-General disallow a regulation of his own volition.
– It is not a matter of disallowing regulations but of continually bringing into operation regulations which Parliament has disallowed.
– Can His Excellency allow, endorse, or confirm, a regulation passed by the Executive ?
– Can he refuse to do so?
– Can he do so, or refuse to do so?
– Supposing it were illegal?
– The Governor-General is not the High Court.
– Would the Governor-General give effect to any illegal proposal?
– That is not answering my question.
– The answer to that answers the honorable senator’s question.
– I contend that the Governor-General cannot, of his own volition, assent to or dissent from any proposal submitted by the Executive. He must act on the advice of his Ministers. If he does not he cannot listen to the advice of others. He cannot have two sets of advisers. On a partisan vote in the . Senate His Excellency may be advised to act in one direction, and his legally constituted Executive may advise him to act in another. Whose advice must he follow? Obviously, as a constitutionalist he must follow the advice of the legally constituted Executive.
– State Governors in New South Wales have not always followed the advice of the legally constituted Executive.
– To what is the honorable senator referring?
– Appointments to the Legislative Council in that State.
– The position of a State Governor is not the same as that of a Governor-General of the Commonwealth. Even so there have been occasions when a Governor, after refusing to follow the advice of his Executive, has been recalled.
– There have been other instances when they have not been recalled.
SenatorRAE. - Many years ago, when a Governor of New Zealand refused to make twelve appointments to the nominee Legislative Council of that dominion, he was told by the then Premier that if the appointments were not made the next request would be for sixteen.When he refused to make the number asked for he was advised by cable from Great Britain to obey the behest of his Executive, which he promptly did.
SenatorFoll. -What happened recently in New South Wales?
SenatorRAE. - That matter has not yet been settled, and when it is I think it will be found that the power of the Executive is supreme. Assuming the motion is carried by a partisan majority, which is doing everything it can to mutilate and destroy trade unionism-
SenatorFoll. - We are trying to protect trade unionism.
SenatorRAE. - Nothing of the kind. Honorable senators opposite, assisted by those who climbed into power on the ladder of Labour adopt the most venomous and vicious tactics possible in order to accomplish their end. They are depending upon the support of renegade Labourites to carry out the dirty work which they will not do themselves.
I challenge honorable senators opposite to deal with this subject from the viewpoint of whether His Excellency is bound to follow the advice of the Executive or that of a self-appointed body of political partisans. It is regrettable that the present course has to be followed. Admittedly it is not advisable to continue issuing regulations which are immediately disallowed. I repeat that the major portion of the Parliament stands behind the Executive in the introduction of these regulations while the minor portion persists in disallowing them. The members of the major portion have been before the people more recently than have the members of this chamber, who have taken it upon themselves to thwart the will of another place. In these circumstances the Executive is compelled to adopt a practice which otherwise would not have been considered, but which in the circumstances is abundantly justified.
A great deal has been said by the Leader of the Opposition (Senator Pearce) and Senator McLachlan con cerning the alleged slight upon Parliament, and of the - to them - illegal and unjustifiable action of the Executive in persisting in proclaiming these regulations when it has not the power to introduce a similar legislative measure twice in the same session. The position with respect to regulations is entirely different from an act of Parliament. The object of regulations is to make more flexible the legislation under which they are framed. Consequently, a regulation which is quite inadvisable to-day, might be almost imperatively necessary to-morrow.
– Does the honorable senator suggest that the regulations under an act should be more powerful than the act itself?
SenatorRAE. - Yes, in the sense that regulations carry out what the act prescribes only in skeleton form.Regulations deal with details with which an act cannot deal.
– Regulations should not be more powerful than the act.
– It is not so much a question of one being more powerful than the other, as of one being less rigid, or shall I say, more flexible, more adaptable, than the other. The honorable senator suggests that there is a conflict between the act and the regulations.
– The regulations do something which the act cannot do.
– The act is not framed to do what the regulations do. It must be clear to the honorable senator that regulations under an act are for the purpose of carrying out details which, if embodied in the act itself, would overburden the statute. Regulations fulfil, not a greater, but a different, function from that of an act of parliament. It is not so much a question of one being greater than the other as of each doing certain definite things. Inasmuch as regulations are specifically meant to meet changing conditions, it is at least sensible to provide that the government of the day shall be empowered to judge for itself as to when it should bring in regulations similar to, or different from, regulations which have previously been disallowed. It may be, for instance, that the position on the waterfront has changed completely since the disallowance of previous regulations, making necessary entirely different regulations. Regulations eminently desirable to-day may be quite undesirable next week, and vice versa. For that reason, we must retain in the hands of the Executive the right to say whether regulations under an act of parliament shall be proclaimed. If, because of the reactionary nature of one section of the legislature, regulations are temporarily defeated, the government of the day, charged with the administration of the laws of the country, should have the right to say whether it is advisable to proclaim new regulations similar to those which have been disallowed. It is much more important that we should see that the people ofthis country are well governed than that we should concern ourselves with more or less obscure constitutional points. Personally, I am prepared to see the legislature skittled altogether if a better means of dealing with the affairs of the country can be found. Legislatures ought not to exist merely for their own selfglorification. They are, or should be, the means to an end. If they do not accomplish that end, we must get rid of them. Honorable senators opposite have endeavoured to raise to a degree of vast importance the question as to how far the powers of the Senate may, or may not, be limited by executive action. The people of this country are not greatly concerned with the powers or the prerogatives of the Senate; they are concerned with the way in which they are governed. Those honorable senators who just now raised the subject of arbitration, in order to belittle my views on that subject, quite ignored the fact that arbitration presupposes the existence of organized bodies for the arbitration law to deal with. Arbitration pre-supposes that it is to the advantage of the community generally for the working class to be organized. For generations, every great public man - and by that I do not necessarily mean men connected with the Labour movement as ordinarily understood - have admitted that one of the greatest factors making for the growth of civilization, and the improvement of the people generally, has been trade unionism. Yet honorable senators opposite continue to make vicious and venomous attempts to cripple trade unionism in one of its most important functions.
Inasmuch as our arbitration laws, which honorable senators opposite profess to reverence, cannot function excepting through organizations, arbitration implies that organized labour shall get preference in. employment over unorganized labour. I agree with SenatorColebatch that it is lamentable that there should be any need for dissension between unionists and non-unionists, because in a properly constituted society there ought to be work enough for all. However, owing to the rotten capitalistic system which honorable senators opposite support, unemployment exists. Indeed, unemployment is the very keystone of the capitalistic system. If there were no unemployment - if every man could get a new job as soon as he left his old one - the capitalistic system would crumble within a week.
– Why does unemployment increase when Labour governments are in power?
– That is because Labour governments inherit legacies of difficulty from the governments which they displace. Labour governments generally follow capitalistic governments which have squandered public funds, and so enriched themselves and the class to which they belong, that there is nothing left for the workers.
The DEPUTY PRESIDENT (Senator Plain). - The honorable senator must confine his remarks to the motion before the Chair.
– I should have no difficulty in doing so, sir, were it not that in my youthful innocence I am led astray by the interjections of honorable senators opposite. I apologize if I have departed from the subject before the Chair.
I have raised one or two points which I submit demand a better answer than have so far been vouchsafed to them. I have asked what effect this petition can have? In my opinion, this motion amounts to so much beating of the air. I admit that it gives some publicity to Senator Pearce and his followers, and may make some people believethat they are great constitutional authorities. I venture to suggest, however, that the right honorable gentleman, and those who now support him would, if it suited them, break, not only the Constitution, but also the spirit of the Sermon on the Mount and the Lord’s Prayer. They value constitutionality only when it serves their purpose. The points that I have raised are valid. The Opposition must show how the Governor-General can properly take any notice of a petition of this kind from advisers who are not recognized by law, and have no qualifications to act as advisers, who, indeed, are so imbued with partisanship that no Governor-General worth his salt could take notice of them. There is also the point as to whether the Governor-General is not bound to follow the advice tendered him by his Ministers. If he is so bound, then this motion is merely a waste of time. If, on the other hand, His Excellency may act of his own volition, I ask honorable senators opposite whether it is not a fact that the gentleman who now occupies the high and honorable position of Governor-General is renowned for his ability as a lawyer and bis eminence as a judge. Having both a legal and a judicial training, and having attained a high reputation in each sphere, the Governor-General surely knows as much about these matters as do honorable senators opposite. It is, therefore, a piece of amazing impudence for the Opposition to try to bulldoze His Excellency into doing something concerning which he has the ability to judge for himself. Those who at one time profess to hold the office of Governor-General in reverential awe are prepared, when it suits their purpose, to drag it in the dirt. If the people of this country had the opportunity to express their opinions on such despicable conduct, they would endorse the views which I have expressed rather than those of the Opposition.
– At least one portion of the remarks of the - honorable senator who has just resumed his seat made a special appeal to me. I refer to his request that you, Mr. President, would forgive anything that he had done amiss, and would attribute it to his youthful innocence. I, myself, feel slightly oppressed by my youthful innocence as a member of the Senate, in attempting to throw any additional light upon the subject now before the House. As a matter of fact this question has been discussed incidentally in matters which have come before us during the last two or three sitting days, and although I am prepared to concede that it is almost impossible to say anything that is new in regard to it, I feel that we may gain something if we collate the arguments in favour of the view which has been so tersely, and yet so clearly, expressed by the right honorable the Leader of the Opposition (Senator Pearce). It is well that we should consider carefully the proposal now before us. Although it is merely one that a petition shall be presented to His Excellency the GovernorGeneral, the reasons for the submission of that petition go to the very root of the question. It is important that we should consider why we are asked to agree to the presentation of a petition to His ‘ Excellency. Might I digress for a moment to remind honorable senators, particularly those on the Government benches, that there is a vast difference between presenting a petition to His Excellency and tendering advice to him? It is the right of every person, and of every body of persons in the community, to approach respectfully the person of the King; and a fortiori it is the right of the Senate to approach the King’s representative in Australia, so long as he is approached in a proper spirit.
The first consideration involved in the proposed petition is where the lawmaking power of the Commonwealth resides. On that point, the Constitution is clear beyond all doubt. In almost its first words the Constitution provides -
The legislative power of the Commonwealth shall he vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called “The Parliament” or “The Parliament of the Commonwealth “.
This Parliament is in the position of every other Parliament, in that it has the right to delegate the powers which if possesses. One of the striking characteristics of modern legislation is the enormous growth of the law-making power by means of regulations. No less an authority than the Lord Chief Justice of England, in his book, entitled The New Despotism, deals with the importance, not to say the tyranny of the growing exercise of the power of governments to pass regulations. Our own Parliament, I may venture to say, affords a very striking instance of that tendency. If any honorable senator takes the trouble to compare the statutes passed in any given year with the regulations that have been promulgated in that year, he will find that the latter probably are ten times as many as the former. I can say of these regulations, speaking with some knowledge of the subject as a lawyer, that not one lawyer, however eminent, in Australia has the slightest acquaintance with one-tenth of what appears in them. The power to make regulations is usually contained in the statute itself. In every bill giving power to make regulations, there is usually a provision requiring the regulations to be laid before Parliament, and giving either House the right to disallow them. The Commonwealth Parliament has, however, taken a slightly different course. It has provided in a separate act that any regulation made by the Governor-General in Council shall within a certain time be laid before both Houses of Parliament, and that it may be disallowed by either branch of the legislature. But that is only in accordance, it will be seen, with the provision of the Constitution which says that the lawmaking power resides in the two Houses of Parliament and the Governor-General. It is quite true that neither this House nor any other takes any part in the discussion on the framing of a regulation, but the powers of both Houses are preserved by the provision that either House may disallow it when it has been promulgated. When the Leader of the Government in the Senate says that we are seeking as a logical consequence to provide that every regulation shall, in the long run, have to be read a first, second, and third time, I remind him that the elaborate precautions which are taken for the first, second, and third readings of bills in both Houses of Parliament are proof of how carefully we follow an age-long custom : that no legislation shall go upon the statute-book until it has been thoroughly considered by the representatives of the people. The purpose of the motion now before the Senate ‘is to see first that the right of this chamber to veto any regulation, which it must be remembered is for all purposes a law, is preserved, and, secondly, to take care that no such regulation goes upon the statute-book of the country until it has been approved by the representatives of the people in both chambers of the legislature. I do not know whether the right of the Senate to veto any or every regulation that comes beforeit is called in question. To me, it seems as plain as possible, in this case, that the same regulations have come up time after time. That being so, it follows that the reasons which actuated the Senate in disallowing them on the first occasion must again operate, unless there is a differently constituted Senate when they come up a second time.
– Or unless there is a change in circumstances.
– I admit that, and if the representatives of the Government were able to show some change in circumstances which should induce honorable senators to alter their minds, I have not the slightest doubt they would do so ; they would not obstinately adhere to their former decision merely for the sake of adhering to it. But even if these are not the same regulations, but are new regulations, under the terms of the Acts Interpretation Act the Senate is entitled to disallow them. I am utterly unable to understand how the Prime Minister (Mr. Scullin), of whom I desire to speak with nothing but respect, or the AttorneyGeneral (Mr. Brennan), of whom honorable senators will realize I speak with the same respect, can claim, as one can see by outside reports they have both claimed, that this Senate is doing otherwise than preserving the rights that are given to it by taking the step it has in connexion with the regulations that have recently been before the chamber.
I venture to put forward the view that honorable senators are preserving, not only the rights of this chamber, but also the rights of another place, and the rights of the people. I agree with Senator Rae that we are only entitled to respect, so long as we assert the rights of the Senate on behalf of the people. We are not here to assert rights on our own behalf as individuals. But let us imagine what might take place once it is established that the Executive of the day may, by reason of much asking, induce the Senate to allow to pass, against its better judgment, a regulation which it thinks should not be passed. The same thing may happen in another place. The Executive of the day might promulgate a regulation which may be rejected by what honorable senators supporting the Government are pleased to call a more representative chamber than this. If that should happen, are we to understand that merely by presenting a regulation a sufficient number of times an executive is entitled to have it passed? If so, the government of the country passes from the representatives of the people into the hands of the Executive, and, as has been so frequently pointed out, we are taken back to a very old fight - the fight of the people against the King or the King’s Ministers, or any other persons except the lawfully elected representatives of the people. ‘
The Leader of the Government in the Senate said that the Government has not infringed the rule which prevents legislation, once rejected, from being presented again during the same session. Actually it may not have done so, but when the regulations that have been disallowed bythe Senate in the past are compared with those which have again been presented to it the only difference between them that can be found is in the collocation of the words. The effect of the new regulations is exactly the same as that of the old regulations. It is because of the concrete instances we have had before us that the motion which we are now asked to pass has been drafted in the way it has been by the Leader of the Opposition.-
Senator Rae in his concluding remarks, made some reference to major and minor branches of the legislature. Apparently the Senate is to be classified as the minor branch. I point out that the Constitution makes no distinction between the two chambers. There is no question of one being the major or the other the minor house.
– There is a distinction in regard to their respective powers.
– Only in respect of matters laid down in the Constitution itself. The powers of the Senate are set out in the Constitution, and I point out, if I may do so without appearing so early in my parliamentary career to be imparting instruction to honorable senators, that the Senate has no power to divest itself of them. A particular session of the Senate may fail to exercise its powers or may be complacent or indolent in regard to their exercise, but it cannot divest itself of what has been laid down in the Constitution itself. Senator Rae also referred to the crippling of the wishes of the Government. Again I remind the Senate that we are not ruled by the Government. The Senate, if it disagrees with a regulation which has been promulgated by the ‘Government, has a perfect right to disallow it, not merely once, but as often as it is laid on the table.
– I do not dispute that.
– The honorable senator apparently looks forward to a time when we may be better governed than we are to-day. If the honorable senator can suggest any better form of government than government of the people, by the people, for the people, I cannot imagine what it is. I cannot understand how honorable senators opposite can find it consistent with their general principles to say that there is any better system of government than government by the people, which means by the representatives of the people.
– I do not say that there is.
– The honorable senator believes in Soviet rule.
– There is, of course, a suggestion of that. There is nothing more that I desire to say. Indeed I am inclined to apologize for having, in my earliest attempt to address the Senate, detained it so long. I may, however, say this, by way of apology, that, had I been as cool as I should have been in other surroundings, there are other arguments I might have put forward. In my humble opinion, for whatever it is worth, the views presented shortly and tersely in the address to His Excellency the Governor-General are perfectly sound on matters of law, and are views which the Senate is entitled to place respectfully before His Excellency.
– I am at a loss to understand exactly what is required of His Excellency the GovernorGeneral. When the Leader of the Oppo.sition moved for the disallowance of certain regulations, Mr. President ruled that the regulations in question were not substantially the same or similar to regulations disallowed some time ago. Yet the address proposed to be sent to His Excellency the Governor-General refers to regulations the same in substance as those which the Senate has already disallowed in this session, and asks that they shall not be assented to by His Excellency. There is only one object at the back of the minds of honorable senators, and that is to disallow certain waterside workers regulations. Senator Pearce has quoted Dicey as an authority of the meaning of the word “ law “. According to the Commonwealth Law Reports, volume 19, page 629, the High Court considered the meaning of the word “law” as used in the Constitution. That court held that the legislation of the territory, which was made under the delegated power, just as regulations under the Transport Workers Act are made, was a law of the territory. I do not know if honorable senators opposite consider that regulations relating to the territory should be disallowed, but certainly it is competent for either House of the Parliament to express its opinion upon them. No one can doubt that the regulations under the Transport Workers Act have been submitted in a strictly constitutional manner to His Excellency the Governor-General by his advisers, and I submit that His Excellency has no alternative than to accept the advice according to the law.
– Does the Minister mean that the Governor-General is the mere puppet of the Government?
– No; but this motion, for an address implies that His Excellency is the puppet of the Government.
– Order! It is quite improper to refer in disrespectful terms to His Excellency the Governor-General.
– I was merely asking a question.
– And I was suggesting that the presentation of an address would be a reflection upon the Governor-General, because it would imply that His Excellency should ignore the advice of his constitutional advisers. I do not complain of the Senate’s disallowance of the regulations in question. It is strictly within its power to do that. But it is so much camouflage to suggest that the proposed address is not directly related to regulations which have been disallowed and re-enacted, because the Governor-General is especially invited not to assent to regulations the same in substance as those previously disallowed. In this matter the Senate, in my judgment, is exceeding its constitutional functions. I, therefore, hope that the motion will not be adopted.
– We are merely asking the Governor-General to uphold the spirit of the law. If the Executive asked him to do something which is illegal, would he not be entitled to refuse ?
– I venture to say that the Governor-General, being a sound constitutional lawyer, has already considered the legality or otherwise of the Government’s action and is satisfied that it is acting within its rights. There is no need to advise the Governor-General upon that point. The purpose of the address is to make effective the disallowance by the Senate of regulations dealing with waterside workers; but it cannot be contended that the Government, in presenting these regulations to the Governor-General, is acting contrary to the Constitution. The right honorable the Leader of the Opposition, with his long ministerial experience, must know this. Nevertheless he threatened some time ago that, if the Government persisted in re-enacting regulations the same in substance as those previously disallowed, he and his supporters would take other action to prevent the administration from giving effect to its policy.
– These regulations do not represent the Government’? policy. Its policy was to repeal the Transport Workers Act.
– The honorable senator knows very well that the making of these regulations is in keeping with the Government’s policy. I understand fully the reason for the honorable senator’s objection. He is feeling somewhat sore, because the power to make regula- tions, which a previous government used for the protection of loyalists or volunteer workers, is now being used by this Government to give effect to its industrial policy which has the endorsement of the people. The proper course for the Opposition to take, if it objects to this regulation-making power being vested in the Executive, is to move for the introduction of legislation to prevent this or any other Government from having the power to make regulations.
Question - That the motion be agreed to - put. The Senate divided.
AYES: 17
NOES: 5
Majority . ….. 12
AYES
NOES
Question so resolved in the affirmative.
– That is so. Unless otherwise ordered by the House the address will be presented to His Excellency by the President of the Senate. It will be my duty to wait upon His Excellency and to present the address at a time which I shall ascertain will be suitable to His Excellency.
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Senate, pursuant to resolution of the Senate, dated the 30th April, 1931, a return moved for by Senator Sir George Pearce, giving particulars of all loans raised by the Commonwealth since 1914.
page 2358
page 2358
Motion (by Senator Barnes) agreed to-
That the Senate, at its rising, adjourn till Wednesday, the 10th June, at 3 p.m.
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Senator E. B. Johnston and Mr. Parker Moloney, M.P.
Motion (by Senator Barnes) proposed -
That the Senate do now adjourn.
.- When Sir Robert Gibson appeared before the Senate as a witness to supply information that honorable senators considered might be useful to them in determining their course of action towards the Commonwealth Bank Bill, I deemed it to be my duty, as a representative of Western Australia, to submit certain questions to him. Those questions were distinctly relevant to the bill to which I have referred, and it was entirely a matter for the discretion of the distinguished witness as to what replies he should make to them. But, as a consequence of my having submitted those questions in the proper performance of my duty to my constituents, I have been subjected to a series of unprovoked and untruthful attacks in. the public press of Australia by the Minister for Markets and Transport (Mr. Parker Moloney). Last Monday, the first of these attacks appeared in a number of newspapers, and a similar attack was made in the press of to-day. From the interstate newspapers that are coming to hand, it would appear that the first attack, at all events, was widely distributed throughout the Commonwealth ; so much so that I have been forced to the conclusion that Mr. Parker Moloney has made use of the official publicity channels for the purpose of distributing it. As I do not possess the advantage of those official sources for the dissemination of my reply to him, I embrace this opportunity to secure its wide distribution. I am fortified in that decision by the knowledge that these attacks have arisen out of my performance of a duty in this chamber. Mr. Parker Moloney’s sudden and newfound interest in the wheat-growers, no doubt, betokens an early federal election. For nearly a year he has been absolutely apathetic towards their desperate financial plight, and during the whole of this period the members of the Country party, including myself, have been ceaseless in urging this Government to give them the full measure of assistance that has already been given by practically, every other wheat-growing nation to its wheatgrowers. This Government has parliamentary authority to pay 3s. per bushel f.o.b. to the wheat-growers on the whole of last season’s crop. It has not paid them one penny, and it is the only Federal Government Australia has ever had, or ever could have, whose credit is so bad that it admits itself unable to find the small amount required for this purpose. This admission is made by a Treasurer (Mr. Theodore) whose policy “ Brennan and Moloney concurred “ in condemning a few short months ago.
Mr. Parker Moloney says that he had a promise from the Commonwealth Bank to pay 4s. per bushel for wheat under the Wheat Marketing Bill. If he had such a promise, it was his clear duty to the wheat-growers to remain in Australia and to see that the promise was carried into effect by the bank. Instead of that, Parliament was hurriedly adjourned to enable Mr. Parker Moloney, quite unnecessarily, to join the Prime Minister and the Attorney-General, and their retinues, on a delightful tour to Europe at the public expense. The Australian wheat-growers were forgotten, whilst Mr. Parker Moloney went on to Canada on a mission that has produced no public results. Mr. Parker Moloney’s clear duty as the responsible Minister was to remain at his highly-paid post in Australia, and to secure the fulfilment of the alleged promise, which he now, after nearly a year’s indifference, parades.
Mr. Parker Moloney is evidently very annoyed at Sir Robert Gibson’s answer to my question in. the Senate, in which Sir Robert specifically denied Mr. Parker Moloney’s reiterated statements as to the arrangements that had been made by the Federal Government with the Commonwealth Bank, covering the proposed 4s.- a bushel guarantee on wheat. Mr. Parker Moloney finds himself in the position of having put up a gigantic bluff by posing as the friend of the farmer. Now that his bluff has been called, he merely, becomes abusive.
There is within Mr. Parker Moloney’s . power one simple method by which he can . effectually settle this controversy. There is nothing whatever to prevent his tabling in Parliament all the correspondence that has passed between himself, the Government and the bank, in regard to the proposed 4s. guarantee. The Senate has already called for the papers relating to the Ss. guarantee; but they have not been supplied. Until these papers are produced, Sir Robert Gibson’s reply must stand as revealing Mr. Parker Moloney as the. arch-deceiver of the wheat-farmer? of Australia.
– I am somewhat surprised thai any member of the Senate should take umbrage at having been given publicity throughout Australia by so eminent 8 member of the Government as Mr. Parker Moloney. I should have no objection whatever to offer if all the members of the Opposition were to go round the country talking about me personally. 1 am reminded of the story of the old Scotch lady who, referring to her son, said “ It does not matter what you say about him, hut keep talking about him “. The honorable senator has no need to feel either aggrieved or offended.
Question resolved in the affirmative.
Cite as: Australia, Senate, Debates, 28 May 1931, viewed 22 October 2017, <http://historichansard.net/senate/1931/19310528_senate_12_129/>.