14th Parliament · 1st Session
The President (Senator the Hon. P. J. Lynch) took the chair at 3 p.m., and road prayers.
The following papers were presented - ‘
Air Force Act - Regulations amended - Statutory Rules 1935, No.98.
Defence Act - Regulations amended - Statutory Rules l935, No. 99.
Invalid and Old-Age Pensions Act - Statement re Pensions for the twelve months ended 30th June, 1935.
New Guinea Act - Ordinances of 1935 -
No. 1 - Appropriation 1934-1935.
No. 2 - Appropriation (No. 3) 1933-1934.
No. 3 - Administrator’s Powers.
No. 4 - Ordinances Interpretation.
No. 5 - Currency Coinage and Tokens.
No.6 - Laws Repeal and Adopting.
No. 7 - District Courts.
No.8- -Maintenance Orders (Facilities for Enforcement).
No. 10.- Supply 1935-1036.
No. 1 1 - Superannuation.
No. 12 - Business Names.
No. 13- Pol ice Offences.
No. 14 - Police Force.
No. 15 - Prisons.
No. 16 - Mortgagors’ Relief.
No. 17 - Companies.
No. 18 - Land.
No. 19 - Mining.
No. 20 - Native Labour.
No. 21 - Mines and Works Regulation. Norfolk Island Act - Ordinances of 1835-
No.6 - Timber Licences (No. 2).
No. 7 - Education.
No. 8 - Administration.
No. 9 - Gun Licence (No. 2).
No. 10 - Advisory Council.
No. 11 - Printers and Newspapers.
No. 12 - Advisory Council (No. 2).
No. 13 - Administration (No. 2).
No. 14 - Advisory Council (No. 3).
Advisory Council Ordinances - Regulations (Advisory CouncilElections).
Papua Act - Ordinance No. 1 of 1935 - Supplementary Appropriation (No. 1) 1 934- 1935.
Broadcast Lecture Prevented
– Has the PostmasterGeneral received . a circular letter which I understand has been forwarded to all members of the Senate, dealing with tho suppression of a talk by a plainspeaking gentleman from Station 2SM?
– What is his name?
– I do not know. He states that under instructions from the Minister for Defence (Mr. Archdale Parkhill) to the Postmaster-General he was prevented from broadcasting his talk from Station 2SM.
– The Postmaster-General takes his instructions, not from individual Ministers, but from Cabinet. I have seen the circular letter to which the honorable senator has referred, and concerning it all I need say is that if threats are issued against members of either branch of this legislature official cognizance should be taken of them by the respective Houses in order to protect the privileges of their members. As honorable senators are probably aware, there is a system of censorship over matter broadcast from all stations. The script is submitted to the censors who excise from it such portions as they think may be offensive to any section of the community.
Proposed Lease to Chartered Company
– Has the Leader of the Senate read an article which appeared in the Melbourne newspapers a few days ago to the effect that Cabinet wasconsidering a proposal to leasel00,000 sqitare miles of land in the Northern Territory to a company, the names of the members of which appear to be those of existing land-holders? If so, can he say if the project, theterms of which include a loan from the Commonwealth of £1,000,000 for the erection of meat works and construction of roads, railways and shipping facilities, is new, or is it the scheme which was discussed by the Government two or three years ago?
-It is really the proposal which was initiated two or three years ago and upon which no action wns taken.
– I ask the Leader of the Government to state definitely whether or not the Government is negotiating with a company which has lately benefited by much propaganda in the press to the effect that its proposal to develop . the Northern Territory will be aided by a Government loan of £1,000,000, and the granting of special consideration by the Commonwealth Government. The answer supplied to Senator Gibson does not satisfy me. Will the Leader of the Government state definitely whether or not such negotiations are ‘being conducted by the Government?
– I have nothing to add to the reply which I gave to Senator Gibson. Negotiations in this matter were commenced two years ago with a number of people, some of whom are mentioned in the statement referred to, and after reaching a certain stage,were discontinued. At present the Government is not negotiating with anybody on this matter.
League of Nations Papers
– ‘Has the Leader of the Senate any further information with regard to my request that copies of statements made by the Italian and Abyssinian delegates to the League of Nations should be made available to honorable senators ?
– In response to an inquiry made by Senator Foll on the 10th October concerning the statements made by the Italian delegate to the League of Nations, giving the reasons for the action Italy is taking in Abyssinia, together with the reply of the Abyssinian delegate, I desire to say that the papers so far received in this connexion have been placed on the table of the library. I shall also make available, in the same manner, other relevant documents in regard to the dispute as they are received.
– by leave - Since I left Canberra on the 10th instant I have learned the terms of a resolution, announced by Dr. Earle Page as having been passed at a meeting of the Country party held on that date in this building, approving the appointment of a Leader of the Country party in the Senate. Dr. Earle Page sent me a special invitation to attend that meeting. I replied stating that my views on the subject ‘had been clearly expressed in the Senate and that, as I had nothing to add to them, I did not intend to attend the meeting. I wish to refer to the resolution only so far as it affects myself and my position as an elected senator representing my own State and pledged to my electors to adopt a certain line of policy in the Senate with which my acceptance of a party leader here would conflict. I have no real differences with the Country party except on this major question of the alteration of the status of Country party senators, by the new appointment of a Country party leader in this chamber.
For the last ten years Country party senators from the various States have sat here free to carry out their duties to their States without the measure of party control and guidance which the appointment of a leader imposes. The Senate is a House of review designed to protect the interests of the smaller States. We in Western Australia look on this branch of the legislature as our one stronghold. It is the only place where, under the Constitution, we have an equal voice with any other State. It is, in truth, the only bulwark of the weaker States. The decision to impose a party leader and party methods in this States’ chamber is entirely repugnant to my conception of the Senate under the Constitution. I do not come 2,500 miles from Western Australia to be told by a party leader here what to do. I therefore am unable to allow the Federal Country party either to impose its will on me or to place me in party leading reins. I regard its action as a barefaced attempt to destroy the rights of free parliamentary speech and action which are cardinal principles of representative government. It is another step towards stifling the voice and influence of the smaller States in the National Parliament.
There are good reasons why the sudden and reckless, and, so far as I know, illconsidered change of policy by the Federal Country party, should be particularly unacceptable to-day to senators from South Australia, Western Australia, and Tasmania. Never have those States felt a keener sense of grievance against the Commonwealth than they feel to-day.
– I rise to a point of order. Is the honorable senator under cover of leave to refer to a domestic trouble of the Country party, entitled to enter into a dissertation on the relations of the Commonwealth and the States?
The PRESIDENT (Senator the Hon. P. J. lynch) .-When the honorable senator asked for leave to make a statement, it was open to any other honorable senator to refuse that leave.
– We did not know that he would discuss these other subjects.
– But in discussing the relationship of the six States to the Commonwealth, the honorable senator is abusing the privilege that has been granted to him. I ask him to confine his remarks to the affairs of the Country party, and not to indulge in a lengthy dissertation on. other subjects.
– The Leader of the Senate is not going to gag me. The Premiers of South Australia, Western Australia and Tasmania, although of different political schools of thought, are endeavouring to arrange closer cooperation between their governments and senators representing those States with a view to resisting the domination of the Commonwealth Government and the Commonwealth Parliament.
– I again rise to a point of order. The honorable senator is proceeding to continue a discussion which you, sir, have ruled out of order.
-I ask the honorable senator to confine himself to the domestic affairs of the Country party.
– Mr. Butler, the Premier of South Australia, lias “requested senators representing that State and Western Australia and Tasmania
– Unless the honorable senator confines his remarks to matters relating to the appointment of a leader of the Country party in the Senate, I shall have to ask him to resume his seat.
– The suggestion of Mr. Butler, the Premier of South Australia, that honorable senators from South Australia, Western Australia and Tasmania, irrespective of party, should co-operate to protect the interests of those States has been most favorably received by leaders of thought in them. No more inopportune time could have been chosen to place new party obligations on senators from those States. The decision of the Federal Country party to exercise party leadership and discipline over honorable senators from the smaller States shows an utter disregard of the interests of the primary producing States. It is almost incredible that a political party, which was established by primary producers to protect rural interests, should be so far forgetful of the three primary producing States as to attempt to place new party shackles on the representatives of those States in the. only chamber where they have any effective voice and vote. This action justifies the protests made by Senator Carroll and myself against this introduction of party domination. It is clear that the policy of the Federal Country party to-day, in relation to basic principles and vital matters, is dominated mainly by the three larger States.
As a candidate for the Senate, I was pledged to the primary producers’’ association and the Country party organization of Western Australia, as well as to the electors, to place the interests of Western Australia before any other consideration in a chamber specially designed for the protection of the weaker States. That pledge, and the political beliefs of a lifetime, prevent my joining the quartette of Country party senators who have voluntarily accepted a party leader in a non-party house of review established to protect State rights. For 25 years I have been a representative of my native State in the Parliaments of Western Australia and the Commonwealth. I will accept no leader and no political dictation in regard to my duties as an elected representative of Western Australia in the Senate. I have therefore tendered to Dr. Earle Page my resignation as a member of the Federal Country party. In future, I shall sit in the Senate as a Western Australian Country party senator, bound only by the principles of the Country party platform of that State and my pledges to the electors. No party leader in the Senate shall stand between me and my duty to Western Australia; no other honorable senator shall profess to express my views. I shall speak for myself as a representative of my State, without party domination or interference. I stand for that complete freedom of parliamentary speech and action which is the foundation of our civic liberties.
As incorrect statements in relation to my resignation from the Country party have appeared in certain newspapers, I now make it clear that I gave only one carefully prepared statement to the press for publication. That statement appeared in the Melbourne Argus and Age and the Sydney Morning Herald. To the extent that other reports differ from it, T. accept no responsibility for them. It is particularly unfortunate that unauthorized statements which have been attributed to me in some other newspapers, should refer to Dr. Earle Page and Mr. Paterson. I have the highest regard and esteem for those gentlemen, and did not make the statement about them which has been attributed to me.
. –by leave - a few days ago, Senator Johnston explained his position in relation to the appointment of a leader of the Country party in the Senate. A day or two later he gave an explanation of that explanation. To-day he has attempted to explain his explanation of his first explanation. If the serial continues much longer, much valuable time of the Senate will be taken up. Three honorable senators of the Country party have stated that Senator Johnston issued a circular convening the meeting at which the party elected a leader.
– I did not.
– In order to prevent the continuation of this serial, and to protect those honorable senators whose honour has been impugned by Senator Johnston, a select committee should be appointed to go into the whole subject, and thereby save the time of the Senate.
– In view of the fact that the London-Singapore section of the air service to Australia has been duplicated, can the Postmaster-General say when the remaining section of the service, Singapore to Australia, is likely to be duplicated?
– I understand that negotiations on this matter are now being conducted by the Comptroller of Civil Aviation, ‘but until I hear further from that source, I cannot enlighten the honorable senator.
New Wave Length Plan - Appointment of Mr. C. J. Moses
asked the PostmasterGeneral, upon notice -
Is it the intention of the Broadcasting Commission to alter the new wave lengths in such a way as to give to listeners who do not possess modern receivers a better service (such as was enjoyed by them before the alteration)?
– The new wave-length plan was designed and brought into force for the ‘benefit of listeners in general and it would indeed be a retrograde step to endeavour to design a system on the basis of utilizing obsolete receiving apparatus. A limited number of wave-lengths is available for the whole of the Commonwealth, and if progress is to be achieved it is quite impossible to maintain the conditions which prevailed when a much smaller number of broadcasting stations was in service. The dominating factor in the post office plan of wave-length allocations is the interest of listeners throughout the Commonwealth. The plan could not be modified in the direction suggested without sacrificing vital benefits to the general body of listeners.
asked the PostmasterGeneral, upon notice -
– The answers to the honorable senator’s questions are as follow : -
asked the PostmasterGeneral, upon notice -
Is he able to say when the new cable to Tasmania will be completed?
– It is hoped that the service which will be provided by the completion of the Tasmanian cable will be available for commercial traffic about March or April next year.
Assent to the following bills re ported : -
Appropriation (Works and Buildings) Bill 1935-36.
Loan Appropriation Bill 1935.
Bill returned from the House of Representatives without amendment.
. -I move -
That Statutory Rules 1935, No. 29 (Amendments’ of the Dried Fruits Export Control Regulations), be disallowed.
Although I am speaking in this matter on behalf of the Regulations and Ordinances Committee, of which I am chairman, I have put this motion on the noticepaper in my own name simply for the purpose of avoiding delay. The time in which the motion could be submitted was limited and there was a danger that if a report were furnished in the ordinary way to conform with Standing Order No. 36(a) the right of the Senate to object to this regulation might lapse. The committee is unanimous in its view of Statutory Rule No. 29. The committee does not approach this subject from the standpoint of policy; that is not a matter which concerns it. The committee has to decide whether Statutory Rule 29 is in accordance with the law, and as I indicated, it is unanimously of the opinion that it is illegal. When the committee was appointed no provision was made in the Standing Orders as to its duties. The Standing Orders merely provide that all regulations and ordinances laid on the table of the Senate shall stand referred to such committee for consideration, and, if necessary, for report thereon. If action is necessary, following a report of the committee, such action shall be taken in the Senate on motion after notice. The Select Committee which reported on the Standing Committees system, under which this committee came into existence, recommended that the committee should scrutinize regulations to ascertain. -
It is clear that this regulation conflicts clearly with the first paragraph, as it is not in accordance with the statute. It also, probably, conflicts with the fourth paragraph in that it is not concerned with administrative detail, and amounts to substantive legislation which should be a matter for parliamentary enactment. Section 10 of the Acts Interpretation Act reads -
Where an act confers power to make regulations, all regulations made accordingly shall, unless the contrary intention appears -
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.
That section was interpreted recently in the case of the Broadcasting Company of Australia- Proprietary Limited and others v. the Commonwealth, 52 C.L.R. 52. A majority decision was given by the Chief Justice, Mr. Justice Evatt and Mr. Justice McTiernan, who said : “ No one disputes that the mere fact that a statute of the Commonwealth Parliament operates retrospectively is insufficient to invalidate it”. Retrospective legislation is clearly within the competence of the Parliament, but the majority decision of the High Court laid it down quite definitely that retrospective regulations are not within the competence of the administration unless power to make them is specifically granted, which has not been done in this case. In other words, Parliament may, if it chooses, l>ass retrospective legislation, hut the administration is not at liberty to frame retrospective regulations. Statutory Rule No. 29 is a particularly long dated case, in that the regulations are to be . made retrospective for nine years. I have already said that this is not a matter of policy, but in a sense one of technicality. I admit that this regulation is not nearly so flagrant as that on which the High Court made its pronouncement. In that case there was a contract between the Postmaster-General’s Department and a number of broadcasting companies, setting out certain terms between the two parties. Subsequently the broadcasting company entered into an agreement under which it sold or assigned to the Dominion Broadcasting Proprietary Limited all licence-fees and revenue received from broadcasting operations between certain dates. The PostmasterGeneral’s Department came in subsequently, and tried to increase the amount it was entitled to withhold, which meant that the actual financial rights under the contract were detrimentally affected. The case dealt with by the High Court was a particularly bad one, but ethieally the statutoryrule now before the Senate is not bad. It seeks to legalize payments to officials by the Dried Fruits Export Control Board, dating back, in some instances to 1926. No doubt, these payments have already been made and as such I have no objection to them. They were proper payments, I expect, but they cannot he legalized by a regulation of this kind. The only way in which they can be validated is by legislative action.
– I presume the honorable senator is taking exception to paragraph 3 of the regulation.
– Yes. It lays down that the amendments effected by the preceding regulation shall be deemed to have taken effect on the 28th day of April, 1926, and the High Court held, in effect, that a provision of the kind was ultra vires, not only in respect of the past, but also in respect of the future. This matter came before the notice of the committee only a week ago, and, through the secretary, application was made to the Department of Commerce to ascertain the reason for the regulation. The committee desired more information upon the general purport of the regulation, particularly as to why it was necessary to make the amendment retrospective to the year 1926, and as to whether such provision was not invalid. The Department of Commerce offered the following explanation, which I shall give to the Senate, because it indicates that the matter in itself, apart from its legal aspect, is not of great importance : -
Some considerable time ago the Commonwealth Auditor in London questioned the authority of the Dried Fruits Board to pay the Fumigation Officer and a messenger and assistant as ‘ Officers “ of the board when actually they were but “ servants “ of the board.
The Commonwealth Auditor-General upheld the view of his London officer and accordingly in order to validate payments which had then been made to these employees the amending Statutory Rule (No. 29 of 1935) was promulgated.
Advantage also was taken of the opportunity to incorporate therein the newly-created position of Economic Advisor and to slightly amend the classification scale of some of the minor positions on the staff of the board.
It is, however, pointed out that these amendments do not provide for the payment of increased salaries to any of the board’s employees and that they merely legalize certain payments made in London which had been questioned by the Auditor-General of the Commonwealth as being outside the scope of the regulations (Statutory Rule No. 55of 1926) as they then stood.
In reply to the question regarding the legality of the regulation, the secretary wrote -
This is not a matter upon which the department might properly venture an opinion, and it would appear to be more appropriate ii the legality of the regulations are in doubt, for this question to be referred to the law officers of the Crown.
This, then, is purely a matter of legalizing the payment of sums of money made in the past to certain officials who earned them and were entitled to receive them; hut the procedure adopted, the committee maintains, does not validate the payments at all, and, in view of the judgment which I quoted, the regulation is palpably invalid. In my opinion, too, it is not desirable that the administration should have power to make retrospective enactments affecting expenditure so far back as ten years, or it might be, 20 or 30 years. I am not a supporter of retrospective legislation by this chamber, but the danger of retrospective action becomes greater if it may be taken by any branch of the administration. The Acts Interpretation Act specifically lays down that regulations shall come into force only from the time that they appear in the Gazette, or from a later date.
– The administration is really leap-frogging over earlier administrations of different complexions.
– In fact the regulation goes hack over a number of different administrations. I am quite prepared to admit that this procedure has been followed inadvertently, but the mistake is so obvious that I cannot imagine that the regulation can be defended on any ground. It is eminently desirable that the Senate should act in circumstances such as these, for the regulation infringes on the right of the general public, although it has not detrimentally affected any specific person. If it had done so, the legality of the regulation might have been tested in the courts, but where no particular person is detrimentally affected it devolves upon Parliament to object to regulations of this kind - which are detrimental to the interests of the puhlic generally, in order that they may be safeguarded. I hope that I am not oversanguine in anticipating that the Government will agree that the regulation should be disallowed. I shall be interested to hear any defence that may be offered on its behalf. Only this year the matter was decided in the court by a majority decision of three judges, and the fourth judge, Mr. Justice Rich, although he delivered a separate judgment, -was of substantially the same opinion as the majority.
– That decision concerned accrued rights. iHere the administration is merely trying to legalize payments already made by way of salaries.
– HUGHES. - A payment can onlybe legalized by legal means. According to the Acts Interpretation Act, and especially in view of the High Court’s decision, the regulation is invalid. The committee for which I speak, was appointed for the purpose of seeing that regulations of this kind which conflict with the law are not allowed to stand, and there is proper provision, of which the committee has taken advantage, for an objection to be lodged to such within a specified period. I hope that the Government will realize that if the work of this committee, which is most laborious, involving as it does a great deal of attention to detail, with very little result to show, is to be disregarded in such a palpable case of invalidity as the present one, it is hardly worth while for the committee to waste its time on the work which it is doing for the benefit of the general community, and which is plainly within the terms of the powers it was meant to exercise. Whether or not the Government agrees I again emphasize that all members of the committee are unanimously of the opinion that the regulation is invalid and should be disallowed. The duty of the committee appears to me to be perfectly clear, and it is on its behalf that I move for the disallowance of the regulation.
– I second the motion. ‘
[3.52]. - I do not intend to deal with the merits or demerits of the particular regulation, the disallowance of which has been moved by Senator DuncanHughes. I shall leave that aspect of the matter to my colleague, Senator Brennan, who represents the Minister for Commerce. I rise to draw attention to the extraordinary procedure that has been adopted in connexion with practically the first report received from the Standing Committee on Regulations and Ordinances.
– The committee has presented two long reports.
Senator Sir GEORGE PEARCE.But this is the first report which calls for action and I think we should be extremely careful, when establishing new procedure, to see that the rights of the Senate are safeguarded. Two things have been done in connexion with Senate procedure which, I venture to say, have been of the greatest convenience to senators and also have safeguarded the privileges and rights of this chamber. I refer to the insertion in the Senate Standing Orders of Standing Order No. 66a which reads -
The following business shall be placed on the Notice Paper as “ Business of the Senate “, and shall take precedence of Government and general business for the day on which it is sot down for consideration.
Then it goes on to provide, that, among other things, a motion for the disallowance of a regulation or ordinance shall take precedence. That is a procedure which, I venture to say, has no parallel in many houses of Parliament, and it is one that should not be misused. Tha other Standing Order to which I invite attention is 119,. and reads -
A motion disallowing a regulation shall take precedence of Government and general business.
Obviously, these Standing Orders were intended to deal with certain classes of regulations and ordinances.
– Such as those in connexion with the waterside workers’ dispute.
Senator Sir GEORGE PEARCE.Yes. Their insertion gave the Senate a control, which it had not possessed previously, over acts of administration. It may be argued that the exercise of thispower in respect of a particular regulation, such as the kind mentioned by Senator ‘Sampson, comes within the scope of the committee. But my objection is that the motion is a dual one; it is a private motion for disallowance, hut it is also, in the words of the mover, the opinion of the Regulations and Ordinances Committee. I take exception to that. If the Regulations and Ordinances Committee has a report to make to the Senate, that, report should be submitted in accordance with the provisions of the Standing Orders and in no other way. Standing Order 36a deals with the Regulations and Ordinances Committee and provides in paragraph 4 -
All regulations and ordinances laid on the table of the Senate shall stand referred to such committee for consideration and, if necessary, report thereon. Any action necessary, arising from a report of the committee shall be taken in the Senate on motion after notice.
If we are to hear from that committee, that is the procedure which it should follow. The Standing Orders do not authorize any member of that committee, to take action, on notice of motion, for the disallowance of regulations. I therefore ask the Senate to disregard the statement of the mover of the motion that, in this matter,he is acting on the authority and with the approval of the committee, because it has not power so to authorize him. In appointing the Regulations and Ordinances Committee the Senate said, in effect, to that body - “ We ask you to consider all regulations and ordinances to see if any contain provisions to which exception should be taken, and if so, to report that fact to the Senate. The Senate is the master of its own business and will then decide what shall be done.” That was the procedure which the committee should have adopted. If now we accept the motion submitted by Senator Duncan-Hughes we shall be creating a precedent which may prove to be extremely dangerous.
– There is the time limit fixed for the disallowance of regulations. That should be considered.
Senator Sir GEORGE PEARCE.As the honorable senator has said, the Standing Orders of the Senate fix a time limit for disallowance of regulations or ordinances. For that reason an honorable senator may think that action should, at this stage, be taken to disallow the regulation to which objection is taken. But the mover of the motion gave us to understand that he was taking this action at the request and on behalf of the committee.
– The motion is really a verbal report of the committee.
– That is so, and that, I repeat, is not the correct procedure. If Senator DuncanHughes, or any other honorable senator, wishes to take action to disallow a regulation or ordinance, the Standing’ Orders prescribe the course to be followed. A motion such as this may not be made on behalf of the Regulations and Ordinances Committee.
– Such action would imply that the committee was superior to Parliament.
Senator Sir GEORGE PEARCE.Yes. The procedure for the disallowance of regulations or ordinances is clearly set out in our Standing Orders.
– What is the correct procedure ?
Senator Sir GEORGE PEARCE.The correct procedure is for the Regulations and Ordinances Committee to make its report to the Senate.
– And recommend that the regulation be disallowed?
Senator Sir GEORGE PEARCE.- If the committee took that view it could recommend accordingly. Obviously, it is not competent for any honorable senator to move for the disallowance of a regulation at the direction or request of the committee, but he may take such action on his own initiative as a member of the Senate. My principal reason for rising was to express the hope that, in future, the Regulations and Ordinances Committee will not follow the procedure adopted in connexion with this matter now before the Senate, and to ask honorable senators that, whatever may be their attitude to the subject-matter of the motion, not to ‘accept it in its present form, thus establishing an undesirable, and possibly dangerous, precedent. I do not know what steps the committee took to inform its collective mind on the merits of the regulation, but I assume that it summoned certain officials to attend before it. I think Senator Duncan-Hughes mentioned that the committee discussed the regulation with the secretary of the Department of Commerce. It might happen that on some future occasion the committee, while not being fully informedabout a regulation, will reach a certain decision, and, because of that decision, every member of the committee will feel himself bound to support a motion made in the Senate.
– Hughes. - Would there not be the same objection when dealing with the report?
Senator Sir GEORGE PEARCE.No, because we must assume that a report is made with the full knowledge of all the circumstances and it would be discussed in the light of that knowledge. Certain aspects of a regulation which were not known to the committee might then be revealed and senators would not feel in duty ‘bound to support the recommendation of the committee. In the present instance Senator Duncan-Hughes might reasonably put it to fellow members of the Regulations and Ordinances Committee that, as he had moved this motion at their request, he was entitled to receive their support in the Senate.
– No member of that committeeis bound to support the motion if he has changed his view.
Senator Sir GEORGE PEARCE The procedure adopted is undesirable.I hope that it will not be followed in future.
– I am in complete agreement with the remarks of the Leader of the Senate (Senator Pearce). Honorable senators should endeavour to visualize the position which might arise if we accepted the motion in its present form. There is a deal of difference between the action taken by Senator DuncanHughes this afternoon and a motion to disallow, following the presentation of a formal report from the committee. If we recognize the right of any committee of the Senate to move that certain legislation, whether made by regulation or ordinance, should be disallowed, we shall, in effect, be acknowledging that r.he committee is superior to Parliament. 1 could never accept that position. If i his regulation were in terms similar to other regulations that have been made in recent years, concerning which a great deal of bitterness was engendered, not perhaps in this chamber so much as in the House of Representatives, what would have been the position if an honorable senator, in his capacity as a member of the Regulations and Ordinances Committee, had moved for its disallowance? The correct procedure for the committee is to present its formal report for the consideration of the Senate. To ask us to disallow a regulation merely because the Regulations and Ordinances Committee thinks it should be disallowed is to take away from this branch of the legislature authority which we should guard very jealously.
– I am in entire accord with the observations of the Leader of the Senate (Senator Pearce) as to the procedure, which has been adopted by the Regulations and Ordinances Committee. He has correctly stated the position. A dangerous precedent would be established if this motion were carried. I pay a tribute to the committee for the way in which it has barred out a. thankless task.
Senator Duncan-Hughes said that, if the regulation detrimentally affected any individual it could be, and doubtless would be, attacked in the courts. That may be so in a technical sense; but the fact remains that no person has been detrimentally affected by it. The regulation came into force in March, .1932, as an amendment of Statutory Rule No. 55 of 1926. Section 1 2 of the Dried Fruits Export Control Act provides that the salaries and conditions of employment of officers appointed under that act shall be as prescribed. In 1932 an officer of the Auditor-General’s Department in London questioned the correctness of certain payments, and expressed the view that a distinction should be drawn between persons who were officers of the Dried Fruits Board and others who were its servants. He thought that the man in charge of the Fumigation branch, and another classed as a messenger and assistant, would more correctly be designated as servants than as officers, because they occupied relatively minor positions in London. As the Commonwealth Crown Solicitor concurred in that view doubt existed as to whether the amounts paid to those two minor employees were legally paid. There was no question of the correctness of the payments other than in law. In order to validate the payments, which no one has ever disputed were proper payments for services rendered, the present statutory rule was brought into operation. Later, the High Court ruled that, by virtue of section 10 of the Acts Interpretation Act, a statutory rule could not be made retrospective. The regulation under review purported to be, effective as from the 28th April, 1926. No question as to the right of the , men to receive the money paid to them arises, nor is their status affected. The regulation which sought to validate the payments made to them also covered the newly created office of Economic Adviser in Australia.
Although I admit that technical grounds exist for the motion, there is no real substance in the complaint made against the regulation. I point out tha J neither House of the Parliament has power to amend a regulation; it must accept or disallow the regulation in tot”. I wish to make it clear that the regulation was not made in defiance of the judgment of the High Court, and ask honorable senators to reflect on the result of disallowing it.
– It would be necessary to introduce a short bill.
– A new regulation could be brought in. Senator Duncan-Hughes implied that the whole regulation was bad in law by reason of the High Court judgment, but I point out that paragraphs 1 and 2 of the regulation are perfectly valid. But they would be disallowed if the motion were agreed to. I take it that the only desire of honorable senators is to reject that part of the regulation which conflicts with the decision of the High Court. For that reason, I ask them to reject the motion. But, in order that there shall be no suggestion of flouting the High Court, I undertake that if the motion is rejected, the Government will either repeal the regulation or amend it by removing the offending provision.
– Is this the first occasion on which a regulation has been made retrospective?
– I think not. It is, however, a more extreme case of retrospective action than usual. Honorable senators should be content to leave the adjustment of this matter to the Government, which will, if necessary, introduce a bill for the purpose. Whatever is done-, honorable senators can rest assured that the regulation will be so amended as not to offend against the decision of the High Court.
– Could not the motion be ‘withdrawn?
– That could be done; but the time limit in regard to disallowing regulations must not be overlooked. As the carrying of the motion would establish an undesirable precedent, and as the Government undertakes to amend the regulation so that it will not conflict with the decision of the High Court, I ask the Senate to reject the motion.
– Although I appreciate the arguments of the Leader of the Senate (Senator Pearce) and of the Assistant Minister (Senator Brennan) I, as a member of the Regulations and Ordinances Committee, do not wish to shirk my responsibility in this matter. It is only fair to Senator Duncan-Hughes to say that the committee was actuated by the best intentions and the knowledge that any action to disallow the regulation must be taken within fifteen sitting days after the tabling of the regulation. I think that I am right when I say that to-day is the last day when action to disallow the regulation can be taken. I realize the force of the remarks of the Leader of the Senate concerning the danger of setting up an undesirable precedent, and I assure him and the Senate that the committee has no desire to interfere with the ordinary procedure in this chamber. In my opinion, there is nothing in the Standing Orders to require a report to be made by the committee in writing. It may be that a written report is preferable to a verbal one, but the Standing Orders do not preclude the making of reports other than in writing.
– The practice of Parliament is for reports to be made in writing.
– That may be, but many reports are not made in writing. Eor instance, the Chairman of Committees frequently makes verbal reports to the Senate. In any event, the Senate is master of its own business. The committee is not attempting to force the hand of the Senate, but it believes that it is fully justified in drawing the attention of the Senate to a matter of principle.
– Hear, hear !
– A dangerous precedent will be established if the Senate concurs in the making of a regulation which is retrospective for nine years. Whatever honorable senators may think of the way in which this subject has been brought before the Senate, they will, I think, credit the committee with having done its duty in drawing attention to it. In general I concur with the remarks of the Leader of the Government, and I accept the undertaking given by the Assistant Minister (Senator Brennan). However, in this matter, responsibility certainly rests with the Senate and I remind honorable senators that this is the last day upon which we can take action in the matter.
– That is not quite so; notice having been given within the required period of fifteen days the debate on the motion may be adjourned.
– I suggest that the motion be withdrawn and that, as this is the last day upon which the matter can be considered, Senator DuncanHughes, as chairman of the committee, should make a report upon which the Senate may take whatever action it thinks fit.
– I do not propose to discuss the procedure involved in this case, but shall deal with the substance of the matter raised by Senator Duncan-Hughes. Too much stress has been laid upon a recent decision of the High Court with regard to section 10 of the Acts Interpretation Act. Section 12 of theDried Fruits Export Control Act provides power to appoint officers, and also that officers appointed in pursuance of that section should not be subject to the Commonwealth Public Service Act. A further sub-section provides that the salaries and conditions of employment of officers appointed in pursuance of this section shall be prescribed. The prescriptions were framed practically on the same lines as the schedules which honorable senators will find attached to this regulation except for some omissions. In a desire to meet criticisms of the Audit Office, the regulation was amended in terms which have now been challenged by Senator Duncan-Hughes. I point out that a distinction can be drawn between the broadcasting case to which the ‘honorable senator referred and the matter with which we are now dealing. The Dried Fruits Export Control Act gave power to make regulations, and section 10 of the Acts Interpretation Act says -
Where an act confers power to make regulations, all regulations made accordingly shall. unless the contrary intention appears -
he notified in the Gazette.
take effect from the date of notifica tion, or from a later date specified’ in the regulations.
I draw the attention of honorable senators to the words “ take effect “. The broadcasting case, because it concerned accrued rights and vested interests, was very different from the matter to which the statutory rule under discussion applies and it appears that the High Court strained the effect of. section 10 in the interests of common justice. Here we are not attempting to interfere with anybody’s rights. We are endeavouring to vest with authority and protect certain officers who, without such protection, would be liable to the Crown for the amounts they have disbursed without proper regulating authority. It was never intended under the Dried Fruits Export Control Act that the whole of the staff payments should be regulated by the statute itself. It was intended that such should ‘be prescribed by regulation and the regulation is retrospective in effect only insofar as it endeavours to empower, regulate, and legalize something that has already been done.
– Does the honorable senator say that this regulation is valid?
– I suggest that the case upon which the honorable senator relies is absolutely distinguishable from the present ease as the observations of the justices who delivered the judgment will show. Regulation 67 A, which was involved in the broadcasting case, was one empowering the Crown to deduct certain payments, andthat was made retrospective. In the opinion of the court, it was retrospective legislation with a vengeance, in that it interfered retrospectively with the accrued rights of certain people. Dealing with this matter, Mr. Ham, K.C., said -
The purpose of the regulation is not to define the terms on which the plaintiffs are to do their work, but to take away from them an accrued right. The regulation is bad, not merely because it is retroactive, but because it cancels debts which the Commonwealth owes.
The point is that that regulation cut across rights that had already accrued. The regulation before the Senate, insofar . as it embodies the old regulation, has been in force for a considerable time. I do not think it was intended that the statutes should contain all these details. If Senator DuncanHughes is right in the contention that all retrospective regulations are bad, then there is only one way to avoid them, and that is to inflict a body of detailed statute law on the Parliament from time to time. While the point at issue may not be of any importance with regard to this particular case, it becomes of considerable importance in the entire administration of Commonwealth affairs. The strong point in favour of the honorable senator’s argument is contained in the majority judgment of the Chief Justice and Justices Evatt and McTiernan -
In our opinion this clause is inconsistent: with section 10 of the Acts Interpretation Act 1904-1930 and is void . . . This objection is, of itself, sufficient to invalidate the regulation, but its invalidity can be demonstrated upon broader grounds. For the essence of the regulation is its attempt to alter and set aside the accrued rights of those who had already provided a broadcasting service to the public, and for whose remuneration provision had already been made in the regulations. No one disputes that the mere fact that a statute cif the Commonwealth Parliament operates retrospectively is insufficient to invalidate it. Hut, where the executive Government attempts to give to a regulation a retroactive operation the validity of the regulation is necessarily dependent upon the precise term of tha grant which the Parliament has conferred upon the executive.
The whole point is the effect of the regulation retrospectively. Parliament Iia:conferred upon the Executive plenary powers under the Dried Fruits Export Control Act to make regulations regarding the staff -and the salaries to be paid.
– Did Parliament make that power retrospective?
– I think so. One must look at these things in a workaday world as referring to ordinary commercial conditions. For instance clerks, fumigators and others are required, from day to day, as shipments of fruit arrive in London, and these matters cannot be regulated entirely from Australia. I suggest that these are not conditions of the kind which the judgment of the court aims at. Nor do 1 believe that if section 10 of the Acts Interpretation Act stood alone, the court would have decided as it did. Regulation 67a really represented an effort on the part of the Executive Council, without the authority of thu Parliament, to prevent certain people from receiving payments to which, in the opinion of the court, they were entitled, and the attempt was made retrospectively. The court said that the essence of the regulation was its attempt to alter and set aside an accrued right. Mr. Justice Rich, in his judgment, said - [n my opinion, the regulation is void insofar a* it purports to authorize a further deduction from thu available revenue accruing prior to the date of its adoption.
Upon that he rested his judgment entirely - that the regulation was an interference with accrued rights and retrospective legislation of that sort was not to be countenanced. Mr. Justice Starke dissented from the majority judgment. I put it to honorable senators that this motion seeks to disallow a regulation which is retrospective only in that it attempts to validate something that was done in the ordinary course of business. It doe3 not attempt to interfere with the rich ls of anybody; but it protects those public servants who, in the discharge of their duties, had misconstrued the effect of Hie earlier regulation. No one had challenged it, and there would have been a complete answer to any suggestion of the Auditor-General that we were acting improperly. Mr. Justice Starke said -
It is difficult to speak of accrued or vested rights when they are so conditioned. Nevertheless, it is said that the regulating power cannot authorize the creation of new obligations or duties in respect of transactions or considerations already past.
This regulation does not interfere with any vested rights, and to expand the principle laid down by the High Court to include such cases as this would be dangerous. If the Senate adopted the motion on the grounds that this regulation is illegal it would be constituting itself a court, and applying a principle which was applied by the court to a totally different set of circumstances. The Senate would also be interpreting section 10 of the Acts Interpretation Act in a way in which I do not think it should be interpreted. The law provides that all regulations made shall, unless the contrary intention appears, be notified in the Government Gazette, and shall come into effect from the date of such notification. Stress has been laid upon accrued rights, but this is an instance of administrative regulations framed to enable the department to administer the law satisfactorily.
– Could wages be reduced under administrative regulations?
– Such action would interfere with vested rights. This regulation is to be retrospective, and is to take effect from the date notified in the Gazette.
– Retrospective legislation is not only bad but also dangerous.
– If regulations interfered with vested rights and were contrary to the law as laid down by the High Court.
– The Minister’s argument is that if they do not interfere with vested rights they are all right.
– In view of the High Court’s decision we have no authority to say that this regulation, if it does not interfere with vested rights, is bad.
– The reverse of vested rights would be the people’s rights.
– The honorable senator is suggesting that the exercise of this power might enable a government to impose retrospective charges upon the taxpayers. The honorable senator knows that the Executive is responsible to Parliament. Senator DuncanHughes is asking the Senate to apply a legal corrective for something which does not exist.
– Regulations are not seen by us, but legislation is brought before Parliament.
– The honorable senator is probably aware that the law provides that regulations must be tabled in Parliament. The Senate should not usurp the functions of the court by determining whether the regulation is good or bad. Strong arguments have been used in support of the contention of Senator Duncan-Hughes, but the Senate should not go to the extent of disallowing the regulation.
.- Whatever opinions may be held concerning the procedure which Senator Duncan-Hughes has adopted the honorable senator has been responsible for a very interesting discussion. I do not propose to attempt to deal with the legal points raised and replied to by the Postmaster-General (Senator A. J. McLachlan) beyond saying that I understand that Senator Duncan-Hughes objects to this regulation because it is retrospective.
– It is illegal.
– The gravamen of his objection is based on paragraph 3 which makes it retrospective. The honorable senator is asking the Senate to constitute itself a court of law and to say that every retrospective regulation adopted by the executive must necessarily be illegal. That is going very far. This is a matter requiring most careful consideration. I have had a fairly long ministerial experience and I am sure that the Leader of the Senate (Senator Pearce) will agree with me that this is by no means an isolated case. A perusal of the statutory rules and regulations would reveal that there are hundreds involving retrospective action.
– They frequently arise because of some audit query directing attention to informalities.
– Yes, and in correcting the informalities the rights of individuals are not affected. Pure technicalities can be adjusted legally in this way and that has been done hundreds of times in the history of the Commonwealth.
– Not since the High Court judgment.
– I am not prepared to say that the honorable senator has interpreted correctly the High Court judgment. He is a lawyer and his interpretation may be correct, but some other legal authority may give a different interpretation.
Senator McLeay. - There was a difference of opinion on the High Court Bench. Senator Sir WALTER MASSYGREENE. - Exactly. I am prepared to accept the statement of the Minister. With the Leader of the Senate I am prepared to absolve Senator Duncan-Hughes and those associated with him from any desire to act contrary to the Standing Orders which prescribe the procedure to be adopted. Standing Order 36a provides that the Regulations and Ordinances Committee is a standing committee, and Standing Order 37a provides that the procedure to be adopted in the proceedings of a standing committee shall be the same as in a select committee unless the Senate otherwise orders. This standing committee is governed by the rules of a select committee. Standing Order 310 provides that it shall be the duty of the chairman of every select committee . to prepare a draft report. It is clear from Standing Order 311 that the draft report has to be in writing, and that each part of the report has to be submitted to members of the committee so that they may vote upon it. Standing Order 312 provides that there may be an alternative report, No. 313 for re-consideration, and No. 314 for the report of the committee to be signed by the chairman. It is clear that the report of the committee must be in writing and signed by the chairman. The Standing Orders continue -
The report of a committee shall be presented to the Senate by the Chairman, and may be read.
Upon the presentation of a. report no discussion shall take place; but the report may bo ordered to be printed with documents accompanying it.
If any proceeding be necessary upon a report of a committee, such proceeding shall be brought under the consideration of the Senate by a specific motion, of which notice must be given in the usual manner.
So it is perfectly clear that if the committee, which I admit does a great deal of thankless work and spends a tremendous amount of time on a lot of very dry matter, desires to bring before this chamber the fact that a regulation may be invalid and requires action by the Senate, its report must be submitted in writing and presented by the chairman. Then, if action is necessary, a motion may be made before the Senate.
– 1 listened with a great deal of interest to the remarks of the various speakers’ and particularly to Senator MassyGreene. I do not agree with him. The position is that Senator Duncan-Hughes himself has moved that a certain statutory rule be disallowed. We are dealing, not with a report from any committee, but with a private motion made by Senator Duncan-Hughes. Admittedly, he mentioned in the course of his remarks that he is the chairman of the Regulations and Ordinances Committee.
– And that he brought up the matter at the request of the committee.
– He said that incidentally, but he acted as a private member. The Leader of ‘ the Senate (Senator Pearce) disagreed altogether with the .procedure adopted, and berated Senator Duncan-Hughes for having taken this action. Throughout my association with the Senate, there has been a great deal of dissatisfaction with the system of government by regulation.
Honorable Senators. - Hear, hear !
– Government by regulation is a usurption of the rights of Parliament.
– Yes. Certain speakers have said that the committee is presuming to set itself above the Par liament. That is altogether incorrect. The motion asks the Senate, not the President or the committee, to disallow the regulation. Senator Brennan skated around the main point, and I regard his explanation as being like the curate’s egg, good in parts. The Postmaster-General (Senator A. J. McLachlan) went in circles around the issue of the validity or otherwise of the regulation, and when Senator Duncan-Hughes asked him point blank whether the regulation was legal, he did not answer.
– He could not.
– There is only one tribunal in Australia competent to adjudicate that point.
– Senator MassyGreene stated that hundreds of retrospective regulations have been in operation, but 100 wrongs do not make one right. This committee is functioning as I never remember a Standing Committee to function before. It has warned the Senate that it is following a dangerous course, and that this regulation should not be allowed to remain. Nobody has expressed on behalf of ‘ the Senate gratitude to the committee for the amount of work it does.
– I acknowledged the good work of the committee.
– The honorable senator acknowledged it in a very halfhearted and offhanded manner. The committee has rendered great service to this chamber. No honorable senator can say that this regulation, is good. The Senate desires to know whether it is good or bad. Some honorable senators stated that the chamber was constituting itself a court of law; but the Senate is given the power to disallow, and we are entitled to pronounce on every regulation our considered judgment. The alternative is to have government by regulation, and bills might as well become law without consulting this chamber at all.. I support the motion moved by Senator DuncanHughes.
– Having listened attentively to the remarks of Ministers, I fail to understand why they feel obliged to support something which in their hearts they know is not correct. I took particular interest in the extracts which Senator A. J. McLachlan quoted from the judgment of the ‘High Court. The judges stated not once, but several times that the regulation was invalid, not only because it was retrospective, but also for other reasons, but the point mentioned by them, first was always the retrospective aspect. This regulation purports to validate payments made since 1926. Certain honorable senators stated that this chamber has no judicial decision to guide it in this matter. I say that the verdict of the majority of judges of the High Court was definite and unequivocal. Senator Brennan stated that the regulation, with the exception of paragraph 3, was valid. The Government is seeking to do by a subterfuge what should be done by legislation. No honorable senator can deny that.
– Does the honorable senator desire to fix the wages of a fumigator by an act of Parliament?
-No ; but this chamber is constantly having to pass legislation to validate something that has been done irregularly. Although this particular matter may be regarded as unimportant, because it concerns only one or two people, and the public is not vitally interested in it, a big principle is involved. If another party took office and promulgated regulations to make something retrospective over the terms of three or four parliaments, would honorable senators sitting on this side of the chamber consent to it? Because the matter immediately at stake is small, we should not be prepared to accept something which we know is wrong in principle, and dangerous. I support the motion to disallow the regulation.
– I do not propose to deal with the legal aspect of this debate, because, having heard the different arguments advanced by the legal gentlemen who sit in this chamber - and I shall leave legal technicalities to them - I confess myself more confused than ever. As a Labour member of that committee, I attended every sitting, and I can inform honorable senators that we investigated this matter very closely. In bringing before this Senate something which we believe to be wrong, we have done what we consider to be ourduty. The committee was unanimously of the opinion, in the light of the judgment of the High Court, that the regulation was bad in principle, because it was retrospective for a period of nine years. The committee, therefore, decided toacquaint the Senate of its decision, with a view to having the regulation disallowed. Perhaps we have not observed all the forms demanded by the StandingOrders relating to the Regulations and Ordinances Committee. The most serious omission appears to me to be, not so much in respect of the presentation of the report - the Standing Orders do not state whether it shall be verbal, typewritten, or printed - as in the failure togive notice of the motion to the Senate. The committee did not give notice, but it had an excellent reason for failing to do so; only one day remained of the period within which the regulation could be disallowed. Hence the committee gave Senator Duncan-Hughes authority to make the report verbally.
– If it had been an important matter, would the honorable senator have advocated a written report?
– Then who is to distinguish between important and unimportant matters?
– We found that there are other regulations which are retrospective, though perhaps they are not so important. The committee considered that this matter was of sufficient importance to warrant its being brought before the Senate. This is a subject which, apart from, the legal technicalities, must appeal to every honorable senator as one that should engage the attention of this chamber. Ministers have admitted that something should be done. Senator Brennan, representing the Attorney-General, stated that the matter would be referred to the department concerned, and that something different from ihe existing regulation would be introduced. I repeat, the committee was unanimously of the opinion that the Senate should be informed of its discovery, and any failure to comply with the formalities that has occurred was due to the pressure of time. There has been frequently a protest, particularly by the Opposition,, against legislation by administrative act or regulation. Undoubtedly every honorable senator is interested in having the position clarified, so that the committee and the Senate may know what are their powers when reviewing ordinances that involve a possible encroachment on the legislative power of the Parliament.
– As a member of that committee, I believe that Senator Duncan-Hughes was perfectly correct in submitting the motion. The President accepted the motion, so it is competent for the Senate rc discuss it.
– Nobody challenges that.
– A private member has brought forward a motion, and the Senate proceeds to discuss it; then honorable senators are informed by the Leader of the Government (Senator Pearce), and by Senator Massy-Greene, that some standing order has been ignored, because the committee should, first, have made a report in writing. Is there any standing order which states that the committee must bring in a report before a private member may make a motion?
Senator Sir George Pearce. - I took exception to Senator Duncan-Hughes’s statement that he moved the motion at the request of the committee, and that such procedure was the committee’s method of acquainting the Senate of its decision.
– I understand that, and I consider the procedure to be perfectly in order if the committee empowered the chairman to take this course. I fail to see the cause for any worry and excitement over a course of action which is not prohibited by the Standing Orders. It is not mandatory that the committee should first submit a written report to the Senate, before a senator may move in his private capacity. Senator A. J. McLachlan said that the judgment of the High Court in the broadcasting case >vas based on the protection of accrued rights. In that case a private enterprise applied to the court, and obtained judgment in its favour. Suppose that the regulation now under consideration had been made retrospective in respect of the action of some one in London who had reduced the wages of certain employees of the Department of Commerce. Honorable senators agree that retrospective legislation is wrong in principle when it affects adversely the individual citizen. Under a retrospective regulation, workers in London might be obliged to return wages paid to them over a series of years. For instance, an unfortunate man employed by the board in fumigating goods in London might be called upon to refund a portion of his wages. I have never been’ in favour of wage reduction, whether it affects Parliamentarians in Canberra or workers in London. The Assistant Minister has suggested that one result of the disallowance of this regulation may be that a humble worker in London will have to repay wages received since 1926. If so, I shall be compelled to vote against the judgment of the committee, because I feel sure that, whenever the opportunity presents itself, certain people will always move the courts to do as I have indicated. Only a few days ago I had brought under my notice a case in which action was taken in the courts to secure a refund of portion of wages paid to Brisbane workers who had been taken off relief work and given regular employment for five and a half days a week. The result was that their position at the end of each week was worse than it would have been had they remained on relief work.
-r-The carrying of the motion will throw into the melting pot the whole subject of the salaries and wages of some employees.
– I understand from the Minister that much confusion will be caused if this regulation is disallowed ; but he has given an assurance that the Government will take immediate action to overcome any difficulty arising from the invalidity of the regulation.
– The Government will take action to repeal paragraph 3. I do not wish to mislead the honorable senator. All I can say is that the carrying of the motion might have that effect. If certain payments have been made illegally, action may be taken to secure repayment, but I do not think there is the slightest, chance of that being done.
– That being so, no harm can be done if the Senate disallows t he regulation.
– But harm will be done. The carrying of the motion will also disallow paragraphs 1 and 2 of the regulation.
– Could not the Government, in the next 24 hours, issue regulations embodying those provisions?
– . That could be done by making regulations having retrospective effect, and that, I admit, should not be done.
– I regard the retrospective nature of these regulations as particularly dangerous. Lord Hewart, inThe New Despotism, has emphasized that Parliament is being robbed of its legislative functions by governments legislating for the community by regulations. Mr. F. A. Bland, lecturer an public administration in the University of Sydney, and recognized as the foremost authority in Australia on parliamentary institutions and their working, has also directed attention to this trend in recent years, and has pointed out that legislators are really becoming merely cogs in a gigantic law-making machine. Senator Massy-Greene this afternoon reminded us that during the last few years hundreds of regulations, having retrospective effect, had been adopted by both Houses nf the Parliament. This being so, it is time that the Senate called a “ show down “. It is bad enough when regulations having no retrospective effect take the place of legislation by Parliament. Regulations that are retrospective in their effect may, and often do, have direful results. All retrospective legislation that has been passed by Parliaments, Commonwealth or State, has been objectionable. It is urged, in support of this trend in legislation, that errors made in administration are covered up by the issue of retrospective regulations. This expedient places in the hands of Ministers the most effective and dangerous instrument that could be devised to cover up administrative faults, because, as frequently happens, large numbers of regulations are laid on the table, and, unless disallowed within the prescribed period, they become law. Legislation by this method. is an abrogation of the best British traditions of parliamentary government. I am, therefore, definitely opposed to a continuance of the practice, if it is a practice, of issuing regulations of a retrospective character. To replace legislation by regulations is to prevent this chamber from discharging its proper functions as a house of review, and from amending legislation which, in its opinion, should be altered.
. - As a new member of the Regulations and Ordinances Committee, I was surprised to learn that no fewer than 164 statutory regulations were laid on the table of the Senate last year. At the first meeting of the committee whichI attended,we were called upon to consider the regulation which is now the subject of the motion moved by Senator DuncanHughes. I have no desire to do anything that might embarrass the Government. I listened carefully to the Assistant Minister (Senator Brennan), who gave us an assurance that, if the motion were withdrawn, he would see that the matter was put in order.
– I repeat that assurance.
– It would be unfortunate if, through the carrying of the motion the whole of the regulation were disallowed. My name is associated with another motion on the notice-paper, and I ask the Leader of the Senate (Senator Pearce) to bear with me, and with other new senators, if, for a time, we fail to adopt the correct procedure in this chamber.
Regulations may be of a far-reaching nature, yet it seems to me that many honorable senators do not scrutinize them as carefully as they should. Among those who gave evidence before the Select Committee appointed by the Senate to consider the advisability of setting up standing committees to deal with, amongst other things, regulations and ordinances, were several outstanding constitutional lawyers who advised members of Parliament to be careful to scrutinize all regulations. I trust that honorable senators will read the report of the Select Committee and in future give to regulations the consideration that they deserve.
. -in reply - I desire, first of all, to assure the Senate that in the course which I adopted there was no lack of proper deference to the Senate and no intention to act improperly, as the Leader of the Senate (Senator Pearce) has suggested I have done. In my opening remarks I went out of my way to say that the normal method of procedure would have been to submit a report. I then gave my reasons for not adopting that course.
– If a change of procedure is to be made, the Senate should make it.
-HUGHES. - The’ Standing Order which relates to the proceedings of committees of the Senate does not exclude any member of it from acting in his private capacity if he thinks fit to do so. I ask for your ruling, Mr. President, as to whether I have acted within the Standing Orders of the Senate.
– The motion is perfectly in order.
– HUGHES. - I asked for that ruling because it has been suggested that there is some element of impropriety about the course which I have adopted. Not only did I explain why I had not adopted the normal procedure, but also, in order to be perfectly fair to the Ministry,. I went so far as to inform the Minister personally before I announced in the Senate that I intended to submit the motion. I gave the Ministry reasonable notice of my intention; I had no desire to take it at a disadvantage.
– Which Minister did the honorable senator see?
-I saw the Assistant Minister (Senator Brennan), and also the PostmasterGeneral (Senator McLachlan).
– The honorable senator might have mentioned his intention to the Leader of the Senate.
– Perhaps I should have mentioned the matter also to him; but twoMinisters out of three in the Senate were advised.
– Neither of the two Ministers to whom the honorable senator mentioned this matter happens to be the Leader of the Government in this chamber.
– This being a legal matter, I thought that Senator Brennan would be in charge of it.
– Not as regards the procedure in the Senate.
– HUGHES. -I submit that if I acted in accordance with the procedure of the Senate - and the President has ruled that I did - there was nothing for me to submit to the Leader of the Senate, or to any one else. As I have said, I went out of my way to inform the Minister in advance of my intention. I am not responsible for the position of the motion on the noticepaper. It may be that it would have been better under “ General Business”,in that case my purpose would have been suited just as well.
Three points in connexion with this subject appear to me to be relevant. The first is whether my statement that I have represented the unanimous view of the committee, is disputed. Is it suggested that I have not made a truthful statement about the unanimity of the members of the committee in regard to this matter? I do not think that the Leader of the Government would accuse me of a deliberate mis-statement. Indeed, it would have been foolish of me to claim to represent the unanimous view of the committee if that were not so in fact, because the members of that committee could, and no doubt would, have disagreed with me.
– The honorable senator claims to speak, not on behalf of the committee, but- as an individual senator. He cannot have it both ways.
– Although I said that I spoke in my personal capacity, I also said that I was the chairman of the committee and that I spoke on its behalf because its members were unanimously in agreement with me.
– That is the . point to which I took exception.
– That is a matter for argument. I do not wish to occupy the whole of the time at my disposal in discussing this point, since the President has ruled that I am in order. If it is contended that other procedure would have been preferable, T point oat that I almost suggested that in my opening remarks. But as the course which I have taken is also within the rules of the Senate, surely I am in no way blameworthy. Of course, the members of the committee,, one ‘by one, could have agreed with what I said ; but it did not appear to the committee that there was need for that to be done.
No Minister who has spoken has made it clear whether,- in his judgment, the regulation is valid and legal.
– In my opinion, paragraph 3 of the regulation is invalid, t presented my case to the Senate on the basis of the invalidity of that paragraph, and said that the matter would be rectified.
– It may be that I am singularly dense, but until the Assistant Minister interjected I did not understand from the speeches of any of the three Ministers that that was admitted. And if that point is admitted, why was a rather personal attack made upon me for the method I adopted, unless it be that in some quarters it is thought that the best method of defence is offence?
– The Leader of the Senate thought - and I agree with him - that the honorable senator was setting up a dangerous precedent. .
– I did not deal’ with the merits or demerits of the regulation.
– If I. am charged with setting up a dangerous precedent, I can only reply that the regulation also is dangerous.
– I suggested how it might be altered.
– I shall follow the example of the PostmasterGeneral (Senator A. J. McLachlan) and read to the Senate the majority decision of the High Court on the point under discussion. Dealing with the- validity or otherwise of a regulation similar to that now under review a majority of the High Court said -
By Section 10 of the Acts Interpretation Act 1904-1930, it is provided that where an act confers power to make regulations, all regulations made accordingly shall, unless the contrary intention appears, (i.e. appears from the act), take effect as from the date of notification nr from a later dato specified in the regulations.
In the case of the regulation here attacked, it was expressely provided in clause 2 that it should be deemed to have commenced on the 1st November, 1927, a date some nine months earlier than the date of the notification.
The only difference in the regulation .1 have brought before the Senate is that it is nine years, not months, earlier -
In our opinion this clause is inconsistent with Section 10 of the Acts Interpretation Act 1904-1930 and is void.
That is the pronouncement of a majority of the High Court on a precisely identical point. I went out of my way to stress that the ethical merits of the two cases were not the same. But, in law, they are absolutely identical.
I am forced to take notice of Senator Brennan’s statement that the decision of the High Court had not come to the notice of the department when the new regulation wa3 issued. The judgment of the High Court was delivered on the 21st February and the regulation was dated the 26th March. Are we to imagine that the law officers of the Crown are not conversant with a High Court judgment until five or six weeks after it has been delivered, particularly when it may affect not only the regulation in respect of which the decision was given but also a number of other regulations? Although the full verbatim report of a case might not be available for some time, surely the legal advisers of the Crown are informed, in some detail, of a decision of the High Court soon after it is made. I should have thought that at least a type-written report of every judgment is made available to them immediately.
Senator Brennan also said that no person had been detrimentally affected by the regulation. What about the taxpayers? If money has been paid without legal authority, some one is detrimentally affected. Although I happen to have been called to the bar, I am not practising at. present, and have not done so for 20 years. For that reason I do not speak as a lawyer when I say that in my opinion Senator Massy-Greene was wrong in the views that he expressed. The honorable senator’s contention was equivalent to saying that it is not for the Senate to set itself up as a High Court. A person who consults a number of lawyers very likely receives a different opinion from each of them. But surely when we have before us u regulation which obviously is governed by a decision of the High Court this year, it is only courtesy to that tribunal t hat this chamber should recognize that decision, and its application to the present circumstances; otherwise it will mean, in all probability, that every case will have to be fought before the High Court, and the right of this chamber to disallow regulations will simply disappear because there may always be argument on points of law. The Assistant Minister has amply confirmed my views on the legal aspect of this matter. The PostmasterGeneral (Senator A. J. McLach- lan) was doubtful as to the validity or invalidity of the regulation.
– I am prepared to hold a brief either way.
– I submit that we have for guidance a case settled this year by the High Court; that judgment is obviously applicable in the present instance. It is our duty, therefore, to follow that judgment.
– It was not a unanimous judgment.
– I admitted that.
– If the High Court were composed differently, we might get a different judgment as happened in connexion with section 92 of the Constitution.
– I admitted that three judges gave a majority judgment, and that Mr. Justice Rich gave substantially a similar decision on different grounds. If it will help the Minister I now admit that Mr. Justice Starke, who is an exceedingly able lawyer, took . a different view in his judgment. I take it that in opposing my motion members of the Government do not admit that my legal contention is correct. I hold that it is correct, and I am not prepared to accept any undertaking that may be given by the Assistant Minister. For that matter, if we are to be governed so very closely by the Standing Orders, there is nothing in them, dealing with the acceptance of undertakings.
– Does the honorable senator doubt the Assistant Minister’s honour when he gives an undertaking ?
– Of course not.
– What, then, is the significance of the honorable senator’s last remark?
– Does the Leader of the Senate say that if a Minister makes a statement and suggests that there may be agreement on a point, and that he is undertaking to do something, it is obligatory upon an honorable senator to accept such an undertaking? I have the highest respect for the word of Senator Brennan, and I do not question for one moment that he would carry out any promise which he gave.
– The honorable senator’s point is that the regulation should be either disallowed or not disallowed ?
– I submit that if this regulation were disallowed - and, in my opinion, that would be the proper course for the Senate to follow - it would be just as easy for the Government to bring in new regulations starting de novo, as to amend the present regulations.
– Would the honorable senator address himself to the point as to how, in the event of the whole regulation being disallowed, paragraphs 1 and 2, could be replaced?
– I read the regulation as one whole, and as such it is subject to the judgment of the High Court. I contend that it is almost impossible to separate paragraphs 1 and 2 from paragraph 3, and that back payment, which I admit should be made, can be properly provided for by legislation. It should not be provided for by departmental and administrative regulation.
– Would we not effect that end by merely disallowing paragraph 3?
– Why not? The other paragraphs are similar to what, they were previously.
– What would then happen to those two officials who have ‘been paid for a number of years but whose payment has not been legalized ?
– My colleague is prepared to accept that responsibility, but why disturb the paragraphs that do not conflict with the honorable senator’s view?
– In my opinion the regulation is invalid; as Senator Arkins has pointed out, it infringes the right of the legislature. The committee was appointed to deal with such a matter as this to ensure that regulations would not be put through without honorable senators being made cognisant of them.
– If this regulation is disallowed we can legislate.
– A special act to appoint a f umigator !
– Such a minor matter as the payment of a fumigator may not be all that is involved in considering these regulations. An examination of regulations which have been passed recently indicates that this is not the only one. which offends against the judgment of the High Court. I reiterate that the committee has accomplished what it was asked to do. Certain powers were delegated to it by the Senate and, I think, it was on the motion of the Leader of the Senate that the committee was constituted. The matter we have considered is probably not of first importance except in respect of the principle involved. The committee has indicated what it considers to be the proper action to be taken. Any member of it who is of the opinion that the Ministers’ answers meet all requirements in this matter, is at full liberty to vote with the Government, but I take the view that the committee has acted properly in the matter and has considered the interests of the community. I propose to vote accordingly.
Question - That the motion be agreed to - put. The Senate divided. (President - Senator the Hon. P. J. Lynch.)
Majority . . . . 8
Question so resolved in the affirmative.
Motion agreed to.
– I move -
That Statutory Rules 1935, No. 30 [Dried Fruits Export Control (Licences) Regulations] be disallowed.
Some regulations issued under the Dried Fruits Export Control Act are of benefit to those engaged in the production of. dried fruits, and should be retained, but. there are others which should be disallowed. The report of the Select Committee which reported to the Senate on the establishment of Standing Committees quotes the opinion of Lord Hewart, Lord Chief Justice of England, who, in his book The New Despotism deals with the practice of legislating in Great Britain by means of regulations. He said -
The public service has become a powerful bureaucracy usurping the prerogatives of Parliament. Some statutory regulations, though not ultra vires, deal with matters which should be dealt with by act of Parliament or an a mending act.
– Does this motion emanate from the Regulations and Ordinances Committee?
– No. In perusing the report of the Select Committee, I was interested to read that Professor Kenneth Hamilton Bailey, Dean of the Faculty of Law at the University of Melbourne, in giving evidence on the 30th of January, 1930, said -
I direct attention to the regulations under the Dried Fruits Export Control Act of 1924.
Of all the regulations affecting primary producers, this eminent authority selected those issued under the Dried Fruits Export Control Act. He continued -
Some of the regulations are relatively unimportant, and do not require such aclose scrutiny. The important regulations needing scrutiny are those which impose substantive law and prescribe the rights and duties of whole classes of citizens. I draw attention in that category to another block of regulations in the same section - those relating . to licences. The rules provide that the Government may by proclamation prohibit the export of dried fruit except under licence and the conditions under which licences may be granted are very rigid and definite in the regulations.
The regulations provide -
A licence to export dried fruit to countries other than the United Kingdom and Now Zealand shall be subject to these conditions -
) That the exporter shall insure each shipment of dried fruit with such company or companies as the board determines;
That the exporter shall ship all dried fruit with such shipping companies as the board determines;
That in the case of sales of dried fruit to Canada the Minister must be satisfied that the fruit is sold subject to such terms and conditions as are approved by the board, and in such quantities as are from time to time determined by the board.
Those regulations were in force in 1930, but are mild, compared with Statutorv Rule No. 30 of 1935.
– What is the objection?
– In the case of exports to Canada the board may, if not satisfied with the conditions of sale, decline to issue a licence. The point I wish to stress is that regulations become operative when approved by the GovernorGeneral in Council, unless disallowed by either House of Parliament. Professor Bailey continued -
These regulations affect intimately and very greatly the livelihood of all classes of citizens and call for special scrutiny.
– Does he say that they affect the people prejudicially?
– I shall show that they are very rigid, and have a detrimental effect upon primary producers in South Australia. In giving evidence before the committee, Sir John Peden said -
The system of legislating by statutory rules and ordinances goes too far in some directions. The New Despotism by Lord Hewart appears to me to be a very valuable book.
The present Attorney-General (Mr. Menzies) giving evidence before the committee said -
I am somewhat concerned at the growing tendency to legislate by regulation. No legislative change should find expression in a regulation.
A pronounced legislative change is being made in the regulations now being considered by the Senate, and if adopted, will have a very detrimental effect upon a large number of persons engaged in the production of dried fruits. The industry is divided into three sections. There are those like Mr. James who are opposed to any form of control. There are others, who are members of the Independent Dried Fruits Association of South Australia, on whose behalf I am speaking, an independent organization, formed because of the rigid nature of the regulations. That association, which was formed in December of last year, now has a membership of over 1,000, who dispose of the whole or a portion of the crops of 1,200 to 1,500 fruit-growers. At the first conference, Mr. G. A. W. Pope, chairman of the Dried Fruits Board of South Australia, is reported to have said -
His board welcomed the advent of a new organization because it would give them an opportunity to do something which they had never been able to do before, and that was to ascertain the view-point of the whole industry instead of sections of it, and to administer the Dried Fruits Act, and matters pertaining to it in a manner which would be of benefit to the whole industry instead of to only portion of it.
The third section of the industry is controlled by the Australian Dried Fruits Association, which has done a great, deal for the dried fruits industry of Australia, and is entitled to every credit for what it has accomplished in orderly marketing and control. This association controls a kind of pool, and growers sell fruit on consignment. The independent organization which buys fruit for cash is giving such satisfaction to a large number of growers in South Australia that its business has increased considerably. This independent undertaking has increased its operations so substantially that the Australian Dried Fruits Association has become concerned at the amount of business that it is losing to the organization. The board controlling the export of dried fruits is composed of eight members drawn as follows : two from Victoria, and one each from New South Wales, South Australia- and Western Australia, while the remaining three are appointed by the Government. The Government nominees
I believe, were selected on account of their experience in commerce, and were men qualified to watch the welfare of the industry from the business angle. It is interesting to note that one member of the board who was appointed by the Government was Mr. J. B. Murdoch, of Waikerie, a prominent member of the Australian Dried Fruits Association. Theses men have done excellent work, and they are highly respected and esteemed in South Australia. But honorable senators will realize that, with six of the eight members of the Dried Fruits Export Control Board prominently associated with the Australian Dried Fruits Association, the existing regulations and the power that the board has, may be used drastically to prejudice the interests of immediate competitors, that is, the members of the independent association.
– Do five members of the board represent the States?
– Yes, and the remaining three are appointed by the Government.
– Are those five representatives of the States members of the Australian Dried Fruits Association?
– They are, and so is one of the Government appointees. In my opinion, this board is prejudiced against the majority of the independent growers, who have rendered good service to the industry. They are quite prepared to submit to reasonable regulations. But it is for honorable senators, not a board dominated by the Australian Dried Fruits Association, which is most anxious to protect its own interests, to define what are reasonable regulations.
– Has the honorable senator an alternative set of regulations to submit to the Senate?
– That will be a matter for the Department of Commerce to decide. An alternative set of regulations could readily be drawn up.
– If the honorable senator proposes to destroy something, he should suggest an alternative to replace it.
– It is not our wish to destroy the board, but we wish to prevent it, dominated as it is by the Australian Dried Fruits Association, from doing an injustice to a large section of growers in the dried fruits industry. If certain amendments and alterations are made, the industry as a whole, and even the growers who are members of the Australian Dried Fruits Association, will obtain a’ better deal as a result of healthy competition.
– What is the membership of the Australian Dried Fruits Association?
– It is substantially greater than that of the independent association, which has 1,000 members. I take a serious view of a statement made by the president of the Australian Dried Fruits Association, who is a member of the Dried Fruits Export Control Board. It concerns his attitude towards competitors. A press report of a meeting at Red Cliffs on Friday, the 14th June, 1935, reads -
The need for unity to combat the menace of the outside dealers to the Australian Dried Fruits Association was stressed by the chairman of the board of management of the association, Mr. H. D. Howie, at a general meeting of the Red Cliffs branch on Wednesday night. Thirty growers attended, and the chairman welcomed Mr. Howie, Mr. A. L. Johnstone, chairman of the Federal Council of the Australian Dried Fruits Association, and visitors from Renmark.
Mr. Howie dealt with the question of “outside “ fruit in South Australia, which, he said, had always been a bugbear to Victorian growers and those South Australian growers who were in the Australian Dried Fruits Association.
Is not competition desirable in the industry, and would it not react to the advantage of both the Australian Dried Fruits Association, grower-members, and the growers in the independent organization? These men are anxious to sell their product for cash, and there are ready buyers waiting. Wheat-growers are in much the same position. One honorable senator present, who is a prominent wheat-grower, can please himself whether he sells to the pool or privately - a privilege which he prizes most highly.
– Does the honorable senator believe in licences.
– Certainly I do. I shall explain how far, in my opinion, honorable senators should venture in regard to the fixing of regulations on this important matter, but before doing so, I desire to show that Mr. Howie and members of the Australian Dried Eruits Association, who dominate the board, are prejudiced against this private organization and resent reasonable competition. The report continues -
Tempting cash prices were being offered in South Australia by outside sheds, Mr. Howie stated, and many growers in the four river districts in that State were being induced to accept them. ‘’ But by doing so,” he said, they are only placing another nail in. the coffin of marketing legislation, and growers should hesitate before taking advantage of these seemingly good offers.”
In answer to a question, Mr. Howie stated that between HOO and 700 ton3 of sultanas in Victoria were taken to outside packing sheds. He said that the Australian Dried Fruits Association had played a big part in the obtaining of preference on the various markets, and they claimed that that preference should be shared by all sections of the growers, and not My “ outside “ growers, who were now securing advantages on the Canadianmarket.
Those remarks appear in the newspaper which, I understand, is controlled by the Australian Dried Fruits Association. Mr. Howie is the president of the Australian Dried Fruits Association, and a member of the Dried Fruits Export Control Board. It is stated that at a meeting of growers in Eenmark on the 22nd August, he admitted, in reply to a question, that he could see in these regulations an excellent opportunity to give the independent packers a “ crack in the neck.” I regard such an attitude if it ‘be correct that Mr. Howie made the statement as being tantamount to a hitbelow the belt. I have no desire to do any injustice to Mr. Howie, and I ask honorable senators to reserve their judgment, pending the production of proof, as to whether the criticism is justified or not.
Sitting suspended from 6.15 to 8 p.m.
– I think I have said sufficient to prove that the Dried Fruits Export Control Board is dominated by the Australian Dried Fruits Association, a voluntary organization which is in competition with other growers. In support of what I have said about the tactics of the board I shall mention one or two incidents that are reported to have occurred. Under the act exporters of dried fruits are required to obtain the permission of the board. I am advised that some time ago a merchant sold a shipment of dried fruit to a Canadian firm at a price f.o.b. Port Adelaide, to be shipped by a vessel named by the purchaser. His request to be allowed to send the fruit by this vessel was refused by the board, notwithstanding that the price had received the board’s approval. The merchant was required to send the shipment to Melbourne and thence to Canada by a vessel sailing from- that port.
– Was he selling outside the pool?
– Evidently the Leader of the Opposition is under the impression that I am opposed to the control of marketing.
– I also have that impression.
– I hope to be able to convince both honorable senators that I do not object to the control of marketing.
– We know what is behind this motion.
– I am stating my case to the best of my ability and before I close I hope to be able to convince the Leader of the Opposition that the board, by its action, has done an injustice to a large section of the growers.
– Growers or merchants ?
– Between 1,200 and 1,500 growers sell the whole or portion of their fruit through this organization. They know that they can sell for cash whereas if they sell through the Australian Dried Fruits Association they have to chance what they will get. Therefore they are more vitally concerned than are the merchants. Naturally the Canadian buyer was incensed at the action of the board. His comments were published in the monthly circular of the Dried Fruits Producer, an Adelaide trade journal, on the 20th June, 1935. To be absolutely fair I made available to the Minister the information which had been placed in my hands, in order that justice should be done to the growers. This is what the Canadian buyer-broker had to say about the matter-
These goods were bought f.o.b. Australia, whereby the freight and insurance are for account of the buyer. Surely the buyer, who is paying the freight, has the right to say by -which steamer he wishes his merchandise to be carried?
– That all depends. There are such things as shipping combines.
– Obviously the honorable senator has not had much business experience. The buyer-broker stated further -
The buyers resent the interference by the board and desire to know by what right they dictate the name of the boat by which the Canadian buyers, who are paying the freight, shall have their merchandise shipped. They have protested to the Canadian Government of this unwarranted interference-
– Is the honorable senator in favour of a compulsory pool for wheat?
– No; but I am in favour of some control. I submit that the Senate should see that regulations, framed for the purpose of controlling the export of our primary products, do not operate unjustly against legitimate competitors. My colleague, Senator Uppill, quite properly favours, or does not object to, a voluntary pool for wheat because it permits him to sell either to the pool or in the open market, whichever offers him the better return. I take the same view with regard to the marketing of our dried fruits. The buyer broker continued -
The board probably knows as well as the buyers know that as long as Australian prices are as favorable as they are to-day, owing to the fact that they have no duty to contend with, there is nothing to fear. However, the time will come probably on the next change of government, which may be within the next twelve months, when there may be some changes in the Canadian-Australian treaty and raisins from other countries may be permitted to come in without the present handicap. When this comes, buyers will not give the same support to Australia as they have been more or less compelled to give in the past.
There was similar trouble in connexion with another contract for the sale of fruit to Canada. The exporter, having secured the necessary licence, contracted to sell a certain quantity at a price which was acceptable to the board. One of the terms was that the fruit should be shipped from Adelaide in April. As the exporter was unable to get space in the April boat he was obliged to ship it in May, and because it was being exported a month later the board would not allow the fruit to go forward at the original price. This was what the Canadian broker had to say about that decision -
Take, for instance, the arbitrary stand that they took last year on the shipments that, shippers were not able to get on the April steamer, and it had to come on the May steamer. The board would not grant permits for this fruit to come through at the April price.
These ridiculous, harassing, and pinpricking regulations could only have been devised by a board, six members of which belong to the Australian Dried Fruits Association, which is anxious to do everything in its power to prevent its immediate competitors from carrying on their legitimate business.
– That is a serious statement to make.
– It is, but, if the reports are correct, it is amply justified. Senator Hardy. - I rise to a point of order. Senator McLeay is not showing that the regulations, which are the machinery to give effect to the intention of Parliament, are not in conformity with the act under which they are made. I submit that it is incumbent on the honorable senator to do this, otherwise any honorable senator could submit a motion objecting to certain sections of acts, and in that way seek to annul legislation which had been passed by Parliament.
The PRESIDENT (Senator the Hon. P. J. Lynch). - The point of order taken by Senator Hardy is an important one. He submits that Senator McLeay, in support of his motion to disallow the regulations made under the Dried Fruits Export Control Act, should show that they discriminate unfairly against certain sections of the industry concerned. Up to this point in his argument Senator McLeay has produced evidence of, discrimination, and in asking the Senate to disallow the regulations he is seeking to give a relief to those producers who, in his opinion, have suffered because of this discrimination. Therefore I rule that the honorable senator is in order, butI shall expect him to show that the regulations are not in conformity with the act.
– I hope to be able to show that by its attitude, the board is abusing the regulations. It had no right to interfere with the shipping instructions given by the Canadian buyer.
– It was acting in accordance with the regulations.
– The motion is within the Standing Orders, for it is within the power of the Senate to disallow these regulations which are far too drastic. The board is using them unfairly, and if we allow them to remain in their present form, we shall do a great injustice to a number of citizens.
The people concerned were given only one day’3 notice that these regulations were to come into force. That was most unreasonable. They immediately approached the Export Control Board and asked for a conference. No reply was received to their first letter, but to the second communication the board replied refusing the request. Such actions prove that the board is biased, and that there is need for these regulations to be carefully considered ‘by honorable senators.
I am opposed to only three or four of these regulations, yet, apparently, I must either accept or reject them all. I favour the fixation of prices, the regulation of quantities, and the control of a number of matters by a board , but I am opposed to vesting too much power in one body if thereby the growers in the industry are placed in a precarious position.
– The honorable senator would burn down the house to roast a pig?
– This matter is of such vital importance that the discussion should be adjourned for three weeks in order that the Minister may ascertain the correctness or otherwise of my statements, and, if the circumstances warrant it, modify the regulations to which the exporters and many growers object.
I shall not deal with the regulations scriatum, but desire to draw attention to some of the provisions of regulation 7 which reads -
The terms and conditions upon which licences to export dried fruits may be granted shall be as follows: -
That the licensee shall comply with all regulations from time to time made under the act so far as the same are applicable to him.
That the licensee shall not -
sell any dried fruits overseas at a price less than the authorized price.
Although drastic, that provision is essential. Seeing that 164 regulations were issued last year, and 100 to date this year, it is the duty pf honorable senators to exercise their undoubted right to deal with these regulations as they think fit, after careful scrutiny. Paragraphs c, d. e, f, and g of sub-section 2 are of far-reaching effect.
– Does the honorable senator accept them ?
– Yes. They are accepted also by those merchants who buy for cash. I hope that the Senate will not confuse those merchants with Mr. James and those who, like him, are opposed to any control whatever.
Paragraph 3 of regulation 7 reads -
That the licensee shall ship all dried fruits through and to such agents as are authorized by the board.
As in practice that means agents approved by the Australian Dried Fruits Association, it is unfair to other merchants who are its competitors. Paragraph 4 provides -
That the licensee shall ship all dried fruits through such persons as the board determines.
Paragraph 5 gives preference to certain insurance companies. It reads -
That the licensee shall insure each shipment of dried fruits with such person as the board determines.
Paragraph 6 of regulation 7 provides -
That the licensee shall sell all dried fruits on such terms and conditions as are approved by the board, and to such purchasers through such agents and in such quantities as the board determines.
Obviously, as one member has said, these regulations will “give his competitors a crack in the neck if his board can force his competitors to ship their produce by any vessel, whether it goes direct from Adelaide or Melbourne. Paragraph 16 of regulation 7 provides -
That the licensee shall, whenever so required by notice in writing, signed by the secretary or an authorized person, withhold from export the whole or any portion of any dried fruits intended for export.
– How would export be controlled under a quota system?
– There would be no difficulty, provided the board were not so biased as to be determined to stop its competitors. I am in favour of a quota and of a fixed price, but I am not in favour of the Australian Dried Fruits Association dominating the board and driving its competitors out of business. Other merchants who are in competition with the Australian Dried Fruits Association have established sheds, and sent agents to Canada where they have been successful in obtaining markets. They have given satisfaction to the growers, and should not be interfered with unreasonably. The regulations which the new regulations seek to repeal have been in operation for ten years and until recently have ‘been fairly ‘ rigidly enforced. The independent members have not objected to that where the board has acted reasonably; and despite the difficulties with which they have had to contend, they have given fairly general satisfaction. If, however, some of the new regulations are not disallowed the independent exporters will be driven out of business, the money they have expended will be lost, and additional men will be seeking jobs. Moreover, nearly 1,500 growers who dispose of their fruit to these cash buyers, will be at the mercy of the Australian Dried Fruits Association. Many of them were previously members of that association but left it voluntarily. I trust that honorable senators will assert their rights, and not allow the board to decide what regulations shall be in force.
When the Leader of the Senate (Senator Pearce) was speaking this afternoon, I, as a new senator, thought that, in some way, sacred rights had been interfered with, because the right honorable gentleman seemed offended- at the course of action which had been taken. I respect ‘his judgment, and ask him to give the Senate a lead in the matter of legislation by regulation. I ask him to indicate in what way these regulations can ‘be modified so as to make them less drastic. The regulations are signed “ By His Excellency’s Command, Earle Page, Minister of State for Commerce.” I do not, know wl’ ether regulations are sent directly to the Governor-General by the Minister concerned or whether they have to be. approved by Cabinet. If they are the result of a Cabinet decision, I can appreciate the position of the Leader of the Senate, because loyalty among Cabinet colleagues has to be observed. I appeal to honorable senators to weigh every aspect of this matter carefully and if they believe that these regulations go too far, to do the right thing irrespective of any other consideration. What ever our decision may be, I hope that it will be in the best interests of the industry as a whole.
Summing up, I claim that the Export Control Board is dominated by the Australian Dried Fruits Association, and that the latter body resents outside competition. The export trade should be regulated fairly, in the interests of all sections of the industry, including those who wish to sell for cash as well as those who sell through the Australian Dried Fruits Association on consignment. Some of these regulations are not designed to control export, but to drive exporters, who buy for cash, out of business; some infringe the rights and privileges of a large number of growers; and some of them constitute a chain of laws established by regulation, a practice against which, as I pointed out this afternoon, the honorable the Attorney-General (Mr. Menzies) protested when he gave evidence before the commission. If it is desired to establish a compulsory pool for the industry, then it is not for the board to establish such a pool by regulation, but for Parliament to do so by legislation. I draw attention to the evidence given on the 30th January, 1930, by Professor Kenneth Hamilton Bailey, Professor of Jurisprudence and Dean of the Faculty of Law in the University of Melbourne, before the Select Committee of the Senatewhich inquired into the establishment of standing committees, and upon whosereport the Regulations and Ordinances Committee was founded. ProfessorBailey said -
Those regulations affect intimately and invery great detail the livelihood of a class of citizens, and they call for special scrutiny.
Those regulations were of minor importance compared with these with which I am now dealing. Evidently ProfessorBailey was an independent thinker. I wonder what he would say if he happened to be an honorable senator to whom fell the duty of considering the regulations to which I am now referring - regulations which are much more drastic than those he said should be carefully scrutinized. I. hope that these regulations will be fully debated. I do not desire to do injustice to any member of the Australian Dried Fruits Association. That organization has done much for the dried fruits- industry. This Government also has done much to help the industry, and having gone so far I now appeal to it not to allow that board to suppress legitimate competition. These 1,500 men whom the Australian Dried Fruits Association opposes have shown admirable ability and initiative in private enterprise, and, having explored overseas markets, can offer better prices to the grower who is prepared to sell for cash. Would the Senate agree to driving such men out of a business in which they have become independent through their ability and perseverance. [Extension of time granted.]
– Does the honorable senator expect the Senate to debate regulations that are not in contravention of any act passed by this Parliament?
– Certainly I do; ft is not only our right, but our duty to do so. If that were not so, why shouldthe Senate have the power to disallow regulations within fifteen days of their being laid on the table? To my mind we have a sacred duty to examine such regulations, and I am surprised that the honorable senator should have asked such a question.
– I second the motion.
Debate (on motion by Senator Brennan) adjourned.
Bill received from the House of Representatives.
Standing and Sessional Orders suspended.
Bill (on motion by Senator Sir George Pearce) read a first time.
Senator Sir GEORGE PEARCE (Western Australia) [8.25]. - I move -
That thebill be now read a second time.
The purpose of the bill is to appropriate £12,000,000 from the Consolidated Revenue Fund for the payment of invalid and old-age pensions. It has been customary in the past to seek parliamentary approval for the periodical appropriation of £10,000,000 for this purpose, the last appropriation having been made in
August, 1934. The amount then provided is now almost exhausted. For some years £10,000,000 has been sufficient to cover approximately one year’s expenditure, and Parliament has been asked to appropriate this amount each year; bur the annual rate of expenditure now exceeds £12,000,000, the amount included in this year’s budget for this purpose being £12,770,000. For this reason Parliament is now being asked to appropriate £12,000,000 instead of the customary £10,000,000. Honorable senators will be interested to know that the total amount appropriated by Parliament for invalid and old-age pensions since the inception of the system has been £171,250,000. The actual expenditure to the 30th September was £163,564,000. The balance of £2,686,000 will be sufficient to meet the claims only to the 30th November next. The amount being provided by this bill will be paid to the credit of the invalid and old-age pensions account from which the payment of pensions is made. I point out that, as is usual in a bill of this description, there is no provision dealing with the rate of pension or the conditions under which pensions are paid.
Question resolved in the affirmative.
Bill read a second time and reported from committee without amendment or debate; report adopted.
Bill received from the House of Representatives.
Standing and Sessional Orders suspended.
Bill (on motion by Senator Sir George Pearce) read a first time.
[8.45]. - I move -
That the bill be now read a second time.
As the bill provides for the approval of expenditure on additions, new works, and buildings up to the 30th June, 1934, it is obvious that the money has all been expended. Provision is made in the annual appropriation act for a Treasurer’s advance, which enables advances to be made to the various departments to meet unforeseen expenditure for which specific provision could not be made. Details of this expenditure are set out in a supplementary appropriation bill. The total amount involved in this instance is £45,981.
Question resolved in the affirmative.
Bill read a second time, and reported from committee without amendment or debate; report adopted.
Bill received from the House of Representatives.
Standing and Sessional Orders suspended.
Bill (on motion by Senator Sir George Pearce) read a first time.
[8.50].- I move-
That the bill be now read a second time.
The PRESIDENT (Senator the Hon. P. J. Lynch). - It has been a longestablished practice in the Senate that bills of a cognate character may be discussed simultaneously, and, as suggested by the Minister (Senator Pearce), that procedure may, with the concurrence of the Senate, be . adopted in this instance.
Senator Sir GEORGE PEARCE.In moving . that the Estimates and Budget Papers be printed, I indicated that the Government intended to provide special grants to South Australia, Western Australia and Tasmania for the current financial year. On the recommendation of the. Commonwealth Grants Commission special grants were made to these States in respect of the financial year 1934-35. The amounts included in this bill and the other two measures to come before the Senate are in accord with the further recommenda tions of that commission. These amounts and the amounts for last year are as follows : -
For the information of honorable senators, I submit a table showing the history of special grants to the three Statesconcerned -
In coming to a decision with regard to grants to these States for the present financial year, the Government had the benefit of two years’ examination of their positions by the Commonwealth Grants Commission.
The first report of the commission may be summarized as follows: -
In its second report relating to grants for the year 1935-36, the commission has examined the position of the claimant States at much greater length. The report shows that the commission has spared no pains in an endeavour to arrive at an equitable measurement of the assistance that should be rendered to Claimant States. Doubtless, honorable senators have studied the second report, but I should like to refer to some of its main features. First, the commission -adheres, in effect, to the principle of its first report, and recommends grants based on the relative budget positions so as to -enable claimant States “to function at a reasonable standard with an effort appropriate to their particular situations.” It adds that the adverse effects of federal policy are not, in themselves, grounds for assistance, and that whatever the federal policy may be, a State has no claim for assistance if it is in a good financial position. Secondly, the simple average of Victoria and Queensland is taken as the “ normal standard “ upon which to calculate the grants. New South Wales is omitted, because, in comparison -with the other States, it has so many abnormal features. Last year New South Wales was included in arriving at the normal deficit, and some of the other normal standards, excepting principally social services. In the case of South Australia and Western Australia, certain deductions are made for past mistakes. The grants are calculated on the basis of State budget results for 1933-34. The Government is anxious that, in order to avoid the necessity for annual revision, these special grants should be placed upon a more permanent “basis. In its second report, the corn- mission gave further consideration to this matter, and expressed the following views : -
It is certain that no fixed grant could bc determined equitably for a long term of years. We have not found any satisfactory method of doing so, even for a short term, but will give the matter fuller consideration in our next report, when the possibility of devising an automatic sliding scale will also be discussed.
As already mentioned, the grants recommended for 1935-36 have been based on the budget figures for 1933-34. The commission pointed out that the figures for the financial year, 1934-35, would not be available in time to permit a proper investigation and calculation of the grants to be made on the basis Df the figures for that year.
Debate (on motion by Senator Collings) adjourned.
Bill received from the House of Representatives.
Standing and Sessional Orders suspended.
Bill (on motion by Senator Sir George PEARCE ) read a first time.
Motion (by Senator Sir George Pearce) proposed -
That the bill be now read a second time.
Debate (on motion by Senator Collings) adjourned.
Bill received from .the House of Representatives.
Standing and Sessional Orders suspended.
Bill (on motion by Senator Sir George Pearce) read a first time.
Motion (by Senator Sir George Pearce) proposed -
That the bill be now read a second time.
Debate (on motion by Senator Collings) adjourned.
Bill received from the House of Representatives.
Standing and Sessional Orders suspended.
Bill (on motion by Senator Sir George Pearce) read a first time.
[9.4]. - I move -
That the bill be now read a second time.
The purpose of this measure is to grant financial assistance amounting to £500,000 to the States of- New South Wales, Victoria, Queensland, South Australia, and Western Australia. The object of this assistance is to help in the reduction of State deficits. In the recent years of depression, State finances have suffered more severely than Commonwealth finance. The aggregate deficits of the States were : 1931-32, £18,400,000 ; 1932-33, £8,220,000; 1933-34, £6,870,000; 1934-35, £3,800,000. In the same period, the Commonwealth Government had excess receipts, namely: 1931-32, £1,314,000; 1932-33, £3,546,000; 1933-34, £1,301,000; 1934-35, £711,000.
The financial position in recent years has, however, been abnormal. Last year, when the excess of receipts was £6,160,000, the Parliament approved of £2,000,000 being granted to the States, and of £4,160,000 being appropriated for defence purposes. The £2,000,000 granted to the States was intended partly for budget relief and partly for unemployment relief, hut no conditions were imposed on the States. Actually, about £1,700,000 was applied to budget relief, and the balance to relief of unemployment. As was stated at the time, this £2,000,000 was a non-recurring payment, as it was drawn from the fund resulting from fortuitous receipts of the past. At the recent meeting of the Loan Council the subject of finance was discussed with the States and, in a desire to help their budgets, the ‘Commonwealth Government offered to make a payment of £500,000 to the States out of the excess receipts for 1934-35. Tasmania stated that it did not desire to participate in the proposed grant. The £500,000 was allocated approximately on a population basis, the amount for each State being: New South Wales, £205,000; Victoria, £140,000; Queensland, £75,000; South Australia, £45,000; Western Australia, £35,000; total, £500,000. With this assistance the estimates of deficits of the States, according to the budgets brought down for the current year, are: New South Wales, £1,750,000; Victoria, £435,000; Queensland, £1,162,000; Western. Australia, £56,000; Tasmania, not available. South Australia is budgeting for a surplus of £1,000. The total net deficits of the States, excluding Tasmania, are estimated to be £3,402,000. I repeat that this £500,000 is a non-recurring payment, as it arises from the excess receipts of last year.
Debate (on motion by Senator Col- lings) adjourned.
[9.9]. - In moving -
That the Senate do now adjourn,
I desire to make a statement for the information of honorable senators on the Italo-Abyssinian. dispute. The position in regard to sanctions is as follows: -
Proposal I. - Arms sanction. - As previously indicated, this sanction was accepted by the Commonwealth Government, and action was taken on the 17th October to put it into effect by administrative instruction of the Department of Trade and Customs under the Customs (Prohibited Exports) Regulations 1935. The first schedule of the regulations covering all the arms, munitions and war material which could possibly be exported from Australia was made operative, but technically this list does not coincide with the completed list now received from the League Co-ordination Committee. This list, is as follows: -
1 ) Rifles and carbines and their barrels.
Machine guns, automatic rifles and machine pistols of all calibres and their barrels.
Guns, howitzers and mortars of all calibres, their mountings, barrels and recoil mechanisms.
Ammunition for the arms enumerated under (1) and (2) above, filledand unfilled projectiles for the arms enumerated under (3) above, and prepared propellent charges for these arms.
Grenades, bombs., torpedoes,- and mines filled or unfilled and apparatus for their use or discharge.
Tanks, armoured vehicles and armoured trains. Armour of all kinds.
Vessels of war of all kinds, including air craft carriers and submarines.
Aircraft assembled or dismantled, both heavier and lighter than air, and their propellers or air screws, fuselages, aerial gun mounts and frames, hulls, tail units and undercarriage units.
Revolvers and automatic pistols of weight in excess of 1 lb.6 oz. (630 grammes) and ammunition therefor.
1 ) Flame blowers and all other projectors used for chemical or incendiary warfare. (2)Mustard gas, lewisite, ethydichlorarsine, methyldichlorarsine and all other products destined for chemical or incendiary warfare.
Powder for war purposes and explosives.
Consequently, an amending regulation is now being prepared to cover the completed list.
A new proposal was adopted by the Co-ordination Committee on the 19th October, and was transmitted to Australia by wireless from Geneva on the 20th October. This proposal is an extension of the application, of paragraph 2 of the arms sanction, namely -
The governments of - the Members of the League of Nations will prohibit immediately the exportation, re-exportation or transit to Italy or Italian possessions of arms, munitions and implements of war enumerated in the attached list.
List (c) includes forms of the minerals and metals mentioned and their ores, scrap and alloys.
Having regard to the importance of collective and so far as possible simultaneous action in regard to the measures recommended, each government is requested to inform the Co-ordination Committee, through the Secretary-General, as soon as possible and not later than the 28th October, of the date on which it could be ready to bring these measures into operation. The Committee of Coordination will meet on the 31st October for the purpose of fixing in the light of replies received the date of the coming into force of the said measures. The Commonwealth Government has decided that action will be taken to bring this extended list of prohibited arms, munitions and implements of war exports to Italy under the Customs (Prohibited Exports) Regulations 1935.
Proposal III. was also adopted on the 19th October by the Co-ordination Committee. This proposal deals with the prohibition of all imports from Italy or Italian colonies, with certain exceptions, by Members of the League. It is as follows : -
As in the case of the other sanctions, governments are to inform the Coordination Committee by the 28th October of the date when the measures could be brought into operation. This question is now receiving consideration by the Government, and a decision will be announced immediately it is reached.
It was previously announced that Proposal II., dealing with financial sanctions, had already been accepted in principle by the Commonwealth Government. Draft legislation to give effect to the five financial measures enumerated in the proposal is now being prepared. Proposal III. may, however, affect the nature of the legislation to be submitted to Parliament.
was loud in his praise of the work performed by these two bodies. I feel sure that the smaller States will have something to say about this proposed alteration as it appears that their representation, already small, will be further reduced. Western Australia will have only one representative instead of two as at present, and South Australia and Tasmania will probably be affected similarly. The permanent committee to advise the new council will consist of the Directors of Agriculture in the various States and whilst I do not question their qualifications, it must not beforgotten that they arc the servants of the respective governments and are not, themselves, in any way connected with primary production. Thus their recommendations will influence the policy of the new council, and the change will lead to a large measure of government control of the industry. This will be an undesirable state of affairs. If more producer representatives on the board are deemed necessary, why not leave the council as at present constituted and add to it three or more representatives of the producers? Definitely the Dairy Export Control Board, which body understands marketing problems and has proved its worth, should be permitted to carry on its good work. Additional producer representatives could be appointed, instead of wantonly destroying this body, and setting up in its stead a board so constituted as to make its success problematical. I also direct attention to the following motion which was carried at the annual meeting of the Australian Dairy Council held in Sydney the week before last-
That this meeting views with surprise the action of the Minister for Commerce (Dr. Earle Page) in accepting the recommendation of the Australian Agricultural Council to abolish the Australian Dairy Council in view of the assurance given by him at the National Dairy Conference held in Sydney in April last that the council would he allowed to continue to function in consideration of the effective work that it had done on behalf of the dairying industry of . Australia ; this council protests against the recommendation being given effect to, and, further, this council considers that the proposed representation of the new body , suggested is totally inadequate to efficiently represent the various phases of the industry.
The representatives from all States, with the exception of New South Wales, voted in favour of this motion.I do not know why the Mother State dissented. I hope that Senator Hardy, in his position as Leader of Country party senators, will prevail upon his friends in New South Wales to adopt a more federal view of the dairying industry and use his influence to see that the representation of the three smaller States is not reduced. It is,I think, necessary to impress upon the New South Wales section of the dairying industry that the smaller States are dissatisfied with the proposed alterations, and will have something to say about it. My State committee, which consists of six members - two representing the cooperative manufacturers, one proprietary manufacturer and three producers’ representatives who are themselves producers in a big way - instructed its representative to attend the committee meeting of the council and oppose its suggested disbandment. The dairying industry in Western Australia is most emphatic in its view that the present dairy council should be allowed to continue its good work. If, as has been suggested by the originators of the proposed alterations, the Dairy Products Export Control Board should be more representative of the producers, the position may bo met by adding three more producers to the board. It passes my understanding why the present Dairy Council should receive the encomiums of the Minister for Commerce one week and be informed, a few weeks later, that steps were being taken to abolish it. I urge the Assistant Minister to bring my representations before the Minister for Commerce, and I appeal to honorable senators to assist me in defeating the proposed alteration of the constitution of the Australian Dairy Council, because the change will be definitely prejudicial to the interests of the smaller States.
. - I have been informed that when I was. speaking this afternoon to the motion for the disallowance of Statutory Rule No. 29 made under the Dried Fruits Export Control Act, I said that the regulation was made before I was in my present position in the Ministry. If I said that, it was inaccurate. What I had intended to say was that I was not in the Ministry when the act, under which the regulations were made, was passed. With regard to the remarks of Senator Allan MacDonald, if the honorable senator will supply me with an advance proof of his speech, I shall have pleasure in bringing it under the notice of the Minister for Commerce (Dr. Earle Page), and if I am in a position to. supply him with any information on the subject, I shall be glad to do so.
Question so resolved in the affirmative.
Senate adjourned at 9.27 p.m.
Cite as: Australia, Senate, Debates, 22 October 1935, viewed 22 October 2017, <http://historichansard.net/senate/1935/19351022_senate_14_147/>.