14th Parliament · 2nd Session
The Deputy President (Senator Sampson) took the chair at 3 p.m., and read prayers.
The following paper was presented : -
Commonwealth Public Service Act- Appointment - Department of the Interior - M.R. Jacobs.
– I direct the attention of the Leader of the Senate to the following statement which was published in the Townsville Bulletin on the 29th July : -
Canberra, July 27, 1937. “ If Australians read in the newspapers that twenty Germans were not allowed to meet to discuss public affairs, they would gasp with amazement, yet the same thing was happening in the capital of their own country “, said Mr.E. Hughes, former president of the Canberra Australian Workers Union, and son of the Federal Minister for Health (Mr. W. M. Hughes), criticizing the Unlawful Assemblies Ordinance promulgated last week.
This is “ Hitlerism”, naked and unashamed, enforced by a deliberate decree in the national capital.
Can the right honorable gentleman tell me why this ordinance was promulgated? Was there some fear that the unemployed, or some other body, would commence a revolutionary outbreak ?
Senator Sir GEORGE PEARCE The area of the Federal Capital Territory is 900 square miles. In8997/2 miles of that area public meetings may be held. The only portion of the Territory in which public meetings may not be held is that adjoining the precincts of this Parliament House. If the honorable senator wishesto inform himself of the terms of the ordinance I advise him to read it; it is self-explanatory.
Non -Intervention in Spain - Sino-
– by leave - I last made a statement on the international situation to honorable senators on the 23rd June, and I think it would be opportune for me to review some of the more important developments which have occurred during the last two months. Ipropose to confine my remarks to the subject of nonintervention in Spain, the Sino-Japanese conflict and the position which has arisen as a result of the recommendations of the Palestine Royal Commission.
Honorable senators will recollect that it was alleged in a German official communique of the 19th June that a Spanish Government submarine had fired torpedoes at the cruiser Leipzig on the 15th and 18th June. The German Government asked that the four powers responsible for the naval patrol, Great Britain, Prance, Germany and Italy, should join in a. strong though “ peaceful “ demonstration before Valencia, that the Valencia Government should be required to surrender its submarines, which would be placed under neutral control, and should be threatened with reprisals in the event of further attack. The British and French Governments refused the German request for a demonstration,taking the, view that there should be a further investigation of the Leipzig incident. Germany and Italy forthwith assumed full freedom of action and withdrew their ships from the naval patrol scheme, though they did not withdraw from the Non-intervention Committee.
The British and. French Governments informed the Chairman’s Sub-Committee of the Non-intervention Committee on the 29th June of their willingness to assume responsibility for the gap in the naval patrol scheme caused by the withdrawal of the German and Italian units, and of their willingness to consider the placing of neutral observers on their own patrol ships. These proposals were favorably considered by all members of the sub-committee except the German and Italian representatives who, although undertaking to submit the proposals to their governments, expressed the view that these would be found unacceptable because they offered no guarantees of impartiality. The German and Italian representatives also informed the subcommittee that all Germans and Italians employed on international duties as observers would be withdrawn, and the Portuguese Government intimated that it could no longer agree to the control of the Portuguese-Spanish frontier by British observers, until it had become clear whether a new scheme of naval patrol could be put into operation. .
The German and Italian representatives put forward counter-proposals at a meeting of the Chairman’s SubCommittee on the 2nd July, which were briefly to the effect that all interested powers should agree to recognize the possession by both parties in the Spanish conflict of belligerent rights, that the international system of naval patrol should be abandoned, and that the rest of the present system of supervision by land and sea should be maintained. The Belgian, Czechoslovak, Swedish and Russian representatives expressed themselves in agreement with the AngloFrench proposals, and the sub-committee finally decided that the two sets of proposals should be communicated to all governments represented on the NonIntervention Committee, with a view to the situation being considered at a full meeting.
The Non-Intervention Committee met on the 9th July, and the fact became clear that neither of the two sets of proposals would be generally acceptable. The representatives of the small powers expressed the hope, however, that it would be possible to find some compromise which would enable the policy of non-intervention tobe continued, and it was proposed by the Netherlands representative that the British Government should be invited to make an attempt to reconcile the divergent views. This proposal was unanimously adopted by the committee, and the Chairman, Lord Plymouth, announced the willingness of the British Government to undertake the task of finding a solution of the -present difficulties in view of the gravity of the situation.
The British plan was published on the loth July and submitted to the NonIntervention Committee on the following day. Its principal features were the abolition of the naval patrol, the reinforcement of the land patrol, the supervision of the entry of aircraft into Spain,’ the withdrawal of foreign volunteers, and, conditional on progress being made with this latter point, the recognition in a modified form of the belligerent rights of both parties.
The Chairman’s Sub-Committee of the Non-Intervention Committee met on the 20th July to consider the new British plan. Disagreement, however, arose as to the question of priority between the withdrawal of volunteers and the recognition of belligerency. Lord Plymouth, ‘ supported by the French, Russian and other representatives, proposed that the sub-committee should address itself first to the three problems set out in paragraph !) of the British plan in the following order : First, the establishment of officers in Spanish ports; second, the withdrawal of foreign volunteers and the establishment of commissions in Spain to supervise such withdrawal; and, third, the conditions on which belligerent rights were to be granted.
This procedure was not acceptable to the Italian, German and Portuguese rep- resentatives who maintained that the discussion should follow the order of the British proposals as a whole, which would mean taking the question of belligerent rights before that of the withdrawal of volunteers. The Russian representative said that the whole British plan was dependent on the questions relating to the withdrawal of foreign volunteers from Spain, and that this should accordingly be the first matter considered by the subcommittee. It was found impossible, at this meeting, to agree upon the procedure to he adopted, and it was decided that the sub-committee should adjourn to enable representatives to consult their respective governments.
The British Government attempted to resolve the deadlock reached at the meeting of the sub-committee on the 20th July, by drawing up a list of questions based on the full British plan which it proposed to submit to the various governments in order to obtain a clear statement of their views for and against the various details. This . list was circulated in advance to members of the Nonintervention Committee, but when the chairman’s sub-committee met again on the 26th July, it had before it a rival Italian list of questions. The sub-committee eventually decided to send the text of the British plan to the governments represented on the Non-intervention Committee with a covering note asking them to indicate in writing their views on each of the proposals in the plan, the replies to be framed on the assumption that acceptance of any of the proposals was conditional on agreement being reached on all other points. The replies of most of the governments were generally favorable to the principles of the British plan, but in the case of France, the Union of Socialist Soviet Republics, Germany and- Italy, -the comments attached to the proposals for the recognition of belligerency and the withdrawal of volunteers still revealed different points of view. The French Government insisted on the complete fulfilment of the conditions laid down in the original plan for the recognition- of belligerency. The Soviet Government stated that it could not consent to the linking of the question of the recognition of belligerency with that of the withdrawal of volunteers, and expressed the view that as soon as belligerent rights had been granted to them, the Spanish insurgents would cease to carry out their part of the undertaking. The Soviet Government would not be prepared to examine the question of belligerent rights until the complete evacuation of all foreign nationals from Spain had been effected. The German and Italian replies were to the effect that the recognition of belligerent rights should synchronise with the beginning of the process of the withdrawal of volunteers.
The chairman’s sub-committee met on the 30th July, to consider these replies. Lord Plymouth, in his opening statement, indicated the serious disagreement which still existed between the Soviet Government’s view on the one hand, and that of the German and Italian Governments on the other, as to the connexion between the withdrawal of volunteers and the recognition of belligerent rights. A fairly general agreement had been reached in respect of the other features of the scheme. The German representative strongly criticized the attitude of the Soviet Government, and said that the Soviet’s refusal to consider the granting of belligerent rights had created an entirely new situation; the German Government must now reserve its decision. The Italian representative agreed with the German view, hut the Soviet representative refused to modify his opposition to the recognition of belligerency. The sub-committee finally agreed to adjourn, no date being fixed for its next meeting.
I hope that ultimately it will be possible for the Non-Intervention Committee to agree upon a common basis of action. No nation wishes the Spanish civil war to become a European war, but, unless there is sincere co-operation between the nations of Europe to make the policy of non-intervention in Spain a reality, the danger of a European war must inevitably increase. The British proposals in regard to non-intervention are designed to circumscribe the area of the Spanish conflict and to leave Spain to work out its own destiny.- The Commonwealth Government is entirely in agreement with these aims.
Before concluding my remarks on Spain, I would refer to one other aspect of the situation. During the last few weeks, there has been an increasing number of submarine attacks on shipping in the Mediterranean, and on the 18th August, the following official statement was issued by the British Government : -
His Majesty’s Government has been seriously perturbed at the increasing number of attacks upon shipping which have occurred of late in Mediterranean waters, and at the extension of the area -in which these incidents are now taking place.
His Majesty’s Government has issued instructions through the Admiralty that if any British merchant ship is attacked by a submarine without warning, His Majesty’s ships are authorized to counter-attack the submarine.
The present situation in. North China is exceedingly dangerous. On the 7th July, fighting broke out at Loukouchiao, 20 miles from Peiping, between -troops belonging to the 29th Route Army and Japanese troops who were carrying out night -manoeuvres in the neighbourhood. The responsibility for the. origin of the outbreak remains obscure. The Chinese Central Government at Nanking has, from the outset, sought to effect a settlement direct with Tokyo, whereas Japan has been equally insistent, on negotiating only with the local authorities in *North China, that is to say, with the HopeiChahar Political Council. In a public declaration, on the 20th July, Marshal Chiang Kai-shek, the head of the Nanking Government, said that any settlement must respect the territorial integrity and the sovereign rights of China, that the status of the Hopei-Chahar Political Council must be defined by the Central Government, that outside interference must not be tolerated, and that he would not agree to the removal of officials in North China appointed by the Central Government. By the 11th August, the centre of the Sino- Japanese crisis had shifted to the Shanghai area. Owing to the deaths of two Japanese marines in a clash with Chinese troops outside the city boundary of Shanghai, the Japanese strengthened their forces in the neighbourhood by the despatch of considerable naval and military reinforcements.
Before the situation in North China became dangerous, it had been arranged that the Australian Trade Commissioner in China, Mr. V. G. Bowden, whose headquarters are in Shanghai, should visit Australiaon departmental business. It has now, however, been decided that he should, for the time being, remain in Shanghai in order to advise the Government immediately of any important developments, and to co-operate with the representatives of other powers in measures for the protection of Australian lives and property.
For the past twelve days, therehas been heavy fighting in the Shanghai area, where British subjects have large interests, and considerable damage has been caused to British property. The International Settlement was bombed by Chinese aeroplanes on the 14th August, resulting in the death of . 1.73 people and the wounding of 149. No British subjects were killed, but several are reported to have been injured. The British Government is determined to protect British lives, rights and property, and has intimated to the Japanese and Chinese Governments that it will hold them responsible for any damage to either life or property that may be suffered by British subjects as a result of action taken by Japanese or Chinese forces in the course of the present hostilities in China. The International Police Force has been mobilized, the British troops in Shanghai have been heavily reinforced, and there are now three battalions there. Five hundred additional American marines have arrived. By the 28th August, there will also be three battalions of French troops in Shanghai together with five armoured cars and tanks. It is considered that the defence position at the International Settlement is now satisfactory. Reports that have appeared in a section of the Australian press to the effect that the International Police Force has withdrawn from Shanghai and that the International Settlement is undefended, are, therefore, completely misleading.
By the 21st August, about 3,300 British subjects, nearly all of them women and children, had been evacuated from Shanghai. Another 450 British subjects left yesterday, but no arrangements are being made for further evacuation unless the situation deteriorates. It appears that the members of the British community are unwilling to contemplate any general evacuation or abandonment, of their interests. Chinese banks resumed restricted business on the 20th August and foreign banks normal business on the- 23rd August. There is no shortage of” food and fresh supplies are entering; Shanghai daily. Many large fires havestarted in the belligerent area, but there is none in the immediate neighbourhood of the International Settlement. Thelives of the inhabitants of the International Settlement are still endangered by stray shells and aircraft bombs, but both Japanese and Chinese aeroplanes appear to be avoiding any attack on theInternational Settlement.
Every government interested in the maintenance of peace in the Far East believes that it would bea disaster if Japan and China were to drift into a major war without making a seriouseffort to settle their differences by direct diplomatic negotiations. The British Government has, from the outset of the dispute, made it clear both in Tokyo and Nanking that it would do anything in its power to contribute to a peaceful solution. From the information in possession of the Commonwealth Government, it appears, however, that hostilities on a large scale are now inevitable, although there are elements on both sides which still favour a peaceful solution.
The Japanese already control a large portion of North China. The two main cities of Peipirig and Tientsin are in their possession, and Japanese military control has extended to the establishment of a censorship of all postal and telegraphic communications, which, meanwhile, remain suspended. Their various demands, which have brought relations almost to a breaking point on several occasions, have not been modified, and Chinese spokesmen have now announced that nothing loss than the withdrawal of all Japanese troops from NorthChina will restore amicable relations. On the other hand, the heavy reinforcements being poured into the Shanghai and Peiping areas by Japan indicate a determination to crush Chinese resistance by extreme measures. It is estimated that China has suffered some 4,000 casualties, and Japan about 500, in the fighting which has taken place up to the present.
The report of the royal commission which was appointed in August, 1936, to inquire into the underlying causes of the disturbances in Palestine and the manner in which the mandate was being implemented was published on the 8th July,- 1936. After considering several possible solutions, the commission recommended the partition of Palestine and the termination of the mandate. The British Government expressed its general agreement with the recommendations of the commission, and stated that it proposed to take the necessary steps to give effect to a scheme of partition.
A debate on the royal commission’s report took place in the House of Commons on the 22nd July and a motion was moved on behalf of the Government asking the House to approve the Government’s policy relating to partition. An amendment moved by Mr. Winston Churchill was carried, however, providing that the proposals of the royal commission should be brought before the League of Nations with the object of enabling the British Government, after an adequate inquiry, to present to Parliament a definite scheme, and take into full account all the recommendations of the commission. The British Government informed the Secretary-General of the League of Nations that it had communicated the report of the royal commission, and also its conclusions on that report, to the Permanent Mandates Commission. The British Government asked that matters relating to Palestine should be placed on the agenda for the September session of the League Council, and that the Mandates Commission should consider the documents relating to Palestine at an extraordinary session to begin on the 30th July. At the opening meeting of the Mandates Commission on that date, Mr. Ormsby-Gore, the Secretary of State for the Colonies, explained fully the recommendations of the royal commission. The Mandates Commission then proceeded to examine the annual reports submitted by the British Government on the administration of Palestine during 1935 and 1936. It also examined in detail the report of the royal commission.
The Permanent Mandates Commission has now prepared its report, which will be considered at the next session of the League Council, in September. The full text of the report has not yet been received in Australia, but cabled information indicates that- the commission considers the present mandate to be unworkable, and recommends that there should be a transitional period of political apprenticeship for Arabs and Jews. In the opinion of the commission, one solution would be to divide Palestine into cantons, or provinces, which would be self -governing in such matters as public works, health, education and general administration. The mandatory government would remain as a central, or federal, government, controlling such matters as foreign relations, defence and customs. An alternative solution suggested by the commission would be to set up two separate states - one Arab and the other Jewish - each of which should be administered under a separate mandate until it had proved its capacity for self-, government. The report also recommends a separate regime for the Holy Places, and concludes by paying a tribute to the disinterested efforts of Great Britain on behalf of both Arabs and Jews.
Honorable senators will agree that the problem of Palestine cannot be regarded as a purely local one. Palestine is of great strategical importance in the defence of the Suez Canal ; it is the outlet of the oil pipe line from Mosul; it is also one of the halting places on the international, air route to India, the Far East and Australia. A satisfactory solution of the problem of Palestine is, accordingly, a matter of great practical importance to Australia on account of its bearing on the safeguarding of this country’s communications’ with other 1)arts of the Empire.
asked the Minister in charge of Scientific and Industrial Research, upon notice -
I.. In view of the admitted importance of thu development of the- fisheries of Australia, and of the industries allied thereto,, and having regard to the surveys already made on theeastern and portion of the southern coast*,, will the Minister direct that the first task of the research vessel now under construction shall be to investigate the fisheries of thewestern coast?
Will the Minister also favour the establishment at Fremantle of a permanent marine biological research station?
– The answers to the honorable senator’s questions are as follows: - 1.. The programme of investigations of fisheries has not yet been completed. Dr. Harold Thompson, the officer incharge of fisheries, will be visiting Western Australia and other States in order to enable him to make recommendations in this regard. When the programme is being finalized full consideration will be given to the question of investigating the fisheries of the western coast. Available information suggests that large quantities of fish abound off the southern and western coasts of Western Australia.
SenatorCOLLETT asked the Minister representing the Minister for the Interior, upon notice -
With reference to the subject of migration, will the Minister furnish information as to -
The numbers of those aliens, rightly described us Southern Europeans, who were admitted to the Commonwealth during each of the following years- 1930, 1931, 1932, 1933, 1934, 1935, 1930 and the first half of 1937?
Under what general conditions they were admitted?
The number of Southern Europeans naturalized during each of the years mentioned above?
The number of Southern Europeans, naturalized and unnaturalized, who left Australia during the same period?
The excessof departures from Australia, over arrivals, of members of the British race during the years 1930,1931, 1932, 1933, 1934, 1935. 1936 and the first half of 1937?
The main contributing cause of such excess of departures over arrivals?
asked the Minister for External Affairs, upon notice -
Senator Sir GEORGE PEARCE.The answers to the honorable senator’s questions are as follows: -
The State Governments have been, asked to await the filial results of the survey before granting any further mining leases or other mining rights which would have as their objective the export of iron ore to foreign countries.
asked the Minister for External Affairs, upon notice -
Senator Sir GEORGE PEARCE.The answers to the honorable senator’s questions are as follows: - 1 and 2. Yes. The attitude of the Commonwealth Government in regard to this matter was set out in a statement which the Prime Minister made to the press on 13th August. The statement read: -
The Government is keeping under constant supervision all the relevant factors which relate to the export of iron ore from Australia. It desires to emphasize that, having regard to the efforts which are now being made to eliminate the causes of international friction, nothing could be more unsound or unwise that for Australia unnecessarily to deny to foreign countries access to her raw materials. At the same time, the Government has in hand a survey of our iron resources, in order that it maybe ascertained whether the total Australian supplies are more than adequate for the anticipated future needs of the nation. Should there be an abundance of workable ore, restriction upon reasonable export could not be justified. Onthe other hand, should there be any substantial foundation for a fear of future shortage the Government will not hesitate to take whatever steps are necessary to conserve our national interests.
The State Governments have been asked to await the final results of the survey before granting any further mining leases or other mining rights which would have as their objective the export of iron ore to foreign countries.
asked the Minister representing the Minister for Trade and Customs, upon notice -
– The information is being obtained.
Kalgoorlie to Fremantle - Red Hill to Port Augusta
asked the Minister for External Affairs, upon notice -
– The answers to the honorable senator’s questions are as follows: -
asked the Minister for External Affairs, upon notice -
– The information is being obtained.
asked the Minister representing the Minister for Commerce, upon notice -
– The Minister for Commerce has supplied the following answers : -
asked the Minister representing the Minister for Trade and Customs, upon notice -
Has the Government received any guarantee from Amalgamated Wireless Limited and Phillips Lamps Limited of Australia that they will supply radio valves to independent radio manufacturers at a price no higher than they could land equivalent types of imported valves into their stores duty paid, and also if the above two firms have guaranteed to have available a continuous and adequate supply of all necessary valves to fill independent radio manufacturers’ requirements ?
– The Minister for Trade and Customs has furnished the following answer: -
Wireless valves of Australian manufacture are distributed to radio receiving set manufacturers at a lower price than similar types of overseas manufacture. The increased production brought about in Australia by the partial prohibition of imported valves has made it possible for prices of Australian-made valves to be reduced. In connexion with supplies of wireless valves, the Government is in close touch with local manufacturing developments.
The Government is aware that the Australian wireless valve manufacturers are making valves available to users and purchasers in accordance with usual trade practice. There is no foundation for the belief that these manufacturers contemplate any departure from these trade practices. There has been no difficulty in the past in obtaining supplies of the types of wireless valves which are manufactured in Australia.
asked the PostmasterGeneral, upon notice -
In reference to a question asked by Senator Marwick on the 30th June, in connexion with the reported diversion of the Darwin-Perth air mail from Darwin, via Adelaide, to Perth, and the possible inconvenience such diversion would cause the people of Western Australia, and more particularly the north-west ports, will the Minister state if this matter has received consideration, and whether he is in a position to make a full statement in connexion therewith?
– The question of the re-organizationof the internal air mail services, consequent upon the introduction of the Empire air mailscheme, is at present receiving consideration by the Government. When a decision has been reached, a full statement will be made.
asked the Minister representing the Treasurer, upon notice -
Senator Sir GEORGE PEARCE.The Treasurer has supplied the following answers: -
There is no provision in the sales tax law for exemption from sales tax in respect of all articles used by local-governing bodies in their public works. The Government has, however, in practice, exempted a wide range of equipment and materials used by localgoverning bodies, notably -
In addition, exemption has also been allowed in respect of electric current, gas, and water supplied by public bodies or authorities.
asked the Minister representing the Minister for Commerce, upon notice -
– The Minister for Commerce has supplied the following answers : -
asked the Minister representing the Minister for the Interior, upon notice -
Will the Minister state for the information of honorable senators which of the placed candidates for the Senate in the forthcoming election, namely, first, second, third, or fourth in New South Wales, and first, second, or third in Queensland, will fill the respective casual vacancies in those States?
– The Minister for the Interior has supplied the following answers : -
The vacancy in New South Wales is a long casual vacancy, and pursuant to sub-section 2 of section 9 of the Senate Elections Act will befilled by the candidate who next after the periodical vacancies have been filled first receives an absolute majority of votes. Therefore, in New South Wales the candidates elected first, second and third, will fill the periodical vacancies, and the candidate elected fourth will fill the casual vacancy.
The vacancy in Queensland is a short casual vacancy, and pursuant to sub-section 1 of section 9 of the SenateElections Act, will be filled by the first candidate, not being a senatorcandidate, who is elected to fill a periodical vacancy. Therefore, in Queensland the first candidate elected (who is not a retiring senator) will fill the casual vacancy.
Motion (by Senator Foll) agreed to - That the President of the Senate, Senator the Honorable P. J. Lynch, and Senator C. J?. Cox be granted one month’s leave of absence on account of ill health.
– I move -
That the bill be now read a second time.
This measure is substantially the same as a bill bearing the same title that was introduced in the Senate on the 17th March, 1936. Several amendments of varying degrees of importance were made in that measure during its passage through Parliament, and as the bill as amended did not become law prior to the prorogation in May last, it lapsed. This bill embodies the majority of the amendments, but in preparing it for reintroduction opportunity was taken to provide for certain other alterations consequent’ upon such amendments. As a similar measure was recently before the Senate, I do not propose to weary honorable senators with a lengthy explanation of the provisions of this bill. Further explanation can, if necessary, be made later. It will be sufficient to outline briefly the principal features of the bill.
The bill deals with five principal matters, namely -
In regard to the partial consolidation of Acts Interpretation Act, I may say that at present the two main acts relating to the interpretation of Commonwealth acts and regulations’, are the Acts Interpretation Acts of 1901 and 1904. Each of these acts has been amended on several occasions with the result that the task of interpretating statutes is more difficult than it need be. The bill, therefore, provides that the provisions of the act of 1904, as amended from time to time, shall, with one or two exceptions, such as the provision dealing with the commencing date of regulations, be incorporated in the act of 1901.
The present law in regard to the date of the commencement of Commonwealth acts is contained in section 5 of the act of 1901. This section provides that where the Royal assent is given to an act by the Governor-General on behalf of the King, the act shall come into operation on the day on which it receives the Royal assent unless the contrary intention appears in the act. In respect of acts which are reserved for the signification of the King’s* pleasure, it is provided that they shall come into operation on the day on which His Majesty’s pleasure is proclaimed in the Gazelle by the Governor-General. During the Cabinet meetings in Perth in 1935, representations were made to the Government that laws made by the Commonwealth Parliament were often in force before copies were available in the far-distant States. It was pointed out that the inconvenience resulting from the absence of copies of acts was particularly felt inWestern Australia. These representations have been favorably considered by the Government, and clause 6 of the bill is designed to give effect to them. Under this clause, it is proposed to amend section 5 so as to postpone, for 28 days, the operation of acts, other than acts to amend the Constitution, passed on and after the 1st January, 1938. In other words, acts which are assented to by the Governor-General will come into operation on the 28th day after the day on which such assent is given. The section will, of course, apply only where no contrary intention appears in the act itself. It is not proposed to alter the commencing date of acts reserved for His Majesty’s pleasure, or acts amending the Constitution.When this clause is in operation, it should, as a general rule, be possible for copies of acts to be made available in all the States some time before the acts actually come into operation.
As has already been mentioned, there have been several amendments of Acts Interpretation Act. Doubts have arisen as to whether these amendments are to be applied in the interpretation of acts passed prior to the enactment of such amendments. In order to remove these doubts, clause 4 contains a new section providing for the application of the original act of 1901, as amended from time to time, to all acts irrespective of the date when they became law. I hope that honorable senators understand the position. The Acts Interpretation Act having been amended, the question has arisen : “ Does that amendment apply when interpreting an act already on the statute-book, or does it apply only to acts passed after the amendmentof the act itself?” That point has been made clear by the provision that the Acts Interpretation Act shall apply to acts already on the statutebook as well as to future acts.
I come now to that portion of the bill which deals with the commencing date of regulations. Honorable senators will remember that the matter was referred to in the third report of the Standing Committee onRegulations and Ordinances.
The great bulk of the regulations made under Commonwealth acts are governed by section. 10 of the Acts Interpretation Act 1904-1934, which reads:-
Where an act confers power to make regulations, all regulations made accordingly shall, unless the contrary intention appears -
But if either House of the Parliament passes a resolution of which notice has been given at any time within fifteen sitting days after such regulations have been laid before such House disallowing any regulation such regulation shall thereupon cease to have effect.
For many years it has been the practice in exceptional cases to make regulations which are to be deemed to have come into operation as from a date prior to the date of their notification in the Gazette. For the most part, those regulations have conferred benefits upon the persons affected ; for example, the granting of increments or allowances to various classes of officers, but not for the purpose of prejudicially affecting existing rights or of imposing liabilities as from some past time. Some time ago, however, a wireless regulation was made which purported to reduce, as from a past date, the payments due to certain broadcasting stations from the revenue received from licence-fees. This regulation was considered by the High Court in the Broadcasting case and a majority decided against its validity. The part of that regulation which was particularly challenged in the High Court read as follows: -
This regulation shall be deemed to have commenced on 1st November, 1927.
This date was long prior to the notification of the regulation in the Gazette. The Government considers that it is desirable that a limited power should be given to make retrospective regulations, and it is proposed to amend section 10 of the 1904 act in this direction. The proposed amendment expressly provides that this power to make retrospective regulations is not to be exercised if the regulations would prejudicially affect the rights of any person - other than the Commonwealth or an authority of the Commonwealth - or impose additional liabilities upon him. This amendment will be found in sub-section 2 of proposed new section 48. This is so very definite that I shall read it for the information of honorable senators - (2.) Regulations shall not he expressed to take effect from a date before the date of notification in any case where, if the regulations so took effect -
In addition to the granting of this power to make retrospective regulations in certain circumstances in future, the Government has decided to validate such of the retrospective regulations as may be affected by the decision in the Broadcasting case, but which did not prejudicially affect rights. It is not intended, however, that this provision should affect the rights declared by the High Court in the Broadcasting case, and provision has been made accordingly in clause 14 of the bill.
Another aspect of the regulationmaking power is dealt with in the proposed new section 48, under sub-section 5 of which regulations will be deemed to have been automatically disallowed in the event of a resolution for their disallowance not being withdrawn or otherwise disposed of within fifteen sitting days after notice of a resolution has been given. That has very little reference, or is of very little interest, to this chamber, because, as a matter of fact, motions for the disallowance of a regulation are given precedence; in other words they have to be dealt with at once. But in the House of Representatives it often happens that notice of disallowance is given; but it remains on the notice-paper and nothing is done about it. This regulation automatically provides that if nothing be done within fifteen sitting days the regulation will be disallowed.
Finally, there are several minor and consequential amendments concerning which it does not appear to be necessary to give any explanation at this stage.
The Government has not been unmindful of the discussion which took place when this bill was previously before the Senate. An amendment was tabled by an honorable senator to provide for certain precautions, as it was thought, in connexion with the issue of regulations; or to put it loosely, requiring that a regulation, before being made, should be certified by some officer of the Attorney-General’s Department. As a matter of fact, at the time when this matter was” under discussion the subject of a closer scrutiny of regulations by the Attorney-General’s Department was receiving attention. The result is that now all regulations which are to be promulgated must be submitted to the AttorneyGeneral’s Department. This work has been allotted among officers of the AttorneyGeneral’s Department, and departments which make regulations must present them to the Attorney-General’s Department, where they are examined by officials who have specialized in particular phases of this work.
– A very wise precaution !
– That is so; in this respect the Government has yielded to the wise representations made by the honorable senator.
– Why not provide for that in the bill?
– Because it is unnecessary. The validity of a measure is not advanced one iota by affirming that it has been examined by legal authorities. In the long run, the courts will determine whether or not a regulation is ultra vires; but I can assure the Senate that every precaution will be taken to see thatall regulations made are within the authority given by the act under which they purport to have been made. I hope that this assurance will satisfy those honorable senators who offered opposition to the bill last session, and that the practice instituted at the express request of the Prime Minister (Mr. Lyons) and the Attorney-General (Mr. Menzies) will allay their scruples. I have outlined the general purport of the bill which I commend to the Senate as a measure that will be of great assistance to every practising lawyer, to members of Parliament, and also to the general public.
– Having given some studyto the bill, and having listened attentively to the speech of the Minister introducing it (Senator Brennan), it seems to me that its passage is desirable, although I admit that as usual there is, in the legal phraseology employed, much that I do not understand, but I am satisfied that the provisions of the bill are an improvement on existing conditions. Therefore my colleague and I shall not offer any opposition to its passage. There is, however, one provision about which I should like some information. Proposed new section 50 reads -
Wherean act confers power to make regulations, the repeal of any regulations which have been made under the act shall not, unless the contrary intention appears in the act or regulations effecting the repeal -
affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced … as if the repealing act or regulation had not been passed or made.
It seems to me that the effect of the disallowance of a regulation should not be quite the same as that of its repeal, because one has been the law, whereas the other is the law only pending its approval by Parliament. I do not know if there is anything in my objection, but I should like the Minister to explain the difference in the two sots of circumstances if he can.
. -I acknowledge the consideration shown by the Government in not rushing this measure through at the end of last session as it might have done. I appreciate the courtesy shown to the Senate, and Iam pleased now to have an opportunity to express my views concerning this bill. I should prefer a. little more time for its consideration, but I do not think that any very useful purpose would be served by delaying its passage on that account, because it is not necessary to discuss minutely all the provisions. Listening to the speech of the Minister (Senator Brennan), one would not, I think, realize that the bill contains simply one test issue. In its present form, apart from one section and one portion of another section, it has been approved by the Senate. Honorable gentlemen will, no doubt, recall what has happened in connexion with this measure. When it was discussed last year in committee in this chamber, I succeeded in having inserted an amendment relating to the certifying of regulations and ordinances by an authorized legal officer. That amendment was struck out in the House of Representatives, and the bill, as amended was returned to the Senate, which insisted on its own amendment. Accordingly, the bill was sent back to the House of Representatives and there was laid aside. The action of the Government seemed to me to be inconsistent, and I said so at the time. I failed, to see why a clause which, relatively was innocuous, should be regarded as so important as to justify the dropping of the bill. I realized, of course, that there was behind this action of the Government a wider issue which it is my intention to put before the Senate as clearly as possible this afternoon.It relates to the trial of strength which, we are all aware, has been continuing for a long time between a. majority of members of the Senate and the Executive power.
– The Government is trying to do everything by regulation.
– It concerns the position of Parliament in relation to the making of regulations by the Executive, a practice which has increased enormously of late years. The majority of members in this chamber realize that the Senate’s Regulations and Ordinances Committee does not act from personal motives or with party bias. Its solepurpose is to try to safeguard the interests of the Senate and general public, by perusing regulations that are promulgated by the Executive and submitting recommendations to the Senate as to their correctness or validity. I assure honorable senators that the duties of the committee are not very amusing. Nor are they light. As a result of its recommendations, the Senate has rejected at least one regulation and debated the validity of a number of others. The work that is done by the committee seems to me to be very useful. I quite understand, of course, that any government is not pleased to have its mistakes disclosed, because, the ministerial head of a department must accept responsibility for mistakes that are made by departmental officers. The work done by the committee is valuable and should have the full support of the Senate, unless it can be shown that it is in some way detrimental to the public interest. The bill, now before the Senate is practically identical with that which passed through the Senate last session, with the exception that it dees not contain the proposed new section which was inserted by this chamber.
– It was approved by a solid majority of the Senate.
– When first I submitted my amendment, it was carried by 20 votes to 9. When the measure was returned from the House of Representatives which had struck out the proposed new section, it was re-inserted by the Senate committee by 13 votes to 12. I was surprised that no reason has been given by the Government for its refusal to accept the amendment. The AttorneyGeneral, said that it was unacceptable to the Government, which of course, was not argument. It was simply the use of the weight of members in the House of Representatives to assert the will of the Executive over the Senate. I am essentially a “ parliament man “. I believe that Parliament has its proper place and that it should have full” opportunity to express its opinion and to assert its rights in respect of regulations made by the Executive. I am still of the opinion, which I expressed previously, and which I suggest, was confirmed by the action of the Government in dropping the bill, that the real purpose of the measure is to restrict the scope and functions of the Seriate Regulations and Ordinance Committee with a view to giving the Executive fuller power, and to over-ride the Senate. Is this an important bill or is it not? Was it not introduced originally as a result of action taken by the Senate with regard to certain regulations issued by the Executive ? Perhaps, I shall he permitted to cite an instance of what I regard as the undue exercise of this Executive power in connexion with the making of regulations or ordinances. I read in the Adelaide Advertiser, the principal daily newspaper in my State, on the 7th August, the following report from its Canberra correspondent -
Local agitation lias resulted in the withdrawal of what were considered by the dissatisfied, to be the objectionable features of the Unlawful Assemblies Ordinance. What gave most offence locally, was the special power taken to proclaim any part of the Federal Capital Territory, and presumably the whole, a prohibited area within which it would be unlawful, under a penalty of £100, for more than 20 people to gather to discuss public affairs.
This afternoon the Leader of the Senate (Senator Pearce), in replying, to a question on this subject, said that the ordinance affected only a very small %rea. If honorable senators look at the ordinance - by the way it lias not yet been laid on the table of the Senate, but can be seen in the Gazette - they will find that “ the proclaimed place “ means the area described in the schedule and includes also any place specified by the regulations to be a proclaimed place; hi other words the Attorney-General may by regulation prohibit public assembly in any part of the Federal Capital Territory, an area of SOO square miles! The. comment of the Advertiser correspondent continued -
The more reasonable of those opposed to the ordinance agreed that the deliberations of Parliament should be protected from disorder and from unauthorized gatherings, but the ordinance gave the Government power to prevent a public meeting being held on any pretext in any part of Canberra-
And, I think, in any part of the Federal Capital Territory -
The promulgation of an ordinance which has had to be vitally amended because of public protest, cannot be considered good electioneering tactics, lt has been said that the Minister for the Interior (Mr. Paterson), on whose behalf the ordinance was issued, did not know anything about it till it was gazetted.
I do not know whether this is a fact; I am only quoting from the published report of a newspaper correspondent who is considered to be good enough to represent in Canberra the leading South Australian paper. However, I should like to know whether the Minister for the Interior was aware of the ordinance before it was gazetted; it would seem strange to me that such a statement should be made if there were no foundation, for it. This report continued -
The whole episode recalls the strong protests which Senator Duncan-Hughes has made repeatedly against the extension of executive power by ordinances, which in practice, are put into effect without parliamentary sanction. Many of these ordinances are framed in terms which would not pass any parliament and the penalties invariably are fantastic in their severity, compared with penalties for similar offences made under, common law. A fine of £100 for meeting within about 400 yards of Parliament House to discuss public affairs is> an excellent example.
The evil of arbitrary government by regulations and ordinances which arc ineffectively policed by Parliament, or not policed at all, is a growing one at Canberra. Parliament, by acquiescing in this system, is sanctioning a breaking down of its own authority, and the transfer of its powers to the Executive, which in view of the long absences of most Ministers from Canberra during the recesses, means a transfer of power from the elected representatives of the people to officials responsible to no elected body . . .
It is an evil which must inevitably increase at Canberra as the years pass, unless Ministers can be induced to administer their departments from the Seat of Government during the long recesses.
I was particularly interested in this newspaper statement because it was obvious that this matter was directly linked up with the matter of regulations with which we are now dealing in this measure ; and I wondered what had happened to cause the promulgation of this ordinance. Had there been a riot in Canberra? Had. any one fired a revolver, or had there been bloodshed? Had any one been knocked on the head? So far as I can make out nothing of that kind occurred. I understand that a gathering took place in front of Parliament House with the object of expressing the views of the unemployed and their sympathizers, but that no violence took place at that meeting. Yet the Government has found it necessary, by ordinance, to assume powers similar to those which were found necessary in Melbourne in 1917, in the face of a really difficult situation, and during a period of great agitation. I put it to honorable senators that an action which might be applicable in war time in so densely a populated centre as Melbourne cannot be regarded as being essential in a peaceloving place like Canberra, with its 9,000 inhabitants, in a time of peace. I say frankly and deliberately that this is an instance of excessive use of executive authority. Since I have been a member of this Parliament, I have never shown myself to be opposed to firm action being taken by the Executive when, in my opinion, it was necessary, but I do not think it is necessary to use a steam hammer to crush a walnut, a3 the Government attempted to do by means of this ordinance.
– In what way does the ordinance reveal excessive use of power ?
– First of all the ordinance defines the proclaimed places and these include any place so specified by a regulation. Thus, by regulation, this ordinance can be applied to the whole of the Federal Capital Territory.
– But that provision has been withdrawn.
– But why? Because such a. provision involved an excessive use of power by the Executive and was not abrogated until the Government realized that it was hopelessly excessive and contrary to public opinion.
– I rise to a point of order, Mr. Deputy President. The honorable senator is referring to an ordinance which deals with the Federal Capital Territory and. which, I submit, has nothing to do with the bill under consideration.
The DEPUTY PRESIDENT (Senator Sampson). - Senator Duncan-Hughes may continue.
– Is it necessary for me, Mr. Deputy President, to speak to the point of order?
The DEPUTY PRESIDENT.- No.
– The ordinance then refers to unlawful assemblies - 3. - (1) It shall not be lawful for any number of persons exceeding 20 to meet or be assembled in the open air in any part of the proclaimed place for any unlawful purpose, and any person, (not being an officer of the Commonwealth acting iS the discharge of the duties of his office) who is present at any such meeting or assembly shall be guilty of an offence.
Penalty: One hundred pounds or imprisonment for twelve months.
To me that seems to be a very harmless thing to do. “Daily honorable senators have an opportunity in this Chamber to present a petition, although I do not remember any senator taking advantage of that privilege. Such action is regarded as harmless. Nevertheless, under this ordinance persons are prevented from presenting - . . any petition, memorial, complaint, remonstrance, declaration, or other address to His Majesty, or to the Governor-General, or to both Houses or either House of the Parliament, or to any Minister or officer of the Commonwealth, for the repeal or enactment of any law, ‘or for the alteration of matters of State.
In the light of this prohibition I am justified in asking what we are here for if we are not to be petitioned and to be approached either as Members of Parliament, or as officers of Parliament, or’ as Ministers? What are we here for if it is not to have matters of public interest brought to our notice? The ordinance proclaims that if anybody does any of these things an officer of the police force may arrest him without warrant, and again the penalty is a fine of £100 or imprisonment for six months. The ordinance further empowers the AttorneyGeneral to make regulations not inconsistent with the ordinance. The whole of this matter, I submit, is linked up with the wider subject of the framing of regulations. Here is a definite instance of grossly excessive use of executive power to promulgate a’ drastic ordinance, which the Government was eventually required to whittle away to nothing. In this instance the Executive was able to put the ordinance as first drafted into force, when in fact nothing so drastic and far reaching was justified.
I do not wish to labour this matter. I quite understand and quite approve of the necessity for the Executive taking firm action on occasions. At certain times in the past I consider it could have acted more firmly than it did, but this is a definite instance of grossly excessive power being taken by executive action. The power was not exercised, but actually any police officer would have been quite within his authority if he had acted under this ordinance. In this instance, the Executive asserted excessive power in order to prevent people from meeting. Do honorable senators realize that if instead of a party holding its meeting inside this building, its members, either on account of the warmth indoors or the pleasantness of conditions outside, met on the lawns outside, and any of them spoke on any matter of public interest, they would all be guilty of participating in an unlawful assembly?
– It was suggested that a similar position might arise at the ceremony of the opening of Parliament.
– Yes, and that the Governor-General might be deemed guilty of an offence. My final point is this: We have to* remember that the people of Canberra have no vote, and, therefore, it is not unnatural that they should be anxious to express their views and criticize what is done by the Government, more than are the people resident in other parts of Australia. In the past I have done what I could, to secure the franchise for the people of Canberra, and it was ray suggestion that a person coming to live in Canberra should remain on the electoral roll for the district from which he came unless and until he got on the roll here. While the people of Canberra have no vote, it is more important that they should retain the right to express their views on public questions. I point to this ordinance to illustrate why there should be some supervision of the way in which the powers of the Executive are used. I agree with Senator Marwick’s interjection that if it is the intention of the Government to have every regulation perused by officers of the Crown Law Department, that should be specifically laid down in the bill. That is all that I ask. The present Ministers may go out of office and the heads of the department may change, and if there is no specific rule that the officers of the department are obliged to endorse ali regulations as I suggest, the safeguard which the Minister has indicated will disappear. In committee, I propose to move i the re-insertion of the amendment which the Senate accepted in the previous bill to the effect that before regulations are promulgated they shall be certified by the Solicitor-General or some other authorized officer as being not in excess of the powers conferred by the act under which they purport to have been made. On a previous occasion the Leader of the Seriate said that this was a dangerous proposal, and that both the AttorneyGeneral and the Solicitor-General concurred in that opinion. There is no danger whatsoever in it; on the contrary, there is a safeguarding of the interests of the general public. However, the matter at issue is whether the Executive is to have its way in this matter, or whether the Senate will stand firmly for its rights.
.- I have little to add to what has already been so ably’ expressed by Senator Duncan-Hughes. I view this matter seriously, mainly because the bill appears to be a deliberate attempt on the part of the Government to flout the expressed will” of the Senate. Simply because the committee accepted an amendment by Senator Duncan-Hughes with which the Government, did not agree, the bill was dropped, and now, after a few months have passed, another bill which does not embody the amendment accepted by the Senate and is unchanged otherwise, is brought before this chamber. I shall vote for the amendment foreshadowed by Senator Duncan-Hughes, in order to show my disapproval of the Government’s action in attempting to filch from honorable senators their undoubted rights.
– As a member of the Regulations and Ordinances Committee, I am pleased that its action has caused the Government to alter the bill from the form in which it was originally introduced. Certain amendments with which I agree have been embodied in the measure; I refer especially to that dealing with retrospec tive regulations. Proposed new section 48 (2) provides that -
Regulations shall not tie 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 bc affected in a manner prejudicial to that person;
When this matter was before the Senate on a previous occasion, it was pointed out. that certain workers in London, who had been paid sums of money, might be called upon to refund such moneys unless the regulations were made retrospective. To the extent that the present bill removes the danger of retrospective operation prejudicial to the interests of individuals, it is a step in the right direction.
– In that respect the bill is in the form in which it was passed previously.
– This afternoon I asked a question relating to what was described in a newspaper report as “ naked Hitlerism “ in the Federal Capital Territory. The answer given to me by the Leader of the Senate (Senator Pearce) suggested that I was wrong, and ail so that the son of William Morris Hughes was wrong. Having listened to Senator DuncanHughes, I realize that the Leader of the Senate misled me in that he omitted something which Senator Duncan-Hughes has since mentioned. It is amazing that such an ordinance should have been promulgated by any government in .a British community; it certainly justifies the caption “ Hitlerism.” As a result of the publicity given to this subject in the newspapers of the Commonwealth, the Government decided to amend the ordinance, so that it shall apply only to places within 100 yards of Parliament House. Some time ago, at the request of the unemployed of Canberra, I agreed to address a meeting outside Parliament House. On that occasion, my action was not illegal; but, should I again address such a gathering, I could be arrested without warrant, irrespective of whether the assembly were for the purpose of airing a grievance, preparing a petition or memorial, or advocating the planting of more roses and tulips in the Parliament House grounds. Were I to be arrested, it would not be my first such experience, for I have been arrested on numerous occasions for asserting the right of free speech.
– The honorable senator has lived that down.
– I am proud of my record. I regret that Senator Pearce did not give to me a full explanation; but, unfortunately, that is a habit with leaders of governments. Evidently, they think that some political advantage accrues to them, by withholding information from others. I am pleased to know that certain officers in the Attorney-General’s Department have been specially deputed to study regulations and ordinances with a view to deciding whether or not they come within the ambit of the acts under which, they purport to he made. The Regulations and Ordinances Committee can take credit to itself for having forced the present reactionary Government to adopt that reform.
, - in .reply - I shall endeavour to confine my remarks more to the provisions of the bill than some honorable members who have spoken have done. I point out to the Leader of the Opposition (Senator Collings) that section 50, about which he inquired* is a safeguarding provision. It sets out that legal proceedings which have been commenced may be proceeded with, even though, in respect of future actions the act has been repealed. The provisions mentioned by the honorable gentleman merely apply to the disallowance of a regulation the same rule as now applies to the repeal of a regulation or of a law. That, is entirely beneficial to the average citizen; it imposes no new liability on him.
Senator Duncan-Hughes said that the power to make regulations should be restricted as far as possible. Even supposing the honorable senator is right, what has that to do with an act which deals with the interpretation of existing laws and regulations?
– A legal officer, may point out mistakes which will prevent a wrong regulation from being issued.
– The only duty, of such an officer is to certify that the proposed regulation comes within the regulation-making power of the act under which it is made. We are asked by Senator Duncan-Hughes to believe that if an officer of the Attorney-General’s Department certifies that a regulation is in conformity with the act under which it is framed some new safeguard will be provided. Every proposed regulation is referred to the Attorney-General’s Department for drafting.
– We have had the admission that one-half of the regulations promulgated have not been perused by an officer of that department.
– Many of them are merely formal. Although it is somewhat irrelevant, I did not wish to ignore the fact that certain views on this subject were expressed by honorable senators when a similar measure was last before the Senate. I should like -the Senate to realize that, although the Government cannot accept the views put forward by Senator Duncan-Hughes, it has gone as far as it can without providing that some solemn declaration shall be made by an officer of the Attorney-General’s Department. The honorable senator complained that no reason was given by the AttorneyGeneral for rejecting the amendment made in this chamber, but the honorable Senator will surely realize that had his proposal been adopted the matter would not have been carried further.
– The AttorneyGeneral merely said that my amendment was unacceptable.
– He considered that it did not achieve what it sought to achieve, and therefore was unacceptable.
– That is not an argument against it.
– If, is clear that even an archangel could not persuade Senator Grant to alter his opinion. Senator Duncan-Hughes* who says that he is “ a Parliament man “ has gone so far as to say that this measure, as amended, is aimed at reducing the powers of the Regulations and Ordinances Committee, but the honorable senator is not entitled to make such an inaccurate statement. He knows that I was the chairman of the Regulations and Ordinance Committee before he was appointed to that position, and that I am one of those who view with the gravest alarm the growth of “ the new despotism “. But what has that to do with this bill, which provides how acts of Parliament and. the regulations framed under such acts shall be interpreted? Senator Duncan-Hughes read, with a number of impressive pauses, the provisions of an ordinance passed recently concerning the holding of public meetings in the vicinity of this Parliament House. I remind the honorable senator that that is an ordinance and not a regulation. The only way in which laws governing the Federal Capital Territory can be made is by ordinance. Such ordinances are framed by those controlling the Federal Capital Territory.
– The ordinance contains a provision for making regulations.
– That is so. There is the power to make regulations.
– Over an area of from one square mile to 900 square miles.
– I do not think there is any such provision in the ordinance.
– There was in the first ordinance.
– Not in the first one either.
– -I remind Senator Duncan-Hughes that such regulationmaking power is given by Parliament. That is the first assertion of the powers of Parliament. Moreover, one House of Parliament - it does not require an act of Parliament - can disallow a regulation, and if either House of Parliament does not deal with a regulation within fifteen days of notice of motion to disallow it automatically becomes inoperative. That applies particularly to the House of Representatives, because in the Senate a motion to disallow must take precedence of other business. The honorable senator who directed attention to the law concerning unlawful assemblies, passed by the Federal Parlia ment when it was sitting in Melbourne, apparently overlooked the fact that the similar legislation applies to the Victorian Parliament House in which the Commonwealth Parliament functioned for many years.
– Do similar circumstances exist here?
– Because of the conditions prevailing in Canberra, steps were taken to prevent any interference with the work of Parliament. When meetings have been held outside of the doors of Parliament House, a person standing” in the King’s Hall could listen to two voices - one within a chamber of this Parliament and another on the steps of Parliament House. The Government considers that this condition of affairs should not be tolerated. Whether the ordinance went further than was necessary is quite beside the question; the work of Parliament should be free from any outside interruption in accordance with the best traditions of parliamentary government. Senator Grant then entered the arena and said that the Government wishes to flout the will of the Senate and * to reduce its power and influence. The Leader of the Senate (Senator Pearce), who has been a member of this chamber since the inception of federation, has always shown a strong desire to uphold the rights of the Senate.
– Of the Government.
– Has the Leader of the Senate ever shown any desire to reduce the rights of the Senate to a cipher? As for myself, I have even been accused of being a States righter, because I always endeavour to uphold the rights of the Senate so that it may exercise its constitutional powers.
Question resolved in the affirmative
Bill read a second time.
Clauses 1 to 12 agreed to.
Clause 13 -
After section 40 of the principal aat the following headings and sections are inserted: -
– I move-
That after proposed new section . 47 the following new section be inserted: - “47a. - (1.) Where an act confers power to make regulations, no regulation shall be made accordingly, unless the Attorney-General or the Solicitor-General, or some officer of the Attorney-General’s Department thereto authorized in writing by the Attorney-General or the Solicitor-General, certifies that the regulation, if made, would not bc in excess of the power conferred by the act under which it purports to be made. (2.) Any regulation made in contravention of this section shall bc void and of no effect. (3.) The notification in the Gazette of any regulation made after the commencement of this section shall be prima facie evidence that a certificate was duly given in respect of that regulation in accordance with sub-section (1.) of this Section.
Because the Senate insisted upon the insertion o£ this provision in the previous bill the measure was dropped. I do not propose to make a long speech in reply to the statements of the Assistant Minister (Senator Brennan), I recall that he was for a time Chairman of the Regulations and Ordinances Committee; in fact, I am glad to say that it was largely at my instigation that he was prevailed upon to accept the position, and an excellent chairman lie proved himself to he. I feel that if he were still chairman of the committee, we might possibly find him voting with us on this matter to-day. Certainly we found that our general views on such matters, when we were members of the committee, were very similar. Mine have remained constant; they are to-day what they were in the past ; so I hope that the honorable senator in his heart is constant too. The honorable senator stated that I professed to be a parliament man. I sincerely hope that he does not raise any doubt on that matter.
– -Nc ; we are together there.
– I hope that in the years that I have been in Parliament that has been made abundantly clear. The Assistant Minister said that we would not advance the validity of a regulation one iota by the certificate of a legal adviser. I dispute that assertion. I contend that by ensuring that a certain legal formula has to be complied with before a regulation can be promulgated we advance the probability of it being in legal form.
– “Why stop at the second’ revising officer only? Why not have a. third revising officer to certify that the opinion of the second official is correct ?
– My purpose in insisting on thi3 amendment is to ensure that the regulations have been supervised by a legal officer. Last year I was able to inform honorable senators that one-half of the regulations, which were then promulgated, had not been scrutinised by any legal officer. That statement was made by the SolicitorGeneral himself; admittedly most of the regulations were unimportant. In my opinion it is undesirable that such a position should be permitted to recur in future. If my amendment be accepted honorable senators will be certain that at least one legal officer will have seen any proposed regulations and certified that they are not hopelessly ultra vires the act under which they purport to have been made.
– I have already plainly stated my views upon this matter and I do not propose to add anything to them.
– This amendment is similar to that which I supported last year. That this proposed new sub-section should be inserted, in the bill is of utmost importance. It is interesting to note that at the end of 1936 there were in existence 150 acts under which statutory rules had been made; these rules are still in force. In 1935, 136 statutory rules were passed; in 1936, 166 statutory rules; and up to the 25th August, 1937, 91 statutory rules. Some of them contained as many as 150 and 200 regulations. I previously stressed that it was desirable, especially in view of comments made by certain judges, that this Senate should do everything in its power to ensure that regulations, which form a most important part of our law, approach as closely to perfection as possible. It is disappointing to any member of Parliament to read of a decision of the High Court declaring a regulation ultra vires.
– How often does that happen?
– If the honorable senator will consider the cp ses which are heard by the High Court-
– If the High Court saw the certificate of an official of the Attorney-General’s Department, would it thereupon decide that the regulation was valid?
– That is not the point. We know that in the Broadcasting case the High Court declared that a regulation was ultra vires. When a select committee inquired into the matter, a number of similar cases was cited. The fact must not bc lost sight of that people do not test thousands and thousands of regulations because, even if they did obtain a verdict, they would still lose financially. The defendants in the Broadcasting case had that experience.
– But the regulations are tested by the Regulations and Ordinances Committee?
– When we propose to build a parliament house we obtain a certificate from an architect. In my opinion it is fitting and advisable that regulations should be sent to the AttorneyGeneral’s Department in order that they may be examined by an expert. In this way alone can honorable senators satisfy themselves of the validity of the regulations, and ensure that they do not exceed the powers conferred upon the Executive. I was gratified to learn that the Government does, now, as a matter of departmental routine, send the proposed regulations to the department for scrutiny and, if necessary, for amendment. If that be a wise precaution, I fail to see why the Government objects to a sub-section to that effect being inserted in the bill.
– The Senate refers the regulations to the Regulations and Ordinances Committee. Why not put that body in the category of the officials of the Attorney-General’s Department.
– The committee being composed of laymen, would not be able to give a sufficiently legal opinion.
– But ‘the Regulations and Ordinances Committee did express a legal opinion on these matters.
– I dispute that statement.
– I understand that the Regulations and Ordinances Committee was correct.
– In the interest of good government the committee is anxious that proposed regulations be submitted to legal experts.
pointed out, the Regulations and Ordinances Committee must not assume the functions of legal experts; but it is only right and proper protection for this Senate, to have the opinion of an expert, who has thoroughly investigated the matter, that regulations are in order. The Minister said, in effect, to Senator Duncan-Hughes that certification by a legal expert would not in any way enhance the validity of a regulation in the opinion of the High Court. That is hardly a fair statement of the position. It certainly would not enhance the validity of the regulation, nor does the certificate of an expert conveyancer who finds that an old system title, in his opinion, is one which should be accepted by the prospective purchaser or lender, make that title valid. What he may say about it does not alter the existing state of that title; hut at least it does give a reasonable sense of security or protection to the prospective purchaser or mortgagee. Similar protection in respect of regulations is all that Senator Duncan-Hughes’ amendment proposes. In the circumstances surely the Minister will not deny to the Senate when confronted with a regulation, a sense of security similar to that given to the mortgagee or to the purchaser of an old system title. The analogy is a perfect one and I suggest to the Minister (Senator Brennan), who is an experienced legal practitioner, and to his colleague (Senator A. J. McLachlan), who probably has done more conveyancing than any other legal member of the Senate, that the amendment gives to the Senate just that sense of protection to which it is entitled.
– The certificate of the Solicitor-General means nothing in a court of law.
-I have much more respect for the opinion of the SolicitorGeneral than, apparently, has the Minister. I know, of course, that in his State he does not encounter the difficulties experienced by members of the legal profession in my State because South Australia has the advantage of the Torrens title, whereas in New South Wales very many properties are still under the old system title.
– All that a conveyancing lawyer does is to absolve trustees from liability.
– They would feel much safer if they bad the certificate of a competent legal authority.I repeat that the analogy is a perfect one, and I do not think that by accepting the amendment the Government would be giving anything away.
– I feel thatI should say something by way of answer to the remarks of Senator Abbott because, being a member of the legal profession, his views might carry more weight with lay members of the Senate than if he were a layman himself.He has sought to show an analogy between the advice of a lawyer as to the correctness of a. title to property and. the certificate which would be required of the Solicitor-General if the amendment were carried. If the analogy is perfect, I merely say that it operates against the honorable senator. Before a man lends money against property he sees that the title is correct, and realizing the folly of a layman attempting to be his own lawyer, he seeks the advice of a member of the legal profession. What will happen with respect to ordinances or regulations? Is it assumed that always they are drawn by laymen? Surely Senator Abbott knows that all regulations or ordinances having far-reaching effect, or which are technical in construction, are drawn by experienced legal officers in the AttorneyGeneral’s Department. It is true, of course, that a considerable number of regulations merely alter dates or determine other trifling matters, and it would be farcical to require that they he reviewed by a legal authority in order to test their validity; but it is true to say that all ordinances of a far-reaching nature which involve legal questions are drawn by one duly qualified, and indeed, an expert lawyer,and are reviewed by a higher legal authority. Senator DuncanHughes’s amendment will not carry the matter any further than it stands to-day. As to the suggestion that in this matter the Senate should insist on having its way, I repeat that Iam an upholder of the rights of the Senate, but I do not forget that this is a bicameralParliament. Therefore the Senate has no right to insist that its decision must prevail in respect of matters in dispute, as in this instance. The views put forward in the House of Representatives also should be respected.
SenatorMARWICK (Western Australia) [5.12]. - The amendment is really a test between the authority of the Executive and the Parliament. I hope that in the division the majority of honorable senators will be on the side of the Parliament. We have considered this matter on two previous occasions’. The Minister (Senator Brennan), in his second-reading speech, implied that the amendment which was objected to by the House of Representatives had been “ tabled.” He might have said that it had been adopted on two occasions by the Senate. I sincerely trust that it will pass again. Recently an ordinance was published in the Commonwealth Gazette, and within a few days, strong objection having been taken to it, an amended ordinance was issued. We have had the assurance of the Minister that infuture all ordinances will hestrictly scrutinized by the AttorneyGeneral’s Department. The amendment merely proposes that specific provision to that effect shall be included in the bill. I hope that it will be carried.
.- The Minister in charge of the bill (Senator Brennan) rose immediately after Senator Abbott, for the express purpose of countering the affect which the remarks of Senator Abbott, as a lawyer, might have on the lay members of the committee. By so doing, he admitted the weight that attaches to the opinion of a man of legal training. All that the amendment asks is that all ordinances or regulations issued shall boar the hallmark of the SolicitorGeneral’s approval. They should be as water-tight legally as it is possible to make them. If the amendment be carried the people will have some assurance that any regulations or ordinances promulgated are legally correct, and do not exceed the authority given by the act under which they are made.
Question - That the amendment (SenatorDuncanHughes) be agreed to - put The committee divided. (TemporaryChairman - SenatorJ.B. Hayes.)
Majority . . . . Nil
– The result of the division is “ Ayes “ 14; “ Noes “ 14. The question is therefore resolved in the negative.
Clause agreed to.
Clause 14 agreed to.
Schedule and title agreed to.
Bill reported without amendment; report adopted.
Senate adjourned at 5.21 p.m.
Cite as: Australia, Senate, Debates, 25 August 1937, viewed 22 October 2017, <http://historichansard.net/senate/1937/19370825_senate_14_154/>.