14th Parliament · 1st Session
The President (Senator the Hon. P. J.Lynch) took tie chair at 3 p.m., and read prayers.
The following papers were presented : -
Invalid and Old-age Pensions Act - Statement re Pensions for the twelve months ended 30th June, 1936.
Scat of Government Acceptance Act and Seat of Government (Administration) Act- Ordinance No. 30 of 1936 - Canberra Community Hospital Board (No. 2).
– I ask the Leader of the Senate (Senator Pea rce) whether the Government will respond to an Australiunwide public sentiment hostile to the dole system by negotiating immediately with all States for a large-scale co-ordinated Federal and State public works programme, having for its aim the absorption of the unemployed at full time award rates?
– The first part of the honorable senator’s question contains a rather strong expression of opinion.
– In what way?.
– The honorable senator is assuming the existence of a certain opinion.
– I am not assuming its existence; I know it exists.
– The honorable senator is incorporating in his question an expression of opinion which,he well knows, is contrary to the Standing Orders.
– On most occasions, Mr. President, I defer to your ruling, but surely I have not this afternoon offended against the standing order relating to the asking of questions ?
– If the honorable gentleman will again read his question be will see that he has.
– Very well. I ask the Loader of the Senate -
Will the Government respond to an Australianwide public sentiment hostile to the dole system-
Is there anything wrong with that?
– The honorable senator must realize that it is an expression of opinion which is not permitted in questions intended to elicit information from Ministers.
– Nevertheless, I feel sure that the Leader of the Senate is prepared to answer it.
– No doubt the right honorable gentleman is; but I ask him to ignore entirely the first part of the question, because it contains a clear expression of opinion, and therefore offends against the Standing Orders.
-I was about to reply to the question by telling Senator Brown that the Government has already responded to public sentiment with reference to the unemployment situation, as will be seen from a perusal of the budget statement.
– I am not satisfied with the reply of the Leader of the Senate, though it has the merit of being straightforward ; but on other occasions when I have asked questions of Ministers there has been definite evasion in the answers given.
– Order !
– I rise to order. The statement made by the honorable senator is distinctly offensive to me as a member of the Government, and I ask that it be withdrawn.
– A day or two ago, I asked a question of the Leader of the Senate-
Honorable Senators. - Withdraw !
– I direct your attention, Mr. President, to the fact that the honorable senator has not withdrawn the statement. It is offensive to ma.
– But I include others in it.
– I ask the honorable senator to withdraw the statement, and allow the Senate to proceed with its business.
– I wish to make my position clear. A day or two ago, a question was asked of the Minister negotiating trade treaties in the House of Representatives, and the answer given was perfectly straightforward-
– Order ! Does the honorable senator intend to withdraw his statement?
– I certainly do not. It is true. There has been definite evasion in answers given by Ministers to questions in this chamber.
– I also consider that there has been a good deal of evasion.
– Order! Will Senator Brown withdraw the statement?
– I certainly shall not withdraw the word “ evasion “.
– Then I have no option but to name the honorable senator.
[3.6]. - In accordance with the Standing Orders, I move -
That Senator Brown be suspended from the sitting of the Senate.
– The course taken by the Leader of the Senate is altogether too drastic, and I repeat that I consider there has been a good deal of evasion in alleged answers given by Ministers in this chamber to questions.
– The honorable senator will resume his seat. Senator Brown has deliberately disobeyed the standing order. He is not without parliamentary experience. Neither is Senator J. V. MacDonald. Both well know what is expected of them as members of this chamber. When Ministers reply to questions, honorable senators are expected to accept the answers without suggesting that they are evasive. I therefore ask Senator Brown to offer reasons as to why he should not be suspended.
– Do you invite me to make an explanation, Mr. President?
– If the honorable gentleman cares to do so.
– Very well. Last Thursday, I asked a question of the Leader of the Senate with reference to Japanese sampans in. Australian waters. I admit that my question was so framed that it enabled the right honorable gentleman to answer it in the way he did. But yesterday, in the House of Representatives, when a similar question was addressed to the Minister for Trade and Customs (Mr. White), the Minister there, recognizing, no doubt, that the people of Queensland are vitally interested in the matter, courteously gave the information desired. The Leader of the Senate, had he wished to do so, could have given me the desired information. I asked another question dealing with trade treaties, and I call the attention of the Senate to the fact that-
– I rise to a point of order. I direct attention to Standing Order 440 which reads -
When any senator has been reported as having committed an offence he shall be called upon to stand up in his place and make anr explanation or apology ho may think fit, and afterwards a motion may be moved “ That such senator be suspended from the sitting of the Senate.” No amendment, adjournment. or debate shall bc allowed on such motion which shall be immediately put by the President.
I remind you, sir, that you called Senator Brown to order, and as he disobeyed your ruling by refusing to withdraw the statement to which I objected, you named him. I then moved for his suspension from the sitting of the Senate. I therefore submit that he is not now in order in offering an explanation of his conduct. Under the standing order which I have read he cannot be called upon to make an explanation.
– Itis disgraceful if I am not permitted to give reasons for what I have said.
– My attention having been directed to the standing order, I ask the honorable senator for the last time to withdraw his statement.
– In response to your invitation, Mr. President, I was offering an explanation when the Leader of the Senate intervened.
– I merely directed attention to the standing order dealing with this matter.
– Does the honorable senator intend to withdraw the offensive expression to which the Leader of the Senate has taken objection?
– I have not been guilty of an offensive expression.
– Then the question is, that the honorable senator be suspended from the sitting of the Senate.
Question - put. The Senate divided. (President - Senator the Hon. P. J. Lynch.)
Majority . . 25
Question so resolved in the affirmative.
Senator Brown thereupon withdrew
Telephone Rentals - Ingle-wood and South Perth Post Offices.
asked the PostmasterGeneral, upon notice -
Is it a fact that when the rental of residential telephones in the metropolitan area was reduced from £5 10s. per annum to £410s. per annum, and the reduction advertised widely by the department, the reduction only applied to those individuals who made application to the department for the same?
– No; it is not a fact. A most exhaustive examination was made by departmental officers into all cases.
SenatorCOLLETT asked the PostmasterGeneral, upon notice -
What progress, if any, has been made in connexion with the acquisition of sites and erection of new post offices in Inglewood and South Perth, Western Australia, concerning which representations were made some time ago?
– The position regarding Inglewood has been carefully examined, and it is not proposed to arrange for the purchase of a site at the present time. In regard to South Perth, negotiations are proceeding for the acquisition of a site.
Privy Council Decision
asked the Minister representing the Attorney-General, upon notice -
Seeing the great importance now attached to the James case, will the Government supply to members a copy of the transcript of the arguments advanced by various counsel appearingbefore the Privy Council; also copy of the judgments of the High Court in the same case?
– The AttorneyGeneral has supplied the following answer : -
A copy of the report of the case, as appearing in the Commonwealth Law Reports, has already been supplied to each senator and member of the House of Representatives. The transcript of the arguments is of considerable length, consisting of some 736 pages, and copies for distribution as suggested are not available. A copy of the transcript has, however, been tabled in the Library for perusal by senators and members. The judgment of the High Court is readily available in the Commonwealth Law Reports.
asked the Minister representing the Minister for Defence, upon notice -
Senator Sir GEORGE PEARCE.The Minister for Defence has supplied the following answers: -
Perth Station - Queensland . Station
asked the PostmasterGeneral, upon notice -
With reference to the large number of listeners’ licences issued in the metropolitan area of Western Australia, and the alleged limitations of the national broadcasting station at Perth, is it the intention of the Government to proceed with the erection of an alternative national station near the city.
– Whilst the department is anxious to do all that is possible to arrange for duplicate stations in capital cities to provide alternative programmes, it is more important to ensure a reasonably good service to listeners in other parts of the Commonwealth, where reception from even one station is at present precarious and unsatisfactory. It is not proposed at the moment, therefore, to proceed with, the erection of an additional station at Perth. The new south-west regional station, which will be opened in the near future will have a wide coverage, and may, to some extent, meet the requirements which the honorable senator has in view.
asked the PostmasterGeneral, upon notice -
– The answers to the honorable senator’s questions are as follows: -
asked the Minister representing the Minister for Commerce -
Has the Government considered the need for the re-establishment of the Torres Strait shipping service in its relation to the chilledbeef trade and Australia’s successful competition with Argentina, and for the benefit of the development of the Northern Territory?
– The Minister for Commerce has supplied the following answer : -
No. It is understood, however, that the question of the carriage of chilled beef via Torres Strait is receiving the attention of the Australian Meat Board.
asked the Minister representing the Treasurer, upon notice -
– The Treasurer has supplied the following answers: -
Marine Surveyof North-west Coast.
asked the Minister representing the Prime Minister, upon notice -
Will the Government give favorable and early consideration to the necessity of a marine survey of the north-west coast of Western Australia ?
Senator Sir GEORGE PEARCE.The Prime Minister supplies the following answer to the honorable senator’s question : -
During the last few years the survey ship H.M.A.S. Moresby has been made available, as circumstances have permitted, to carry out surveys of certain parts of the north-west coast of Western Australia. The question of making the vessel available for a survey of the lower portion of King Sound has recently received consideration, but it is regretted that, on account of other more urgent commitments of H.M.A.S. Moresby, it will not be possible to undertake the work in the near future. The matter will, however, be kept in mind when future surveying programmes are being drawn up.
Commercial Growth in Australia.
asked the Minister in charge of development, upon notice -
– The answers to the honorable senator’s questions are as follows: -
asked the Leader of the Government in the Senate, upon notice -
– The answers to the honorable senator’s questions are as follows: -
asked, the Minister representing the Minister for Defence, upon notice-^-
– The Minister for Defence supplies the following answers : - ‘ 1. It is not in the public interest to supply this . information.
J might invite the attention of the honorable senator to somewhat similar questions asked by him on the 21st May, 1936, vide Hansard. No. 14, page 1991.
Bill read a third time.
Debate resumed from the 11th September, 1936 (vide page 61), on motion by Senator Brennan -
That the bill be now read a second time.
’. - This bill arises out of certain action taken by the Regulations and Ordinances Committee with regard to regulations which the members of that committee believed to the ultra vires.
– That is scarcely accurate. Some of the provisions of this till have been required for a long time.
– The Minister will not deny that the reason for the introduction of the bill was that it was found that some regulations which had been gazetted were ultra vires. In reading, through themeasure I find that, although . it appears to make . a great many changes,, they amount, ; in fact, to very little. Although the bill contains twelve. clauses,, . the great majority of them effect cither.no change or only very small changes.
One of the main objects of the bill is to consolidate existing laws. I welcome the fact that this bill willconsolidate the twomain acts’ which govern the interpretation of statutes - one of which commenced to operate in 1901, and the other, in1904. ‘ To that extent,’ I am cordially infavour of.the bill,but that’ is not its main object and:isnot the reason’ for its introduction. AsIhave said, the reason is rather because of the action taken by members of the Regulation’s and Ordinances Committee and the debate which followed the presentation of their report. The changes which it makes will be’ f ound chiefly in clause 11, which inserts’new sections 41 to 50, and in clause 12. The Minister stated that retrospective regulations were usually for’ the purpose of conferring benefits, He also said that action is being taken to see that everything will be in order in the future. If everything is to be in order in the future, what is the need to alter the law of the past? I confess that I can see no reason for it. If instructions have been issued to the various departments to take care’ that in the future regulations whichare issued are not ultra vires, what is the need to also change the law? The Minister also said that it was essential that power to enact retrospective legislation should vest in the Execu- ‘ tive; but he gave no reasons in support of that contention.
– The reasons are so obvious.
– They are not obvious to me. I repeat that if there are definite reasons why the law should be altered, they should be set out. “What are the reasons which make it essential that after a law has been in operation for 32 years, and has apparently worked very well, it should now be altered? My belief is that the reason for proposing to alter the law is that the contentions advanced by the Regulations and Ordinances Committee in its third report made this action clearly essential on account of past errors. Although the Government did not in so many words admit that any errors had been committed, the really effective part of the bill is that which provides for the correction of errors that have been made. Undoubtedly, mistakes have’ been made ; and they have been sufficient in number and importance to make validation necessary. It seems to me most undesirable i.hat Parliament should validate all the mistakes in the regulations which have I een made during the last 30 years, without, it may be, first knowing the extent of the authorization. Why have we not a list of the mistakes which have been made and. of the regulations that have been made, ultra vires the act? During those 30 years thousands of regulations have been made, and it may be that hundreds of them have contained mistakes. Surely, before asking for a sweeping power of validation of all past regulations, the Senate should be told what regulations are now to be placed on a valid basis by this new legislation. If the mistakes be few in number, they can the more easily be set out.
It is unnecessary for me to go over the whole case dealing with regulations. I admit that in these days it appears to be inevitable’ that there shall be more government by regulation than formerly. Instead of relying, in the main, on general principles, as formerly, and allowing the courts to interpret the legislation we pass, we now try to provide for every possible contingency, with the result that not only our laws, but also the regulations made under them, are incomprehensible to the man in the street. I challenge any honorable senator to contradict the statement that there is not one man in Australia who knows the laws under which he lives. He would have to know in detail both “Federal and State laws, and the regulations under them, as well as the regulations passed by local-governing bodies. But, whilst it may be true that regulations are increasing, and will increase, that surely does not mean that Parliament, or the Senate, should slacken in considering and, . if necessary, disallowing them. The very fact that regulations are on the
Senat or Dcan- 17 tighes. increase means, I suggest, that more attention should be paid to them, and that it should be easier, instead of more difficult than formerly, to disallow a regulation. I do not see any provision in the bill for the disallowance of part of a regulation. Where a part of a regulation is properly severable from the rest of it, that power should exist. It should not be necessary for the whole of a regulation to be disallowed as a condition of disallowance of a part of it.
I desire to refer again to the origin of the committee which was appointed to deal with regulations and ordinances. 1 do not propose to speak at length on this aspect of the subject, but I wish to make one or two quotations. The select committee which considered the advisability of establishing a. committee of the Senate to review statutory rules and ordinances examined a number of witnesses, amongst whom was Mr. E. G. Menzies, the present Attorney-General of the Commonwealth. Mr. Menzies, on that occasion, said, *inter alia -
My experience of a lower house suggests that members of that house will always concentrate their attention on the points of substance and are impatient about points of form. Probably that arises from the fact that legislationmaking in the lower house is almost always done just before Christmas, when members .have not the time to bother about questions of form. The upper house occupies a comparatively minor position in relation to matters of substance, and should therefore devote more attention to matters of form. . . I suggest that some small committee, composed of men with special qualifications, to subject bills to a critical examination, would bc extremely useful in any second chamber.
Whatever the theory may be, in practice we find that, while Parliament scrutinizes acts, it does not scrutinize regulations.
That seems to me to be an admirable and weighty criticism. Mr. Menzies proceeded -
Free criticism is not entirely possible in a house in which governments are made and unmade, but in a second chamber members should be free to express themselves as they think.
– They do.
– That is frequently the cause of the trouble. Even when we admit that his evidence was given about six years ago, we can see in the remarks of Mr. Menzies a delicate compliment to the members of upper chambers. The further statement of Mr. Menzies supports another point of my argument -
Regulations are made by departments. That is all right when the details of administration are being provided for; but. if they go further, and introduce new ideas by way of regulation, the authority of Parliament is weakened.
Evidence was also given before the select committee by Mr. Blackburn, who is now the honorable member for Bourke in the House of Representatives. Mr. Blackburn said -
The Government is apt to treat as government policy matters that are not really of a party nature.
That is true -
There is a tendency for governments to consider that a measure which is noncontroversial in character is something for which the party claims credit, and to insist upon putting it through in its original form.
He was asked -
Do you consider that the proposals that we are investigating are worthy of a trial?
Yes, particularly as regards statutory rules and ordinances. At the worst, it, would be an instructive experiment, while it might possibly introduce a valuable change.
He added - and this is a little beside the question -
I remember asking a. very able member of our own House when he lost his seat, why he did not go into the Federal Parliament as his interests were considerable on international matters. He had been a Minister. He replied that there was no chance of inducing the Federal Parliament to give serious consideration to international questions.
– We are remedying that.
– Yes, but it is a little late. I pass very briefly again to a paper which was read by Mr. Ligertwood, K.C., of South Australia before the Australian Legal Convention last year. Some of this was quoted by Senator McLeay in a speech he made here some time ago, and I do not intend to repeat it. Mr. Ligertwood said - and it is perfectly true of regulations as every honorable senator whohas regard to the burden of regulations will know -
From day to day, it almost seems from hour to hour, a steady stream of regulations, orders and by-laws pours forth to overwhelm the citizen- and he knows that Government by regulation shows no signs of diminishing -
Government by regulation shows no sign of diminishing. In Australia it is definitely on the increase, subject of course, to what the Privy Council may say next year as to the meaning of section92, of the Constitution. It reached its extreme point in the regulations relating to the overseas marketing of dried fruity, the validity of which was recently upheld by the High Court.
That was written last year -
A person who acts justly and uprightly does not in general find himself in conflict with the rules of judge-made law, because those rules, although not perfect, arc nevertheless founded upon principles of justice and reason. It is the arbitrary nature of statutes and of statutory rules and regulations against which we revolt. However, just and upright our conduct, we are always in danger of offending against some obscure regulation or by-law.
I think I have said enough to show that the process of regulationshas increased, is further increasing, and should be diminished.
– What will be the ultimate end of these regulations?
– If the making of regulations continues at the present rate, so many regulations will be issued that no one will read any of them, and, therefore, no action will be taken except against offenders who are ignorant of the law, and we know that ignorance of the law is no excuse. The more you pour out statutes, the more you tend to create contempt for the general body of law. The people do not understand it; they feel that they are not receiving fair treatment, and ultimately nothing of the law is read except in special cases. I suppose that this will increase the work of experts- lawyers, taxation advisers, and the like - but the average man cannot possibly know the laws under which he lives.
– It is a sort of unseen fascism. Men do as they are told and do not even try to find out the reason .
– Will the people do as they are told when they do not know what they are told ? Breaches of regulations will sooner or later tend, to be followed by breaches of the law. There cannot be a shadow of doubt that many of the regulations are ultra vires. I do not wish to emphasize that thisGovernment has been more responsible than other governments for this, but that there have been some regulations of which a number is not within the four corners of the law is perfectly clear. The Senate has expressed that view by disallowing one or two of them. If the Government or the Executive issues regulations which are ultra vires it is only a step from ignoring the law; indeed, cases of that sort have occurred. I do not over emphasize the difficulties which may arise, for instance, in regard toemactments in which section 92 of the Constitution is concerned, because if a written constitution exists it is arguable, from different sides as to what the powers are, and each’ side tends to take the view which is favorable to itself. But it is an entirely different matter,’ when, as in a recent tariff schedule, the Government brought in this schedule without referring it to the Tariff Board as under the law of the laud it was its duty to do. If, on the one hand, it is not its duty to . do that, or, on the other hand, the Government did do it. andgot a reply, we ought . to know the facts. In that respect we hardly think that it could be owing to inadvertence that the Government did not submit the schedule to the board. The Government departed from the law of the land, and I shall be extremely glad if the Minister will give -me an answer to that.
This matter of government by regulations has been concerning- many minds in other places than this Parliament. It has been occupying the minds of members ofthe South AustralianParliament. A year ago, the State Government appointed’ an honorary committee to inquire into and report on the subject of subordinate legislation. It was, I should- say, a good committee. It included ‘two legal members of Parliament, one from each House ; one of them has been Attorney-General : whilst still another -was formerly a partner of the Postmaster-General, and is now an acting judge of South Australia. The committee reported ‘ that it was highly desirable that the drafting should be correct, and that the regulations should not be ultra- vires. It recommended that certificates should be issued with regard to every regulation from the parliamentary draftsman, or some other responsible legal officer, that, in his opinion, it was correctly drafted and not ultra vires. It seems to me to be a very desirable thing to request that we should be assured that regulations are watertight, and that there are no oversights or lapses which a regulations committee or any individual’ could pick out. Mr. Ligertwood, in his article, emphasized the importance of the parliamentary draf tsman. He said -
But there are some . ways in which matters may be improved. The first is to emphasize the importance and status of the Parliamentary Draftsman. The form of our statute’ law has vastly improved since the creation of this . office. . It would seem that the qualities which make a good parliamentary draftsman are the result largely of experience.
Senator Abbott will agree with this:
Most important is a profound knowledge of statute law as it exists at present, and ofits practical working in the community. As a class, lawyers do not become familiar with . statute law. Most of them consult “it in patches as the exigencies of their practice require. “ ‘
– A man would have to be a genius to have complete knowledge of all legislation.
– He would -
But the’ Parliamentary Draftsman hits an unique opportunity of becoming acquainted with the whole body of our legislation. It must be a painful process, and it must take a long time. It ought to be adequately remunerated.
I endorse that statement.
– It would take a lawyer a long time to understand every phase of. some acts of Parliament.’ .
– What Mr. Ligertwood says is true. When a solicitor is instructed concerning a particular matter, he gives his attention to that part of the law dealing with it. Seldom is it possible for him to study the act from beginning to end. He serves his client if” he scrutinizescarefully those provisions of the law which, have . a bearing upon his subject.
– There is no evil in that.
– No evil in what?
– Mr. Ligertwood’s statement that lawyers as a class do not understand statute law. My view is that the less opportunities lawyers have, to interfere with statute law the better it is for all concerned.
– Surely it should not be necessary for me to remind the honorable gentleman that every statute law which has been issued from this Parliament is the result of close scrutiny by some person or persons possessing legal knowledge!
– Perhaps that explains why so much of our statute law is ambiguous.- 1
– The honorable gentleman will,I know, admit that it is not easy for a : draftsman suddenly to put into precise legal phraseology, say, my whirling thoughts on a particular subject. First of all, he has to get the sense of them, if they contain any, and then clothe it in the most appropriate legal language.
The South Australian committee, which examined the bill brought in by the then Attorney-General, Mr. Homburg, recommended that, in drafting regulations to supplement legislation, there shouldbe1consultation with the sections of the -business community that would’ be most vitally interested.
– Of course! There is altogether too much interference by sections of the business community with the responsibilities of. Parliament.
– On that particular point, I am in general agreement with the honorable gentleman. I think . that what he says is probably true. There is a tendency to consult, perhaps too closely, sections of the business community as to what legislation should be passed; but my view is that when a law has been . passed, and regulations under it are . being framed, it is better to consult the people most concerned in order to have workable rules, than to- produce what might prove to be unworkable regulations which have- to be altered later. I- see no harm in that recommendation because the Executive -is not bound to adopt the suggestions of industry. My view is that if there is an act under which an industry has to . operate, it surely would make for more satisfactory working of the law if such consultation took place.
– Is it, suggested that the industry would advise as to the spirit and not the letter of the law? . .
– I do not think so, because the spirit of the law would be embodied in the act, so it would appear to me that the industry would advise as to the workability or otherwise of regulations to be made under it.
-Would it not be better to allow the draftsman to determine the precise language to be employed in regulations?
– Possibly it would. But- before a draftsman could do that he would require to know what it was he had to put into words, in order to determine the form in which a regulation would, in his opinion, be most satisfactory. However, I do not wish to haggle over what is, after all, ‘a question of verbiage. I should say that the language to be employed for regulations would be determined by the spirit of the law as laid clown in the act, and it seems, to me that those who have to work under a particular regulation- should be given an opportunity to advise as to what, in their view, would be the form it should take. It does not follow; as I have already said, that the. Executive would accept such advice.
– There might be a tendency on the part of the persons consulted to advise in a direction which would suit them best.
– No doubt they would-be influenced in their opinion by that consideration, but, as I have explained, their advice might not be followed. I still think that, in order to ensure’ the enactment of regulations which would be workable, and as tolerable as possible, it is advisable to consult -the people who have to work under them.
The committee also recommended that there should be a joint committee of both Houses. Perhaps I should remind the Senate that this recommendation relates to South Australia. In this Parliament we have a committee of only one House - the Senate Committee. In South Australia a joint committee of both Houses is recommended to . be appointed to consider and advise with regard to regulations and rules.
The committee further recommended that the English Rules Publication Act 1893 should be followed. That act lays it down that, before any regulations can have the force of law, unless they deal with really urgent matters, they must be available for inspection for 40 days. This gives any one who is interested an opportunity to know what is intended to be done, and, if necessary, to lodge objection and suggestions. It might be argued that, in some cases, this would make for an intolerable delay; but, as I have stated, there is provision in the English act for the earlier promulgation of urgent regulations.
The final recommendation of the committee is that regulations may be disallowed at any time by resolution of both Houses of Parliament. I find myself in general agreement with this recommendation. Is there any reason why the right of this Parliament to object to regulations should be limited to fifteen sitting days? There is an alternative suggestion that power should be given for one House to disallow a regulation at any time, provided that an absolute majority of the members voted in the- affirmative.
-Would not that provision make for instability of regulations?
– It would not make for any greater instability than exists at present.
– Even an act of Parliament may be amended at any time.
– That is so. I point out, also, that any regulation may be reversed by the High Court., or cancelled at any time by the Executive.
– But the course which the honorable senator suggests would involve the procedure necessary for the repeal of statute law.
– No ; the Executive of course has authority to annul any regulation, just as the Senate disallowed some regulations a few months ago.
The reason for the recommendation that both Houses, should be vested with authorityto disallow regulations after the expiration of fifteen days is, I. think, plain. Very often, as honorable senators know, the full effect of a regulation is not apparent to the people working under it, until some considerable time after it has been promulgated. This being so, why should the right of Parliament to disallow a regulation be limited to any fixed period ?
The South Australian committee also made some further comments which I should like to read to the Senate because they bear on a point which the Leader of the Senate has emphasized on two occasions when suggesting that the Regulations and Ordinances Committee was really interfering with work which ought to be done by the High Court; that, in short, it was assuming judicial functions. I have always maintained that it was doing nothing of the sort. The South Australian committee said, among other things, and I would like honorable senators to listen carefully -
It is essentially the duty of Parliament to scrutinize regulations and to disallow any which are harsh or unnecessary.
And again -
A regulation which may be harsh in its incidence may still’ be valid in law, and Parliament has the right to consider whether such regulation gives effect to its true legislative intent. The courts are confined to the question of legality of regulations.
It would seem, therefore, that there is definite intention that a.part from the question of legality, Parliament should have the power to annul a regulation which appears to be harsh or unconscionable. I do not know if honorable senators have studied the bill, but I direct, attention to proposed new section 48 (2).
Regulations -shall not be expressed to take effect from a date before the date of notification in any case where, if the regulations so took effect -
the rights of a person (other than the Commonwealth or an authority of the Commonwealth) existing at the date of notification, would be affected in a. manner prejudicial to that person. “What constitutes “ the Commonwealth or an authority of the Commonwealth”? Suppose the issue is the validity of payments which ought to have been made at some earlier period, but which were not made. Surely while that affects the Commonwealth which has to make the payments, it also affects the taxpayer who has to provide the money for the payments. Every retrospective payment to Commonwealth employees obviously has to be made good not by the Government but in the end by the taxpayer. I find it difficult to see how the rights of a person, other than the Commonwealth, or authority of the Commonwealth, would include the rights of the taxpayer. I should, say that every taxpayer’s rights would be affected by any retrospective payments under the provision which I have read.
– Rights of taxpayers are affected by every payment, retrospective or otherwise.
– Very likely the honorable senator is right; but we are dealing with retrospective provisions of the law.
SenatorCOLLINGS. - The logic of the honorable senator’s argument is that every regulation should be endorsed by the taxpayers.
– No. That would be impossible. If I agreed with the honorable senator it might be better to start at the beginning and ask - Is it necessary for any regulations to be made under any act?
I have here a summary of the evidence given by Mr. H. Mayo, K.C, before the South Australian committee. Referring to the rights of the taxpayer, he said -
Any person willbe entitled to impugn the validity ofa regulation, whether he willbe affected thereby by virtue of his being a. member of the public or belonging to a particular class or body, or otherwise, and it will not be necessary that he be already or be about to be so affected.
If such a person thinks that a regulation will be detrimental to his interests, he would, according to Mr. Mayo’s suggestion, have the right to object to it becoming operative.
It is not. easy to amend legislation which has been in operation for many years, because the people have become accustomed to the law. On this point, Mr. Ligertwood said -
The trouble with this kind of legislation-
He is speaking of taxation laws- is that it prevents the High Court from building up a consistent body of principles relating to taxation and increases enormously the difficulties of those who are called upon to advise the taxpayer. One sees a case reported in the Commonwealth LawReports and, after careful perusal, one masters its principle and feels that it can be looked to as a beacon for future guidance. But, within a few months, the legislative guns are brought into action, the beacon is smashed to atoms, and the taxpayer is left once again to the dangers of uncharted seas.
It seems extremely unwise and unnecessary to amend an act which has been in operation for 32 years.
Senatorcollings. - But conditions have altered during the last 32 years?
Sena tor DUNCA N-HUGHES.- Probably. There should not be any amendments to change the original provision, and if there are, we ought to be told why a change is necessary. There is no necessity to amend the law in this respect, and I contend that sub-section 2 of proposed new section 48 should be omitted. Moreover, the bill should provide a penalty for cases which sometimes occur. The tabling of regulations within fifteen sitting days is covered by sub-section 1 of proposed new section 48. If this proposed new section is to remain in the bill, I shall move an amendment to provide that if regulations are not tabled within fifteen sitting days after they are made, they shall be invalid. There have been instances - they are referred to in one of the reports of the Regulations and Ordinances Committee - where that omission has occurred, but there is no penalty. It is even uncertain if the failure to table regulations within the specified time does or does not invalidate them.
– The word “ shall “ is used.
Sen ator DUNCAN-HUGHES. - Yes, but the law makes no provision for penalty in cases in which regulations arc. not tabled within fifteen days. The law should provide that, if that condition be not complied with, such regulations shall not be regulations within the meaning of the act. A certificate should be issued by the SolicitorGeneral, the Parliamentary Draftsman, or some responsible legal officer, stating that every regulation promulgated is legally drafted and is not ultra vires. We should also incorporate in the bill the suggestion that one House of Parliament, by an absolute majority, should nave power to exercise its prerogative of disallowing regulations, not only within fifteen sitting days, but at any time it feels disposed to do so. There is no reason why the period should be limited to fifteen sitting days. On the other hand, if a longer period were allowed, inconvenience might be caused to those engaged in business, should a regulation be disallowed after it had been operative for some time.
– Has not Parliament the right to move for the repeal of any regulation?
– I think not. Our only power is to disallow a regulation within fifteen sitting days after it has been tabled. I propose to test the feeling of the Senate on the question of allowing an absolute majority of either House to disallow a regulation at any time after it has been passed. I understand also that Senator McLeay proposes to move an amendment to clause 12 which relates to the validation of past mistakes in the framing of regulations. Sub-section 2 of proposed new section 48 provides in effect that retrospective regulations are mot in future to affect prejudicially the rights of any persons, or impose any liabilities upon him. Apparently Senator McLeay is right in saying that no provision has been made in the respect of regulations framed in the past. If a regulation which is ultra vires is validated, the person concerned will be debarred from getting redress by bringing ‘-rtn action in the . High ‘ Court. It validates everything that has been done except in the case of a man who has had a judgment. With Senator McLeay I think that it should be made clear that any person who possessed rights under’ past legislation should not be prejudiced by the validation of regulations, and particularly those which have not been specified. Numerous regulations are to be affected by this provision, and it is highly important that the rights of individuals should not be prejudiced.
– The Government will not know when such persons would learn that their rights had been prejudiced.
– If they did not act it would be assumed that they had no such rights or.- that they were unaware of- the: rights’ ,they possessed. >
– Should the Statute of Limitations apply ? Would the honorable senator apply that limitation?
– I do not see why it should apply. If a person has accrued rights they should not be taken away from him by a drag’-net provision.
– Should ‘not the Government be supreme in these matters ?
– That is why the law is being amended. The Executive represents Parliament, and exists at the behest of the majority of members in the House of Representatives. The Government has the right to perform executive- acts. It is our’ duty to see’ that its actions are in accordance with . the Law, and that regulations made under the law are valid. I am not attacking the Executive. The present Executive is quite as good as many we have had in the past, .and possibly is better than some we may have in the future. We should provide that Parliament, and not the Executive, however, satisfactory it may be, should possess the power. The Regulations and Ordinances Committee was appointed to ensure that Parliament retained its power, and it has .performed its work with a minimum of- attacks upon the Government. The .main object of appointing the’ committee was- to have a body to advise the Senate, and to direct the attention to those occasions on which regulations which are unjustified, and in some cases illegal, have been promulgated. The Leader of the Opposition -‘(Senator Collings) has said on different occasions that we are sent here to do our job. Scrutinizing the regulations is a part of the committee’s responsibility. It has to see that the rights of the Parliament are retained. It exists only at the behest of the Senate, and any of its members can be removed at any moment. I do not think that any member of the committee would have any profound regret -if “he were removed, because a great deal of detailed work is involved. The committee is simply doing what it believes to be right in the interests of the people. If the Senate agrees to the course of action proposed the Committee’s powers will bo strictly limited. In effect it means, as the Leader of the Opposition seems to think that it should, that the Executive will have full power to do what it likes. I do not think that this or subsequent governments should have that power.
– Certain powers must be exercised by the Executive. Is there not a middle course?
– The Government has too much power.
– I do not agree that a middle course is at all certain to be the right one to follow.
– It is usually the most vicious.
– There is a good deal to be said in support of that contention.
– It may mean keeping on the straight road.
– The honorable senator is in favour of travelling mid-way between two clearly defined tracks - slipping one way and then another.
– The honorable senator wishes to go from one extreme to the other.
– Not at all. The proposed amendments of the law which I have mentioned are not justified, and . when the measure is in committee, I hope that the Leader of the Opposition will support some of the amendments I propose to move. No genuine attempt has been made to show that the alterations which the bill proposes are justified. The main purpose of the measure is to validate past errors, and it has been suggested that these errors are. either few in number or that there are none at all. If the law is amended in the manner proposed it will be easier for the Executive to act without the support of Parliament than it has been in the past. I do not approve of some of these provisions, but insofar as the bill will effect a very desirable codification of the existing laws, I shall certainly vote for the. second reading, leaving the suggested alterations tobe discussed in committee.
– Honorable senators are under a great obligation to Senator Duncan-Hughes for his very carefully-prepared and illu minating speech. Evidently, the honorable senator has devoted a great deal of attention to this very abstruse and important question. In fact, I know of no more important question which might exercise the minds of honorable senators at the present time in view of a certain tendency exhibited by the Australian governments for some time to ignore the statute law when it suits their purpose so to do. I have here a very valuable document prepared by the Publicity Branch of the Prime Minister’s Department and issued on the 16th June, which contains a statement made by the then Acting Attorney-General (Senator Brennan) with respect to the Government’s power of law-making. Senator Duncan-Hughes referred to an incident which took place in the House of Representatives a short while ago, when a certain procedure was adopted which contravened a section of the Tariff Board Act, a very important statute. It might be illuminating to honorable senators if I refer to the explanation given by Senator Brennan in regard to this particular incident. An honorable member of the House of Representatives had expressed the opinion that the action taken by the Government was illegal and unconstitutional. I am at the moment concerned, not with its unconstitutionality, but only with its illegality. In an interview granted to the press, Senator Brennan is reported to have said -
It is quite true that the Tariff Board Act provides that the Minister shall refer to the board for inquiry and report - (d) the necessity for new, increased, ‘or reduced duties …
He. ignored the following words of the section which state that the Minister shall take no action until he has received a report from the board. He went on to say -
That, however, is a provision which Parliament may ignore.
May Parliament ignore a statute which it has passed and which appears on the statute-book? The Minister proceeded -
The one thins which Parliament cannot do within the ambit of its legislative powers is to part with or fetter its own powers.
Does the Attorney-General suggest that the Constitution gives to Parliament power to violate an act to that extent?
Surely not! There is a legal procedure which can at any time be adopted, to suspend, repeal or amend any act. The honorable senator went on to say -
It is not, however, a question of being binding upon the Government but of being binding upon Parliament. Parliament may amend or repeal an act without doing it in express words.
It is news to me that Parliament may amend or repeal an act without doing it in express words.
– Nevertheless, it is quite true.
– I am at a loss to understand what is meant by that statement. The honorable senator also said -
If it passes an act which is at variance with an existing act, the Inter act prevails over the earlier–
Of course it does ! All honorable senators know that a later act must prevail over an earlier act - just as definitely as if it had repealed the earlier act.
Can the Minister refer to any legislation passed by this Parliament since the Tariff Board Act was passed which deals in any way whatever with the section of the act to which I have referred ? Oan he refer to any Customs Act which deals in any way with that mandatory instruction to the Minister for Trade and Customs to take a certain course before he brings” before Parliament any amending tariff schedule ? When the Minister for Trade and Customs tables a resolution affecting duties of customs, those duties become operative at once before they are agreed to by Parliament, but that has nothing to do with the Tariff Board Act, neither has the Minster’s reference to a later act superseding an earlier act anything to do with the matter now under consideration. The Minister also said -
Therefore if tariff proposals are brought down and arc subsequently validated by Parliament that validation prevails over the earlier provisions of the Tariff Board Act. If it were not so, then the assertions bo frequently made that the Tariff Board had been placed over Parliament would have some substance in them.
There is nothing in the section of the Tariff Board Act dealing with this particular matter which would lead any one to assume that the Tariff Board is to be placed above the Parliament. That section merely sets out the course which the Minister for Trade and Customs must adopt before he brings down any schedule affecting duties of customs. I have quoted the remarks of the Minister in support of the desire of Senator Duncan-Hughes, which I hope will be recognized by honorable senators generally, that every care should he exercised in the framing oi” legislation to see that no power shall be taken away from the Parliament; that whatever power is given to a Minister is closely observed, and that any statutory order to a Minister, with regard to acts, regulations or ordinances’, shall be observed to the letter, so that the Parliament shall always have an opportunity to discuss any proposals affecting important laws of the Commonwealth. I support the attitude adopted by Senator Duncan-Hughes with regard to this bill.
[4.32]. - I hope that when the bill reaches the committee stage honorable senators will give serious consideration to one point raised by Senator Duncan-Hughes in respect of which an amendment lias been foreshadowed. [ refer to regulations affecting the rights of individuals, which after being found to be invalid are superseded by new regulations validating what had been done earlier. There is a well-known class of cases which generally arise under the taxation laws. I have several of such cases in my mind, and I well remember the discussion of them in Cabinet. Before the Senate makes any alterations whatever, I hope that honorable senators will weigh the consequences of what they are being asked to do. The history of these regulations is usually the same. Regulations are prepared by a draftsman, usually the officer who drafted the act; he believes them to be in consonance with the act. In several cases, the regulations were in force for several years, and nobody ever thought of contesting their validity until one day some individual, more clever or pertinacious perhaps than others, proceeded to contest a particular regulation. On taking the case to the High Court, the court determined that, because of its language, and not because of its intention, this regulation, which everybody had thought until that time was valid, and under which taxpayers had paid large sums of money, did not mean what the draftsman, the responsible department, the Government and everybody else’ thought it meant.
– Is not the law always determined by the wording rather than the intention?
Senator Sir GEORGE PEARCE.It is a question of interpretation. In the cases to which I refer the Parliament, the Government and the draftsman responsible for the drawing up of the regulation had a definite intention, which the wording was believed to express, but the High Court interpreted it in a different way. Senator Duncan-Hughes says that a new regulation should not- be issued to cover up the gap thus revealed, and that those whose rights were affected by a regulation which was subsequently found to be invalid should be entitled to recover against the Commonwealth. In reply to an interjection by the Assistant Minister (Senator Brennan), he went so far as to say that they should be able to recover moneys overpaid without even the application of the Statute of Limitations.
– If provision of that kind is to be made for the “future, why not for the past?
Senator Sir GEORGE PEARCE.I have in mind a case in which a taxpayer successfully contested in court, the validity of a regulation. In respect of that taxpayer, the revenue was affected by only a few hundred pounds; but in considering the decision of the High Court, the Government had to have regard to its effect on other taxpayers. No government, lightly contemplates making a regulation retrospective. Senator Duncan-Hughes- speaks as if governments contemplate retrospective legislation with equanimity. I assure him that before a decision in favour of retrospective legislation is arrived at. the matter is thoroughly discussed by Cabinet. I have in mind another instance in which a decision of the court involved the Treasury in a possible loss of nearly £750,000.
– Hughes. - : The amount involved does not affect the principle.
Senator Sir GEORGE PEARCE.Every one believed that the legislation under which the money was collected was valid. Indeed, the taxpayer paid it in that belief, and it was not until a con-, siderable period had passed that he contested its validity. Obviously, the intention of Parliament was that the amount should be paid, but a technical error in the drafting of the regulation enabled that taxpayer to escape. Are we to disregard the possibility of the country being mulct in an amount of £750,000 because of a technical mistake by a draftsman?
– Unfortunately, the correction of technical mistakes is not always the reason for retrospective legislation.
– Would the Leader of the Senate say that the broadcasting case arose out. of ; a technical mistake by the draftsman?
– I am not acquainted with the details of that case, and, therefore, cannot reply to the honorable senator’s interjection. The case to which I referred arose out ofa technical mistake by a draftsman; and I assure the Senate that it was not an isolated one. As a Minister, I believe that it is my duty to acquaint the Senate with what may be the consequences of its agreeing to the proposed amendment. In my opinion, no injustice will be done by accepting the bill. What every one thought to be the law was suddenly found to be invalid, and the Government, as the mouthpiece of Parliament, took action to put matters right. The tax was paid in the belief that the law as then interpreted had been rightly interpreted, and it was not until some time later that the High Court pronounced otherwise. In one case which I have in mind the Supreme Court of a State had declared valid a regulation which subsequently the High Court hold to be invalid.
– There are too many courts interpreting our laws.
– There is always an element of doubt about the precise meaning of an act of Parliament. . I ask honorable senators not, to accept the view that the Government favours the making of retrospective. legislation. Sometimes, however, a government finds it necessary to protect the rights of an individual, even as, at other times, it takes action in the interests of the community as a whole.
SenatorDuncan-Hughes. - Should not that be done by legislation?
Senator Sir GEORGE. PEARCE.No. The . statute book is already sufficiently voluminous, and, moreover, the passing of legislation to do what can be done better by regulation would, involve the almost continuous sitting of Parliament. I ask the Senate to think seriously before making the proposed amendment.
– On this measure, which is’ one of particular interest to members of the legal profession, Senator Duncan-Hughes has delivered a thoughtful speech, but I am afraid: that he regarded it too much from the legal aspect. Like many others, I am of the opinion that there are too many regulations in operation; but we cannot lose sight of the fact that no sooner is an act placed on the statute-book than certain astute gentlemen with a legal training try to find loopholes in it. Senator Duncan-Hughes has argued that it is better to amend our lawsto meet such cases as have been mentioned than to rectify matters by the making of regulations. I ask the honorable senator, as a practical man of the land, what.he would do if one of the wires in a fence erected, by him to protect his stock were broken. Would he pull down the remaining structure and erect an entirely new fence, or would he replace the broken wire?I suggest that regulations are in. the nature of a fence erected’ to. protect the rights of the people, and that there are times when it is better to make a new regulation than to amend the statute. Every regulation has to lie on the table of the Senate for a certain number of days, and, therefore, any member of the Parliament who believes that it will adversely affect the interests of any section of the community has the opportunity to take remedial action.
– There are som any “regulations that it is well nigh impossible to read them all within fifteen sitting days of their tabling.
– Some regulations have not been laid -on the table within fifteen sitting days from the time of their promulgation.
– In that event, they have not the force of law.
– That is not so.
Senator JAMES McLACHLAN.Unless a regulation has been laid on the table within the prescribed period, it has not the . force of law.
-Hughes. - What would happen . if the Executive acted in terms of such a regulation?
– In my opinion, nothing could possibly validate its action in such circumstances. Regulations are necessary, and if I can do anything to make the position more secure than it now is,, I am ready to do so. The removal of the power to make regulations, thereby making it necessary to pass fresh legislation to meet every emergency, would cause endless confusion.
– I propose to deal mainly with what is, perhaps, the most offensive clause in this bill. Listening to the. speech of the Minister who introduced it, I was reminded of the lines in Macbeth - bear welcome in your eye,
Your hand, your tongue; look like the innocent flower, .
Buthe the serpent under it.
The brilliant speech of Senator Pearce caused the Leader of the- Opposition (Senator Collings) to forget that he had already spoken to this bill. Although the practice of government by regulation has come in for severe criticism by many distinguished judges and legal authorities, both in Australia and in Great Britain, there is a consensus of opinion that in these modern days power to make regulations is necessary. All authorities, however, stress the duty of parliament to guard against the abuse of that power. When we reflect that last year 136 statutory rules were made, two of which contained 500 regulations, and that 142 acts of Parliament authorize the making of regulations, we can readily believe that about 10,000 regulations are in force. I am concerned that clause 12 proposes to validate retrospectively certain regulations which have been held to be invalid. Retrospective legislation is . not only undesirable, but in many cases is also, offensive;, . retrospective regulations are even worse’. If the Senate considers the proposed, mew. section 48 in clause 11,., it will find that it deals mainly with retrospective regulations, and. lays. down, a definite principle tobe a guide to bureaucracy in the future. If the Go vernment accepts a principle for guidance in the future why. . should . not that principle . apply . to the past also ? By proposed new section 48. (2) the- Government . provides that no regulation shall operate retrospectively to the prejudice of the accrued rights of . any individual. But in one clean sweep clause 12 makes valid retrospective regulations made before this bill was introduced and declared invalid. If this bill becomes law any man who has accrued rights to-day will be debarred from the enjoyment of those rights.I think ‘ that this is offensive to every principle of British justice. Clause 12 contains this striking proviso -
Provided that nothing in this section shall affect the operation of any judgment, order or ‘ conviction obtained or madebef ore the. commencement of this act.
If a man has obtained a judgment in his favour he is protected, but if a man has a right and has not commenced action, he will be deprived of his rights. The Senate should pay serious attention to that sweeping change. The reason for this drastic- change. is the decision by the High Court in the broadcasting case. The Postmaster-General’s Department introduced regulations reducing the amounts to be paid to certain broadcast’ ing companies. The regulations were promulgated in August, 1928, and not being satisfied to have the reduced rates operate from the day the regulation was made, the department made them retrospective for about nine months. The High Court decided that there was no power under the act to make those regulations retrospective, but this bill validates them. That was never the intention of the Parliament. If the case had not gone against the Postmaster-General’s Department, the broadcasting companies would have lost £5,000. Judgment was given against the Commonwealth with costs. Retrospective regulations are reasonable if they confer a benefit, but they are unreasonable if they prejudicially affect the accrued rights . of : anybody. . There are eases in which regulations making, powers have. been abused, . and this bill,, if passed, will place in the hands-, of. the: bureaucracy a very deadly weapon,
– What does the honorable senator’ mean by “bureaucracy “ ?
– I think the honorablesenator is- old enough to- appreciate what I mean. I seek to prevent any further abuses. Itis interesting to read what was said recently by a learned judge in giving judgment against the Commonwealth. His remarks have a very direct bearing upon the abuse of power.
– All powers are capable, . of abuse.
– The learned judge said - - The point is- taken on express instructions from Canberra, who gave them I am not told, but I. am constrained to say that is neither fair, just, nor honest, for the department to raise the objection. Even a bureaucracy which Lord Hewart has described as the new Despotism with all its great strength should not be allowed to act tyrannously, but by its conduct should set an example of honour and justice.
One of the things most offensive to commercial men is the abuse of power by the Taxation Department. Frequently if a man is not satisfied with the assessment of his tax, and takes the matter to court, even if he wins he incurs a financial loss. That is absolutely wrong. I propose in committee to move- an amendment to clause 12. I ask the -Minister in charge of the bill whether, if the -Senate, accepts proposed new section- 48 which deals only or mainly with retrospective regulations, affecting accrued rights, as a definite policy and principle for the future, he will be prepared to apply the same principle to any retrospective regulations made prior to the passing, of this bill. It is illogical and unreasonable to say “ Yes, we will accept this principle for the future, but we are not prepared to abide by it, so far as thepast is concerned, because in the broadcasting case costs were given against the Commonwealth Government.” I trust the Minister will see his way clear to alter the clause in order to do justice and prevent abuses that might be perpetrated by a bureaucratic despot.
.- At the outset this afternoon I felt the possibility that the Government, was right in bringing forward this legislation, but as the debate has proceeded I have felt a doubt. Strange to say, the Leader of the Senate (Senator Pearce) was the man who implanted that doubt. He did so when he said that if a large sum. of money were involved in retrospective regulations they should be validated, but that if the amount were only small it would not matter. As a matter of fact; his attitude is this: “If it is murder we shall validate it, but if it is petty larceny it does not matter”.
– That is hardly a. correct summary of the views of the Leader of the Senate.
-It is very near to it. The right honorable senator pointed out that if the sum involved were large the position would be serious for the Government.
SenatorGrant. - He’ said that if it were a large amount the Government would not pay it back.
– That is so.
– He said that it would not. if the Government were beaten on a technicality.
– Who is going to say whether it. is a technicality or not? Before I make up my mind on this matterI shall listen to the Minister’s reply.
The Leader of the Opposition (Senator Collings) put up a case that the Government should take practically supreme power in regard to the making of regulations.- That is a very surprising statement to come from a man who notoriously and constantly upholds the rights of Parliament and of individuals It makes me think that if you scratch a socialist you find a Hitler. I do not. know if I understood correctly, but I formed the impression that Senator Duncan-Hughes and the Leader of the Senate came to a conclusion that, amongst the reasons for the introduction of this bill, were the activities of the Regulations and Ordinances Committee of the Senate. If that be so we can only blame Senator Duncan-Hughes.
He has beenworking too hard. It is not often that that charge is made against members of the Senate, but I am afraid that Senator Duncan-Hughes must take some of the blame for the introduction of this bill because he and his committee are too energetic in looking after the rights of Parliament. If this bill is a “ slap “ at the committee to prevent it from carrying out its duties, I think that we should be told directly that that is so. It is rather Gilbertian to appoint a committee for the better supervision of the work of Parliament, and then bring in a bill to suppress it.
– The committee was appointed by the Senate, but the bill was drafted by the Government.
– Yes, but when this debate started this afternoon I had the feeling that the bill was absolutely necessary. I now have my doubts, and the Minister has something to answer.
.- I listened with a great deal of interest to Senator Duncan-Hughes this afternoon, and I think there is a great deal to be said in favour of his contention. There is no doubt that we are governed a great deal too much by regulation. As a matter of fact, it seems that we are not governed by Parliament at all. Senator McLeay mentioned the number and size of regulations brought forward year by year, and they certainly take a great, deal of the power out of the hands of Parliament and put it into the hands of the Government. I know full well that certain regulations are necessary. Some of the earlier clauses in this bill are necessary, but, in regard to the clauses dealing with retrospective legislation and regulations, I was impressed by the statement of the Leader of the Senate (Senator Pearce) that, if a large sum were involved in a judgment invalidating a regulation, the Government would not repay it. The Government has always taken good fare to validate collections from the taxpayer under illegal enactments. This has been particularly noticeable in collections of customs duties under schedules which have not been validated by Parliament, and also in connexion with income tax assessments in excess of the amount legally owing by the taxpayer. Occasionally an aggrieved taxpayer appeals to the court, and, although he may succeed in his action, if he is acting on behalf of a number of other taxpayers in circumstances that are identical, a refund may be made to him by the Taxation Department, but not to taxpayers who have not challenged their assessments. In nearly every instance when a particular law is declared ultra vires the Government loses no time in bringing down retrospective legislation to validate any action taken under it. The regulation-making power is so freely exercised by governments and regulations have become so numerous and so complicated that few people understand them. Indeed, I doubt that any member of Parliament has more than a passing acquaintance with them. In this bill we are asked to validate certain action taken by the Government. I entirely agree with what Senator Duncan-Hughes has said this afternoon, and if, in committee, an amendment is submitted to leave out those provisions of the bill to which objection has been taken, it will have my support.
Senator ARKINS (New South Wales) [5.10). - I am surprised at the attitude of Senator Leckie and Senator Grant. Especially do I deprecate their observations directed against the Leader of the Senate (Senator Pearce). I know that the right honorable gentleman is well able to take care of himself, but I deem it necessary to say a few words in his defence. I have never been favorably disposed towards what is known to-day as the “ New Despotism “ - government by regulation instead of by legislation. I realize, however, that, under existing conditions, it is impossible to carry on the government of a country without resorting to the regulation-making power of the Executive, though I believe that there should be a clear line of demarcation, between it and the legislative power of the Parliament. Senator James McLachlan, this afternoon, gave us a splendid analogy in support of the Government when he asked Senator DuncanHughes if he would pull down a fence merely to replace a broken wire.
The Leader of the Senate has reminded us that, not infrequently, judgments of the courts cut right across the intention of the legislature. We should remember also that High Court or Privy Council judgments represent, as a rule, majority opinions. A decision of the High Court might reflect the views of three justices in direct disagreement with the minority of two.
– That argument might apply also to Cabinet decisions.
– That is so. The Leader of the Senate also reminded us that not infrequently tlie intention of the legislature was defeated on appeal to the courts, by a merely technical objection to the phraseology employed. All honorable senators will, I think, agree that it is undesirable for this to happen, and also that the revenue should not be penalized to the amount of thousands of pounds by such, a decision. It has been well said that the law is made by lawyers for lawyers, and that out of law much litigation arises.
– Can the honorable senator explain the effect of clause 12?
– No, and I agree with much of what Senator DuncanHughes said this afternoon, but I fear the effect of his proposed amendment. In the main, I am in agreement with the objection voiced by some honorable senators to the tendency of governments, not only in Australia, but also in other countries, to legislate by regulation, and I admit that if this power is not controlled in some way the Executive eventually will dominate the Parliament. I believe, however, that the complexities of modern civilization call for the exercise of a certain amount of authority by the Executive to implement the intention of the legislature.
– Senator McLeay has reminded us this afternoon that 10,000 regulations have been promulgated under existing acts. Does the honorable senator approve of such wide powers being given to the Executive?
– I am surprised to know that there are 10,000 regulations under existing laws. I appreciate the strength of Senator Duncan-Hughes’ argument, and I approve of his ultimate objective, but I cannot follow him all the way. I doubt that we should achieve anything of real advantage to the Commonwealth by hampering or destroying the power of the Executive to implement certain legislation by regulation.
– I am prepared to leave the power where it is to-day. This bill contemplates an extension of that authority.
– I do not agree with the honorable gentleman. However, this is a matter which we can discuss when the bill is in committee. I rose to say that I do not endorse the construction that has been placed by some honorable senators on the remarks of the Leader of the Senate in respect of certain regulations and their effect upon individuals in the community. I also disapprove of the intention of the legislature being defeated on appeal to legal tribunals merely on some technical objection to the wording of the law. I consider also that the revenue should be safeguarded against claims for heavy damages on such grounds.
– I should like the Assistant Minister in charge of the bill (Senator Brennan) when replying to give us an assurance that the bill will not restrict the activities of the Senate Regulations and Ordinances Committee, which has an unenviable task in scrutinizing regulations promulgated from time to time, and making recommendations to the Senate. The Leader of the Senate (Senator Pearce) assumed that the amendments forecast would make it possible for some taxpayers to become tax dodgers. In putting forward that suggestion, possibly the right honorable gentleman, having in mind Senator McLeay’s reference to Macbeth, was thinking of Lady Macbeth. I should like an assurance from the honorable senator who proposes to move certain amendments, that, if they are carried, opportunities will not be provided for tax dodgers. We do not wish to do anything to assist those responsible for the payment of taxes to escape their liabilities. I trust that the Assistant Minister (Senator Brennan) will give the Senate an assurance that if this measure is passed in its present form the work of the Regulations and Ordinances Committee will not be interfered with.
– Although I propose to reserve most of what I have to say on this measure until the committee stage is reached, I feel that some comment should be made upon the views expressed by some honorable senators concerning the functions of Parliament, the courts and the members of the legal fraternity. Some have spoken with a misconception of the system under which we live and by which we are governed. Parliament passes acts in which certain principles are laid down, including the giving of authority to the Executive to promulgate regulations. The only authority which Parliament gives to the Executive in matters of this kind is to frame regulations consistent with the act under which they are framed. The statement that by the construction placed on the words of . the statute” attempts are made to ignore the intentions of Parliament. I should not be surprised if, in the case which the Leader of the Senate mentioned, the regulation was ultra vires the statute under which it. purported to be framed. There is too much loose talk about courts and lawyers. It is ridiculous to suggest that they set themselves out deliberately to defeat the intentions of Parliament. To make such a suggestion is simply to juggle with words. It is the duty of those who frame regulations to see that they are not inconsistent with the act. Regulations are disallowed only when they fail to give effect to the law. When Senator Duncan-Hughes was speaking, I understood the Assistant Minister to interject that the honorable senator wished to override the Statute of Limitations.
– I merely asked if the .Statute of Limitations would apply.
– Provision is made to protect those who, .for various reasons, are prevented from coming under that act. I do not think that there is any likelihood of hardship being inflicted upon any one. The rights of the individual are protected in many ways, particularly those who are overseas, or are, foi- other reasons, prevented from asserting their rights.
– in reply - In the first place I would like to deal with the suggestion raised by Senator Duncan-Hughes that this measure owes its origin to some action taken by the Regulations and Ordinances Committee. That is incorrect. In my second-reading speech, I said that the four subjects covered by the bill were the incorporation of the provisions of the act of 1904 into the original act, the commencement date of acts of Parliament, the application of amendments of the Acts Interpretation Act itself, and the commencement date of regulations.
– The bill was brought forward suddenly as a result of the action of the Regulations and Ordinances Committee, and it was- then held back and re-drafted.
– I do not know what action taken by the Regulations and Ordinances Committee is supposed to have prompted the Government to bring this measure forward.
– Motions were moved to disallow three regulations ; one motion was carried. There is also the third report of the committee.
– There is nothing in this bill which touches the action of the Regulations and Ordinances Committee.
-What about clause 12?
– It is true that clause 12 may have some ‘relation to the decision in the Broadcastng Commission’s case, where a regulation was disallowed because of its retrospectivity. Provision is made in the bill to confer or retain a very limited power of retrospectivity in the making of regulations. There is also a provision dealing with the validation of regulations which, in effect, may be invalid by reason of a purely technical and quite inoffensive provision that the regulations shall not commence from a date prior to publication in the Gazette. I believe that Senator Duncan-Hughes, who commends the consolidation of the law, asked whyreasons were not given for the action which the Government is taking. The reasons were given, if not directly, certainly in effect. I pointed out that there were two main Acts Interpretation Acts; the act of 1901 and that of 1904. I think that I am correct in saying that each of these acts has been amended on four different occasions.
Since the enactment of the Amendments Incorporation Act in 1905 there has been a provision in the law that when an act is amended, then in any reprint the act shall be printed as amended. To an extent, therefore, an act is kept up to date. But the Amendments Incorporation Act applies only to the reprinting of acts which have been expressly amended. Now the act of 1904 does not in so many words amend the act of 1901, and, in consequence, a reprint of the 1901 act would not contain the provisions of the 1904 act. The result isthat on the important question of interpretation - Senator Duncan-Hughes, who is a lawyer, must realize that it is very important - two main acts, together with the acts amending them, may have to be perused in order to ascertain the law. In these circumstances, surely reasons or apologies for the action of the Government are not required. The recent decision in the broadcasting case necessitated a change of practice in a minor way in regard to the issue of ‘regulations, but the time is ripe for a general codification or consolidation of the numerous acts dealing with the interpretation of statutes. No one will appreciate that more than those practising law.
– Reasons for the consolidation of the law are obvious; I referred more particularly to clauses 11 and 12.
– They are essentially self-contained, and I shall deal with them in committee. Senator Duncan-Hughes then suggested that the period in which a regulation should be disallowed by either House of Parliament should not be limited to fifteen sitting days. The honorable senator does not need reminding that the fifteen days on which the Parliament sits, allow persons likely to be affected by a regulation a fairly long period in which to consider its effect. Surely it is unreasonable to suggest that at anytime either House of Parliament should have power to . disallow a regulation. Law-making is a matter for both branches of the legislature, and if either branch of the legislature could disallow a regulation at any time, there would be uncertainty as to the law. Whilst it might be right to suggest that the period should be longer than fifteen days, or to propose means by which a regulation could be brought to the notice of the Regulations and Ordinances Committee, it seems to me to be unreasonable to ask that there should be no limit to the time within which regulations may be disallowed by cither House of the Parliament.
– Would the Minister agree that, as the regulations flourish and spread, they should be pruned more severely?
– I admit that anybody looking over the bound volumes of regulations is presented with a formidable body of very uninteresting literature, but I point out that a great deal of that literature has long since ceased to have effect-
– I think that the Minister, when a private senator, had something to say about the number and size of those volumes.
– Like other lawyers, I have seen that the growth of regulations has gone on to extraordinary limits. When the discussion took place in the Senate on the disallowance of the dried fruits regulations, I pointed out that one of the effects of Government interference in business was that the regulation-making power was bound to be extended. I also emphasized that the business people themselves were responsible for Government interference in business; they desired that interference, and they still demand it to a greater and greater extent. As long as that state of affairs continues, we must have regulations and regulation-making power. Honorable senators know that frequently periods up to six months elapse during which neither House of the Parliament is sitting, and even if both Houses of the Parliament are in session it is not always possible to pass a bill as speedily as circumstances sometimes require. Senator Payne charged the Government with having ignored the Tariff Board. I know how deeply he feels in regard to the creation of the Tariff Board and the tendency which Parliament exhibits to ignore that body. The honorable senator has quoted from a document containing some observations which I, in the absence of the Attorney-General, made to the press. Apparently, he has been greatly shocked at some of the things which I said. But my observations with regard to the provisions for reference of matters to the Tariff Board are quite true. Although on their face the words of the section are mandatory, what I said at that, interview with the press, none the less remains true and accurate. Parliament may ignore one of its own acts.
– Where does Parliament derive that authority?
SenatorSir George Pearce. - It is an inherent authority.
– That is so. Parliament may ignore an act of Parliament which it has passed or it may pass an act that is inconsistent with an earlier act. Senator Payne has referred to that as breaking the law. Let me remind the honorable senator that where there is a breach of the law there is a remedy for it. What remedy could be applied if Parliament or one House of Parliament for the time being ignored the relevant provision of the Tariff Board Act and allowed certain tariff proposals to be brought before it in contravention of that provision? Who could be prosecuted? At what court would the offence be triable? It would not be triable in any court and, therefore, it would not be a breach of the law in the ordinary sense in which we use that expression. I then said that Parliament could amend or repeal an act without doing so in express terms. I went on to give an illustration. Suppose that Parliament, ignoring that provision in the act which created the Tariff Board were to bring down a tariff schedule and pass it into law; the passage of the law would itself override the provision which required reference to the Tariff Board.
– That would not minimize the offence.
– It is not an offence; it may be improper politically, but it is not an offence. Another point is that it was never intended that that provision should apply to revenue duties. Revenue duties were not referred to the Tariff Board at the time the Tariff Board Act was passed, or before it was passed, and have never been referred to it since. Suppose, for instance, the Minister for Trade and Customs referred to the Tariff Board the question as to whether the duty on spirits should be increased. What would happen to the stocks of spirit, in bond? There would not be much spirit left to tax by the time a bill was passed through both Houses of the Parliament, following an investigation by the Tariff Board, during which the full amount of the suggested increase of duty would be mentioned.
– There is nothing in the Tariff Board Act about revenue duties or high government policy.
– Would the honorable senator refer revenue duties to the Tariff Board?
– It is not a matter of customs duties at all.
– Reference is made to duties in the sub-section of the Tariff Board Act, which sets out that the Tariff Board is to ascertain what duties shall be imposed or whether existing duties shall be increased or decreased.
I am sorry that Senator Mcleay should have waxed so eloquent, and seemed so upset over the supposed dangers of what seems to me to be a very harmless and very necessary bill. The honorable senator spoke about the serpent under the rose, but he seems to bo looking under every bush for what was not intended by the framers of the bill.
– The honorable senator will see the poison and sting in the clause to which I referred.
– I cannot understand the honorable senator’s objection to it. Upon the remarks of the Leader of the Senate certain constructions were placed by Senators Leckie and Grant which did the right honorable gentleman far less than justice, and, indeed, misrepresented the view which he put to the Senate. Senator Leckie said that, in the view of the Leader of the Government, if the amount involved was large the regulation should be validated, but if the amount was small it could bc allowed to go. Nothing which the righthonorable gentleman said bears the slightest resemblance to that. The right honorable senator said, in effect, that a regulation is passed; everyone knows its intention; the Government expressed its intention and proclaimed it to the world. It is promulgated by gazettal and is in existence possibly for months. Nobody has ever thought that it means anything other than the interpretation which the Government placed upon it. Duties were collected under it. Then some person looking at the words queries their meaning and tests the matter in the court, not contesting its intention or its purpose, but only the words in which it is framed, and which were intended to carry out that intention. The High Court or the ultimate tribunal upholds the appeal of the taxpayer and confirms his view that the regulation does not- mean what everybody up to that particular time thought it actually did mean. The point that the right honorable senator made was that there wa.3 nothing wrong in amending the law to make its language carry out the intention of Parliament. Senators Abbott, Grant and Leckie seem to think that there is something immoral in the Government rectifying some line, some letter, or some mark of punctuation in the regulation.
– I made no such suggestion. I replied to what was said about the legality.
– The honorable senator said that in nine cases out of ten the disallowance of regulations was because they were ultra vires the act. I do not agree that anything like that proportion of -regulations is disallowed on the ground that they are ultra vires. On the contrary regulations are disallowed mainly because inapt or inappropriate language was used to give effect to them.
asked whether there was anything in this bill calculated to curb the activities of the Regulations and Ordinances Committee. With the utmost emphasis at my command, I say that there is no ground whatever for suspicion that there is any desire to do so.
– The bill must have that effect.
– On the contrary, the bill will add to the work of the committee. As a previous chairman of the committee, I know the useful work that it performs. I know, too, how hard and thankless is the task of its members, and the extent to which their meal hours and times for recreation are interfered with by’ the work of the commi ttee. There is not a member of the Government who does not appreciate what the committee has done, -and’- does not entertain, the hope that it will continue to performsimilar work in ‘the future-. Nothing in this bill is1 designed to hamper the operations of the committee. Its- work is’ growing, and probably the time will come- when it will be necessary to place a check upon the making of regulations; in the meantime I can Only -say that there is no desire to- reflect on the committee or to curb its activities.
Question resolved in the affirmative.
Bill read a second- time.
In committee :
Clauses 1 to 4 agreed to.
Motion (by Senator Brennan) agreed to -
That the following new clause be inserted: - 4a - Section 2a of the principal act is repealed.
Clause 5 agreed to.
Clause 6 verbally amended, and, as amended, agreed to.
Clauses 7 and 8 agreed to.
Clause 9 (Judicial definitions).
– I should like an explanation of the definition of “Justice of the Peace” which reads - “ Justice of the Peace “ includes a Justice of the Peace for . ‘a State or part of a State.
– In Victoria, and probably in some of the other States also, a justice of the peace may be- appointed for a bailiwick only, and not for the whole State.
Clause agreed to.
Clause 10 agreed to.
Motion (by Senator Brennan) agreed to -
That the following new clause be inserted: - 10a. - Section 32 of the principal act is repealed.
After section 40 of the principal act the following headings and sections are inserted: -
Where an act confers upon any authority power to make, grant or issue any. instrument (including rules, regulations, or by-laws.), then -
unless ‘ the contrary intention appears, this act shall apply to any instrument so made . .*. 48(1). Where . an act confers power to make regulations, then, unless the contrary” intention appears, ‘all regulations ‘made accordingly-
Amendment (by Senator Brennan) agreed to -
That after the’.word “.appears”, paragraph (a), proposed ‘ new”- section 40,’ the following words be inserted : - expressions used in- any instruments so made, . granted’, or issued,, shall have the - same meanings as. in- the act conferring the power, and”
.- : I move -
That in proposed, new section 48, sub-section (1), the following new’ paragraph be inserted:’ - -‘ - … (aa) shall be’dertified to by the Solicitor- General ‘or some duly qualified legal practitioner in the Attorney-General’s Department as being, in his opinion correctly drafted and not ultra vires.
The reason for my moving this amendment is first, that I understand that sometimes regulations are made- and put into operation without having been first, perused by any legal practitioner.
– I do not think that is so.
– Well, that is the information which has been given to the Regulations and Ordinances Committee. That ought not to be. Every regulation, equally with every bill that is introduced, should be, if I may use the term, “ vetted “ by a legal practitioner. This is a point which was emphasized by the South Australian committee which said -
The next point for consideration is the method of preparation for subordinate legislation. It is obviously of importance that the methods of drafting should be uniform, and that the same care and skill should be exercised in framing regulations as is employed in the drafting of parliamentary bills.
They may be just as drastic and just as effective as bills which we -pass; indeed, in some instances, they may be of far greater importance. In some cases we delegate far greater powers to the Executive or to the department than we use. ourselves.- The committee’s report continued -
A uniform enacting provision should be adopted, care should be given to the arrangement of regulations, offences and sanctions for breaches of the regulations should be more clearly stated than in the past, amendments to regulations should be bo framed that the amendments are capable of being conveniently incorporated with, the principal regulations upon a reprint thereof, and generally the principles upon which modern legislation is drafted should he followed. In the case of regulations made by the Governor” or a Minister of the Crown, these safeguards arc usually secured, as- the regulations in such cases are framed by tile Crown law officers. Regulations made by authorities other than the Governor or a Minister, ase, in. the main, required to be approved by the Governor, and the committee feels that approval should be withheld unless they conform to proper standards of drafting. It is ‘of the highest importance that all regulations promulgated should be properly drafted.
I emphasize that in my opinion some of this bad drafting comes from hoards which we create from time to time. Indeed, I am inclined to the view that these boards are more likely to fail in this respect than is the public servant. The latter are more likely to know the lines on which regulations should be drafted than are other persons. Some of the boards having sudden power thrust upon them feel that it does not matter very rauch in what terms they express that power. But regulations so framed are very inconvenient to the man who has to read and comply with them. The South Australian committee’s report continued - the committee, therefore, recommends that a system be instituted to provide that before the Governor’s approval be given to any regulation to be made hereafter, the parliamentary draftsman or a Crown law officer be required to certify that they are correctly drafted, and in his opinion are not ultra vires. This certificate would, undoubtedly, tend to prevent the promulgation of badly or loosely drafted regulations and attain uniformity in the framing of all regulations.
– Would that be any greater guarantee against challenges?
– Half a dozen opinions can be obtained from half a dozen legal men.
– That is true.
– At any rate, the odds would be limited a bit.
– ‘A regulations are drafted by lawyers, there is a greater chance that they will bc correct than if they are drafted “by laymen. If I had to . counsel Senator Collings, or any other honorable senator, I should advise him not .to draw his own will, because if he does so he is much more likely to fail’ in his intentions, however definite they may be, than he would be if he had the will drawn by a legal practitioner who has been trained to do the work. I should also advise that if one. wanted a tooth drawn one would be bettor advised to go to a properly trained dentist than to. attempt to do the job oneself.
We have listened to a discussion of the the wording of laws as distinct from their intention. From the point of view of law, words are given to us for the purpose of expressing intentions”. The Ministry itself contains several men of high legal calibre, and it is supported by a number of men who should be fully qualified to express the intentions’ of Parliament. In drafting bills or regulations, the Government has every advantage and opportunity to set down what it desires or intends. It has the responsibility to see that the words used legally represent its intention. If it fails to do so, any member of the community who goes into the court and shows that the words used have a certain meaning which was not the intention when the law was made, is within his rights. To suggest that in so doing he is guilty of double-dealing or impropriety is ludicrous. The words of the statute have to be taken as they stand, and if they are not the words which should have been used, it is the fault of Parliament, and not the fault of the man who challenges them in the courts. It is right that this should be so. I cannot see that any honorable senator can possibly, have any objection to my proposed amendment. The only effect of it is to ensure that instead of regulations being carelessly turned out, as if by a machine, every single one of them before receiving the signature of Ministers shall be accompanied by a certificate that in the opinion of the legal officer they are correctly drafted and not ultra vires.
– The ‘subject-matter of the motion standing in my name was discussed in November of last year, but finality was not. reached and in its then form the motion was discharged from the noticepaper on the 21st May last. It now comes again before the Senate, clothed in somewhat different language, and it is my wish, if the Senate approves, to amend it. In seeking this permission I give honorable senators an assurance that the amended motion is, in substance, identical with that of which notice had been given, but, for reasons which I shall explain, is in slightly different form. The motion as amended would read: -
That the following address he ‘presented to His Majesty the King:-
May it pleaseyour Majesty -
We, your Majesty’s dutiful and loyal subjects, the members of the Senate of the Commonwealth, in Parliament assembled, firmly believe that in order to encourage the breaking down of national barriers, to promote the interests of mutual understanding and peace among the nations of the world, and to permit full use of the invention of ‘wireless and enable the foundation of an international Public Opinion and Literature, it is imperative that a means of International Thought Exchange be established by a common language agreed upon in conference of the nations, such language to bo compulsorily taught in their respective primary and secondary schools.
We therefore respectfully urge that the nationshe invited by Your Most Gracious Majesty to send their representatives to a world convention.
– I rise to a point of order. I am not quite familiar with the procedure, but my impression is that, as Senator Abbott’s amended motion proposes an address to His Majesty the King, notice of intention to amend it should have been given. I am fortified in this view by Standing Order 366, which reads -
Whenever itbe deemed proper to present an Address to His Majesty or the GovernorGeneral, the same shall be proposed, except in pases of urgency, on motion afternotice in the usual manner.
The honorable senator is quite in order in proceeding with his motion as it stands on the notice-paper,but I submit that, as amended, it takes the form of an address to HisMajesty the King.
It is different in character from the original motion, the concluding paragraph of which, however, may be construed as an address to His Majesty. I submit that in its amended form the motion is substantially different, and I contend that the Government should have an opportunity to consider the procedure to be followed. The honorable senator informed me only a few minutes before the meeting of the Senate after the suspension of the sitting, of his intention to ask leave to amend, and I should like further time to consider the effect of the alteration. I agree with him that probably the procedure now proposed would be better, but I desire to consult my colleagues in Cabinet on the matter.
– I admit that it is the duty of the Acting Leader of the Senate to see that all matters brought before this chamber are in order, butI contend that his objection that proper notice had not been given falls to the ground, because my motion has been on the business-paper for several months.
– Not as an address to His Majesty the King.
– Substantially, yes. The Acting Leader of the Senate spoke as if the Senate standing order which he read dealt with the whole matter. May’s Parliamentary Practice, at page 602 and subsequent pages, indicates the procedure. It is there clearly laid down that under parliamentary law and practice either chamber of the legislature is perfectly entitled to express its opinion, It is a fact, as indicated in May, that addresses are more generally confined to each House singly, and as is pointed out by the same authority, are “ more frequently in regard to matters . . . upon which either House is desirous of making its opinion known to the Crown “.
Again, at page 606, May states -
Another mode of communication with the Crown, less direct and formal than an address, has been occasionally adopted; when resolutions of the House, and resolutions and evidence taken before a committee, have been ordered to be laid before the Sovereign. In such cases the resolutions have been presented in the same manner as addresses, and answers have sometimes been returned.
It is immaterial to me whether the motion is dealt with as such or whether it is amended, as I suggest, to a moro appropriate form. I think, that the Minister agrees with me that the proposed amended form is the better. However I am in the hands of the Senate. It is an axiom of parliamentary law that the House is master of its own business. I -therefore put it that if the acting Leader of the Senate would not oppose the motion in its original form, and if the Senate is willing to give its consent to an amendment of its motion, the alteration does not call for notice.
– What has the honorable senator to say about Standing Order 366?
– That Standing Order deals with the form in which addresses to the King or the GovernorGeneral should be presented. My contention is that notice has been given in the usual manner because, in its amended form, the motion is substantially the same as the one which has been on the business-paper of the Senate for a long time.
– The Senate has given the honorable senator permission to alter the motion, so there should be no occasion for further argument.
– The Senate has not yet given me permission to amend it to take the form of an address to His Majesty the King, but I submit that notice to amend is not required.
– In what portion of the original motion is there expressed an intention to present an address to His Majesty?
– The intention is stated as clearly as possible in the concluding paragraph -
That this resolution he conveyed to Hia Excellency the Governor-General (or submission to His Majesty with the humble prayer of this Senate that action bo taken accordingly.
That surely is an address to the King in substance and almost in form. The PostmasterGeneral has objected that in its amended form the motion becomes not a resolution but an address to His Majesty. His argument must fail because the Standing Orders are silent on the procedure to be followed on the point which he has raised. It is clearly laid down in May that we have the right to present an address to His Majesty.
– My sole purpose is to maintain the privileges of the Senate. Perhaps the procedure would be more correct if the honorable senator were to speak to the motion ia the form in which it appears on the notice-paper, and conclude by asking permission of the Senate to amend it to take the form of an address to His Majesty. Honorable senators will appreciate the dilemma in which I am placed. An address to His Majesty the King is a much more serious matter than the carrying of a motion, such as the one of which the honorable senator had given notice. If he can adopt my suggestion I shall accept his intimation as sufficient notice for this purpose.
– I accept the Minister’s suggestion and shall later ask leave of the Senate to alter the motion. In the circumstances it might be advisable if I speak to the motion in its original form.
– I think that would be the better course.
– The original motion is in substance the same as my proposed amendment, and the procedure would be similar.
– If the honorable senator will not accept my suggestion, I intend to press my point of order.
– I have expressed my willingness to’ do so, and I asked the permission of the Senate to do as the Postmaster-General suggested.
– I hesitate to intervene in this matter, but it appears that two alternatives are open to Senator Abbott. The request could be cornveyed by means of an address, and if the honorable senator moves the motion in the form proposed, the Standing Orders govern the procedure. He can also move a motion in the form specified in May, in which case the Standing Orders quoted would not apply. The last paragraph of the motion makes it clear that it is to be conveyed to the, Governor-General for submission to His Majesty. Honorable senators know that if the motion is carried, that course will be followed. The motion can be debated, and then dealt with in the manner suggested by Senator Abbott.
The PRESIDENT (Senator the Hon. P. J. lynch). - Apparently the amended motion does not meet with the approval of the Postmaster-General. In order to facilitate the business of the Senate, perhaps Senator Abbott will agree to the suggestion of the Postmaster-General and move the motion in its original form, and then move that it be converted into an address for presentation to His Majesty.
– The suggestion that it should be in the form of an address emanated from Senator Abbott. I agree with the honorable senator that that is a more suitable way in which to deal with the subject. I have no objection to the procedure now proposed.
– I conferred with the Postmaster-General, and’ understood that he would not object to my seeking the consent of the Senate to amend the motion. Had I known that he proposed to take a point of order, I should have moved the motion in its original form and reserved to myself the right to amend it, so that it would be forwarded as an address.
– Will the honorable senator be satisfied if the PostmasterGeneral signifies his acceptance of the amended motion ?
– It would then be in conflict with Standing Order 366. The honorable senator should speak to the motion on the notice-paper and later the Senate can decide whether it will allow it to be presented in the form of an address.
– As a layman, I hesitate to participate in this debate, but I do not think that the word “ resolution “ appears in the motion.
– Yes, at the end.
– That does not alter the position. Whether it is called an address or a resolution, the forwarding of it to His Majesty will constitute it an address. I no not agree with the contention of the Postmaster-General that a further motion is necessary. If the Senate carries the motion the message will go to His Majesty as an address, and not as a resolution.
– If the PostmasterGeneral is agreeable, Senator Abbott may submit the motion of which he has given notice. The position can be reconsidered later.
.- I move-
That in order to encourage the breaking down of barriers and in the interests of mutual understanding and peace among the nations of the word, and to permit full use of the invention of wireless and enable the foundation of an international public opinion and literature -
It is imperative that a means of international thought exchange be established by a common language agreed upon in conference of the nations - such language to be compulsorily taught in their respective primary and secondary schools.
For this purpose this Senate of the Commonwealth of Australia urges that the nations be invited by His Most Gracious Majesty the King to send their representatives to a world convention.
That this resolution be conveyed to His Excellency the Governor-General for submission to His Majesty with the humble prayer of this Senate that action be taken accordingly.
Last year I placed a motion on the notice-paper in practically the same form as that in which it now appears, but at the request of the Leader of the Senate (Senator Pearce), I amended it in order to seek the cooperation of the House of Representatives. It also requested the Prime Minister (Mr. Lyons) to take certain action. I further asked that our representative at the Assembly of the League of Nations be instructed to invite the co-operation of the governments of Great Britain, India and the dominions. I realize that that is a very difficult and somewhat complicated procedure; but, apart from other considerations, honorable senators realize that very important changes have taken place, and that during the last twelve months the face of international politics has been deeply scarred. Had the motion been allowed to remain in its earlier form it would have meant inviting the Senate to consider irrelevant subjects, and would have involved a debate on the value of the« League of Nations. I am as willing as I have ever been to support every effort to revive and strengthen the League, and to make it what I believe it will eventually be - an instrument for ensuring world peace. But that was not the subject I wished to bring before the Senate, and I thought it only right that the Senate should not be invited to- embark upon what might have been irrelevant argument. Therefore, when speaking on a supply bill, at the conclusion of the sittings of the Senate in May last, I indicated that I would amend the motion to its original form, because of the difficulties which the Leader of the Senate said were in the way. I did not ask the Government to sponsor anything, or to spend one penny of public money. As is shown in May, honorable senators are entitled to express their opinions on any subject of domestic or foreign politics, and to have such opinions conveyed, to His Majesty through you, Mr. President, as the custodian of the rights and privileges of the Senate. That is one of the privileges for which our predecessors struggled, and is one which the Senate will not transfer to any one. ‘ You, sir, arc authorized to convey opinions, in the form of resolutions or addresses, to the GovernorGeneral for transmission to His Majesty, and in so doing are acting only in accordance with the undoubted privileges of the Senate. I again remind honorable senators that I am not asking, the Government to do anything-. I am willing to ask the co-operation and sympathy of the Prime Minister, other Ministers, . and honorable senators, and T can hardly imagine that such assistance will be refused. I cannot imagine any Minister or private member of a dominion parliament doing anything to prevent a better understanding between the peoples of the world, and so obviate international turmoil. It is unnecessary to weary honorable senators with the details of what is contained in May, as I have already said sufficient to enable them to understand the position. ‘ Members of the legislature are entitled to express their opinions, and to have them conveyed- to His Majesty. According to May, the practice which 1 was induced to follow on a previous occasion is apparently not the correct one. An address or’ resolution may be presented by either Ho.use of the Parliament singly. For the information of honorable senators, the following paragraph from the tenth edition of May covers the point : -
It is by addresses that the resolutions of Parliament are ordinarily communicated to the Crown. These are some times in answer to royal speeches or messages, but are mon frequently in regard to other matters, upon which either House is desirous of making known its opinions to the Crown.
Who will say that that practice has not been followed? Is our memory so short that wc can forget the extraordinary happening in the New South Wales Parliament, when two or three years ago, a certain member facetiously placed on the notice-paper a motion asking the Crown to discontinue the granting of titles? Senator Arkins will well remember that amusing episode. To the gentleman’s surprise he found himself one evening, when the business of the House was not very pressing, suddenly confronted with the necessity for speaking to his motion. To his oven greater surprise the motion was carried and the resolution was sent on to the Crown. Honorable senators will remember that absurd instance in which one branch of the legislature exercised a privilege and passed a resolution which no doubt the Government of the day thought foolish, but which had to bc sent on to the Crown. Another extraordinary illustration took place during the so-called Lang revolution in New South Wales, when an attempt was. made by Mr. Lang to abolish the Legislative Council. On that occasion the expression of opinion of the Upper House was sent on to the Secretary of State for Home Affairs. Am I asking too much, in relation to a matter affecting the peace of the world, in urging that the Senate should give its attention to this very serious subject which I have the privilege and honor to bring before it? Surely .not L Honorable senators who desire to distort this issue and who either do not want to understand it :or” cannot understand it, can content themselves with the knowledge that I am not asking anything, the granting of which would present difficulty. The Acting Leader of the Senate (Senator A. J. McLachlan) will admit that what I ask for does not present nearly the same difficulty as did the establishment of the International Postal Convention. The requests presented by that convention were much more complicated and more unlikely to be granted than that which I am now making. If it were proper for people to seek the free interchange of ideas through written thought, would the
Postmaster-General deny to the people or fail to use his utmost efforts to secure for them a right to interchange their thoughts by the spoken word? The wireless engineers throughout the world are clamouring for this great ideal. May I briefly remind honorable senators of what Mr. Fisk has said on this subject -
It is desirable that everything possible should be done to institute and establish an international language for tlie purpose of world-wide broadcasting. I am convinced that the day is approaching when broadcasting stations of world-wide range will bc listened to simultaneously by millions of people in different parts of the world.
Will the Postmaster-General disagree with that? Mr. Fisk went on to say -
The rapid expansion of world-wide broadcasting which is now taking place, opens up possibilities of incalculable importance to tlie human race. The greatest among these possibilities is that of propagating and fostering mutual understanding. Radio science and engineering have provided the means for such promulgation, but it is the work of other authorities- and they are the Senates and Parliaments throughout the world - to ultimately eliminate the remaining barrier by establishing a language which will be simultaneously understood by the many millions of people who will ultimately be able to listen in their own homes to broadcasting stations of world-wide range radiating from every country in the world.
Mr. Fisk also pointed out that there are 150,000,000 people in their homes throughout the world who could be spoken to if they could understand a common language. Since I submitted this motion last year, a very interesting happening has taken place which I feel »ure will be of interest to honorable senators. My remarks on this subject, strangely enough, were widely published in the United States of America, and given prominence by one of the American newspapers, which has, I believe, the largest and best international news service of any newspaper in that country. Following on the generous publicity given to my remarks, I began to receive a great deal of correspondence, including letters from the Carnegie Institute, the University of Columbia, and from Dr. Howard Ross, a well-known lecturer on economic subjects in Montreal and well known in the northern States of the United States of America as well as in
Canada. My proposals were published in the press of the United States of America in January, and, judging by the correspondence which I have received since, they created considerable interest in that country. In June of this year a conference of Rotary International was held at Atlantic City, New Jersey, at which were represented 170,000 members of 4,000 rotary clubs in 82 different countries. At that conference this subject was taken up. because it was looked upon as providing the best approach to international understanding and world peace. The convention appointed a standing committee to inquire into the matter. What the investigations of that committee have been since I do not know, but it is rather significant that such an organization should inquire into this subject. This is not an idle dream of a senator in Australia, though there may be some amongst us who have little sympathy for it, because they think it ii not so important as are some of the more material tilings which we do here. This matter affects every person in the world, every party in the world, and every business in the world. We cannot have international trade and settled relations between the nations of the world unless we have peace; we cannot have peace until we have international understanding, which can come only through an international vehicle of speech. This is not merely the dream of visionaries ; it claims the attention of people throughout the civilized world. Dave Hennen Morris, Consul-General in Belgium for the United States of America, speaking in regard to this subject, said -
Here am I in lovely Brussels using the most wonderful instrument ever invented to make possible the bringing of all men into immediate spiritual contact with each other. But in harnessing electric waves to do ray bidding, I am using a form of speech dating back through the centuries. What a contrast! Before me is a marvellous instrument of communication, new in every detail and thoroughly thought out. Through it I transmit a language old and not consciously constructed.
Then he dealt with the question of language construction. He continued -
But it is not a scientific product designed advisedly to overcome the ‘ barriers of speech which still separate and annoy men of different mother tongues when they seek direct interchange of ideas. The radio overcomes space mid transcends national boundaries, but language barriers nullify its highest possible usefulness.
T think we could have no greater advocacy of this motion than that. Only the other day I received an interesting letter from a gentleman whose name will, I think, he respected in this Senate, a Minister of the Crown who is now on his way to a large educational conference in England. I refer to the Honorable David Drummond, Minister for Education in New South Wales; those who are acquainted with him know that he is not one who would lightly be influenced by an idle dream. He said -
Here is, to my mind, n definite proof of the value of a common language. The Dutch are charming people, and have done everything possible to make my daughter and myself feel that they were really pleased to have us in their company. Yet the truth is that with the American we were at once and continuously at ease. We speak only the same tongue, there is much common background, and the mental reactions, are unconsciously and naturally without strain the same though we belong to two different nations. There appear to be fewer reserves and the unconscious barrier erected by a different language simply does not exist. I have always felt this way in the presence of Americans, even though it is unfortunate habit of some of our people to speak disparagingly of them, basing opinions on the unfortunate scum that floats to the top of a sea of 130,000,000 people. I think this common language is one reason why Canada and the United States of America are net engaged in a race of armaments and costly frontier fortifications, while every nation in Europe is indulging in that form of insanity, or at least in preparing safeguards against the insanity of others.
Because the people of Canada and the United States of America have a common language, they can more quickly understand one another. Mr. Drummond went on to say -
So far as I can assist you either with moral support or with actual help I shall AlWaYS bc only too pleased to do all that lies in lilY power.
I am indebted to Senator Brand for a copy of a publication issued by the Returned Sailors and Soldiers Imperial League of Australia, in Victoria, which contains an article by Major-General Coxon who is well known to honorable senators. So far as I know, MajorGeneral Coxon was not aware of the debate that had taken place in this chamber in relation to an international lan guage; yet in his article he has used arguments which are almost identical with those which I have used in this chamber. In his article, Major-General Coxon said -
The selection of a universal language having once been achieved and agreed to the provision for the compulsory teaching of it in nil schools throughout the world should prove a comparatively easy matter for the governments of various countries to accomplish, for the great material benefits to be derived from its use would become apparent to every nation, not only in fostering a butter understanding between them.
Then followed a statement which I have much joy in quoting. “ You cannot make peace with documents; peace must bo made in the hearts of men.” That is what this old soldier said. I have always found that when a serious and genuine effort is made to rise above technicalities - above the dotting of every “ i “ and tho crossing of every “ t, “ - every true man responds to the best that is in him. The greatest opponents of war are the most manly men, those who, when the call came, were wiping to make the supreme sacrifice for others. Those of them who returned are willing to maks further sacrifices in order to prevent a recurrence of those horrors which they themselves have experienced. I appeal to every returned soldier member of the Senate, and indeed to every honorable senator who values what those men did for us, to support this motion, and to let it be known that we in this chamber desire to send out into a needy world ;i bea con-ray of light and hope. Let us add our voice to the voices of others in the United States oi’ America, England, and elsewhere who desire peace above all else. It is encouraging to know that the debate on this subject in this chamber has been translated into several different languages. Those of us who desire to stand behind the men who were willing to sacrifice their all for us can light a torch which may yet illumine the world, and show the way to peace. I believe that it can be done. I have no desire to indulge in heroics, or to attempt to influence others by foolish appeals to sentiment. I have no desire to play upon the feelings of others, if those feelings are not supported by the common-sense which the Creator has given to His creatures. But if men will use tlie sense with which they have been endowed, they will recognize that there must be understanding before there can be peace. I remind the Senate that President Roosevelt of the United States of America has suggested the calling of a conference in the interests of peace, and has proposed that the greatest advocate for peace in the British Empire - our beloved King - be invited to attend it. He asked that the conference be free from technicalities and adherence to forms of procedure, and that it be not dominated by politicians. We must get down to things of the heart. Let the heart of this nation go out to the heart of that splendid young man whom we all love and admire, and are proud to acknowledge as the head of tlie great British family of nations. I again remind the Senate that the present’ Prime Minister of Japan; when Minister for External Affairs in that country, said that want of understanding breeds suspicion and hatred between nations, and is the most prolific- cause of war. I do not suggest that we can transform the world as by a: magic wand, any more than I would suggest ‘that the older men among us are likely to change our habits in a day,- but I do ask honorable senators to give the rising generation a chance. If the nations of the world agree to the principle contained in my motion, they can give effect to it as easily as they carried out the International Patents Convention or the International Postal Convention. If an international language were taught in the schools of all nations, it would ‘ mean that in- fifteen “years there would be - growing up’ a -race of young men and women who would understand something of what the other fellow was thi miring about. As Mr: Fisk said, 150,000,000 people at first, and all others in civilized countries afterwards, would be able to understand the other fellow’s ‘ mind. ‘ When that day comes we shall no longer hear of the inscrutable mask of the foreigner, for even the word “ foreigner “ will disappear from the world’s vocabulary, and in its place we shall .find “neighbour”. We of the older generations have no continuous .tenure on. earth, but if those who follow us learn an international, language, a few generations ,nonce, the inhabitants of every civilized country will be able to understand one another. By: means of gramophone records and radio broadcasting the peoples of every nation can be taught the right pronunciation of the new language. Unfortunately there is a good deal of misunderstanding on this subject, and some misrepresentation has been indulged in. It has been said, for instance, that the introduction of a common language would destroy each nation’s mother tongue. That is not intended. I again remind the Senate that in some countries there is more than one mother tongue; one nation has six or seven- . mother tongues. The children of every nation would find it easy to learn the new language as. well as their own mother tongue. In that way they would have opened to them a wider field of’ literature, and they would acquire a culture beyond what is now possible. I could say a great deal more, but it would1 probably be only a reiteration of what I have already said. I- thank ..those honorable senators who have so loyally -supported me in this matter. Their co-operation I value greatly. ‘ I realize that their support is the .result of their , haying grasped the significance of the ideal which I have attempted to set UP. The Senate has the undoubted right to express an opinion on this subject, and I shall “be satisfied if its decision is sent on to the one who will appreciate it. What I suggest is not an insuperable task, and I again remind the Senate of what the world has achieved in connexion with the postal- and patents conventions.’ Had that work hot already been done, there would ‘ remain to ‘be accomplished something far more difficult than what I now “propose. The world is looking for something which will lead to peace;’ and are we to do nothing merely because we. fear that some . one who does not understand us may “laugh at our efforts’? Or shall we, by our vote, send out to the world an idea, one for which I ‘claim.no personal glory? It is .not my idea alone! It is a cry which is being raised in many parts of the world to-day. Can we not send out to those who are asking for it, a message guaranteeing anr. .support . of this movement?
When I was in New Zealand in the early part of this year, I discussed this matter with the leaders of political thought there and, on my return to Australia, I received a letter from the Prime Minister of New Zealand informing me that the matter would be dealt with by the Parliament of the Dominion. I also received an assurance of support from the Leader of the Opposition there. Both leaders promised . to introduce in their Parliament a motion similar to that which I have submitted to the Senate. I believe that once we have set the example by agreeing to this motion, our lead will be followed in New Zealand. . . The PostmasterGeneral (Senator A. J. McLachlan) and his colleagues in the Ministry will not find themselves a lonely set of men if they stand solidly behind this motion and try to effectuate something for the good of mankind; on the . contrary, we shall cordially appreciate their co-operation. I do not want to be guilty of . platitudes or of tedious repetition, but it seems to . me that we can. dispel the fogs of misunderstanding that bewilder the human, races, and cut a pathway through the jungle right up to the temple of peace, at whose shrine mankind must worship if civilization is not to perish. I appeal to-night not only to the heads but also, to the hearts of my fellow Australians.; I ask them to realize that this is no idle dream. As we saw our great boys depart for overseas in the fateful years 1914-1918, ready to do so much for us, so should we in turn be ready now to do our little towards the realization of world peace. Of what use is it for honorable senators to , cry pessimistically in this chamber “ This will not do any good.” Let us try it; let each of us take his trowel and mortar and lay a brick of the temple of . peace. An opportunity is presented to us here so to act so that “departing” we may -
Footprints on the sands’ of time.
.- It is a verygreat privilege, indeed, to. have the opportunity to. secondthe motion which has been so very eloquently proposed by Senator Macartney Abbott. This is an unusual occasion: We have an opportunity now, by agreeing : to this motion, to do something which is not very often done by any of the. governmental institutions of any part of the world, and certainly, to my knowledge, has never been done in this Parliament. Instead of talking fear of other nations, instead of talking about defensive measures, instead of talking about guns, cannons and forts, instead of yielding to that psychology of fear which has been deliberately created by the private profit-making armament firms throughout the world, instead of adding our voices to the general chorus of war danger which we hear from every land, we have the opportunity to strike another note.” We can declare to all nations that there is- at least one ‘-parliament in the world, and that the National Parliament of Australia, which says to -peoples of the. earth, who are- torn by fear, suspicion and international rivalries, which if allowed to”go on unchecked-, must end in the destruction- . of civilization, that there is a better way. That way is the use and development of scientific thought and achievement, not for the destruction of civilization, but for the encouragement of a. new’ order, and the removal- of the problems that to-day . tear the. peoples of the earth asunder. We have the opportunity at long : last, as has been so eloquently stated by Senator Abbott, to lay the foundation stone of a new understanding. As Mr. Fisk points out in his letter quoted by Senator Abbott, scientists have given to us in the miracle of wireless the vehicle for that exchange of thought which is envisaged in the motion. Those who have wireless . sets can now, in the comfort.. of . their own homos, listen to talks from Germany, France, Great Britain, Russia, Japan and other countries, -but because . of our lack of more than one . language, only a few of us can understand what- is- said in other than our native tongue. It has been said that we are the heirs of all the. ages. It is wonderful to realize that we have now at our disposal the- mechanical means of international thought exchange, once we have devised a common language for the world. Senator Abbott and I are on opposite sides in politics, but this proposal transcends ordinary politics and party divisions. Let us, therefore, lift this motion above party levels and political controversy. Let ns realize that the only tiling that matters to-day, is the preservation of world harmony. We may pass our laws and our standing orders with all the forms and ceremonies to which we rightly have to conform, yet as Senator Abbott stated, documents may be printed and circulated, but not by documents alone can enduring peace be achieved. This motion presents the opportunity for us to show our willingness to establish peace. The wireless channel already exists, and all that remains for this Senate to do in furtherance of the ideal that is presented to us is to carry the motion, send it to the Governor-General, and ask that it be transmitted to His Majesty the King so that in time it may reach, we hope, the League of Nations or a world convention. When a universal language is agreed upon, we shall get a better understanding between the competing nations of the world, and a new conception of our relationship one to the other.
– My remarks shall be brief, for some months ago I had the pleasure of supporting Senator Abbott’s motion in this Senate. I congratulate him on his address and initiative in beginning what I believe to be a long-range plan, designed to secure world peace and understanding. Although it is only on rare occasions that I have cause to do so, I congratulate the Leader of the Opposition (Senator Collings) upon the sentiments he expressed in seconding the motion. Whilst I do not deny for one moment that the Senate has a right to address His Majesty the King, particularly on a subject so important as is this, I question the thought that has been expressed that this is not a matter that concerns the Government. As the Government includes members of the Senate, it must bear its share of our collective responsibility.
– Ministers are involved only as individuals.
– That is so.
– The resolution will go through the President.
– But the Government is an integral part of the Senate; how can it fail to take its share of the responsibility? I am satisfied, however, that not for one moment do Ministers question the advisability of this motion, although they may question how it is to be brought into the realm of practical politics so that the international thought exchange which has been advocated so eloquently by Senator Abbott may be established.
– It will not be the function of this Government to call that convention.
– I intend to support the proposal in every way I can do so, because I believe that although some of the principles it embodies may be of longrange in their application we should not be carrying out our public duty as leaders of the nation if we failed to endorse it.
– I had anticipated that we should have had some intervention from the Government, particularly in view of the suggestion made by Senator Hardy, that in some way or other tha onus of this proposal falls more heavily upon the Ministry than upon honorable senators. We owe a great debt of gratitude to Senator Abbott for the tremendous amount of work he has done in connexion with this matter. He has been courageous and enthusiastic; in pursuit of his ideal he has not only spoken up arid down the countryside, but also has visited New Zealand. All this he has done out of devotion to an ideal, a sense of public responsibility, and a desire to promote the best interests of all peoples. We should express our appreciation of his labours. If anything be necessary to bring home to the people the advisability of some such move as this, we might find it in some Talks wilh Mussolini, published by Emil Ludwig some years ago. I invite the Senate to consider the following statement: -
Now that the unity of States has been achieved, an attempt will be made to achieve the unity of continents. But as far as Europe is concerned, that will be damnably difficult, since each nation has its own peculiar countenance, its own language, its own customs, it* own types. For each nation, a certain percentage of these characteristics (x per cent., let us say), remains completely original, and this induces resistance to any sort of fusion. In America, no doubt, things are easier.
We should not forget that language is not the only thing which is peculiar to each nation. Even if we can, by tho adoption of a common language, overcome the existing difficulty of intercourse between the people of different countries, there will remain, tlie difficulties of peculiar countenance and of customs, lt would, perhaps, be well to remember that, even if we learned the language of another nation, it would not necessarily make us sympathetic towards its people, although I admit that it would take us at least some distance along the road to a sympathetic understanding of their difficulties.
Some people will, perhaps, object to the motion on the ground that similar attempts have been made almost from the beginnings of history. Senator Hardy spoke some time ago of the Tower of liabc.1. It is true that since then there have been many attempts to secure the adoption of some common language. All have been relatively unsuccessful, though at some periods in history the general use of one language in Europe has made it the dominant language.
– “Which language was responsible?
– Latin was, for a long time, the language used by the educated people of Europe. Down to the eighteenth century it wa3 the language most used in diplomacy. Quotations in Latin were frequently heard in the House of Commons until about 50 years ago. In legal documents, first Norman-French, and afterwards Latin, were chiefly used. . In the eighteenth century, French became the chief European language, and Paris then became tlie centre of culture in Europe. Educated Russians also spoke NormanFrench, even in their own capital city. Now English is generally regarded as the master tongue among European nations. If one can speak English, French and German, one can make oneself understood over the greater part of Europe. I except, of course, portions of Russia; but, even there, French is understood by a considerable number of people in the principal centres of population. Thu3 it will be understood that these three languages will carry one almost everywhere in Europe.
I repeat what I said on this subject on a former occasion : that if any one gives support to the movement for the adoption of a universal language, in the belief that English will be chosen, he will very likely be doomed to disappointment. I do not wish to labour this point, because I know that Senator Abbott is very insistent that the choice of the language for international use must bc left to the decision of the convention which he anticipates will be held. He has made it clear that he does not wish to lay it down that this or that language shall be predetermined. His purpose is to gather together representatives of the nations to decide this matter, but I say deliberately that, in the present state of the world, with the spirit of nationalism so much in evidence in all countries, I see no likelihood at all of Germany, Italy, Russia or Japan agreeing to basic English or any other form of the English language being accepted as the medium for the exchange of thought among the nations. It seems to me that the adoption of some neutral language is inevitable.
– Has a neutral language been invented ?
– Several such languages have been presented to the world from time to time. In 1879, Johann Martin Schleyer invented Volapuk, a language based on proved scientific principles. For a time it made considerable progress, but, as so often happens, a rival scientific language made its appearance. In 1S87, Dr. Zamenhof gave to the world a new language, known as Esperanto, which is widely spoken at the present time. I am not suggesting that the proposed convention should adopt Esperanto; but there is a great deal to be said for it, because it is based on scientific principles, and is a beautiful tongue. English and the foreign languages of which I have knowledge have been developed over a long period of time, and are not based on scientific principles. Esperanto is founded on Latin. It is easily understood by Italians, French, and Spanish peoples, and, to a certain extent, by the people who speak the English tongue: In Esperanto grammar and phonetics are reduced to the simplest and easiest form. All nouns end in “ o “, adjectives in “ a “, and derived adverbs in “ e “. Thus it is a language of .remarkable richness and flexibility, .as well as extreme simplicity and regularity. It has fulfilled the purpose for which it was designed, as it is used by a large and increasing number of people for practical purposes, whether for commerce, study or recreation.
– Would it not be better to get the machinery, that is, a convention of the nations, before we discuss the language to be adopted?
– I agree with the honorable senator, and I do not think that what I am saying will in any way prejudice the carrying of the motion, “ but ‘ I venture to think that the. majority of Australians or, for that matter, the majority of people of any other country, if asked, to support the proposal, would say - “ Oh yes, we are in favour of a convention to adopt an international language, but of course our own tongue must be the one chosen.” I put it to the Senate, therefore, that, if we carry this motion, it must be with a full realization that it will not necessarily mean that English will be the language adopted for international use. But as Senator Abbott has rightly said the purpose of the motion is to ensure the adoption of an additional language which can be used fo-r intercourse between the nations’. Every nation. will preserve its own tongue, literature and traditions.
When T waa a young man I. devoted some .time to the study of Esperanto and quickly realized its enormous advantages. It is to-day in general -use. Conferences attended by the representatives of no fewer than thirty nations have been held for the interchange of thought. It i3 an enormous advantage for people of various nations to be able to come together in this way.
I hope that Senator Abbott’s motion will be carried unanimously. -But I do not believe that if a convention be held, and a particular language be adopted for universal use, it’, will, set . the world straight at.- once. In the nature of- things,, many years must elapse before the effects of such a course will be felt. Nor do I wish the Senate t® think that the adoption of a common language will be a substitute fer adequate defence. It is an idea which has persisted in the minds of .serious thinking .people the . world over, as far back as history goes. It has always broken down hitherto,, but we now have a League of Nations, and in these times, when people of the various countries can travel about the world so quickly, it is worth our while to make the attempt in the hope that the world will get some good from it.
Senator Hardy, in his speech, gave us a quotation from the Old Testament. 1 shall conclude with one from the New Testament - “ So also ye, unless ye utter by the tongue speech easy to be understood, how shall it bs known what is -spoken? Vor ye will be speaking into the air.
There are, it may be, so many kinds of voices in the world, and no kind is without signification. If then I know not the meaning of the voice, I shall be to him that speaketh a barbarian, and he that speaketh will be a barbarian unto me. .
.- Because I have been an eye-witness of the horrors of two wars, I -am entirely in sympathy with the motion so eloquently moved by Senator Abbott. Any action that is calculated to safeguard the future young men of the Empire’ from experiencing the awfulness of war is worth while. . I wish the idea of a. common language every success.. .-
– I listened with attention to the speech delivered by Senator Abbott, and the inescapable logic is that a common language would be used most by those masters of propaganda, the Communists and Bolshevists, for the furtherance of their ends. What would be the position in India to-day if its- millions of people spoke a common language? Do not honorable senators realize that the resources of the Empire would be taxed to their uttermost -to hold India?’ What is happening in the various countries, and particularly in France? The results of the elections ‘ in France in 1934 and this year showed greatly increased support for Communist candidates, 72 being elected with a total of 1,500,000 votes. If I thought that the adoption of a common language would strengthen the British Empire, I would strongly support the motion. I am afraid it will not have that effect. One has only to listen to the broadcast addresses in English from Moscow every Sunday night at 9 o’clock, and from Berlin at 10 o’clock to realize the extent to which broadcast ing is used for propaganda work. Fascism and communism are largely responsible for the disturbed state of the world to-day, and they make the most use of this scientific instrument to extend their activities.
– Can we not talk to them in a democratic way?
– -No. it is wellknown that certain people are using our liberty in a most insidious way. The Fascists and the Communists, who are masters of propaganda, are at present doing many things inimical to the power of the British Empire, and to the peace of the world. The Russians, the French, and the Germeans are sending their insidious poison over the air daily. Wireless broadcasting can be employed to educate and entertain the people; but it can also be used to the detriment of world peace. Representatives of the Russian people are broadcasting propaganda throughout India, not for the purpose of assisting, but in order to destroy the British power there. One only needs to listen to some of the statements made at times in the Melbourne Town Hall or in the Melbourne Stadium to realize what is actually being attempted even in this fair land. Everything possible should be done to ensure the peace of the world, but I firmly believe that the adoption of a common language might be inimical to the interests of the British Empire, and might easily be the means of disrupting it. The peoples of India do not speak a common language.
– Do they not all speak Hindustani?
– Numerous languages are spoken in India. The adoption Qf a common language without very definite safeguards would present many dangers and might, as I have said, eventually be the means of disrupting the British Empire.
– I have already spoken twice on similar motions moved by Senator Abbott providing for the adoption of a common language, and I rose more particularly to say that I disagree entirely with the views expressed by
Senator Millen. Undoubtedly, the propaganda of Bolsheviks, Communists, and Fascists, is detrimental to the peace of the world, but I fail to see that the adoption of a universal language would not result in a better understanding between the nations of the world. Senator Millen suggested that the adoption of a common language might easily bring about the disruption of the British Empire. Anything tending to such a disaster I would oppose, but I think that the opposite would be the result of this proposal. Certain Britishers, including some Australians, have been deluded into believing that communism is in their interests, and because of the fact that Britishers do not understand the Russian language, and the Russians do not understand the English language or the methods under which the British people live-
– Surely if any honorable senator is opposed to a common language he is also opposed to the education of the masses.
– Not necessarily. An educated person has a knowledge of many languages, and the more he knows concerning his fellow’ men the more highly is he educated.
– And more tolerant.
– Yes. I would not support the adoption of a universal language if I thought it would have the effect of disrupting the British Empire, or, in fact, the English-speaking people. If we attempted to educate people regardless of castes, creeds, customs or traditions, we would be getting nearer to world peace. I recalled on a previous occasion the history of the British race. Two centuries ago the people of England, Scotland, Ireland and Wales were enemies, and in the English counties feuds existed for centuries. The adoption of a common language has resulted in a better understanding, and to-day Englishmen, Scotsmen and Welshmen are good friends and members of the same Parliament. What has been achieved in Great Britain can be achieved in other countries also. Senator Abbott suggested that those who oppose the motion do not believe in world peace, but probably, although differing from him in regard to method, they are as anxious as he is to secure that objective. Previous attempts have been made to secure the adoption of a universal language in the interests of world peace. The League of Nations was formed so that the wise men of the world could meet in conference and by an exchange of ideas understand each other’s difficulties. Much has been achieved by the League, but a good deal has yet to be accomplished.
SenatorCollings. - We are going along the right road.
– We must assist the League in every possible way. Having experienced the horrors of war, I shall do all in my power to prevent international conflict. In Spain to-day, people who speak the same language are destroying each other in the most vicious way. I trust that something may be done to ensure a better understanding between the nations, and I believe that the method suggested will have the desired effect. Steady progress is being made towards the adoption of a common auxiliary language, which may help men to understand each other better and in that way promote universal peace, which should be the objective of every nation.
– I congratulate Senator Abbott upon the energy and enthusiasm he has displayed in submitting this motion, but I consider that the Senate should hesitate before forwarding an address to His Majesty couched in the terms proposed. If the idea of a common language were new, the motion would be more worthy of support, but we know that for generations past efforts have been made in a somewhat similar manner to secure a better understanding between the peoples of the world. I resent the suggestion of Senator Abbott that those who may oppose the motion are not as peace-loving as he is. Senator Millen and Senator Arkins have pointed out that much of the turmoil in recent years has been between people who speak the same language. Senator Arkins referred to the atrocities which are being perpetrated in Spain by people who speak the same tongue. The American people, who speak the same language, were once engaged in a civil war. One of the greatest dangers in Europe to-day is a possible conflict between the Germans and the Austrians, who speak practically the same language. Great difficulty is experienced in bringing these two nations together, not because of the difference in the language spoken, but because of* political differences. There is no doubt that the adoption of a universal language would greatly assist the holding of international conferences and would in a large measure diminish the difficulties which confront the traveller in crossing the frontiers of neighbouring countries. Particularly would it minimize the troubles that arise in connexion with passports because of the inability of the traveller to make himself understood. If we trace back through the history of the world from the earliest days of civilization, however, we can find nothing to show that nations speaking a common language have joined forces during periods of strife and turmoil. Are we to make ourselves appear ridiculous by forwarding to His Majesty the King, a resolution embodying a suggestion, which, besides being not new, is obviously impracticable of realization at the present time? There are no indications in the world’s history that the adoption of a universal language would prevent strife, bloodshed, and dissension among the nations. As Senator DuncanHughes pointed out, the world consists of peoples of different types, having different ideals and widely-varying outlooks. Some of the greatest alliances for peace have been made between countries speaking entirely different languages ; one such alliance remained in force for years. I refer to the alliance which existed between Germany and Great Britain prior to the Entente Cordiale. How can it be said that because we oppose this futile motion, we are not just as enthusiastic in the cause of peace as are those who support it?
– But why “oppose it !
– In his loyalty to a member of his party, Senator Hardy feels that he must support him, but he knows perfectly well that this ideal is impossible of realization. I think the Senate would make itself appear foolish if, having passed a resolution and solemnly despatched a copy of it to the other side of the world, it found that the proposal met the same fate as other resolutions of a similar nature.
. Evidently Senator Foll does not think much of the parable of the grain of mustard seed. He first commended Senator Abbott and then condemned him. There can bo no dou’bt that education is one of the things that will do most to bring about world peace. The mixing of different races at the universities of the world must go a long way towards bringing about a better understanding among the nations. 1 do not say that anything will guarantee peace all over the world, human nature being what it is, or that the adoption of a universal tongue will prevent war; but I do say that but for idealists this distracted old world would be a much worse place than it is. Senator Abbott has put in a tremendous amount of work on this subject and I am wholeheartedly in support of his aspiration. It may be, as Senator Foll has said, that nothing will come of it; it may even be futile; but let us at least try it. All the great things that have ever been done in this world have been initiated by people who were regarded as dreamers or idealists. Yet they are the people whom we have to thank to-day for the advanced state which civilization has now reached. I think I am right in suggesting that the majority of the men of this nation who went overseas to defend the Empire during the Great War were animated by an ideal which, although probably they could not express it, was, nevertheless, very real. Many of them gave their lives in defence of that ideal. They believed that, might was not right, though for a time it appeared to be triumphant. As one who has been through two wars and lived in foreign lands for a number of years, rubbing shoulders with men who were our former enemies and who spoke a tongue different from my own, I am satisfied that if this motion be passed it will go a long way towards bringing about peace and harmony in the world. After the conclusion of the Boer war I was employed in South Africa in the task of repatriating Dutchmen on the farms which had boon destroyed during the hostilities. At that time we were engaged in rectifying the damage done and placing the farmers back in profitable produc tion. That aspect of the South African war is sometimes overlooked and forgotten. If, in the conduct of a war in which the British forces are engaged, it is found necessary to lay waste the country, nine times out of ten after the conclusion of hostilities Britain is generous in rectifying the damage. I am proud of the efforts of Britishers in South Africa to repatriate their former opponents. I found the Dutchmen in the Orange Free State and in the Transvaal just like our own people. They were farmers and pastoralists, simple people living close to the earth. Some of my best friends in South Africa were Dutchmen who, during the war, I did my best to kill and who, in turn, did their best to kill me. If this movement for the adoption of a universal language can be initiated - I do not think any of us here will live to see its universal adoption - the nations of the world will have made a good start along the road towards better understanding. One honorable senator mentioned the danger which would follow if a universal language were adopted by reason of the spread of communism, fascism, and bolshevism. I suggest to him that there are quite a number of good democrats in the world. What is wrong with disseminating the doctrine of democracy? The democracies of the world to-day are confined to the British Commonwealth of Nations, our great cousins in the United States of America and the French nation. Frenchmen still believe in democracy. Honorable senators know that following the French revolution the doctrine of democracy spread throughout Europe and the civilized world. The revolutionary armies spread the doctrine of liberty, equality and fraternity. We are undoubtedly beholden to Senator Abbott for bringing this matter forward. I believe in idealists and idealism, though it is frequently hard to live up to our ideals. It has been said that endeavours to secure the adoption of a universal language have been made before and have failed. I remind honorable senators that no time in the history of the world has been more appropriate for its introduction. The wonderful inventions which we have seen in our time, particularly the introduction of wireless broadcasting give to this idea greater possibilities of success. With the aid of the radio speeches could ba broadcast ali over the world, and if a common language were adopted they would bo understood by people throughout the civilized globe. I am inclined to agree with Senator Duncan-Hughes’ suggestion that if a common language were adopted it should be a neutral language. I am wholeheartedly with Senator Abbott in his aim, and I trust that the Senate will vote in favour of his motion, This is not a party matter and does not involve the Government. This is a big subject. At times we have a good deal to say about brotherhood, and I am afraid that frequently we speak with our tongues in our checks, but in a fairly chequered career I have found that men of all colours and races are mostly jolly good chaps. One of my best friends was a “ Chink “ ; another was a big upstanding Matabele “nigger”. I like to think of them as “ white “ men. I have met many men with dark skins who were in the hest sense “ white “ mcn ; and, unfortunately, I have met many men of the white race who were not “ white “. Before we start to criticize this proposal, or to damn it with faint praise, we should seriously consider what we are doing. Idealistic though the proposal may be, I hope that the Senate will agree to it, anc! send forth its message to the world.
Debate (on motion by Senator Allan MacDonald) adjourned.
Senate adjourned at 10.4 p.m.
Cite as: Australia, Senate, Debates, 17 September 1936, viewed 22 October 2017, <http://historichansard.net/senate/1936/19360917_senate_14_151/>.