23rd Parliament · 2nd Session
The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid) took the chair at 3 p.m., and read prayers.
– Has the Minister representing the PostmasterGeneral seen the excellent feature Him.. “ Stormy Petrel “, presented in serial form on Australian Broadcasting Commission television programmes? Under whose auspices and by what company was the film produced? ls it generally accepted that “ Stormy Petrel “ gives a more authentic character portrayal of the famous Captain William Bligh than did some of the early productions which were based on the “ Bounty “ mutiny? Does the Minister consider that films of this quality produced in Australia, as I believe this one was, would prove to be excellent export income earners?
– I saw some, but not all, of the episodes of “ Stormy Petrel “ on television. Not having seen the whole of the film, I would not care to express an opinion upon the veracity of the story. T do not know who produced the film, but I agree with the honorable senator’s implication that is is a first-class film, which docs great credit to every one associated with it.
– Has the Minister for National Development read the recent statement of the Australia and New Zealand Bank Limited on the economic situation in Australia, or the resume of the statement that appeared in to-day’s issue of the Melbourne “Age”, in which it is claimed that banks will have no alternative to reducing credit and drastically reducing overdrafts even where an extension of bank credit appears necessary to carry out official policy? It is further suggested that the Government undoubtedly is in quite a dilemma as to how to contain inflation most efficiently without checking national development. It also
The DEPUTY PRESIDENT. - .Order Will the honorable senator ask his question?
– I ask: As further restrictions would have a detrimental effect on the business community because of the adverse balance of trade, does the Minister believe that a period of unemployment would follow in their wake? Is he prepared to make a statement to the Senate on this vital matter?
– I have not seen the article. I heard a precis of it over the air and 1 have asked for a copy of the article. I should like to read it before I make any comment on it. The mutter raised by Senator Sheehan involves a very big question of policy. The honorable senator asks whether the Government’s policy will lead to unemployment. I reply to that question in these terms: The Government has expressed its policy in the Budget, and it is confident that the adoption of that policy will not lead to unemployment. The matter raised by the honorable senator is not the only facet of the Government’s policy. The Government is budgeting for a small surplus, it has increased taxation, and it believes that the implementation of its policy will curb inflation. There would be no merit in making a statement to the Senate upon the Government’s policy because it formed the theme of the Treasurer’s Budget speech and is the theme of the Budget now being considered by the Parliament.
– My question, which is addressed to the Minister for Civil Aviation, relates to an announcement in to-day’s “ West Australian “ concerning the possibility of the establishment of a new air service between Kalgoorlie in Western Australia and Adelaide in South Australia. I ask the. Minister: Has an application been made by South Australian Airlines for a licence with respect to such a new air service? Will the service be between Kalgoorlie and Adelaide only, or will it go through to Perth? Can the Minister give the Senate any further information in relation to this proposal?
– I regret that I am unable to answer any of the specific questions that have been asked by the honorable senator for the reason that, if an application has been lodged - which I doubt - it has not yet reached me. I have had an opportunity to see the announcement and I am rather surprised that it should have been made, as reported, by the manager of South Australian Airlines. In the case of both of the operators concerned, matters of this nature which involve so many operational and political considerations are usually determined and announced at board level. For that reason, I repeat, I am quite unable to give the honorable senator any information at all until an application is lodged, if one is in fact lodged.
– I ask the Leader of the Government in the Senate the following questions: Is it not a fact that Mr. Menzies will address the United Nations General Assembly to-morrow? Will not this speech be of such importance for good or ill that every phrase will be noted by friend and foe? In order to avoid any possible misunderstanding because of garbled reports, will the Minister provide each senator with a full copy of the speech as soon as possible?
– I think Senator Brown’s suggestion is quite a good one. I will see whether it is possible to give effect to it.
– Some time ago I asked the Minister for Civil Aviation a question relating to the installation of night landing facilities at the Port Lincoln airport. The Minister then said that he could not remember the details of this matter and he did not know what priority had been accorded to the project. He promised to look into the matter, ls the Minister now able to give me any further information?
– I have looked into the matter raised by Senator Pearson and I find that work at Port Lincoln airport is included in a programme of works that extends over the next three years. I am informed by my department that the initiation of night landing facilities at Port Lincoln will probably- be completed by the end of 1962.
– Will the Minister tor Civil Aviation arrange for a copy of the transcript of the hearing into the cause of the recent crash of a Fokker Friendship at Mackay to be placed in the Library when it becomes available?
– I have not previously considered the matter raised by the honorable senator’s question. I regard his suggestion as not without merit. I will look at past practice and sympathetically consider what can be done to meet the honorable senator’s request.
– 1 ask the Minister representing the Minister for Shipping and Transport a question. Will the Minister inform the Senate whether the Western Australian Government has recently made any approach to the Commonwealth Government for financial assistance to standardize the railway line between Kalgoorlie and Fremantle?
– 1 do not know of my own knowledge whether any recent application along these lines has been made. I ask the honorable senator to put his question on the notice-paper lest, unknown to me, some recent application has been made.
– My question is directed to the Minister representing the Minister for Health. In view of the high cost of hearing aids, will the Minister consider making them available free to pensioners in possession of a medical entitlement card and, in respect of other persons, including them as a service to be covered or partly covered by subscription to the various medical benefit schemes?
– From time to time many requests are made for additions to social service benefits. While the objects of those requests have unquestionably been very worthy in themselves, obviously they cannot all be granted. No government in the history of this country has done more in the social services field than has the present Government. The Budget that was recently brought down gave effect to the Government’s policy in relation to social services. The honorable senator’s request was not included amongst those which were submitted and considered when that policy was formulated when the Budget was being framed. When the Government is formulating its Budget such requests as can be met are met freely. All I can say is that the honorable senator’s request will be considered when the next Budget is being prepared.
– On Thursday last I asked the Minister for National Development a question relating to the building of a dam on the river Murray above Renmark in South Australia. The Minister replied that the matter had been referred to the River Murray Commission and that he had asked for an interim report from the commission. He stated that he did not believe that anything of very great importance had been established as yet. I now ask the Minister whether he has seen a report of a statement by Sir Thomas Playford also made on Thursday wherein Sir Thomas announced that the experts of the River Murray Commission had confirmed the South Australian view that a dam on the site recommended would be practicable and that there would be sufficient flow of water to justify its construction. If this is correct, and because of the vital importance of Murray water to South Australian development, will the Minister arrange a conference with the Premiers of South Australia, New South Wales and Victoria with a view to obtaining their concurrence in such a project and ensuring its advancement as rapidly as possible?
– There is always a bit of danger when one endeavours to be helpful in answering questions without notice. I understand that I have come under criticism in the South Australian newspapers. I regret that very much. I always like to have the newspapers supporting me, where possible. What I said was reasonably accurate. It should be remembered that I made my statement before I had seen the report of the River Murray Commission. As events have turned out, I now have the report, but I am still handicapped because I received it only this morning and I have not had an opportunity to read it. Nor have I had the pleasure of seeing Sir Thomas Playford’s statement on the matter. I tried to get a copy of it, and I will get it.
This is the present position, as I understand it: The technical committee appointed by the River Murray Commission has made a preliminary report which states that there is quite an amount of water available at the particular site, and the commission has expressed approval of, or acquiescence in - whichever is the correct term - that view. The commission has taken the next logical step. It has asked the South Australian representatives - the South Australian authority being the constructing authority - to prepare information concerning the cost of a dam at that site and the practicability of building a dam there. In other words, as I understand the position, the studies have progressed to the stage at which the opinion is held that the water is there, and the questions to be considered are whether it is practicable to put the dam in that position or somewhere else, and what the cost will be.
From my point of view, the whole, matter is proceeding smoothly and expeditiously. Very big technical issues are involved, which only the River Murray Commission can decide. The commission is giving to the task the priority to which it is entitled. When the commission reaches conclusions, the next move will be for the South Australian constructing authority to obtain estimates of the cost of the dam and decide whether it is practicable to build the dam at that site. When that further information comes before the commission, it will deal with the matter just as expeditiously as it has dealt with other aspects of the work, and that will be the time for the State governments to consider the project.
– My question is addressed to the Minister for Civil Aviation. Has the Minister or his department under study the possible extension of helicopter services in Australia in the near future? Is the Department of Civil Aviation giving any attention to the acquisition or leasing of land suitable for heliports in or very near to large centres of population in order that helicopters may be of use in overcoming the time lost in travelling between airports and nearby cities?
– The acquisition of heliports is a matter in which my department is not interested; it is the province of those who are interested in aerial operation. Senator Laught might agree with me when ] express regret at the fact that over at least the last few years the Department of Civil Aviation, by force of circumstances, has had to take a much more active part in aerial operation, which is not the function of the department. From time to time inquiries are made by operators about the use of helicopters. I think the first development will be in at least one of the bigger cities where the nature of the operation will be a service from city to airport. No doubt, helicopter services joining the larger centres of population, which do not now have aerial services because the distances involved are not great, will probably be the second stage of helicopter development. The department has this general question under surveillance all the time, and consideration is given to the matter of sites for heliports.
– Has the Minister representing the Treasurer seen a statement in to-day’s press that the building of a railway terminal in Melbourne for traffic using the standard gauge line from Albury to Melbourne is dependent upon a decision of the Commonwealth Government in relation to finance? Will the Minister inform the Senate of the Commonwealth Government’s attitude to this most important project?
– 1 will, of course, refer the question to my colleague, who sits in another place, but, by way of interim comment, I offer the suggestion that Victoria and New South Wales have not been treated ungenerously in relation to railway gauge standardization. The provision of terminal facilities, which is not, in isolation, a part of gauge standardization work, always has been, and possibly should remain, a matter for the State governments concerned.
– I direct a question to the Minister representing the Treasurer. My interest has been aroused by advertisements published on behalf of an institution known as Lombard House, which claims to be a series of companies registered in all States and representing London banking institutions. The advertisements offer interest at the rate of 7 per cent, on money deposited for a period of only six months. Those terms of business must be related to the terms for deposits in savings banks and for fixed deposits with trading banks. Is the Minister in a position to inform the House whether this institution is licensed as a bank? If it is not. what is the difference between it and a bank? Has consideration been given to the interrelationship of this sort of business and that conducted by trading banks and savings banks?
– The question asked by the honorable senator raises a number of matters of great interest and importance. They are so interesting and so important that I can do no better than to ask him to place the question on the notice-paper.
– My question is supplementary to that addressed to the Leader of the Government by Senator Sheehan. Does the Minister seriously consider that it is in the best interests of the development of Australia that banks must refuse loans for legitimate primary industry development, and allow other financial organizations to lend money for this purpose at interest rates much higher than those that would be charged by the banks?
– I do not follow the purport of Senator Courtice’s question.
– The banks must refuse to lend money but private individuals will lend it at higher interest rates.
– I think the purport of this question is the same as that of the question just asked by Senator Wright. 1 give the honorable senator the same answer as I gave to Senator Sheehan. The Government, in the Budget, has proposed what it considers to be an adequate procedure.
– I ask the Minister representing the Minister for Primary Industry whether he has any information to give to the Senate about the report of the committee investigating the dairying industry.
– At the present moment, no.
asked the Minister representing the Minister for Shipping and Transport, upon notice -
– The Minister for Shipping and Transport has supplied the following answers: -
asked the Minister representing the Minister for Trade, upon notice -
– The Minister for Trade has furnished the following reply, which includes a progress report on activities at the fair: -
A comprehensive report will be prepared on the fair and on- the other projects which have been organized in Europe in association with it in due course. I will1 see that copies of this final report are made available to honorable senators. It will be difficult, however, especially in the short term, to assess the value of the fair in terms of increased” trade or new trade negotiations. Interested importers of the commodities displayed at the fair, or in the Lausanne department store “ L’Innovation “, are more likely to contact the Australian manufacturer or exporter direct than to work through Australian Government representatives at Lausanne. However, information which is known to the department, and which is not confidential to the firms concerned, will be included in the final report.
The Swiss National Fair was held in Lausanne, Switzerland, from 10th to 25th September, 1960. This fair is primarily national in character, and each year, one foreign country is invited to participate as “ guest exhibitor “. This year, therefore, Australia has had pride, of place at the fair in the Pavilion of Honour.
By participating in. the Swiss National Fair, the Government arranged to use the Australian exhibition as a focal point for promoting Australia’s interest in trade, investment, immigration and tourism throughout Europe. The followingnotes contain brief details of the Australian exhibit and the projects which were undertaken in association with the fair to further these objects.
Following the Government’s decision to participate in the fair, a committee of management was formed to control arrangements. The committee comprised representatives of the Departments of Immigration, External Affairs, Primary Industry, Interior (A.N.I.B.) and Trade, and representatives of Qantas and the Australian National Travel Association.
The Australian exhibit was designed by Mr. Gordon Andrews of Sydney. Briefly, the exhibit was descriptive of Australia’s history and progress, its resources, its people and, above all, its great potential. A paper describing the Australian exhibit is attached.
The Treasurer officially presented the Australian exhibit to the Government of the Canton of Vaud at a ceremony on 12th September. On the same day he also presented a golden boomerang to the fair authorities as a momento of Australia’s participation in the fair. The boomerang contained a token quantity of gold from each State, and carried the signatures of the Prime Minister and the Premiers of the States.
Projects Planned in Association with Exhibition.
The Swiss National Fair provided an excellent opportunity to promote Australia’s interests in Switzerland. To achieve the greatest possible impact throughout Europe, however, the fair was used as a basis for developing a widespread publicity drive in Europe. To this end, the following projects were undertaken: -
While efficient publicity arrangements covering the exhibition at Lausanne would have achieved a great deal for Australia in Europe, it was considered that the opportunity should be taken to ensure the presence of prominent and influential business executives from other European countries.
Consequently, some ISO appropriate European businessmen were invited to visit Lausanne for two days to inspect the Australian exhibit and to participate in a short series of discussions on Australia. Subjects discussed included Australia’s economic development and prospects; Australia’s role in the Pacific; the role of European peoples in Australia’s development; investment in Australia; and European developments as they appear to an Australian businessman. Through the seminar it was aimed to spread amongst the European business community a knowledge of Australia’s aims and policies in the fields of trade, investment, and migration, and to create a compelling interest to investigate opportunities in Australia at first hand.
The Treasurer delivered the opening address al the seminar. The other speakers were Sir John Crawford, Dr. E. Ronald Walker, Mr. J. H. D. Marks, Mr. Walter Pisterman and Mr. W. Ian Potter.
Over 150 acceptances were received from businessmen in 10 European countries. Over SO Australian businessmen who had planned to be in Europe during the seminar also accepted invitations to attend and to assist in advising the European guests on matters of particular interest to them.
Many varieties of Australian foodstuffs were featured in the store display, which was highlighted by daily fashion parades of garments designed and manufactured in Australia.
From the display Europeans can see the Australian way of life in home designed to suit regional climatic conditions in all parts of Australia. All States are represented in the display.
A comprehensive publicity programme covering all projects was organized. Arrangements included posters and newspaper advertisements throughout Europe publicizing Australia’s participation in the fair; the supply of information kits on Australia to European newspapers and to journalists visiting the pavilion; a special newspaper supplement in the financial journal “ Agence Economique” which circulates throughout Europe, in French, German, Italian and English editions; the establishment of press facilities to serve the needs of the 300-400 journalists expected to visit the pavilion; the appointment of a public relations firm with a network of offices throughout Europe; and the organization of complete radio, press and television cover of all projects in Europe and in Australia.
On the last day of the fair the Press Bureau had collected 200 yards, or more than 15,000 column inches of press cuttings from European newspapers. However, full details of press publick y have not yet been received.
The Australian Pavilion at Lausanne.
The exhibit was designed to show the story of a nation that is European by heritage but whose nearest neighbours are Asiatic; a nation that was settled first 172 years ago but is now one of the world’s greatest trading countries; and a nation that began purely as a primary producer but, in the last twenty years, has become one of the most rapidly developing industrial nations in the world.
The setting for the story was a glass, gardenflanked pavilion in Lausanne’s Palais de Beaulieu - the “ Pavilion d’Honneur “. The pavilion, standing at the head of an ornamental pool surrounded by sculpture and fountains, is one of Europe’s finest sites for graphic display.
In this glass palace of display a broad picture of Australian life was presented - her industry, commerce, agriculture, society, culture and politics.
Pivoted on almost invisible rods above the entrance were vari-coloured foam-and-fibre-glass boomerang shapes, ten feet high.
These boomerang images, based on the hunting weapons of the early aborigines, presented one of the few reminders of the “ old “ Australia. The exhibit emphasized Australia as a “new world “ and aimed to correct the out-of-date but, in some quarters, presisting image of Australia as a purely agricultural country.
Two ten-feet square photopanels flanked the entrance doors. One carried a reproduction of Tasman’s map of Australia, the other a photograph of Sydney’s harbour, with the bridge a familiar feature in the foreground. In the first foyer twenty panels of photographs blown to lifesize, showed the lives of twenty average Australians at work, at home and at play. Included were a businessman, lifesaver, scientists, migrantsteelworker, airline pilot, journalist, nurse, artist and truck driver.
Beyond this illustration of Australian society a slightly raised platform showed aspects of Australia from the air - a sweep of coastline, the mountains, cities. Its mineral wealth was displayed on a backlit map in a galaxy of specimens suspended in perspex spheres. Beside the map a screen played a continuous film of the characteristic features of the country and its way of life. A floor-to-ceiling photograph showed a huge blast furnace. This section illustrated the steel-producing potential of Port Kembla and Newcastle.
Beside this stood a 17 ft. by 30 ft. copper screen beaten into sculptured images of steel products - rolled steel, girders, milling and metal extrusions. Large colour transparencies scattered through this display told the story of the processing plant. A series of revolving panels illustrated sources of power. They included hydroelectricity, brown and bituminous coals and nuclear energy.
The vast Snowy Mountains Hydro-Electric Scheme was a prominent feature of this display. Surrounded by these pictures of power a central area was devoted to fabricated models to illustrate the technical skills now evident in Australia. Above, a large model of the Jindivik pilotless aircraft indicated Australia’s technical research and skilled engineering prowess.
Simple graphs and illustrations depicted the flow of overseas capital into Australia. The important role played in Australia’s post-war development by migrants was also shown.
Decorative panels carried colour transparencies of various food products to show Australia’s importance as one of the great food exporting countries of the world. Native grasses and leaves were mounted in plastic to provide a striking illustration of the country’s flora, and large photographs depicted fanning methods and showed the vastness of the land.
Shipping, railways and roads were illustrated by models and pictures. Australia’s notable contribution to aviation development was another feature.
All phases of the wool industry, including the latest technical processes and fashions, were depicted in a special section.
The nation’s building boom was symbolised with illustrations of construction projects. These ranged from towering office blocks to civic centres in country towns. As visitors left the pavilion they passed panels of the country’s flora and fauna. Large and colourful arrangements of wild flowers surrounded an extensive tank filled with hundreds of Australian tropical fish.
On a platform outside the pavilion a section was devoted to Australia at play. Her reputation as a sporting nation is known throughout .the world.
The theme of the exhibit was one of a young, but vigorous and developing country, with opportunities for Europeans in the fields of trade, investment and migration. Tourism also formed an integral part of the exhibit.
asked the Minister representing the Minister for Labour and National Service, upon notice -
How many workers are now registered as unemployed at Ipswich, Toowoomba, Brisbane, Rockhampton and Townsville?
– The Minister for Labour and National Service has supplied the following answer: -
The number of persons registered for employment with the Commonwealth Employment Service in the district office areas of Ipswich, Toowoomba, Brisbane, Rockhampton and Townsville at 2nd September and the number receiving unemployment benefit in the same areas at 3rd September were as follows: -
asked the Minister representing the Acting Treasurer, upon notice -
– The Acting Treasurer has supplied the following answer: - 1, 2 and 3. The Commonwealth has not yet made any advances to Queensland towards meeting the cost of reconstruction of the Collinsville, Townsville,Mount Isa railway. All expenditure on the line to date has been met by Queensland from funds otherwise available to the State. Some aspects ofthe formal agreement between the two governments are still under discussion. When all details of the agreement have been completed, it will be presented to the Parliament.
asked the Minister representing the Minister for Shipping and Transport, upon notice -
– My colleague, the Minister for Shipping and Transport, has supplied the following answer: -
Senator SPOONER (Vice-President of the
Executive Council and Minister for National Development). - I lay on the table of the Senate the following paper: -
Tariff Board Act - Annual Report of the Tariff Board, for year 1959-60, together with a summary of recommendations.
The report is accompanied by an annexure, which summarizes the recommendations made by the board and shows the actions taken in respect of each of them.It is not proposed to print the annexure.
That the paper be printed.
I ask for leave to continue my remarks at a later stage.
Leave granted; debate adjourned.
Debate resumed from 28th September (vide page 745), on motion by Senator Wood-
That the following Regulations be disallowed: -
Regulation No. 6 of the Financial (Military) Regulations, as contained in Statutory Rules 1960, No.51, and made under the Defence Act 1903-1956;
Regulation No. 30 of the Air Force Regulations, as contained in Statutory Rules 1960, No. 52, and made under the Air Force Act 1923-1956; and
Regulation No. 36 of the Naval Financial Regulations, as contained in Statutory Rules 1960, No. S3, and made under the Naval Defence Act 1910-1952.
.- I have proposed the motion in pursuance of a decision of the Regulations and Ordinances Committee of the Senate, of which I am the chairman, but, in accordance with the procedure laid down, I have acted in a personal capacity. As parliamentarians we should feel greatly concerned at the existence of the state of affairs which gives rise to the motion. I have circulated to honorable senators a memorandum setting out in simple form the basic facts that concerned the committee. There has been considerable delay in promulgating these regulations. In the case of the Army, there has been delay for a period of twelve years; in the case of the Air Force, for eleven years; and in the case of the Navywhichis in a much better position- add in. relation to which there is not such a great deal to cavil at - for two years.
To give effect to alterations in the conditions and rates of pay of members of the Services, it is necessasy for regulations to be promulgated from time to time, and power is given to do this. Unfortunately, the promulgation of these regulations has been delayed for the periods I have mentioned. The committee regards this as a gross neglect of duty on the part of that section of the administration which is in charge of regulation-making for the Services. The sum of money that has been paid to members of the Services over those periods without the authority of regulations is over £100,000,000. That, of course, is a very considerable sum. The committee felt that it was its duty to bring this matter forward so that the Parliament could be informed and so that the Service departments and other departments could know that it was regarded as a serious matter.
I want to give credit where credit is due for the initiation of this action. The Auditor-General, in his annual reports over a period of five years, directed attention to the fact that the Services had not been making the regulations necessary to authorize alterations in rates and conditions of pay. It is to the credit of the Public Accounts Committee that it took the matter up and, I understand went into it very fully. I pay tribute, not only to the Auditor-General, whose duty it is to bring these matters before the Parliament, but also to the Public Accounts Committee for the work that it has done in bringing to light the conditions that exist to-day.
The Regulations and Ordinances Committee, of course, has a duty to see that the Parliament legislates on matters which are not appropriate for delegation to regulationmaking authorities. In this instance, the committee feels that a cardinal principle is involved. For a long time, payments ware made without the authority of regulations, and the administration is now trying to rectify the position by issuing regulations. We feel that there is a doubt as to the validity of that course. The committee is of opinion that the matter should be rectified by the enactment of legislation. Apart from any doubts that might arise as to the validity of the present regulations, a very considerable sum is involved; It represents a substantial proportion of the total amount appropriated annually by the Parliament, although, of course, it does not relate to payments made in only one year.. The committee believes that the proper way to validate the payments that have been made is by passing an act of Parliament That is the main point of the committee’s conclusions. The validation of the payments by legislative enactment should have a salutary effect upon the administration. I hope that the Service departments and departments generally will in future cany out this regulation-making duty in an expeditious manner.
I have mentioned the size of the sum involved, the long delay that has occurred, and the doubts as to the legality of rectifying the position by regulation. That is the position in a nutshell. The committee believes that legislative enactment is the correct way of rectifying the position. After the Services have failed for so long to make these regulations, the slipping in of regulations to remedy the deficiency is an easy way of glossing over a very serious dereliction of duty. As honorable senators know, the Regulations and Ordinances Committee is a standing committee of the Senate, comprised of senators from both sides of the chamber. They look at these matters from the point of view of the Parliament. The committee is concerned with the preservation of the rights of the Parliament and of parliamentarians. Whatever power belongs to parliamentarians should remain with them. The committee exists as the custodian of the rights of the Parliament, not as an irritant. It has been delegated certain duties by the Senate and it tries to perform those duties in accordance with the highest parliamentary principles. With these few remarks, I ask for the Senate’s consideration of the motion that is before it.
– I formally second the motion and reserve my right to speak later.
– It might be appropriate if I commence by directing the attention of the Senate to the size of the regulations which are involved. True it is that this motion deals only with the disallowance of one class of regulations, but regulations under the Defence Act become necessary when ever terms and conditions of pay in the services are altered. To give effect by regulations to a change in those terms and conditions necessitates, for the Air Force, a regulation which comprises 22 pages of closely printed material, and for the Navy a regulation which comprises fifteen pages of closely printed material The one for the Army is not complete; there is more to come. This one that I have comprises four pages. In the period covered by the motion there were 26 occasions in relation to which the regulations needed to be altered in order to validate or formally record the changes of pay and of terms and conditions of engagement that occurred. The volume of work that was necessary to prepare the regulations was not done, and that is the cause of the present situation. lt is useful for us to start, a consideration of the matter by giving some thought to the volume of work that is required under the present procedure. Under the terms of the various defence acts, variations of the pay code and of terms and conditions of service have to be made by regulations and approved by the Executive Council, and those regulations have to be tabled in the Parliament. That procedure is common to all three Services. What was required to be done was not done. In other words, the regulations were not prepared, they were not approved by the Executive Council and they were not tabled in the Parliament. The matter did not go unnoticed by the Auditor-General; he commented upon it over a period of years. Moreover, the matter did not go unnoticed by the Public Accounts Committee, which I understand has made an exhaustive inquiry into it and in due course will be recording its findings.
This is one of those occasions upon which the administrative machine has failed to act as efficiently as we expect it to act. Now we are confronted with the need to decide what is the best thing to do. The regulations that are before the Senate do two things. First, they validate what has been done over a period of years arid, secondly, they bring into operation the new terms and conditions of engagement in the Services under the recent margins increases arrangement. There has been no sug gestion of any impropriety. 1 have not heard it suggested that anything that is proposed is not regular. All that has been done has been approved by the Government. There is no suggestion that the Services have brought into operation conditions which were not approved by the Government. Those conditions have been approved; indeed, the moneys required to give effect to them have been appropriated by the Parliament. So the matter has been before the Parliament. Moreover, the schedules which contain the terms and conditions of employment, which, as I said, were approved by the Government, have been circulated to members of the Forces and to the public. So the various changes have been approved by the Government, they have been approved by the Parliament and they have been publicly circulated so that all who were interested would have knowledge of them.
It is necessary to validate the payments that have been made over past years, and it is proposed that they be validated by the inclusion of a particular clause in the regulations we are now considering. Not only the three Service departments are involved. Other departments have some say and some responsibility in the preparation of these regulations. A multiplicity of departments was involved, and did not bring the matter to finality in the way in which it should have been. I point out that the very size of the regulations indicates that, under the procedure that was adopted, the effect of the neglect became cumulative and the task became increasingly onerous as each pay increase came into effect and was not validated.
No one would suggest that the members of the Services could be called upon to refund the amounts that have been received. The practice followed has been in operation for twelve or thirteen years. The members of the Services have received moneys that have been appropriated by the Parliament; they have received pay increases and variations of the terms and conditions of engagement in the same way as have other sections of the community. No one would suggest that there would be any point at this late stage in going back over the years to find out which officials were responsible for what has happened, because there have been many changes over the years. The point we must consider is this:
What is the best thing to do in the present circumstances? In this chamber there are Ministers who represent Service Ministers and there is one Service Minister himself. I propose briefly to give an overall picture of the situation to illustrate the difficulty of the problem with which we are confronted, and I shall leave it to my colleagues to supplement my comments as they think fit.
The information I have is that since July, 1947, there have been 26 variations of the pay code. But not only variations of pay are affected. There have also been variations of conditions in the Services, involving cost of living adjustments, margins adjustments, marriage allowances, accommodation allowances, deferred pay, and all the other things that go with Service employment. It will be seen just how difficult is the task of expressing adequately in the form of regulations the various arrangements that have been approved by the Government. I remind the Senate that the period in question covers the comprehensive review of conditions of engagement in the Services which was made by the Allison committee. The report of that committee, which was a great and monumental document, resulted in great changes being made in Service conditions. The expression of those changes in proper terms was a major drafting task. I am told that apart from pay there are perhaps as many as one hundred different matters that need to be covered, under the present system of alteration, by regulation. I am further told that with the Air Force alone the 26 amendments to rates of pay and allowances would have necessitated no fewer than 697 separate amendments of the regulations. That illustrates the magnitude and difficulty of the task with which officials were confronted once the thing had got away from them and had got out of control.
I do not suggest that what I have just said is an adequate description of the problem. I have merely given an outline of it. In this place we cannot examine in detail all the various things that should have been done over this long period of years. I suggest that we must approach this matter in what might be described as a commonsense way. We must be careful not to throw a spanner in the works. We must be careful in helping to overcome a difficult problem that has built up over the years.
I wish to make it plain that, as this matter has been brought to the attention of the Government through the Auditor-General’s report, the report of the Public Accounts Committee and the report of the Regulations and Ordinances Committee of the Senate, circumstances have been created in which the Government is seeking a simple formula to ensure that the fault will nol be repeated and that in the future these alterations may be made in the terms of the legislation as expeditiously as they should be made. 1 should add that I do not say that we should make any final decision as a government or as responsible Ministers on the exact procedure that should be adopted until we receive the report of the Public Accounts Committee, because that committee will go into this matter, 1 am sure, in very great detail. We want to know al] the facts and ramifications of the problem before we make a final decision.
I suggest that the logical approach to this matter is along the lines of the principles that have always been adopted by the Senate committee. The first principle is to ensure that what is being done is being done in accordance with the statute. The second principle is to ensure that action taken does not trespass on personal rights and liberties. We must ask ourselves whether it makes the preservation of those rights and liberties dependent on administrative and judicial decisions and whether this matter should be dealt with by substantive legislation rather than regulation. I put the point of view that what is being done may be criticized as being a direct approach to get the desired result, but there being no criticism on the grounds of impropriety, then it is better for us to take a direct and simple approach to clean up a tangle rather than create an unnecessary amount of work.
In his remarks Senator Wood said that there was doubt whether these regulations which the Senate is being asked to disallow gave the desired legal result. I can only assure the honorable senator that the advice of the Crown Law Office is that the passing of the relevant clauses in these regulations, with retrospective application, will give a proper legal result to the extent that they validate what has been done In the past.
I ask the Senate to consider The alternatives open to us. I suppose that if you Object to this dragnet clause - as 1 call il - in each of the regulations, theoretically you should ask for 26 sets of regulations to be prepared covering the thirteen years, and for each regulation to be superseded by a subsequent regulation. 1 am certain that none of us would agree that that is a common-sense way to tackle this problem. 1 am sure that all of us feel there must be a better way.
– I wonder whose suggestion that is.
– It is mine. I am trying to sort out my ideas on what might be done. My suggestion seems to be a lawyer’s dream of paradise. If that is so, 1 reject it at once. I make this point and 1 think it well that a few of us should make it in the course of the debate. There is no challenge to the rates of pay that are now appropriate for people in the Services. There is no challenge to that part of the regulations that covers the recent increases in pay: It would be a bad thing if any incorrect impression were created in the Services that there was a challenge to the existing terms and conditions of engagement. Those terms and conditions are prescribed by regulation and are not under challenge. The only point at issue is: What is to be done about this defect that has occurred over the years and has become cumulative in its effect? I do not walk away from the situation that certain things that should have been done have not been done, but I point out that there is no hole-in-corner atmosphere about this matter. The defect has been reported on by the Auditor-General and by the Public Accounts Committee. It has also been dealt with by the Senate committee. Tt is only the form of this matter that is wrong. The substance is not challenged. Nobody is contending that al] the increases in pay and charges in terms and conditions aver the years were not made in accordance with the decisions of the Government, after adequate publicity among people in the Services and the public generally, and were not made without the appropriate documents being tabled and funds appropriated by the Parliament.
– By saying “ tabled “ you may give a wrong impression. No regula tions were tabled. The appropriation bills were the only documents before the Parliament.
– I was referring to the appropriation bills, not the regulations, when I loosely referred to documents being tabled. The defect that we desire to remedy is one that goes back over a period of years. The Labour Party should not take too much comfort over our discomfort, because the defect goes back to the time when the Labour Party formed the Government. This same state of affairs existed during the last couple of years of office of the last Labour administration.
I have said that I do not at this stage want to commit the Government to a decision on the procedure that will be adopted in future because I think it would be appropriate first to consider the report of the Public Accounts Committee. Having had this situation put before us. we have established a group of officers to look at what has happened and to evolve a procedure under which it can be prevented from happening in the future. Having regard to the discussions in which I have taken part and the proposals that I have heard advanced. I see no reason why a simple procedure cannot be evolved which will result in government decisions being implemented by regulation - within at least a reasonable period after those decisions are made.
To my mind, Mr. Acting Deputy President, the argument turns upon the virtue of disallowing the regulations. I am against taking that action. I should like to see Senator Wood, on behalf of the committee, withdraw the proposal that the regulations be disallowed. I do not think there is a great deal of virtue in the Senate riding the matter right home to a stage at which it is necessary to pass legislation in the two Houses of Parliament to deal with the matter. The committee has done its job in bringing the matter to the attention of the Senate, which has before it a proposal which shows that steps have been taken to validate what needs to be validated in an adequate, legal manner. The alternative would be to bring down bills in the two Houses of Parliament and debate them in the two Houses, as necessary. No better final result would be achieved than that achieved by the simple procedure, which has been followed, of letting the position be validated by regulation.
As I said before, there is no holeincorner atmosphere; the problem is known. The deficiency has been exposed in the Senate and elsewhere. I should think that we would have the common intention of putting right what needs to be put right, and 1 hope that we have the common intention of putting it right in the simplest possible way. 1 do not think there is any point in bringing down legislation. In some ways that procedure may be construed as a heresy hunt against the Public Service officials who are implicated. 1 think they realize that they have fallen from grace and thai they should have done what needs to be done. A great number of officials are involved and what has happened has extended over a long period of time. I see no disadvantage in letting this matter go through in what 1 describe as a commonsense way, after adequate publicity has been given to it.
When I make that statement, my remark is not to be construed in any circumstances as criticizing the committee for bringing the matter before the Senate; it was the responsibility of the members of the committee to do so. I do not think the committee’s responsibility goes beyond seeing that the deficiency is brought to public attention and corrected in an appropriate way. 1 point out that the Government’s action does more than correct the deficiency in a way which the Government’s legal advisers consider to be appropriate; it also contains an assurance that the whole machinery is being examined in order to ensure that the mistakes of the past will not be repeated. On those grounds I advance the point of view that the Senate will do well by itself and will come out of this matter with greater prestige if, having directed attention to the error, it forbears and allows the matter to be rectified in the way in which the Government proposes to rectify it.
– Mr. Acting Deputy President, the Leader of the Government in the Senate (Senator Spooner) says that he does not criticize the Regulations and Ordinances Committee for taking the course that has been taken to seek the disallowance of three regulations. That remark is refreshing because I think this is the first ocassion on which members of the committee have not been criticized by Senator Spooner when they have dealt with the general position which, they believe, is developing and being allowed to develop by Ministers. He has been unusually frank to-day. He admits the whole case, He says that the job has not been done and that the administrative machinery has broken down. He has pointed out that we are not looking for any impropriety. Of course, that was never the question at any time. He repeated several times that it would not be wise to go on a heresy hunt.
The honorable senator seems to have adopted a completely specific attitude to this matter, seeing no wider implications in it. He kept referring to the part the civil servants had to play; but surely in this country there is still such a thing as ministerial responsibility! If the administrative machinery broke down because of a shortage of staff, surely the Ministers concerned, and the Executive Council itself, had a responsibility in that regard. It is all very well to say. “ Let this matter go through. Let this motion be withdrawn after having a short debate on it.” I want to put to the Senate the effect of adopting that procedure and putting our imprimatur on it. No matter what is said in debate in this chamber, the fact is that if the Senate rejects the motion before it to-day, by that action it says that it is completely satisfied with what has taken place. The implication is that if the committee ever again brought before the Senate this type of matter, some one would say: “ Why are you going over old ground? We have already dealt with this and we have put our imprimatur on it.”
Let us look at the motion that is now before the Senate. In proposing that these regulations be disallowed, Senator Wood has pointed out that the Senate has before it for consideration three regulations seeking to validate increases in pay and allowances over a long period of time.
– Over the reigns of two governments.
– Yes, over a long period of time. I had hoped that we could debate this matter without indulging in politics, but I am afraid that is beyond you, senator. You never adopt a very constructive approach to these matters.
Senator Spooner could not resist saying that the method under discussion was introduced in the days of a Labour government. As Senator Wood pointed out, one of the things we members of this committee have been able to do, in spite of the lashing we get from the Government when we bring a matter before the Senate, is not to let the thought of party political advantage intrude into our discussions of regulations. Surely the Ministers themselves should agree that if there is one thing in the Government’s administration that should be watched, it is this question of regulations getting beyond the power and scrutiny of Ministers. [ would think that rather than be assailed with interjections from Ministers we would get “ Hear, hears “ from them because we are trying to assist them. Surely everybody should be aware of that!
The first point to be considered, Mr. Acting Deputy President, is the size of the amount - £100,000,000 - that is involved. Even in these days of inflation and large budgets, surely that is still a lot of money. Senator Spooner will recall that in dealing with another matter a little while ago this committee was worried about the general position. I refer to the granting of authority, by regulation, for the expenditure of large sums of money even if the regulation is completely in order and there is no legal doubt at all that the Government is completely within its rights in making it. The committee has sounded a note of caution in this matter, believing that the Government should not allow the authority to be given by regulation for expenditures in excess of a certain amount. Surely the Government does not adopt the attitude that it does not matter how much money is involved!
The committee has made a recommendation to the Senate, arising out of increases of salary of about £15,500,000 authorized by the Public Service Board for its employees. We members of the committee said then that in respect of the authorization in that instance we thought the amount was too much to be dealt with by regulation. We suggested that when an amount exceeded £2,000,000, this Parliament should be advised by legislation of the proposed expenditure and should have the benefit of a second-reading speech in explanation so that members of the Parliament could have, as it were, a note on their desks about what was going on, and could decide whether to agree on the matter. Quite apart from the question of validity, there is the question of the amount involved.
– Why do you keep talking of one amount, instead of dealing with three separate amounts? We are concerned with three regulations.
– I understood that we were dealing with all three regulations under which the total amount involved is £100,000,000.
– There are three regulations, not one.
– I fail to see why the Ministers are becoming so uncomfortable. I am dealing with the amount of money involved. If these three regulations are accepted, we will sanction regulations validating the payment of £100,000,000. lt would not matter whether one regulation or 200 regulations were involved. Senator Spooner dealt with the three regulations together, so surely there is nothing wrong with my doing so. This is not the first occasion on which the Regulations and Ordinances Committee has pointed out that it is completely wrong to give to departments an open cheque, as it were, by way of regulations.
The next matter that the Senate must consider is whether it agrees or disagrees with anticipating regulations. In this case and in other cases payments have been made in anticipation of regulations. If pay increases are not set out clearly and if the responsibility for making the altered payments is put on the shoulders of the various paying bodies, there may be all sorts of interpretations of what is intended. Day after day in the personnel branches of the various departments one person says that what is meant is that time and a half shall be paid for Sunday work, and another person says that what is meant is that time and a half shall be paid only after a certain number of hours have been worked on a Sunday. If the anticipation of regulations is allowed, you will get all sorts of different ideas about what increases and so on should be. It is worthy of note that the Public Service Board - a very responsible body - does not allow regulations to be anticipated. The argument that members of the Public Service might have to wait for a month or- six weeks before receiving an increase, if the increase could not be paid before the necessary regulation was issued, does not impress the board. Although public servants might know within a penny what an increase will be, the board insists that they must wait until the regulation has been gazetted.
Another matter which should be of concern to us is the delay in this case. If we say that it is right to allow departments to anticipate regulations, we then have to decide by how long a period they can be anticipated. If we reject this motion and allow the regulations under consideration to-day to stand, we shall say, by implication, that twelve years is a reasonable period. On the question of delay, I think we have to take cognizance of the remark by Senator Spooner that the administrative machinery has broken down.
I am interested to know what happened when a member of the Forces - if any one did so - insisted that he was not receiving the correct amount. To whom did the department refer him? No regulation was in existence clearly setting out what the amount should be although section 124 of the Defence Act states that regulations may be made for, amongst other things, the fixing of the rates of pay of members of the Defence Force who are paid for their services, and that all regulations shall be notified in the Gazette and shall thereupon have the force of law. How were the rights of the individual protected in this matter? Senator Spooner referred to three heads of power, but then he quickly glossed over that matter, because I think he realized that if those three heads of power were rigidly applied the action that we would take would be much more specific and much more severe. Senator Spooner referred to personal rights, but what are a person’s rights when there is no document to which he can point and when somebody merely tells him that he is entitled to a certain amount of money.
Senator Spooner referred to what we should do as a matter of common sense. I think the common sense thing to do would be to introduce a bill into the Parliament so that the whole matter could be explained in a second-reading speech and so that the Parliament would have the responsibility for validating this expenditure of £100,000,000 of public funds. Senator Spooner suggested that we might be starting on a heresy hunt if that were done. Many bills go through this Parliament with very little comment by honorable senators. Sometimes bills are passed through this chamber without any debate. lt is quite wrong to say that the Opposition opposes every bill. In fact, the majority of the bills are not opposed at all.
If we allow these regulations to pass unchallenegd, it means that we are agreeing that there should be no limit to the time or the amount that can be covered by regulations with retrospective application. In this case, there has been a great lack of supervision also. A delay of twelve years is involved. Senator Spooner used the words, “ Now that this has been brought to our notice “, but he has admitted that on five occasions the Auditor-General has drawn attention to this matter. It is only now, when the Regulations and Ordinances Committee brings it forward, that the Government says that something will be done about it.
These are matters that the Parliament should look at. Senator Spooner suggests that wie, should get over the difficulty quietly, but if we allow these regulations to pass unchallenged now we shall establish a precedent for the expenditure of large amounts of public money. This is an undesirable approach to the spending of public moneys and a disregard of the rights of this Parliament. It is a clear departure from one of the heads of power to rely on regulations when the matter would be more appropriately dealt with by legislative enactment.
Senator Spooner asks, “What is the alternative? You are not going to take money back from: those who have received it “. Of course we are not. If this motion is carried, not one member of the Armed Forces will be in a position different from that in which he is at present. The money has already been paid, and I think we can assume that it has already been spent. This motion refers to something that has been going on over a period of time. If we agree to the motion, we shall be giving a clear instruction to the Government that it is not good enough to come to the
Parliament with a regulation that has been issued after a delay of twelve years, to say that the machinery has broken down and to suggest that the matter should be fixed up in a simple way. We shall be giving a clear direction to the Government, saying that the Parliament does not approve of this cavalier and slovenly approach to the spending of large sums of public money. We shall be saying that we believe in ministerial responsibility and that any matter involving large sums of money should be brought before the Parliament in order to give every member of the Parliament a chance to say whether or not he approves of the action of the Government. I support the motion.
– It is with no sense of satisfaction that I rise to speak in support of this motion. As a member of the Regulations and Ordinances Committee, I have certain duties, and that is my reason for supporting the motion. In order to make the matter clear, let me read out the duties of the committee. The committee is authorized to scrutinize regulations to ascertain -
It was in pursuance of those duties that the members of the committee decided to take the action that we are discussing today.
The Regulations and Ordinances Committee has submitted sixteen reports in all. On the present occasion, the question was whether it would be better to submit a report or to move for the disallowance of the regulations. The committee considered that the mere submission of a report would not achieve the result which it desired to achieve, remembering, as it did, the experience of a previous report the sixteenth which it was hoped would act as a warning. In paragraph 10 of that report, the committee stated -
Within the previous period of twelve months, following the basic wage decision, the Board issued regulations increasing Public Service salaries by an amount of the order of £5,500,000. The total budget load of increases in the Public Service salaries authorized by such regulations in the present year was of the order of £15,500,000.
Paragraph 11 stated -
In the opinion of this Committee, the regulation making authority which enables increases of expenditure of this magnitude warrants review. It may be appropriate to provide that when increases decided upon exceed some specified figure, say £2,000,000 per year, such increases should be authorized only by Parliament.
Those were the recommendations that we made to the Senate, but they have been ignored by those responsible. Are we to continue to submit reports of this nature and continue to see them ignored?
The Leader of the Government in the Senate (Senator Spooner) stated that assurances would be given that the state of affairs we are now discussing would not be perpetrated in the future. I know that the Minister was quite sincere in saying that, but despite assurances we must ask ourselves: On whom will responsibility devolve? Surely the answer must be: On Ministers and departments. In view of the happenings of the last ten or twelve years, have we any guarantee that the assurances will be observed? In the circumstances, I think the committee had very little option but to proceed with the motion that is before the Senate. A factor which weighed with the committee was the feeling that approval of the payment of sums of the size that we are discussing should be a matter, not for regulations, but for the Parliament.
At the outset, may I pay a tribute to the Opposition members of the committee. As honorable senators know, I have been a member of the committee for only about eighteen months. During that time, we have had a number of meetings and at no time have we debated subjects other than in a non-party political atmosphere. I hope that that will continue. As has been stated already, the AuditorGeneral each year for more than five years has commented on the matter that we are discussing. As a supporter of this Government. I do not want to be in the position of those who live in New South Wales, where the Auditor General submits reports year after year and nobody takes the slightest notice of them. That is a disgrace to the Government of that State, and it is another reason why the committee felt that action should be taken in this connexion.
I emphasize that no member of the committee is biased against the Public Service. 1 certainly am not, and 1 do not know of any other member of the committee who is. I point out that in a previous instance we had the spectacle of two departments passing letters from one to the other over a period of months concerning a particular individual. 1 suggest that that kind of thing brings the Parliament into disrepute and gives rise to inefficiency and slackness in the administration of legislation, [t is to be hoped that after this debate we shall see the last of that kind of thing. I must admit that I, for one, am always very intolerant of slackness and inefficiency and feel strongly about examples that are brought to my notice, lt has been said that we do not want to embark on a heresy hunt. I entirely agree. But there has been slackness and inefficiency somewhere along the line. If we bring such matters to the notice of the Senate, as we are doing to-day, we shall indicate that we do not intend to be faced any longer by the slackness and inefficiency that has been shown over the last ten or twelve years.
Reference has been made to the Department of the Navy, and I am sorry that the Minister for the Navy (Senator Gorton) is not in the chamber at the moment. It is true that the amount for which the Department of the Navy is responsible is only about £2,000,000, so that it is not involved to anything like the extent of the other two departments. However, all three Service departments were involved and the committee thought that it should be a case of one in, all in. For that reason the Department of the Navy was included.
I ask: How does this slackness and inefficiency to which I have referred come about? Those who are responsible for the running of the respective departments have certain duties to perform. It is simply incomprehensible to me that officers with a keen sense of responsibility could allow such a state of affairs to continue for a period of years. After all, the officer in charge of a particular activity has the opportunity to consult his superiors, and so on up to ministerial level. Some one must have responsibility to say, “ Right. This state of affairs must stop “, and surely action would then be taken. The AuditorGeneral has commented on the matter, but his has been a voice crying in the wilderness. If it is claimed that shortage of staff was responsible for the failure to prepare the necessary legislation, why was not the staff increased? Surely a bottleneck of that kind could have been overcome fairly simply. I remind the Senate that when it was necessary to increase the salaries of public servants as a result of the recent increase of margins, the requisite regulation was drafted inside two or three days.
The state of affairs we are discussing emphasizes the significance of the statements of Professor Bland, when he was chairman of the Public Accounts Committee, included in the reports of the committee. You will remember, Sir, that he referred to the extent to which the Public Service was asserting its power and authority. The circumstances that we are considering are evidence of that assertion. For the life of me, I cannot understand why those responsible have been allowed to get away with it. On a previous occasion, when the Regulations and Ordinances Committee made a report to the Senate on a certain matter, it was told that it should have moved for disallowance of the regulations concerned. In this case, we feel that if we are to get anywhere, the mere presentation of a report would not be sufficient. As I have mentioned, that is one the reasons why we have moved for the disallowance of the regulations. I want to emphasize that there has been no suggestion of dishonesty. Nothing has been further from the thoughts of the committee than that. The question is whether authority for the payments that we are considering should be given by regulations issued by departments or by legislation enacted by the Parliament of the country.
The Minister for National Development (Senator Spooner) has outlined the kind of work that would be involved if certain suggestions were adopted regarding these regulations, but I suggest that even if work of that kind had had to be done, it could have been done if those concerned had carried out their duties in the manner required of them. I say again that it gives no member of the committee satisfaction to report on this matter, but we have a job to do and if we are not prepared to do that job we should resign from the committee and let somebody else do it. In conclusion, 1 say that the disallowance of these regulations would be to the benefit of the Australian Parliament.
– 1 express my thanks again to the Regulations and Ordinances Committee for introducing a matter of grave moment to the Senate. On other occasions, 1 have expressed my indebtedness to that committee for taking off my shoulders, as the Leader of the Opposition, the burden of scrutinizing the great volume of regulations that are made under statute. This, fortunately, is a matter not only of great importance; it is one that we can address ourselves to quite objectively.
So far, we have heard one voice in opposition to the motion, that of the Minister for National Development (Senator Spooner), who is the Leader of the Government in this chamber. I trust 1 am being quite objective when I say that, although his speech was very interesting and very informative, it completely missed one important point. I would like to go back to the origin of the power that exists in this matter, lt is covered by section 124 of the Defence Act, which enables the Governor-General to make regulations. Sub-section (1.) (d) specifies -
The fixing of the rates of pay of members ot the Defence Forces who are paid for their services;
Sub-section (2.) states -
AH regulations shall be notified in the Gazette and shall thereupon have the force of law.
That means that unless those regulations are published in the “ Gazette “, all the rates and terms of conditions of the payment of members of the forces are without the force of law. That is the real issue and the real point in this case. There is one other element. It is stated in section 124 (3.)-
All regulations shall be laid before both Houses of the Parliament within fourteen days after the making thereof if the Parliament be then sitting, and if not then within fourteen days after the next meeting of the Parliament.
So we carry the matter to the next step. There is provision in sub-section (4.) for the disallowance of regulations, as the Senate well knows, in accordance with the procedure now being adopted. So the second important point to keep in mind in this matter is that the Parliament itself has said that this particular type of regulation, once it is given the force of law, mus. come urgently and soon before the review of the Parliament itself. The great point to be made here is that by the failure to make regulations, the apportionment or total sums allocated in appropriations bins in the case of members of the Forces nar, been completely taken away from scrutiny by the Parliament. There are great issues involved, those two in particular.
It is quite idle for the Minister for National Development, when he addresses himself to a matter involving those two issues, to stand up in this place and say that the total amount would be approved by the Parliament; that the Parliament has appropriated the total funds to meet the various commitments down these years: that the expenditure had been approved by the Government; and that the money has been paid to the members of the forces. If he were telling the whole story, he would have added the fourth proposition, that is, that this procedure completely lacked the force of law. This procedure not only lacks the force of law but completely by-passes the safeguards set up by Parliament itself for observing the dealings with the various ranks in the three Services. They seem to me to be the grand issue*
I may have to traverse a little of the ground that has already been covered, but I shall do so only briefly. Let us consider the default in this matter. We do not have to argue this as the Minister has pleaded guilty on behalf of the departments concerned. Tn the case of the Army, the default runs from August, 1947 to December, 1959 - more than twelve years. It involves two administrations, as Senator Henty interjected. The default in respect of the Air Force runs from 1st December, 1949 to 29th June, 1960- that is more than ten years - and of the Navy from 23rd May, 1958 to 29th June, 1960- that is, more than two years. I understand that the amount involved is more than £100,000,000. The figures I have here are as follows: - Some £99,000,000 in the case of the Army, some £6,000,000 in the case of the Air Force and some £2,000,000 in the case of the Navy. Whether those figures are accurate or not. T am not sure; I believe they are. I say it is incontestable that the payments which have been made te the members of the three Services without the force of law have certainly been in excess £100,000,000.
I think Senator Willesee was completely right when he said that when it comes to validating the expenditure of something over £100,000,000- money that has been illegally disbursed - down a period of twelve, ten and two years by the three Services, it is not a matter for an obscure regulation that may be cited ,and may not be cited. Parliament’s attention ought to be directed plainly to the specific requirement that the terms and conditions of pay of the forces be laid down in regulations and have the force of law only from the time those regulations appear in the “ Gazette “ and are laid on the table of the Houses of Parliament. As these great matters have degenerated administratively to the basis we find to-day, 1 think that unquestionably in the future these matters should be brought sharply before the Parliament by legislation introduced by the Government.
I have no doubt that there has not been any impropriety in this matter. Nobody has questioned the propriety of what has been done. The Minister has raised the point, but it is not an issue anywhere in the Parliament. There is no thought of malpractice. There is only the thought of irregular precedure - regulations, lacking the force of law, and the by-passing of the Parliament. There are the great issues.
The Auditor-General has directed attention to this matter for some five years. In his report for the year ended 30th June, 1959, at pages 81, 83 and 86 he deals with each of the three Service departments and directs attention to the default. He directs attention to the fact that he has reported on this matter over a period of years, and he stresses one of the points I have been making. Tn dealing with the Air Force regulation, in paragraph 129, he concludes with this sentence -
Attention is drawn to the fact that increased payments beyond the scope of current regulations are being made without statutory authority.
This goes beyond any argument from me or from any member of the Regulations and Ordinances Committee. The AuditorGeneral himself - the watchdog of Parliament - has directed attention to the fact that these payments, amounting in total over a period to the huge sum of more than £100,000,000, have been made without statutory authority.
– Does he explain how he missed it for about four years?
– I suggest to the honorable senator that that is a question for the Auditor-General, not for me as Leader of the Opposition. I do not hold a brief for the Auditor-General. I am only concerned with the principle in this case.
– It is not a bad question, though.
– No, so long as it is directed to the right person. The important thing is that at this stage he is directing attention to the fact that those payments amounting to the sum I have mentioned have been made without statutory authority.
– I suggest to the Leader of the Opposition that the sentence before the one that he read is more fitting to the point.
– I do not think that it makes the slightest difference. The report contains only four brief paragraphs. I would be happy to read them all.
– From which report are you reading?
– The AuditorGeneral’s report for the year ended June, 1959, paragraph 129, at page 86. The paragraph is headed “ Air Force Regulations “ and reads -
Regulations promulgated under the provisions of the Air Force Act 1923-1956 prescribe pay and allowances and conditions of service of members of the Royal Australian Air Force.
It was mentioned in my 1957-58 Report that for a considerable time the Department had not taken action to incorporate in the current Air Force Regulations variations in rates of pay and allowances.
Although this matter received departmental attention during the year, the required amending Statutory Rules had not been promulgated when this Report was prepared.
Attention is drawn to the fact that increased payments beyond the scope of current regulations are being made without statutory authority.
I do not think that the penultimate paragraph has the slightest effect upon the final paragraph.
– Well, I shall have to take you by the hand.
– 1 find myself in complete agreement with the AuditorGeneral - I almost put it the other way a moment ago - regarding the absence of statutory or any other authority for the payments that have been made through all those years, totalling the sum that I have indicated. I learn that the Joint Parliamentary Committee of Public Accounts has addressed itself to this matter, but that no report is available yet.
– That is a great pity.
– It really is unfortunate. The report would have been a help in this debate. If the Government wants to seek some alternative to the one that it has chosen for curing this matter, I suggest that there is not the slightest need to await that report. The obvious alternative, apart from the rather fanciful one suggested by the Leader of the Government, is to have a simple statutory measure validating the payments that have been made. That is the proper and obvious course. I shall come presently to the argument that the regulations as presented do not cure the position and are not effective.
It is all very well for the Parliament to appropriate a total amount to meet the pay of the services. That is an amount that is not scrutinized in detail, lt goes through along with a lot of other appropriations. But it is vastly important to every member of the forces that he should know what the law is in relation to his pay and conditions. That is exceedingly important. Parliament has recognized that by saying, “ We want to be assured that we have a look at it, too “. Parliament has not left the matter to a government, the Military Board, the Naval Board, or the Air Force Board. Parliament has demanded that the information be put in regulations from time to time, that it be published, that it have the force of law from the date of publication, and that the regulations come back to us to be ignored or to be disallowed if the Parliament thinks fit. That, of course, is the great issue. The Minister says that the conditions and terms of pay have been circulated to members of the forces. Circulated by whom? They were circulated by nobody in authority under a statute. They were circulated irregularly and without statutory approval and support. The three regulations that are before us are grouped together in one form. You, Mr. Deputy President, have the right fo divide the questions if you think that that is desirable. My own view is that the three regulations run together and can be taken as one. I think that the Minister will agree that there is no need to divide the three questions.
– It helps your argument, 1 suppose.
– I do not mind, lt is purely a matter of procedure. I would not contest it if anybody required that the three be divided. If that course pleases the honorable senator, I. would not contest it. That would be quite fair. 1 would have no objection to their being divided if anybody thought fit. Let us have a look at what the regulations, in fact. say. Regulation No. 6 of the Financial (Military) Regulations provides -
During the period that commenced on the seventh day of August, 1947, and ended on the third day of December, 1959, members shall be deemed to have been entitled to such pay and good conduct increments at such rates and subject to such conditions as the Military Board determines. lt does not provide that all the payments that have been made between 1947 and 1959 are hereby validated. In actual fact, what purports to be a validating regulation now leaves it to the Military Board to recast the terms and conditions down the whole twelve years.
– As it shall determine.
– As it determines. That docs not validate the payments that have been made and wilh which everybody, apparently, is satisfied. It confers authority upon the Military Board, if the board wishes to exercise the authority, to go back over the whole twelve year period and recast the whole position. That is the view that I take of the matter. A similar provision is made in relation to the Air Force. The regulation provides that the pay during the relevant period shall be at such respective rates as the Air Board determines - now determines - not as it has determined. The Naval Financial Regulations contain a similar provision. Regulation 36 provides that payments shall be made at such rates or amounts and subject to such conditions as the Naval Board determines. It is open to question whether section 124 of the authorizing Defence Act, which does not confer power to make regulations retrospectively, will support a regulation that purports to be retrospective. I think that we in this Parliament can agree that the exercise of retrospective legislative authority is rare and is a matter of very vast significance to be looked at very carefully on every occasion.
– But it is provided for by the Acts Interpretation Act.
– That may be. It ought to be looked at very carefully. Whether section 124 of the Defence Act, in not conferring express power, does in fact authorize the making of retrospective legislation, is at least open to question. I raise these two defects in relation to these regulations.
– You would not raise the first one seriously, would you?
– From a practical viewpoint, no. I do not for a moment think that the Air Board, the Naval Board, or the Military Board, would go back and recast certain payments.
– They could not, could they?
– I do not think that they will. All that I am saying is that they are authorized to do it under the regulations that we seek to disallow. That possibility alone is sufficient, in my view, to make us disallow these regulations. That one point is quite adequate for the purpose. [ do not think that I should allow a comment upon the regulations to pass without saying a word about the explanatory memorandum that accompanied each of them. Here, in the case of the Army, is a perfect example of a gross understatement. The memorandum was issued by the authority of the Minister for the Army. Referring to the relevant regulation, I find that the memorandum reads -
For various reasons, which have been inquired into recently by the Joint Parliamentary Committee of Public Accounts, the Regulations have not been amended for some time-
Only twelve years - and the purpose of regulation 6 of the Statutory Rule is to validate the variations in pay which have occurred during the period.
Care has been taken not to mention the period.
– And it does not mention the amount involved.
– Nor, as the honorable senator says, does it mention the amount involved. The explanatory memorandum issued by the authority of the Minister for Air (Mr. Osborne) reads, in relation to regulation 30 -
This regulation prescribes the manner in which the rates of pay and allowances shall be determined in respect of periods prior to the date of the commencement of this Statutory Rule.
That relates to a ten-year period.
The Minister for the Navy (Senator Gorton) was far more detailed in his explanation. He said, in relation to regulation 36 -
Where new rates of pay and allowances are prescribed by the above-mentioned regulations 1 to 35, the rates are, generally, those consequent upon the 1959 increases in margins.
Regulation 36 is intended to provide an authority for payment of these new rates from the operative date of the increases in margins (4th December, 1959), and to provide an authority for payment of the rates of pay and allowances from the operative dates of earlier increases - two basic wage increases (operative from 23rd May, 1958, and 19th June, 1959, respectively) and the decisions following the recommendations of the Committee appointed to review the Defence Services Pay-Code (operative from 4th July, 1958).
That explanation, let me say to the Minister for the Navy, is in sharp contrast to the very light touch that was given by his two colleagues to far graver defaults.
– The compliment is due to the permanent head of the department, not to me.
– One recognizes that where the pay of the forces is affected by what happens on the industrial front - increases in the basic wage, cost-of-living adjustments, increases in margins, with their consequential effects upon terms and conditions of engagement in the Services - immediate effect cannot be given to the variations, that there is need to have some element of retrospectivity, and that there must be some authority to make rates operative retrospectively. But I suggest that that may be conferred specifically by the act which authorizes the making of regulations.
I cannot accept the argument of the Minister for National Development that so much work is involved that officials cannot keep pace with the changes. The Minister referred to the size of the regulations, saying that one consisted of 22 pages and another of IS pages. He also said that there had been 26 occasions since 1947 upon which changes had take place, involving 697 amendments. The point to remember is that, before the pay can be made, someone in the relevant department has to draw up a schedule of the terms and conditions, and do it very smartly. It is incomprehensible to me that that cannot be translated into regulations quickly, lt has to be done, in order to make the increased payments to the members of the forces. I frankly cannot see why the translation of those schedules into regulations should be fraught with so much difficulty. It is not a matter of re-writing 22 pages or 15 pages, as the case may be, for each variation. Indeed, if the thing were kept up to date, it would probably involve some amendments to a few regulations only in the 22 pages or the 1 5 pages. It could be fixed up by a relatively brief amending schedule.
The Minister said that members of the forces could not now be asked to refund what they had received. Nobody would suggest that they should. The payments have been made, and no suggestion has been made in the Senate, nor do I think it will be made, that anybody should be asked to refund what he unlawfully has got at the present time. The Minister claimed that the regulations give the desired result - -namely, that of validating the past. Speaking personallly, 1 do not think they do. I think they are open to the two objections I have mentioned. I do not think he was speaking seriously when he suggested, as an alternative to the procedure that has been adopted, that we might have 26 sets of regulations picking out the 26 changes that have taken place over the past twelve years. That is pure fantasy. No one would think of doing that.
If the regulations are disallowed, the disallowance will have the effect of seeing that the matter is dealt with by statute. There could be a statute, quite brief in form, which provides that all payments made in the relevant periods “ are hereby validated “. It does not need to be any wider than that. It would cover the payments that have been made unlawfully over this period.
– Do you say they have been made unlawfully?
– I do. That is the whole point I am making.
– That is the common sense view.
– I am putting that very strongly.
– Nobody disputes that.
– Just wait a minute. I have said in this chamber that the Crown Law Office advisers do not agree with that view.
– You do not understand your own statement.
– I do not think that was the statement the Minister made. I think what he was claiming was that what has been purported to be done in the regulations does cure the defect. It was to that particular proposition that he directed his remark. Anyone who looks at section 124(2.) of the Defence Act and sees that regulations are to be notified in the “ Gazette “ and shall thereupon have the force of law must argue that, if payments are made without being gazetted, they have not the force of law and therefore are unlawful. That is completely unattackable.
– But these regulations cure that position.
– I think the regulations suffer from the defects I have already particularized.
– What I said was that the Crown Law Office had advised that the regulations do cure the defect.
– I give the very greatest respect to the expression of the advisers of the Crown Law Office. But that does not necessarily dispose of the matter for me, and I retain the arguments that I have already advanced on that particular point. In conclusion, I say to the Minister for National Development that, in addressing the Senate as he did, he completely missed the major points - that the payments have not had the force of law, that the Parliament has been by-passed, and that these defects should be cured by statute only. In those circumstances, I support the motion for the disallowance of the regulations.
– I do not support the motion. Senator Wood, when he submitted the motion for the disallowance of the regulations under discussion, claimed that the Regulations and Ordinances Committee had considered the matters in issue. I am a member of that committee. I think it is well for us to see what are the functions of that committee as laid down in the Standing Orders of the Senate. Paragraph (4.) of Standing Order No. 36a provides -
All Regulations and Ordinances laid on the Table of the Senate shall stand referred to such Committee for consideration and, if necessary, report thereon. Any action necessary, arising from a report of the Committee shall be taken in the Senate on motion after notice.
I make it clear that I treat Senator Wood’s motion as a motion for disallowance and I invite the attention of the Senate to the fact in this instance the committee, no doubt for very good reasons, has not complied with the standing order to which I have just referred if the action taken on this occasion is to be considered a committee action. I think that the Senate’s consideration of this matter would have been assisted if a report had been made to the Senate, becausethat report could have been full, decisive and documented. In particular the report could have had annexed to it the opinion of the SolicitorGeneral of the Commonwealth, to which reference has been made by the Leader of the Government (Senator Spooner) and against which some criticism has been levelled by other honorable senators.
In relation to this matter I do not think that the Senate has been treated properly. It is admitted on all sides that a fault of long standing exists with regard to the payment of members of the three services. The fault has run through two administrations. The question we are dealing with to-day is whether there has been complete and proper rectification of this fault. There is no problem as far as the payment of allowances to members of the Services is concerned. Over the years appropriations have been made by act of Parliament passed by both Houses. The question is whether the rectification that is attempted in these regulations is good and proper rectification. I invite the attention of the Senate to the AuditorGeneral’s report for the year ended 30th June, 1960, in particular to paragraph 124 under the heading, “ Department of the Army “. I will content myself with reading only portion of that report relating to one of the services, because similar comments are made by the AuditorGeneral in relation to the Department of the Navy and the Department of Air. Under a sub-heading “ Financial Regulations “ the AuditorGeneral states -
Amending regulations were issued in June, 1960, to provide statutory authority for variations of rates of pay during the years preceding. When this Report was prepared the necessary Statutory Rules had not been promulgated to provide for various allowances not prescribed by current regulations and for rates of pay for members of the Women’s Services.
I would suggest that the AuditorGeneral is of the opinion that statutory rules could effect this rectification. I believe that when the Joint Committee of Public Accounts investigated the matter the Auditor General gleaned much knowledge from that investigation it was of the same opinion. 1 understand from the statement made by the Leader of the Government that the SolicitorGeneral also approves of the rectification being made by regulation. So, in the absence of a report from the Standing Committee on Regulations and Ordinances, which it was obliged to provide under Standing Order No. 36a, the Auditor General’s report and the opinion of the SolicitorGeneral, communicated to us by the Leader of the Government, should be sufficient for this Senate to realize that the regulations that are under challenge at the moment follow the urgings of the Auditor General and comply with the law.
I do not support the motion for disallowance. I agree with other honorable senators who have said that it is wrong for Government departments to treat the Parliament in the way they have treated it in the past. However, I am of the opinion that the rectification claimed in these regulations is sufficient and accordingly that justice is done. I do believe, however, that following on this debate and the report of the AuditorGeneral, things of this kind will not occur in the future. I am satisfied that the Leader of the Government has taken the matter seriously and that it will be brought before Cabinet and referred to Treasury officials and officials of the Services departments. Therefore, I believe that Senator Wood’s motion for disallowance should be defeated.
– May I begin by saying that I agree with what the Leader of the Government (Senator Spooner) said as to the varying and lengthy periods of time that have elapsed before the passage of these regulations. However, I think it is only fair to the departments concerned to point out to the Senate that part of the reason for such long delays is that the Senate, in 1937, insisted that the departments could not gazette their own regulations without those regulations first going to the AttorneyGeneral’s Department to be vetted, agreed to and returned. I believe that this stipulation applies not only to Service Departments but also to departments generally, and in many instances it does tend to create long delays. Perhaps the staff of the Attorney-General’s Department should be increased? Perhaps more money should be spent and more public servants appointed. I do not know. The procedure undoubtedly does tend to create some delays.
I wish to deal with a point made by Senator McKenna. When he was referring to section 124 of the Defence Act he claimed that there was some doubt about the validity of regulations made as are the present regulations. Senator McKenna quoted section 124(2.) of the Defence Act which reads -
All regulations shall be notified in the “ Gazette “ and shall thereupon have the force of law.
He subsequently quoted other sections to indicate that that sub-section must be a condition precedent to, and would affect sub-section (1.) of section 124. As I understand the position, the sub-section to which Senator McKenna referred has been repealed. It is no longer in the act, and the provision in the Defence Act is simply that the Governor-General shall have power to make regulations, in particular, prescribing matters providing for and in relation to the fixing of the rates of pay of members of the Defence Forces. I am informed that the interpretation of that provision is in section 48 of the Acts Interpretation Act, which lays down the conditions under which Parliament stated retrospective legislation should be passed and should be effective.
– Where the conditions are favorable and do not affect rights; where the regulation does not operate adversely.
– I thank the honorable senator for his interjection. I said,
Mr. Deputy President, that section 48 of the Acts Interpretation Act lays down the conditions under which Parliament says regulations can be made retrospective. As the honorable senator has pointed out, one of those conditions is that the rights of a person cannot be retrospectively affected adversely. That is why in the regulation which the Department of the Navy now has before this Parliament the words used are that the Naval Board cannot fix rates less than the relevant rates and therefore cannot adversely affect members of the Service.
Senator McKenna suggested that section 36 of the Naval Defence Act - and indeed, sections of the other relevant acts - would allow the Naval Board to go back over a period of years and alter rates of pay or conditions. The board cannot alter them to the prejudice of any serving members in the Navy. The position is the same in respect of the Air Force. I am not clear on the wording of the legislation in respect of the Army. The Naval Board cannot alter payments and conditions in any way in order to make them better than those which have existed in past years, because there is no power of appropriation to make higher payments in the financial years which have already passed.
– A regulation does not need that appropriation power.
– If under the regulation it was sought to make any larger retrospective payments, Parliament would have to appropriate the money to make them.
– That is quite so.
– In that case there is no question of the power being taken out of the hands of Parliament.
Time and time again in this debate it has been pointed out that for five years the Auditor-General has directed attention to the fact that payments were being made without the statutory rules which could give the payments the force of law. It seems to be a little anomalous that now that the Government seeks to comply with the Auditor-General’s requirements and proposes regulations which will meet the criticisms of the Auditor-General, the committee should seek to disallow those regulations and to revert to the position on which the Auditor-General commented so adversely.
– No, that is not the. effect of the motion at all.
– With great respect to Senator Wright, 1 shall be glad if he will explain why that is not the effect of the motion. In fact, that is the effect of the motion. Although it may be possible to overcome it by passing other legislation, the fact remains that the effect of the motion is a reversion to the position of which the Auditor-General spoke adversely. f believe the situation we are discussing is resonably simple, but 1 want to make it clear that we are not discussing one regulation, as so many speakers appear to believe. We are discussing three completely different regulations in respect of different departments, dealing with different amounts of money and different periods of time.
– But the same principle.
– Not necessarily the same principle either, unless Senator Willesee wishes the Senate to adopt the principle that no payments to ex-servicemen can be made until regulations have been gazetted. If that is the principle he puts to the Senate, 1 concede his argument.
– What are the points of difference in principle in the three regulations?
– I have heard many speakers say, not that one of these regulations is contrary to the statute, not that it adversely affects the rights of individuals, and not that it is illegal but merely that it deals with a large sum of money and it goes back over a long period of time. If. there are different sums of money and different periods of time in respect of different regulations, it seems to me that there is a difference unless you take your stand on the principle that no payments can be made to ex-servicemen until the regulations have been passed. If that were done, as I understand is done in the Public Service, the effect would be that many servicemen would be deprived of their pay, although they would eventually get it, for some time which we would hope would be a much shorter time, but nevertheless which they might resent, particularly since Parliament itself, in the acts which it has passed, has specifically given power to make regulations in respect of the pay and conditions of servicemen and has specifically given power for those regulations to be made retrospective. If those powers are specifically given by Parliament in acts, why should the committee or the Senate seek to override not general powers, but specific powers given by Parliament for specific purposes? It would be wrong to reject a regulation, not on the ground that it is illegal or that it imposes hardship, and not under any of the four heads which the committee has previously used in considering legislation, but on the ground that action should have been taken sooner and theretore, although the action taken now is legal and hurts nobody, the regulations ought to be disallowed. That seems to me to go very close to overriding the power of Parliament, which some speakers have said they are supporting, but which I think they are undermining.
– Mr. Deputy President, I rise to make a very brief contribution to this debate. As I have listened to the debate during the afternoon, I have been impressed by the fact mat we are confronted with a motion put to the Senate on behalf of the Regulations and Ordinances Committee to disallow three regulations, quite clearly in the teeth of a demand that has been made by the Auditor-General for some time past and now by the Public Accounts Committee. The ordinary senator who is not completely versed in all aspects of the functions of the Regulations and Ordinances Committee would turn naturally to the Standing Orders to see whence the committee received its powers and what were its functions. My colleague, Senator Laught, who is a member of the committee, directed, attention to Standing Order No. 36a, the relevant portions of which are as follows: -
On reading those provisions and giving serious thought to the meaning of the words, honorable senators must be impressed immediately by the fact that the committee has not on this occasion conformed with the requirements of the Standing Order, in that no report has been made. Senator Wood has given the Senate in effect, merely the wording of the disallowance motion.
If we accepted the statement of Senator Willesee that this is a matter involving £100,000,000 or more - I will come back to that in a moment - that circumstance alone would warrant a very careful scrutiny of the regulations and a written report to the Parliament, so that the Senate could give the matter careful consideration and perhaps defer the debate on the motion to enable all honorable senators to be made fully aware of the propositions contained in it. I would suggest that the committee has been a little too quick in the procedures it has adopted. If this is so serious a matter as the committee would now have us believe, I think it would warrant a report in which the criticisms made by the Public Accounts Committee were dealt with. That procedure would give the Senate an opportunity to debate the subject in a manner far more effective than is possible when the complaint is made, virtually, off the cuff.
– Is not the honorable senator aware that the committee had to move within a certain time?
– I am perfectly aware of the time factor, but I still say that the committee had time to prepare some sort of a report which would have put the case much more strongly. As it is, the ordinary senator, having listened to this debate, is expected to cast an intelligent vote-
– Why not address yourself to the motion instead of making such tendentious statements?
– This is a case of “ He that is without sin among you, let him first cast a stone “. I think Senator Wright should be able to sit back and enjoy this a little, because we have had to enjoy quite a lot from the honorable senator.
– Do you not think I am enjoying this?
– If you are enjoying it, you are doing better than I am. However, I suppose this is just a part of the life which we lead.
I was interested in the proposition put by Senator Willesee. He argued that because a sum of £100,000,000 was involved, that justified the disallowance of the regulations. He completely disregarded the proposition that, in the sense in which he put his argument, £100,000,000 was not involved. Senator Gorton tried to lead him back to the point, but he would not face up to it. The point that Senator Gorton tried to make was that a series of variations in pay and allowances affecting the three services had been made, extending back over twelve or thirteen years. To use the sum of £100,000,000 as the basis of the argument is to distort the real issue in this debate. The £100,000,000 is made up of a number of sums, spread over a period of years, paid to men and women in the services as a result of alterations in pay and allowances.
– Every one of which was an administrative act.
– As the Minister very appropriately points out, every one of those payments was the result of an administrative act. If I may say so, it is rather a Gilbertian situation to hear it argued that these regulations should be disallowed, when it is admitted that on at least five occasions the Auditor-General has complained that no appropriate regulations existed to cover the payment of this money. The Public Accounts Committee has dealt with the matter too.
– In what way?
– By way of criticism.
– Has it yet referred to the matter in a written report?
– No, but it has referred to the matter by way of criticism. On at least five occasions the AuditorGeneral has reported the failure on the part of the Government to have regulations made covering the payment of these allowances. Now that the Government has brought down the necessary regulations, the committee wants to disallow them. If the Senate disallows the regulations, the position will be precisely the same as existed before the regulations were gazetted.
– What sort of turnips do you think you are handing out now?
– I have to use fairly simple terms in an argument addressed to somebody who comes from the turnip country. When you go sailing, you always use a sail to suit the wind. I would not use a big balloon sail or a spinnaker when there was only a slight breeze. The plain fact is that the Regulations and Ordinances Committee wants the Senate to disallow regulations which the departments were asked to issue. It is a strange argument which seems to go round in a circle but never gets back to base. I cannot see where such an argument can lead.
I refer again to the argument that has been put before the Senate that because £100,000,000 is involved, this matter should be the subject of a parliamentary debate - that a bill should be introduced, that a second-reading speech should be made by the Minister, and that, if necessary, a vote should be taken. If the committee had brought down a report in the terms of Standing Order No. 36a, we could have had a debate which, to all intents and purposes, would have achieved the same object as bringing down a bill.
– And having done that, would we not be told to move for the disallowance of the regulations, as we were before?
– I feel that the committee, because of some chip on its shoulder - from something that happened before - I do not know what has happened
– I rise to order. I direct your attention, Mr. Deputy President, to Senator Anderson’s statement that the committee apparently had a chip on its shoulder from, a previous occasion. 1 think that that statement is unfair and unwarranted, and I ask for its withdrawal.
The DEPUTY PRESIDENT.- In my opinion, the statement is fair comment.
– I should not for one moment reflect either on your ruling, Sir, or on the point of order. I merely say that I get chips on my shoulder almost every day. I have to shrug them off. That is a part of political life. As I was saying, under Standing Order No. 36a, a report could have been presented and we could have had a debate which would have served the same purpose as we are serving now.
I think I may claim to display a sense of responsibility in this place. I am a great believer in the work of committees, but 1 do not think that the Regulations and Ordinances Committee is justified in asking us to disallow the regulations that we are discussing. As the Minister for National Development has pointed out, the money has been paid, on the basis of the entitlement of the personnel concerned, lor services rendered. The necessary appropriations have been made by the Parliament. I do not think that any of us can complain on that score. The Government has said: “ We recognize the difficulty. This is something that has cropped up during the life of various governments, not all of the same political persuasion, in the last twelve years. It is something that has happened. We are very sorry that it has happened and we shall make proper efforts to see that it does not happen any more. “ If we accept the principle of the motion we in effect defeat the purpose of the Parliament. As I have said, the Executive has stated that it is prepared to do something about the matter. If we accept the motion, we get back to the position where we were - that nothing has been done. It seems to me that in all the circumstances a fair and reasonable thing is being done in pursuance of the regulations.
The question has been asked whether a regulation which is given retrospective effect is legal. Where do we turn when we want to know whether it is legal to do a certain thing? 1 suppose we could ask the various legal eagles in this place, and no doubt get a hotch-potch of answers. That is the beautiful thing about the law. It has in it little pockets from which different answers may be obtained according to the approach that is made. Generally speaking, I think the Parliament and the Executive should turn to their own legal department and legal advisers for advice in such matters. In the circumstances, I am prepared to accept the word of the Leader of the Government in the Senate that the Solicitor-General’s office has looked into the matter and holds the view that the regulations meet the situation.
– At long last.
– But your committee is rejecting that opinion. To me, it is an oddity that the matter should be raised in this way. I am not to be taken as saying that I do not believe in the work of the Regulations and Ordinances Committee. I am a great admirer of committees. I think that the work being done by the various committees of the Senate is to be commended, lt is good work and is consistent with the idea of the second chamber of the Parliament being a house of review. But that does not mean thai we have to accept everything that committees say. When a committee brings in a negative report, or does not even bring in a report in the true sense but simply says. Certain regulations should be disallowed “, that procedure taxes greatly the loyalty o.” a humble back-bencher.
– Loyalty to what?
– I feel that 1 am bound to support the Government parties and to support my leader in his approach to the matter. 1 accept the assurance that the Executive is doing something about it. 1 take the view that the opinion of the Public Accounts Committee, which has given the matter some thought in the past, has to be considered. The SolicitorGeneral has stated that the retrospective operation of the regulations is in order. I do not accept the view that £100,000,000 is in issue in this respect, although the operation of a multiplicity of regulations may mean that the sum, in the aggregate, is of that amount. For those good, and 1 think sufficient, reasons, Mr. Deputy President, I cannot support the motion moved by Senator Wood seeking the disallowance of the regulations.
– We have listened to a speech on which it is interesting to reflect, especially the reference to questions of loyalty. When Senator Anderson spoke of loyalty, I asked, “ Loyalty to what? “ and his reaction was to say that he supported his leader. It seemed to me that it was that notion of loyalty which had inspired the speech. I appeal to the Senate to consider the question of loyalty to the Parliament. I should like honorable senators, including Senator Anderson, to place uppermost loyalty to the Parliament, the institution that we constitute as representatives of the people. The principle of the motion before the Senate is to ensure that both Houses of the Parliament are consulted before the amounts allotted by the Parliament in the Budget are individually distributed among servicemen, so that the rates of pay of servicemen shall be provided by law after the regulations have been tabled in the Parliament.
In those circumstances, members of the Parliament, sometimes at the instance of their electors, may take a living interest in the regulations and criticize them and perhaps try to amend them. I should like Senator Anderson to keep that point of view uppermost, because in my conception, the people who send me here and also those who send him here value that principle much more than the kind of loyalty to which he gave expression. The honorable senator stated that a Gilbertian situation has arisen in that the Auditor-General has been asking for such regulations to operate and we propose to disallow them.
Sitting suspended from 5.45 to 8 p.m.
– When the sitting was suspended, 1 was about to refer to Senator Anderson’s submission to the Senate to the effect that the action that has been taken by the chairman of the Regulations and Ordinances Committee at the instance of a resolution of the committee - with one dissentient - was of a Gilbertian nature. 1 hope that Senator Anderson remembers that Gilbert had a partner by the name of Sullivan! When I recall that Senator Anderson had been so superficial in his failure to study the subject-matter of this motion as not to observe that the motion for disallowance was directed only to one paragraph in each of the three statutory rules, I speak with some pathos. I speak with pathos for a colleague who makes such a submission in face of the fact that, for five years, the Auditor-General has been prodding a somnolent Parliament and making it conscious of the fact that the Treasury has been paying out millions of pounds per year on the ipse dixit of one Minister - the expression of autocracy - and not in pursuance of regulations laid on the table of each House and having the approval of each House of the Parliament. “ But,” says Senator Anderson, “ after the Auditor-General had yearned for the coming of a great enlightenment that would enable the civil service to produce regulations to correct the position, the Regulations and Ordinances Committee is so obtuse as to sponsor a motion for their disallowance “.
Mr. Deputy President, it should be completely clear to us that the speeches of those who oppose the motion I will be as complimentary asI can be disclose only a superficial study ofthe subjectmatter. If I were completely candid, I would say that those speeches have disclosed a complete absence of study of the subject-matter. Yet we are invited, on that submission, to think that we have displayed irresponsibility by asking the Senate to disallow regulations when, each year for the last five years the AuditorGeneral has called the attention of Parliament to the fact that the regulations do not exist.
The fact is, Mr. Deputy President, that in each of these regulations provision is made prospectively for the pay and emoluments of the members of the services individually, and not one of those regulations is being affected by this motion. Indeed, the motion is directed solely to one paragraph in each of the naval, air force and army regulations which conveys the idea that someone at a desk in an office, not even of the status of a Minister’s office, can write a validating sentence. I emphasize that point. The idea is that although for twelve years, as everybody but the irresponsible concedes, these payments have been made without the statutory authority somebody can write a regulation to say that the Naval Board, the Military Board, or the Air Board may, pursuant to this paragraph, determine the payments that have been made in the past twelve years by the Army, eleven years by the Air Force and two years by the Navy, and the individual recipients shall be deemed to have been entitled to those payments in law.
– The other way is to do it by an act of Parliament?
– You are quarrelling with Parliament’s delegated powers?
– No, I am not. The Minister who signed these regulations and recommended them to the Governor General was scrupulous enough to see that he was not exceeding his authority. 1 submit to the Senate the proposition that the part of each regulation that we seek to disallow is completely ultra vires and is not authorized by the act under which it pretends to have authority. There has been twelve years’ neglect in regard to this matter, the sum paid out over that period without statutory authority amounting to no less than £100,000,000. Each year for the last five years the Auditor General has directed attention to this fact. We ask honorable senators to take the responsibility of seeing that approval for these payments is given not only by a vote of the Senate but also by a vote of another chamber where Ministers can answer directly for this neglect.
– You have not yet explained why the payments are ultra vires;I would be interested to hear your explanation.
– I will come to that. I am just making a prelude to my speech and, if the Minister for the Navy will be patient and understanding, I hope to persuade even him that the payments are ultra vires.
In the Liberal Party, we rejoice that a man is not subject to the direction or discretion of any individual, be he a Minister or merely a member; he is subject to the rule of law; law written in an objective way so that it can be interpreted impartially to secure the rights of every individual and, in case of dispute, by the courts of law. We must be mindful of the fact that it is necessary to preserve the conception that, if a law needs to be altered, it should be altered by the Parliament. That is the great issue in the United States of America at the present time. It is useless to debate these matters on remote international fields if we do not apply the principles to the internal government of the country, for the benefit of the electors to whom we are responsible. Such is our system that when the Parliament passes a bill and that bill becomes an act, there is usually a certain area within which it is proper to have subordinate legislation in the form of regulations. We have a gazette, available to be read by every citizen, in which the objective law should be expressed. It should not be expressed in a secret memorandum from the Secretary to the Treasury to the Secretary to the Department of the Army, to be interpreted by one individual Minister in substitution for a court of law. I think the Parliament will loseits sense of responsibility unless it requires the law that entitles every individual serviceman to his emoluments to be expressed in the printed word in a public document, as distinct from a secret Treasury minute. That is the principle at stake here. Under the Defence Act, authority is given for the Governor-General to make regulations providing for the fixing of the rates of pay of servicemen.
– And in relation thereto.
– Senator Gorton, with the rhythm of the waves, interjects to say “ and in relation thereto “, echoing a memorandum of the Solicitor-General which we have been required to keep confidential.
– It is in the act.
– Yes, but the Minister does not mean to suggest that it has any significance for him from a mere reading of the act. It has a significance for him at the instance of the Solicitor-General. Whatever may be the significance of the phase “ and in relation thereto “, it can be forthrightly stated that nobody with any degree of responsibility, with legal learning, could assert that the provision that the Governor-General has power to make regulations providing for and in relation to the fixing of the rates of pay of servicemen authorizes the making of regulations that go in any degree beyond the fixing of the rates of pay to which, from week to week, servicemen are entitled.
There are those who will not see the distinction between that function and the function discharged by the regulations now under challenge, which provide, in relation to the Army, that during the period that commenced in 1947 and ended in December 1959, members shall be deemed to have been entitled to such pay and good conduct increments at such rates and subject to such conditions as the Military Board determines. In that one paragraph, there is an attempt to use regulations to give to the Military Board authority to determine retrospectively over thirteen years the distribution of no less than £99,000,000, the Military Board not being required, as a matter of law, to say that the actual payments that have been made shall be those that it now determines. I have no doubt that that is what it will do, but as a matter of legal expression, the board is not required to conform to the past payments. I will not withdraw my opinion that it is an abuse of the terms of the act which authorizes the making of regulations to fix rates of pay to say that, not having fixed the rates of pay, the regulations can now purport to give legal validity to payments totalling £99,000,000 over a period of more than twelve years. It seems to me that when advisers to the Government can put that view forward and Ministers of the Crown can accept it, the citadel of parliamentary government is under real challenge.
– Is it contrary to the statute? It is contrary to the regulation?
– After ali that, the Minister asks me whether it is contrary to the statute.
– I hoped you would come to that point some time.
– After all that, I have not yet made it clear to the Minister that indisputably it is contrary to the statute. The statute simply says that you can make regulations fixing the rates of pay. It does not say that if you do not, by regulation, fix the rates of pay, you can retrospectively validate payments that have been made to the extent of £99,000,000 over twelve years. I say through you, Mr. Deputy President, to the Minister for the Navy that I should have thought the mere statement of that proposition could convey, even to the most superficial understanding, the meaning that that was grossly contrary to the statute.
It is then said that this is a matter of administrative detail. Insofar as these regulations fix the rates of pay for the future, the committee of which I have the honour to be a member has not called them into question in the slightest degree. When it comes to a question of validating retrospectively payments of the amount 1 have mentioned, the regulations are appropriate for the consideration of the Parliament. If that amount of money has been paid out without statutory or lawful authority, as I submit that it unquestionably has, the validation of those payments should be a considered act of both Houses of the Parliament. It deserves the consideration of every member of both Houses of the Parliament. The committee brings this matter before the Senate, seeking the disallowance of these regulations for the purpose of achieving this result. The committee believes that the retrospective regulation in each of these three statutory rules should be disallowed.
– Are not these regulations what the Auditor-General has been pressing for?
– If other speakers will answer Senator Lillico when they have the call, let it be so. The Auditor-General has made it clear, Mr. Deputy President, that increased payments beyond the scope of current regulations were being made without statutory authority. That has been his statement, without avail, for five years. Apparently it did not attract the attention of even one of the Service Ministers.
– What about the paragraphs which appear under the heading “ Financial Regulations “ at page 83?
– The second paragraph reads -
My reports for 1935-56 and subsequent years have referred to the continued delay in amending current regulations to give statutory authority for current rates.
The Auditor-General is not concerning himself there with the past. He is trying to enliven the Parliament about the need to see that regulations are provided for the future. For those five years he was calling attention to the fact that these payments were being made without authority. There is not one statement in any of the Auditor-General’s reports which gives his opinion on the idea that a retrospective regulation is a method of validating that which is past.
– Oh yes, there is.
– He has never expressed an opinion to that effect.
– Are not all these payments made legal when the Parliament passes the Estimates?
– Senator Kendall is good enough to ask me that question. This afternoon a Minister relied upon that argument. It will be recalled that we were told that one reason why we should not agree to this motion was that we had appropriated a bulk sum of money. The statement was made that the payment was in accordance with the regulations. I am humiliated to find in a parliamentary document, the Appropriation Act, being Act No. 67 of 1959, a false and untruthful statement. If one looks at the appropriation for the Defence Services, one sees that we appropriated a bulk sum of money, putting our faith in this statement, which appears at page 214 -
Pay and allowances for the above positions are in accordance with rates fixed by Financial (Military) Regulations.
If one passes over a few pages, one finds a similar statement in relation to each of the Services. The Parliament was led to believe that the regulations were effective and that lawful authority existed to distribute that money. Now it appears that, despite the proddings of the AuditorGeneral, the departments had delayed and had displayed gross neglect in failing to make the regulations that they said were the basis of distribution of the appropriation to which we assented.
– Should not the regulations then have been before us?
– Senator Sir Neil O’sullivan, no doubt embarrassed by some responsibility that he had as Minister for the Navy at a certain period, interjects and charges us with the need for vigilance and extends to us a responsibility to be familiar with every detail of every regulation. What an enormity! What a gossamer of an excuse!
– I thought you were vigilant.
– Speaking relatively, I claim to be; but I am humiliated by the degree to which I fail. What I am saying is that the appropriation measure, so far from justifying the claim made this afternoon, was put before us with a fraudulent statement appended to it.
– Who made the statement?
– It was made by the person who penned the document for the printer.
– That is a pretty severe thing to say.
– I qualify my statement by saying that it was not fraudulent but false.
– I should think that even that is unfair.
– The revealed tacts are that no effective regulations were made and that, so far from our appropriation for the Army being distributed in accordance with Army regulations, a sum of £99,000,000 has been distributed without the authority of regulations. So much for responsibility for appropriating that money.
– Do you think there is no difference between a regulation passed by the Parliament and what is described as a Financial (Military) Regulation?
– The Minister for the Navy asks me a question which, otiose though it is, I shall repeat. He asks: Do you think there is no difference between a regulation passed by the Parliament and a Financial (Military) Regulation. I shall rephase it so its otiose nature can be revealed.
– What does “ otiose “ mean?
– A regulation that is made as a regulation usually is not passed by the Parliament, so a regulation “ that is passed by the Parliament “ is just the same as a Financial (Military) Regulation. I pause there with a degree of compassion. If obstinacy is to beset me throughout my speech-
– Tell me what “ otiose “ means and I shall keep quiet.
– 1 pray for relative patience and for understanding.
– Tell me what “ otiose “ means.
– lt means “ silly “. The Senate has been appealed to by the Leader of the Government, who was charitable enough to concede to the Regulations and Ordinances Committee that it had discharged its responsibility. I am tremendously relieved, because despite the fortitude that I display on these occasions I assure the Senate that I approach such occasions with some degree of conscious timidity but never with a spirit of irresponsibility. , lt was only after grave anxiety extending over a period of two weeks that I subscribed to the initiation of this motion. I did so solely because I believe that we of this generation owe it to the Parliament to establish the Parliament’s authority in the face of what I believe to be a concerted challenge by bureaucracy. I hope that challenge will not prevail. This after noon the Leader of the Government said, “ If these regulations are disallowed, J am told that 697 regulations will need to be formulated “.
– No, he did not.
– Having explain^what I mean by “ otiose “, I wish to say, Mr. Deputy President, that that is one of the most otiose suggestions that have been received by the Minister.
– That is quite incorrect. It is deliberately incorrect.
– It is not deliberately incorrect.
– AH you are doing is putting on an act.
– Well, 1 expected-
– What I said was that that was one of the procedures that may be adopted, ar.d that nobody with any common sense would advocate it. Now you turn round and say that is what I advocated.
– The Leader of the Government was conveying to the Senate the idea that the disallowance of these regulations would require that, course.
– What nonsense!
– Well, 1 am relieved of the responsibility of arguing it. The simple result of the disallowance of these regulations will be an act validating the past payment not in accordance with the determination of the Military Board, the Air Board or the Naval Board, but .in accordance with the decision of the Parliament expressed in an act of Parliament in which we will simply say that we, as a Parliament, having been satisfied as to the propriety of the payments and that they have been made in good faith, although without legal authority, now validate them and give them the imprimatur of legal authority.
– You will vote for it if it is done by act of Parliament but not by regulation?
– That is right.
– I never heard anything sillier. -Senator WRIGHT. - I will persevere as a back-bencher to see that justice is done. To those who say in respect of these regulations that there is some semblance of excuse for a delay of twelve years, I point out that those covering the Navy run to more than 15 pages, the Air Force to 22 pages and the Army to 4 pages. However, not twelve years but 28 days was all that was required for the Public Service Board to produce 70 pages of regulations to determine the rates of pay that were appropriate to the entire Commonwealth Public Service consequent on the basic wage and margins decision. In those circumstances 1 think it is a sad denigration of the rights of Parliament seriously to suggest that the proper course is not to disallow the paragraphs in each of these three statutory rules that purport, by the Minister’s signature, to give legal validity to the retrospective payment made over these years without legal authority. We are invited to say that the Parliament should not pass an act-
– What is the position ir. relation to things that have already been done under these regulations?
– That question comes from a Minister who asks us to forbear from pressing the motion for disallowance. That Minister this afternoon told us that the Government had not yet made its decision as to the appropriate course. We were led to believe by Senator Anderson that we should interpret that statement as a promise that the present situation would never be allowed to occur again. The request for forbearance comes from a senior member of a ministry that has failed to heed the requests of the Auditor-General for five years.
– Would you answer the question?
– What about answering the question?
– Of course, the answer is that invalid regulations such as these, usurping the function of validating retrospective payments, should be disallowed. The departments should be told by the Parliament that they are exceeding their proper function. They should be told that the Government, if it is satisfied that the payments have been made in good faith and for proper public purpose, will submit a bill to the Parliament so that each member of each House may approve or dissent from the bill.
– With respect, that is not an answer to my question. The regulations are now, from memory, a couple of months old. They have been acted on for a couple of months.
– Mr. Deputy President, my time is creeping on and I am very patient. My leader says that these regulations have been acted on for a couple of months. If these regulations are properly understood the Minister will concede that they require a determination by each of the three Service boards. I am yet to be informed by any one of the Service Ministers that these boards have purported to act under that authority and make these determinations. Whether or not that is so, as to retrospective validation of these payments, action since 29th June, when these regulations took the form of print, has been simply nil.
– That is not our advice.
– I challenge any Minister either to assert that the contrary is true or to produce any documents to support such a contention.
– What would be the position if the contrary were true?
– If the contrary were true it would be of no avail because my submission is that these regulations, insofar as they purport to give authority to boards to determine rates of pay and to give retrospective validation to those payments, do not have the authority of the act of Parliament under which they purport to be made.
– You would have to have a law case.
– Not at all. Ail you have to do is appeal to a responsible Minister and take a vote of a House of the Parliament. That will be determined to-night, and as far as 1 am concerned, having made my submissions, my soul goes on with satisfaction, whatever the result of the vote may be. Senator Gorton was pleased in this afternoon’s debate to say that part of the delay that had accrued over this period of time was due to the fact that the Parliament, in 1937, had required that all regulations made by the Governor-General, before being gazetted, should be vetted by the AttorneyGeneral’s Department. Mr. Deputy President, in my simplicity I wish to explain my understanding of that statement. It was one simple step to ensure that responsible law officers of the Crown would look over the regulations to see that they conformed with the express will of the Parliament. Have we grown to such a status of liberalism that one of our Ministers now chides the Parliament for that simple and all-too-often ineffective precaution? Thank goodness that at the same time so vigilant was liberalism that it constituted the Regulations and Ordinances Committee. Nobody in the Senate has risen to say that that committee is somnolent or that it shirks its responsibility. Feeble though it is, and mistaken though it may be, at least it does address itself to the non-party impartial objective of bringing to the attention of this chamber of the Parliament to which it is responsible any regulation it believes is thwarting the will of the Parliament. Humbly it will persevere and as the challenge of its authority increases, probably its jealousy to safeguard its functions will correspondingly increase.
Mr. Deputy President, we heard from Senator Gorton a submission on the Acts Interpretation Act. Remembering that Ministers of the Liberal persuasion have inveighed against retrospective legislation, even though passed by Parliament, I lament that to-day a Liberal Minister rather asserted the right to make the operation of regulations retrospective by regulation because section 48 of that act enables regulations to be made retrospective. We heard such an argument to bolster twelve years’ neglect and five years’ heedlessness of the Auditor-General’s reports on the payment of £100,000,000 to individual members of the services. But Ministers will not say, in sorrow and with some small appropriate degree of humility, “ Of course, the proper course in order to put this right is to let Parliament pass a validating bill “. On the contrary, one Minister said that because section 48 of the Acts Interpretation Act provides for retrospective regulations, that is to give the imprimatur, or be the approval. I simply say that I am extremely sorry that the occasion has arisen when that argument is advanced to the Senate from this side of the chamber.
– After all, Parliament did make the provision, did it not?
– My venerable colleague with the nostalgic, nautical sense is at sea again and still perseveres against the storm. He says, “ After all, Parliament did provide it “, and that is true. But Parliament did not provide it as a precedent to be followed even as tabula in naufragio. Only in the case where the need arises - for instance, if the Public Service Board was three or four months late - should it be retrospective. I hope I will not dismay the Minister for the Navy. Although the Navy has sought refuge under that provision and the Air Force has made a stammering attempt to invoke it, the Army does not even dream of doing so. If the Army invoked the argument of the Minister for the Navy that the provision is there and by reason of section 48 (2.) of the Acts Interpretation Act it can make retrospective regulations, the Army has not protected its part of the regulations that some people challenge on this motion. If logic prevails in the Navy to-day in any degree, I ask the Minister to accept that as an argument in relation to the Army to invalidate, according to the motion, the regulations relating to the Army. I just want to conclude-
– You are saying that the Army is wrong and therefore the Navy, which is right, should repeal its regulation because the Army is wrong?
– No. I am just saying that even if the Navy, perchance, is right, the argument does not avail to make the Army right, and the Minister for the Navy should concede, in logic, that the Army fails even if the Navy is still at sea.
I ask the Senate to take this occasion to say that this is a gross, inexcusable and inexplicable experience of the Public Service, but no buttressing by ex post facto opinion and no ideas of ministerial irresponsibility can justify anything but a validating act as a means of correcting this pitiable episode in federal parliamentary history.
– I desire to make a personal explanation. I wish to refer to the remark of Senator Wright, who has just resumed his seat, to the effect that this afternoon I chided the Parliament when I pointed out, in the belief that not all honorable senators would know, that because of the action of the Parliament in 1937 all regulations have to go to the AttorneyGeneral’s Department and that was one reason why there was some delay. I would not regard that as chiding the Parliament, and in case anybody else should have come to that conclusion, I want to make it quite clear that unlike those who thunder about what the law ought to be and object to what Parliament has said it is, I am not in the habit of chiding Parliament.
– Mr. Deputy President, I come down on the side of the remarks made by Senator Anderson this afternoon. I believe that at some time a gifted Australian will traverse this episode in the life of the Senate and will surely put it to lyric and music. I am sure that in the Australian population there are a Gilbert and a Sullivan who could make a magnificent comic opera out of what has happened in this chamber this afternoon. I agree with every word Senator Anderson said and I propose to traverse what has been said this afternoon.
For five years - I quote Senator Wright’s own words - no less an authority than the Aud itor-General-
– You cannot get the accent.
– No, I cannot quite get the right accent. Hamlet has an accent all his own. For five years the AuditorGeneral has pointed out certain matters, and in order to put the record straight I intend to read what the Auditor-General has said in each of those five years. I will not weary the Senate in doing so, as it will not take very long, because I think the comments are most interesting and very relevant to the debate.
First I quote from page 74 of the Report of the Auditor-General for the year ended 30th June, 1956. He said -
In 1947, regulations which had governed a number of financial provisions for the expenditure of public funds during the war years were repealed, and a commencement was made on the drafting of new regulations.
In view of the time elapsed since the war-time regulations were repealed and as many financial matters are not adequately covered by regulations, it is considered that early action should be taken to conclude and promulgate the superseding regulations.
A similar position obtained in respect of the Department of the Navy. 1 come now to the report of the AuditorGeneral for the year 1956-57. These statements are very interesting to read. Under the heading “ Financial Regulations “ the report of the Auditor-General reads -
Reference was made in the Report of 19SS-S6 to delay in the revision of regulations governing financial matters. When this Report was prepared, satisfactory regulations had not been promulgated.
In his 1957-58 report, at page 82, the Auditor-General said -
Recent Reports have referred to the delay in promulgating revised regulations governing financial matters.
Although draft regulations have been prepared, their promulgation has been deferred in order that any amendments arising from a recent review of pay conditions of the Services can be incorporated.
– In other words, they were to be made retrospective?
– Of course they were. That is exactly what he says. We come now to the Auditor-General’s report for the year ended 30th June, 1959. At page 83 he said -
Reference has been made in my last three Reports to delay in the promulgation of revised regulations governing financial matters.
Amendments, effective from July, 19S8, arising from a review of pay conditions of the Services, have been incorporated in draft regulations already prepared. Although the Department expects that the issue of revised regulations will be finalized at an early date, they were not promulgated when this Report was prepared.
We come to the year 1960.
– One more year to go.
– One more year to go. It will not take me three-quarters of an hour to put a bit of common sense to the Senate. It took the honorable senator that time to put a legal point of view, and his own legal point of view at that. Let me read what the Auditor-General had to say on page 83 of his report for the year ending 30th June, 1960. It was -
Provision is made in the Defence Act 1903-1956 for the issue of regulations prescribing the rates of pay and allowances of members of the Austraiian military forces.
My reports for 1955-56 and subsequent years have referred to the continued delay in amending current regulations to give statutory authority for current rates.
A similar position in both the Royal Australian Navy and Royal Australian Air Force was the subject of comment in recent reports.
The Joint Committee of Public Accounts investigated the matter and completed its hearings in June, 1960. The Committee’s Report and conclusions had not been published at date of compilation of this Report.
Amending regulations were issued in June, 1960, to provide statutory authority for variations of rates of pay during the years preceding. When this Report was prepared the necessary Statutory Rules had not been promulgated to provide for various allowances not prescribed by current regulations and for rates of pay for members of the Women’s Services.
For five years the Auditor-General has been calling for regulations to validate what has been done for thirteen years, lt is a great pity that we do not have the report of the Public Accounts Committee before us now. Being a body of substance, I am sure that that committee would say the very same as the Auditor-General has said - namely, that these regulations should be promulgated and take effect retrospectively to validate what has been done over the years. Having read what the Auditor-General has said, and having a fair idea of what the Public Accounts Committee would say - I do not want to put that forward as an argument - the Government has introduced these regulations to fix the matter up and put the record straight. But what do we find? The Regulations and Ordinances Committee has suggested that the regulations be disallowed. If Gilbert and Sullivan could not have made something of such a situation, they were not the men I thought they were. I am sure we all agree upon the impartiality of the Auditor-General, the guardian of our finances. I would have thought that, in view of the comments of such an impartial authority and of his requests for the promulgation of regulations, the action that has been taken would be a matter of satisfaction to this Parliament.
Reference has been made to the legal effect of these regulations. We have been advised that the regulations are perfectly legal and that they will validate the action taken in the past by the military, naval and air forces. But what has been suggested by the committee? It has been suggested that the parts of the regulations which validate the action that has been taken in the past should be disallowed. If the Parliament disallows the regulations, what position will we find ourselves in? In this connexion I wish to refer to something that Senator McKellar said this afternoon - something that I heard with great astonishment. He said he was not prepared to accept the undertaking of his leader - the Leader of the Government in this chamber - that steps were being taken by the Government to see that the present set of circumstances would not continue.
– 1 did not say anything of the sort.
– You will have a chance to make a personal explanation if I am misquoting you. I wrote down what you said. Let us assume that the Senate disallowed the retrospective clauses of these regulations. Upon whom would Senator McKellar have to depend to introduce a bill into this chamber? He would have to depend on the Leader of the Government - the very person whose undertaking he has said he will not accept. He would find himself in the position, if the Senate did not vote for the continuance of these regulations, of having to depend upon the very authority whose undertaking he said he was not prepared to accept.
– Do you suggest the Government would not bring in a bill?
– I listened to Senator Wright for three-quarters of an hour. In due course an answer to that question will be given by the Government. I have just explained the position that Senator McKellar will find himself in.
– I do not like these internecine squabbles.
– I do not like them either. No suggestion has been made from either side of the chamber that any misappropriation of funds is involved. No one has suggested that the payments made to the troops - to all ranks of the Army, the Navy and the Air Force - were not made in good faith by the officers who made them or by the authorities responsible. Nobody has suggested that action should be taken to ask for a refund of this money. Nobody has suggested that the amounts paid were not the correct amounts. In short, there has been no suggestion of any misappropriation of money.
The real question for the Senate is whether we should accept the regulations governing the present rates of pay of the members of the three defence services, and regulations validating past payments, for thirteen years in the case of the Army, and for shorter periods in the case of the Navy and Air Force. A precedent already exists. In 1956, naval regulations validated payments for nine years, from 1947 to 1956, and the Senate accepted that as a proper course. That has already been done.
– I do not remember any debate on that matter.
– There may not have been any debate. 1 pay a tribute to the Regulations and Ordinances Committee for having brought this matter forward for debate. In that respect I think it has done a great service to the Parliament, but I suggest that it should not overplay its hand. I believe that it is overplaying its hand in trying to force to a conclusion a matter that has already been brought to the attention of the public by the Auditor-General, by the Public Accounts Committee and by the Regulations and Ordinances Committee itself. We have had a lengthy debate on the subject, something that did not happen in 1956. Perhaps the committee was a little less vigilant in those days than it is now.
– lt brought out an assurance from the Government, too, did it not?
– Exactly, lt brought forth an assurance from the Government that the position was under notice and would be dealt with. I thank Senator Branson for his interjection.
I think that, as a matter of practical common sense, we should accept the regulations and approve them. We should validate them. You cannot go back with things of this kind. Mr. Deputy President. They have been done, although not wrongly done. There is no suggestion of wrongdoing. Nevertheless, they have been done and they will be righted and validated by these regulations. There are some who say, “ No, not by these regulations “. They maintain that we should throw out the retrospective effect of the regulations and put the Parliament and the people to the expense of drafting legislation, debating it, and having it passed by the Parliament, unnecessarily in my view. That course would achieve exactly the same purpose as we shall achieve by approving the regulations, because if the Parliament approved them it would place its imprimatur on them.
– And the AuditorGeneral would accept them.
– Yes. Are we to do that, as a matter of sheer business common sense, or are we to be pedantic and legal about it and say: “ No, Parliament cannot do it in that way. Parliament can do it only by an act of Parliament.”? Are wc to go to the extent of drawing up a bill and passing it, merely for the purpose of bringing about exactly the same result as we could achieve by approving the regulations?
– I think it might be a good investment if we did that.
– 1 do not think there could be a better investment than to pass the regulations.
I do not offer the slightest excuse for the long period during which the regulations to put this matter in order have remained unpromulgated, nor do I support the delay. But it is so easy to be wise after the event. It is so easy to say, “ There has been maladministration and Ministers must accept responsibility.” lt is a simple matter to lock the stable door after the horse has bolted, but wise as we may be after the event, to do as is suggested should be done would achieve no more than will be achieved by passing the regulations. Senator Wright should brief Senator Wood properly on this matter, so that he will be able to reply to the debate.
– I do r.ot get briefed. I have my own views.
– As 1 have said, it is easy to be wise after the event, but what good would it do to adopt the course that has been suggested? We have had a long debate, and the three authorities referred to have called the attention of the Parliament and the public to the matter with a view to seeing that things are done properly. The Government has given an undertaking.
Frankly, I come down on the side of what I believe to be common sense. The faults have been aired and they have been admitted. Action has been delayed - some honorable senators may call it delayed action; I certainly do. Nevertheless, it is believed that the regulations will put the position in order. The Leader of the Government in the Senate (Senator Spooner) has given an undertaking that administrative measures are being taken and will be taken. They have not taken concrete form as yet, and that is why the Leader of the Government could not state them in a concrete form. However, he has given an undertaking that the administrative machine will be overhauled so that this position cannot arise again. I say that, in the name of common sense, the proper thing to do is to pass the regulations and let us get on with the job.
– 1 have listened to the speeches from both sides of the chamber during the debate. I shall not detain the Senate for long, but at the outset 1 want to say that I am rather jealous of the powers of the Parliament. Having considered the statements made during the debate so far, it seems to me that in certain respects the powers of the Parliament have been deliberately ignored.
– And its rights.
– The powers or the rights of the Parliament. For nearly twelve years, so far as one department is concerned, the function of the Parliament has been ignored, which makes one wonder whether the service departments think that they are more important than the Parliament. As we know, when that has happened in countries overseas it has led to a certain kind of government. So, I say that I am jealous of the powers of the Parliament.
Reference has been made to the amount of money involved in this matter, and some honorable senators have said: “All right. We can fix it up by means of regulations.” Only a few days ago I suggested that the same thing should be done in relation to social service benefits. The answer given to me by the responsible Minister was that social service benefits are costing us a tremendous amount of money, responsibility for the expenditure of which should not be passed to a tribunal but should be that of the Parliament itself. If that argument is adopted in respect of social service benefits, why should it not be followed in relation to the regulations that we are discussing? I ask the Government to be consistent by adhering to the argument it advanced a few days ago. I should like to know what course the Government proposes to adopt in the future. I believe that the defence departments of this country have not fully appreciated the authority of this Parliament. It can do no harm to demonstrate our authority in a statutory manner. It would serve no useful purpose to institute an inquiry to determine who has been responsible for what has happened, lt may well be that a past Minister was at fault.
As I have said, our authority should be demonstrated to the defence departments. That could be done by introducing a validating measure. There is no reason why that should not be done. Some Government senators have said that such a procedure is not necessary, but I believe that we should teach those departments a lesson. After this matter has been disposed of, either by the retention of the regulations, or by the introduction of a validating bill - which I think is necessary in this case - what practice will the Government adopt in the future? We do not want a repetition of this state of affairs even for two years. The defence departments must conform to the law of this country.
As I said before, Mr. Deputy President, I am jealous of this Parliament’s powers, and I believe that, in order to place this matter on a firm basis, a validating bill should be introduced. Now that this matter has been ventilated by the Regulations and Ordinances Committee, I think that the Government will be wise enough to adopt the correct procedure in the future.
Senator Sir NEIL O’SULLIVAN (Queensland) [9.12]. - I think that the Regulations and Ordinances Committee should be commended on bringing this matter before the Senate as no doubt there has been very gross laxity and it is proper that that laxity should be exposed without harbouring anybody at all. In my view, the situation has been exaggerated by the fact that, for the last five years, attention has been directed by the Auditor-General to the non-compliance with the requirements that have been mentioned. This was recently highlighted by the Public Accounts Committee. Very properly, in my view, the Regulations and Ordinances Committee has brought the matter to the notice of the Parliament.
I do not quite agree with a lot of the submissions that have been made. There is ho question at all of impropriety - laxity, yes, but not impropriety or misappropriation of moneys. The assertion that if regulations had been made from time to time - as they should have been - prescribing the rates of pay there would have been no question of the functions of the Parliament being usurped, has not been denied. I refer to legislative power being usurped by regulation-making power. The fact is that regulations were not made at the time. With all due respect to my colleagues, I say that it is not, technically, quite right to suggest that we are now making the regulations retrospective.
To introduce a regulation on an act of Parliament with retrospective application is really to create a right or a responsibility not then in existence and to ante date it. That is not the position here. These rights and responsibilities - the rights of the payees to be paid, and the responsibility of the authority to determine the pay - existed; and in a large measure - Senator Wright will pardon my saying so - we are acting nunc pro tunc - we are doing now what should have been done then. Had it been done before, this matter would not now have come before the Parliament. It is quite wrong to suggest that the Executive or the Administration is usurping the functions of Parliament because, had this been done in proper order the matter would never have been before the Parliament other than by way of a regulation laid on the table.
I think we ought to get the issue quite clearly in our minds that the Administration is not usurping the function of the Parliament, that the Administration or the Executive, by regulation now, is not attempting to make anything retrospective. It is merely confirming what should have been done at the time. In other words, we are acting nunc pro tunc; we are doing now what should have been done earlier.
I am quite sure that the fact that this matter has been raised in this way will have a salutary affect upon the officers and the administrators responsible, particularly in view of the repeated statement by the Auditor-General that there has been la gross contempt of Parliament by the Administration. I hope it will not occur again and I am sure, from the assurances that have been given by the Leader of the Government, that some knuckles will be rapped over this matter. I do not think it is necessary - indeed, I think it would be quite wrong - to go through the formalities of making an act of Parliament to do what Parliament itself has already delegated to the military tribunals - that is, the fixing of rates of pay and so forth.
– The Governor-General has that right.
– He does not act alone; he acts on the advice of the military tribunal, I understand. I am open to correction as to the technicalities, but I am sure that the Governor-General does not go out shooting and come back with a rate of pay in his mind. He acts on the advice of his advisers. I strongly believe that it is quite sufficient to direct the attention of the Army Board to the laxity that has obviously existed and that it is not necessary to force the issue to the stage of passing an act of Parliament - getting out a steam-roller to do a wheelbarrow’s job.
– Or taking a hammer to kill a fly.
Quite. I commend the Regulations and Ordinances Committee on raising this matter, but I urge the members of the committee not to press it to the conclusion which they have already indicated an inclination to do. I am quite sure, in the light of the assurances Senator Spooner has given, that this type of thing is not likely to occur again and that those who are responsible to Parliament will be more diligent in their observance of the requirements of their duties in the future.
– I, too, commend the Regulations and Ordinances Committee on having brought this matter to our attention. In spite of the repeated statements of the Auditor-General, the committee could not raise the matter in this chamber until the regulations were actually promulgated, and it has now done so at the first opportunity by proposing that the regulations be disallowed. The matter has been fully discussed, and I hope that Senator Wood, who submitted the motion, will now ask for leave to withdraw it, as there has been no misappropriation of government moneys. That point has been made perfectly clear. The money that was allocated by the Parliament has been applied as we envisaged. The scales of payment were known and published. It has been stressed that there was laxity. In spite of warnings by the Auditor-General, the laxity continued. As a layman, I am a little worried about retrospectivity and time limits. It appears that if this motion is carried it will establish a principle that no alteration to rates can be made until a regulation is approved in advance by the Parliament. If the motion is carried, a regulation seeking to validate retrospective payments for two weeks or even one day must be disallowed and legislation must be passed to validate these payments. That is why I cannot vote for the motion. I do not think that that is the aim of the committee. Carrying the matter to a logical conclusion, servicemen would have to wait until regulations could be drafted for increases which Parliament had approved. It might be a good thing if the regulations were approved in advance, but 1 am not arguing that now. If we are to have further power over the purse, the result might easily be that regulations haJ to be promulated before there could be any increase or decrease in rates.
I am not a legal man, and the question of retrospective payments and time limits has worried me. I think it is wrong to pass a bill to validate these payments. I agree with Senator Sir Neil O’Sullivan statement that there has been laxity and I do not think that there is any excuse for it. There is no need to hide behind the Public Accounts Committee or the Regulations and Ordinances Committee. The debate has brought this matter into the open. With this precedent before the chiefs of the services, if they disregard requirements they will deserve no mercy from the Parliament. As the passing of the motion would defeat our aim, I hope that the mover will withdraw it.
– As has been remarked by earlier speakers, the fact that we are debating this motion is another manifestation of the activity of the Regulations and Ordinances Committee of the Senate. I do not think that it has ever been my experience to be in a posi tion where I have taken the same view as that presented by the committee. I am consistent on this occasion because 1, too, oppose the motion. 1 think it has been put forward with a zeal that outstrips judgment and I offer no offence to the committee or to any member of it when I say that. If ever there was a matter that required a calm common-sense practical judgment it is this one.
I do not think that it has added anything to the debate to talk in terms of secret Treasury minutes, a vicious bureaucracy, or a fraudulent something or other. This is a situation that has arisen and continued within the sight and knowledge of this Parliament over a number of years. This is not something which has broken upon us and caused us surprise. This is an administrative deficiency, if 1 may so describe it, which has been brought to the notice of the Parliament on a number of occasions. That it has not been remedied during the period it has persisted is, the departments concerned state, because they were unable to prepare regulations in the time and in the circumstances of frequent variations in rates of pay, no fewer than twenty-six over the period.
– Has the reason been accepted?
– 1 want to make my own speech in my own way, even if part of it might be directed to Senator Wright’s comments. What might be regarded as inefficiency or laxity in this matter has, we are told, come to the notice of and been under investigation by the Public Accounts Committee. I for one shall be most interested to read what the Public Accounts Committee has to say. indeed, I regard the report that is coming forward from that committee as of such importance that in a later part of my speech 1 shall speak of it in another context. We are not so much concerned now with laxity or inefficiency as with these regulations and their validity, and the fact that £100,000,000 was involved.
I have been interested to notice the course of this debate. Senator Wood, who is chairman of the Regulations and Ordinances Committee and no doubt leads it iti thought and guides it in the way that it shall go, gave emphasis in his opening remarks to the fact that a lengthy period of twelve years and an amount in excess of £100,000,000 were involved, i shall refer to that again.
Senator Wright, who. without discriminating favourably or unfavourably against any other member of the committee, spoke with great vigour, placed the emphasis of his complaint on the fact that the action proposed under the regulations and indeed the regulations themselves were invalid. There was a shift of emphasis as between the chairman of the committee and Senator Wright. In the presentation of the committee’s report, we saw something that had nol happened before, as far as 1 know. For the first time, the report of the committee is not a unanimous report.
– Which report?
– The matter that comes before the Senate on the motion of Senator Wood is not supported unanimously by the members of the Regulations and Ordinances Committee. Considerable influence is brought to bear on my thinking, and doubtless on the thinking of other honorable senators, by the fact that a senator of the calibre of Senator Laught should make it clear that he does not go along with the submission of this report.
– He cannot make up his mind.
– He can. He has given you plenty of examples of his ability to make up his mind. The fact that the report is not a unanimous one is of some moment and is worthy of note.
May T refer to the sum of £100,000,000 that is involved? I believe that the point which was made by Senator Sir Neil O’sullivan, who spoke before me, is the one we should keep in mind if we are to have this matter in perspective. In the normal course of events, every penny of this £100,000,000 would have been validated by regulation. The fact that now an effort is being made to do it by regulation means, if I may borrow Senator Sir Neil O’Sullivan’s phrase, that the departments are doing what admittedly should have been done before. That underlines the further fact that the offence lies not in the amount, startling though it may be, but in the fact that for the reasons stated and known and commented upon action was not taken at the time when it should have been taken.
All these variations, it should be stated again, followed decisions of the Govern-/ ment which flowed from basic wage variations, margins variations and the like. On one occasion, they followed the very much publicized report of the Allison committee. I say again, even if it is only to invite the scorn of those who formerly scorned the submission, that the amounts were appropriated each year and that it was within the knowledge of the Parliament that they were being appropriated and were being applied for the purpose for which they were appropriated. Senator Wright said that an act of Parliament should now be passed to validate what has occurred. He doubts very much - indeed, he challenged any member of the Government to say so - whether action has been taken to implement the regulations. The fact is that the Army Board has already made a determination in pursuance of which the sum of £99,500,000 that is involved in the case of the Army has been validated. Action was initiated on 1 6th September, and a resolution was passed on 26th September validating the payment of that sum of £99,500,00.
– It was initiated on 16th September!
– Action was initiated on 16th September and the resolution was passed on 26th September. Notice of Senator Wood’s motion was given on 27th September, the motion was submitted on 28th September, and debate proceeded on 4th October. Senator Wright should get nothing but satisfaction from that, because, when all is said and done, it has been he who has reminded us that for years the Auditor-General has suggested that this very action should be taken. 1 put it to Senator Wright that his interpretation of what the Auditor-General has said - that is, that the regulations could have only prospective effect - cannot, in the name of common sense, be supported. As I represent the Minister for Air in this chamber, I have taken note of what the Auditor-General said in his report for the year ended 30th June last. He said -
Regulations issued under the authority of the Air Force Act 1923-1956 provide for the rates of pay and allowances of members of the Royal Australian Air Force.
My Reports for the last two years mentioned that for a considerable time the Department had not taken action to incorporate in the current Air Force Regulations, variations in rates of pay and allowances.
Surely that had reference to the fact that the then existing rates of pay and allowances had not been amended and that they should be amended. He continued -
Attention was drawn to the fact that increased payments beyond the scope of current regulations were being made without statutory authority.
A similar position existed in both the Navy and the Army.
The Joint Committee of Public Accounts investigated the matter and completed its hearings in June, 1960. Its report and conclusions had not been published when this Report was compiled.
Although amending Statutory Rules were promulgated in June, 1960, giving authority for variations of certain rates of pay and allowances during the preceding years, at the date of preparing this Report the necessary regulations had not been issued to provide for a number of other allowances not prescribed by existing Statutory Rules. 1 suggest that to interpret that passage as having reference only to prospective payments is a failure to understand the simple words that are used.
Senator Wright, naturally, had a good deal to say about the legal position. 1 was interested, as 1 always am, in what he had had to say. But it occurred to me as the honorable senator spoke that the fact that this position had been brought to his very astute mind each year by the Auditor General should at some time prior to this have kindled an awareness that something was wrong even with the 1956 Navy regulations. At no time during the years that Senator Wright has passed comment on what the AuditorGeneral has said have I heard him suggest that even if regulations were then made, those regulations would not have legal force. I should have thought that his study of the situation over such a long period may well have awakened an awareness of that belief prior to this year. Without offence I merely comment that his discovery of that belief now is an uncharacteristic display of hind-sight. Because I was interested in the legal situation I sought from the SolicitorGeneral an opinion that I might use in this debate. I am happy to confirm what has already been said by the Leader of the Government and other speakers. In the view of the Solicitor General the legality of the regulations is not in doubt it is not within cooee of being in doubt. I should like to read to the Senate that part of the Solicitor General’s opinion that is relevant. The SolicitorGeneral states -
It seems clear that no question of constitutional law is involved. The only possible grounds of invalidity are therefore -
that the terms of the regulationmaking powers under which the regulations are made are not wide enough to authorize them;
I will not refer to the second ground because it was not referred to in debate. In respect of the first possible ground of objection the SolicitorGeneral continues -
It might be argued in support of the first ground that, whilst the Acts under which the regulations are made authorize the fixing of rates of pay by regulation, they do not authorize the regulations that remit to the respective service Boards the function of determining rates of pay, as the regulations sought to be disallowed purport to do, in relation to certain past periods. It will be seen, however, from what follows that the relevant regulationmaking powers are in uncommonly wide terms and in my opinion they provide ample authority forthe regulations.
Statutory Rule No. 51 (amendments of the Financial (Military) Regulations) is expressed to be made under the Defence Act 1903-1956. The relevant provision of that Act in section 124 empowers the GovernorGeneral to make regulations prescribing matters providing for and in relation to - “ (d) the fixing of the rates of pay of members of the Defence Force who are paid for their services.”
The one in dispute - falls squarely within this power, as it provides for the fixing of rates of pay of members of the military forces, for a certain past period, by the Military Board. It will be noted that the section of the Defence Act does not require the regulations to fix the rates of pay but permits regulations providing for the fixing of those rates.
It permits regulations providing for the fixing of rates by the various boards, as has been done, and as I have already explained in relation to the Army. The SolicitorGeneral continues -
Statutory Rule No. 52 (Amendments of the Air Force Regulations) is expressed to be made under the Air Force Act 1923-1956. Sub-section (3.) of section 3 of that Act provides that Part XI. of the Defence Act (which includes the regulation making power in section 124 referred to above) shall, subject to the Air Force Act, continue to apply in relation to the Air Force. Section 9 of the Air Force Act also gives the Governor General express power to make regulations “ prescribing all matters which are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for securing the discipline and good government of the Air
Force and the members thereof.” This latter power is in itself wide enough to cover regulations providing for fixing rates of pay. Therefore whether Statutory Rule No. 52 is regarded as being based on section 9 of the Air Force Act itself, or on section 124 of the Defence Act as applied by the Air Force Act, regulation No. 30 is no less valid than regulation 6 of Statutory Rule No. 51, discussed above.
So, in lay language what the SolicitorGeneral is saying there is that we can get them with both barrels if need be. The Solicitor-General continues -
Similar considerations apply to Regulation 35 of the Statutory Rule 1960, No. 53 (Amendments of the Naval Financial Regulations). This Statutory Rule is expressed to be made under the Naval Defence Act, and sections 5 and 45 of that Act contain provisions similar to those of sections 3 and 9 of the Air Force Act referred to above.
The suggestion that the regulations may be invalid may arise from the fact that at one stage of the proceedings of the Public Accounts Committee, the Parliamentary Draftsman, Mr. J. Q. Ewens (then Acting Solicitor-General), expressed orally some doubt on the validity of a similar regulation in the Naval Financial Regulations. However, subsequently the Committee asked Mr. Ewens for advice as to the validity of this regulation and Mr. Ewens furnished a considered opinion to the Committee dated 30 May, 1960. In paragraph 6 of his advice Mr. Ewens said, “ I have now had an opportunity of giving closer consideration to the regulation, and, in my opinion, a good case can be made for its validity “. In a later passage he said that the use of the words “ for or in relation to “ in section 124 of the Defence Act “ has the effect of widening the power sufficiently to authorize a regulation in terms of regulation 269 “.
May I interpolate that regulation 269 was the Navy regulation introduced in 1956 which went unchallenged by the committee or by the Senate. The Solicitor-General concludes -
This is completely in accord with the views I have expressed above.
Sir, I submit to the Senate that the Government says with great emphasis that it has received from its legal advisers a view that supports the legality of the regulations that are now challenged - a view that does not permit of any doubt at all as to their legality. We are now in this situation: We have a position that has existed for a number of years. It is acknowledged that it is not a happy position, but it is one that does not now involve an amount of approximately £100,000,000 as has been mentioned throughout the debate, because the £99,500,000 that is attributable to the Army is now valid. That amount has been passed under a valid regulation and the passage to-night of this motion could have no effect on that amount, because even in the event of the motion being agreed to, the regulations would become invalid only as from to-night.
– I recognize some slight doubt expressed by Senator Wright. I have had the benefit of legal opinion. That is the position in respect of the amount of money involved.
As to the future, in which I think most honorable senators are interested, I point out that early in this debate this afternoon the Leader of the Government gave an assurance to the Senate-
– As he should.
– He gave an assurance, as he should and as he did, about what would be done in the future. He said that the Government would introduce procedures and machinery which would make it impossible for a situation such as this to occur again. I am able to say that this matter is now receiving the attention of all the departments involved - the three service departments, the Attorney-General’s Department and the Treasury. For obvious reasons, the Government wants to have an opportunity to consider the report which will be submitted by the Public Accounts Committee before making any firm decisions on this matter.
To my friend Senator McKellar, whose acknowledged conscientiousness carries him to support this motion, I merely make this pertinent statement: One of the things that was obviously disturbing him this afternoon was the fact that he had no guarantee about what would happen in the future. I say to him directly that his leader has publicly given him an assurance that should satisfy him as a reasonable man.
Sir, that is the position. It is one which needs correction. The Government proposes to correct it in the common-sense way which was detailed by Senator Henty in order that this practice, which occurred under both Labour and Liberal governments, will not be permitted to occur again.
With sincerity, I again ask the chairman of the committee, Senator Wood, to withdraw the motion.
.- in reply - This afternoon and this evening I have listened to this debate with very great interest and. at times, with deep concern. The matter which I have brought before the Senate on behalf of the Regulations and Ordinances Committee is a very serious one, and the levity displayed by some honorable senators on the Government side has shocked me. If anybody on this side or the other side of the chamber was in business and a member of his organization showed laxity such as that shown in this instance, he would take very serious steps to remedy the position.
In bringing this matter before the Senate, the committee has taken action on the highest parliamentary level. I am proud to be the chairman of this committee because of the calibre and personality of the members of it and because of the duties which devolve upon it. The members of the committee take their job seriously and I resent very much the statement by a Government senator that we have brought the matter before the Senate with a chip on our shoulders. To my way of thinking, it is wrong to speak of a standing committee of the Senate in that way. I resent the statement because I believe that every member of the committee is imbued with a spirit of public service, just as much as is any other honorable senator. That sort of talk makes me feel that, while we have had assurances from the Government leaders, there is not an appropriate degree of acknowledgment of the seriousness of this situation in the ranks of the Government. For that reason, I propose to allow the motion to proceed to the vote. When a serious matter is brought before the chamber and is treated in the way in which this matter has been treated by senators on this tide, that puts my back up and I dig my toes in.
I am very greatly concerned, from a parliamentary point of view, when a standing committee or a joint committee brings before this chamber a matter such as this and I hear Senator Anderson say, “ I am supporting my leader and the Govern ment “.. That is absolutely contrary to the spirit of this motion.
– I did not say that, Senator. You did not quote all that I said. You are misrepresenting me.
– You said, “ My leader “ and you mentioned the Government. If there is any doubt about it-
– It is in “ Hansard “; I checked it.
– The statement has been bandied about, but if there is any doubt about it, are you supporting the Government? The point is that this is not a government or anti-government motion in any shape or form, lt has been introduced with the object of safeguarding the rights of the Parliament. The committee believes that because of the situation that has arisen, the Parliament should take steps to correct the serious wrong that has been done. If Senator Anderson denies that he made that statement, I accept his denial, but it has been bandied about. This is not an anti-government motion. I believe that as senators we should uphold the traditions and the rights of this chamber, and the Parliament generally would be better served if we recognized that motions such as this are brought forward in the spirit of safeguarding the rights of Parliament.
To-day I have heard the contention that the committee should have brought in a report. The Standing Orders were quoted by Senator Laught and he was supported by Senator Anderson. That procedure is a round-about way of getting to the point. The committee has power to report to the Senate, but it has no power to move for the disallowance of any regulation in this chamber.
– I did not say the committee had power to move the disallowance.
– I am not suggesting that you did. Tt has been suggested in other quarters that the committee should have moved for the disallowance of the regulations.
– Pardon me. I have ears with which to hear and I know what has been said. A motion for the disallowance of regulations or ordinances has to be proposed in this chamber by a senator, and as 1 happen to be the chairman of the Regulations and Ordinances Committee I submitted this motion. This action was in consequence of discussions that took place, but the motion was proposed by me and seconded by Senator McKellar.
– No one can accuse you of shirking your duty.
– That is a point I want to make quite clear. That is the responsibility placed on the committee. 1 point out that every honorable senator has the right to move for the disallowance of any regulation or ordinance.
– You objected to one or two of us expressing an opinion.
– 1 do not object to people expressing an opinion, but 1 do object to people saying that this is an anti-government motion. The committee can make its own decision on whether or not it submits a report. If it decides to present a report to this chamber, what is the result? Does any action ensue from the presentation of the report? No action takes place in this chamber on that report; the committee can only present its report. In this case, because of the seriousness of the situation, I believed - and I know that the majority of the members of the committee believed - that the submission of this motion was the correct, salutary action to take in order to impress the position upon the Public Service and the people responsible for it. The disallowance of these regulations would be a strong action that would have a salutary effect. It would be one way of rectifying the situation and of removing any legal doubts. Strong action of that kind would impress into the minds of the people concerned much more than would be the case if the committee were merely to bring forward a report.
I was interested to hear Senator Henty say that he approved of retrospective regulations. I have said before that Senator Henty, because of his business training, has a down-to-earth approach to many problems. I feel that if he were not a Minister, he would agree with the committee. Before he became a Minister he was very strongly opposed, if I remember rightly, to retrospective legislation, but now he says that he is in favour of it.
– 1 offered some business commonsense as an antidote, but you could not absorb it.
– 1 hope that 1 have noi stirred up Senator Henty by reminding him of his previous views on retrospective legislation. I think it is good to know thai deep down he resents such legislation.
– Speak for yourself.
– He also said that this committee was over-playing its hand. Let me remind the Senate that every time the committee has acted, the suggestion has been made by the Government that it is over-playing its hand. I remind honorable senators of the action of the committee in relation to import licensing. Because the committee could muster a majority in support of its view, the Government gave way and set up an import licensing appeal board. That appeal board has done a lol of good. Only last year Senator Henty introduced a bill providing for an appeal board in the Department of Customs and Excise. In his second-reading speech he mentioned - it was a matter of great joy and pleasure to members of the committee - the wonderful success of the import licensing appeal board. He said that the example set was being followed by the Department of Customs and Excise. When the committee suggested an import licensing appeal board, the majority of Government supporters said the same things about the committee as they are saying to-day. Every time the committee brings forward a motion such as this, it is suggested that it is an anti-Government move, but that is not the attitude of the committee at all.
Senator Paltridge said that the members of the committee were not unanimously in favour of this decision. That is true. Senator Laught stood out, and honorable senators have heard him” speak on the matter to-day. 1 respect Senator Paltridge’s ability, but sometimes, in stating a case, he emphasizes one side a little too much. He does not show much respect for the rest of the committee when he says. “ I greatly respect Senator Laught’s view “. Amongst the other members are Senator Wright, who is a legal man; Senator McKellar, a Country Party senator who I think is very sound in his outlook; and Senator Willesee, who is one of the bright young men of the
Opposition. There is also myself. Apparently our opinions do not count as much as does the opinion of one senator.
– We are entitled to think that if we want to.
– You are entitled to think that, but members of the Liberal Party and the Country Party believe in the democratic rule that a majority decision should be respected. This was a majority decision which should be entitled at least to some consideration. I do not think the opinion of one person should outweigh the opinions of the other four.
– Two members of the committee were absent.
– I feel fairly confident that if they had been present they would have supported the decision of the majority. Even if they had not done so, we would still have been in the position of having a democratic majority.
Senator Paltridge said that the Government would be prepared to accept the decision of this chamber. If we were to adopt the attitude of some Government supporters, we would say that that was wrong. If the majority of senators are not prepared to stand up for what we think are our parliamentary rights, that is their business. All that we are concerned to do is to bring this matter forward and to make a proposal for upholding the rights of parliamentarians and of the Parliament. If the parliamentarians do not see it that way, that is just too bad. Senator Paltridge said also that if the regulations had been made at the time they should have been made, the whole of the £100,000,000 would have been spent in a valid manner. Nobody can take exception to that statement. I believe that Senator McKenna made an excellent contribution to the debate and dealt with the legal point at issue very well. Senator Wright also dealt with that same aspect.
– You agree with them because they agree with you.
– I have considered this matter from the point of view of a layman. On the one hand the people who oppose this motion contend that the regulations will validate the payments that have been made.
On the other hand, those who support the motion agree with Senator McKenna and Senator Wright in their contention that you cannot bring in regulations now to validate those payments, because if the regulations had been made at the time they would have said that this and that “ shall be “ the pay and conditions of the particular services. Those would have been the current pay and conditions. The position now is that the regulations will apply to payments that were made as far back as twelve years ago. How can those regulations say that certain rates shall be the rates of pay applicable to that time when the period concerned has passed? I believe that the power to make regulations in that connexion has passed from the departments concerned.
In conclusion let me say that the question before us is whether the Senate, together with the other House, should exert the right to remedy a very serious situation. We have a situation of which no government or administration should be proud. We as a committee ask, “ If people in the Services have made such a terrific blunder or omission, should they be able to say lightly, We shall make a regulation to cover it up ‘? “. Should that finish the matter?
We believe that legislation should be enacted by this Parliament to show to the people concerned that the right thing has been done by the Parliament, following their failure to observe the standards of service owed by them to the country over a period of twelve years. I, and a majority of the members of the committee, feel that parliamentary enactment is the right way to go about the matter. We believe, too, that if the necessary legislation were passed the effect would be to improve the service given to the Parliament and the Commonwealth by the departments concerned, and that that would be better than merely to make a report or to allow the regulations to be validated.
– I wish to make a personal explanation, Mr. Deputy President. Both Senator Wood and Senator Wright have placed a certain construction on remarks that I made in relation to Senator Spooner. Senator Wood was gracious enough to withdraw the remarks he made, on my querying them by way of interjection. I think that it will be proper and fair to the Senate if I read from the “ Hansard “ typescript of my speech, so that there can be no misunderstanding. The first passage is as follows: -
In the circumstances, I am prepared to accept the word of the Leader of the Government in the Senate that the SolicitorGeneral’s office has looked into the matter and holds the view that the regulations meet the situation.
Later, when doubting my ability to be loyal to the findings of the committee, Senator Wright asked by interjection, “ Loyalty to what?” I then said -
I feel that I am bound to support the Government parties and to support my leader in his approach to the matter. I accept the assurance that the Executive is doing something about it.
I think my explanation clears up the point that Senator Wright made in his speech.
Question put -
That the motion (vide page 838) be agreed to.
The Senate divided. (The Deputy President - Senator the Hon. A. D. Reid.)
Question so resolved in the affirmative.
Debate resumed from 25th August (vide page 222), on motion by Senator Henty -
That the bill be now read a second time.
– The measure that is now before the Senate was initiated by the secondreading speech of the Minister for Customs and Excise (Senator Henty) quite a long while ago. At the time, I devoted a great deal of attention to the bill, necessarily because of one particular matter covered by it. I refer to the new provision which will enable the Department of Customs and Excise to impose test checks in petrol refineries for the calculation of excise duties and on the importation of refined petrol. I perhaps should qualify my statement about petrol refineries, because in truth, they do not fall within the ambit of this bill at all. This is a bill dealing with customs duties, which relate solely to the importation of refined petrol. Crude petrol comes in entry free. When, in this bill, we are dealing with petrol, we are dealing with refined products only and with probably less than 10 per cent of the total amount of petrol consumed in Australia. So, although a very important change administratively is being made, it is confined to a relatively small area.
I leave that main question for a moment while I dispose of the other four machinery matters, with which the Opposition has no quarrel. The bill seeks to correct a position that developed in June, 1958, when the Customs Tariff Bill (No. 2) was before the Parliament. It was provided that the Minister, instead of the GovernorGeneral in Council, should be able to apply the intermediate tariff, the mostfavoured nation provision, to specified goods. That was done on 18th June, 1958, when we authorized that change in the Customs Tariff Act (No. 2) 1958. It was overlooked at the time that there was a corresponding provision in the Customs Act, and the bill now before the Senate, by two provisions in combination, now brings the Customs Act into line with the Customs Tariff Act by permitting the Minister, instead of the GovernorGeneral in Council, to apply the intermediate tariff in respect of specified goods. The Opposition has no objection to that provision, even though it is retrospective. It is clearly dealt with-
– By legislation.
– Yes, and in addition there is a clear and logical and well- founded reason for it. Those qualities distinguish it from recent events.
The second provision that the bill deals with is the question of making entries after the arrival of a ship. At present, entries can be made and, accordingly, the payment of duly can be made only after the arrival of a ship has been reported. Under the Customs Act as it exists now, that report could be delayed for 24 hours. The new provision remedies that position and provides that entries can be made and duty paid “immediately upon the arrival of a ship. That procedure will expedite the handling of matters through the customs, and 1 congratulate the Minister upon effectuating this reform.
The third provision deals with the rewarehousing of goods. The Customs Act at present provides that goods have to be re-warehoused every three years, lt has been found that that is not a suitable provision in connexion with an item like spirits, which must mature for a longer period than three years, and accordingly power is taken under the bill to authorize the Collector of Customs or the Sub-Collector of Customs to extend the period beyond three years in an. appropriate case. Again, there is no objection to that provision.
The fourth provision concerns the existing provision that an outward manifest must accompany a customs clearance when a -ship clears port. This is being repealed, so that only a customs clearance certificate will be needed in future. The Minister has explained that this is now world practice, and he is disposing of the outmoded outward manifest. There appears to be no particlar purpose for it, and we do not oppose the change.
I come now to what is perhaps the major matter involved in the bill, the importation of refined petrol and refined petroleum products. Customs duty is imposed upon them. For quite a number of years, under the Excise Act the Collector of Customs has imposed test checks, the refining companies have been required to keep records and to make them available for inspection. the records have had to be preserved, and customs or excise officials could have copies of them.
The matter attracted a good deal of comment in August of last year when the Minister explained that in future, instead of having customs officers permanently stationed at the refineries, a new system of test checks would be applied, requiring the refining companies to keep records and to permit inspection and the rest. That has meant a saving in money both for the refineries and for the Department of Customs and Excise. The refineries effected a saving by a reduction of some 40 to 50 members of their staffs. 1 am happy to learn tha there is no problem about this aspect, because all the displaced staff have been absorbed in other jobs. Not all of them are as yet on a permanent basis but almost every one of them is, and only a few are awaiting permanent classification. We have no concern on that issue.
I do want to thank the Minister for the help he gave to members of the Opposition when we ran into a series of extensive questions after the refining companies were put on the honour system. The Minister very kindly made available two very efficient officers who sat down, with me at first and later with executive officers of the Opposition and put the whole case. They acquitted themselves exceedingly well. Further the Minister showed great courtesy in making available to the Opposition this extraordinary detailed publication entitled “ Petroleum Products Handbook “. It was prepared primarily for the use of the refineries so that they would know the type of checks and counter-checks that the department wanted. I take this opportunity to express to the Minister the gratitude of the Opposition for his courtesy and helpfulness and I would like him to convey to his officers how much their help was appreciated. <
I think one ought not to pass from this important change in the customs procedure without making some little comment upon it. One would feel that it would be better to have customs officers permanently established at these refineries, but the officers assured us - and I have no reason to doubt their word - that the test system is infinitely better, because, when men were permanently stationed at a company’s refinery, as they could not be alongside the tanks all the time they could not always watch loading operations. They were transported at times in company cars to remote places to have a look at the tankers, and the company and its officials, if they wanted to engage in any malpractice, had a perfect opportunity to do so with the coast clear. Now, they never know when officers will arrive to make test checks of the product at various stages, and to check it into tanks. Regular test checks are made of the tanks at 60 degrees Fahrenheit, in order to maintain an equitable basis of comparison.
These are factors that really do not leave room for any fraud at the expense of the Department of Customs and Excise. Fraud - that is, if refined petroleum was to be taken away from the refineries and disposed of amongst the retailers - would require a wholesale conspiracy on the part of management, executive officers, the purchasers, the people who keep the stock and the people who make those checks, the men who make the deliveries, and the drivers and the retailers. As I have said, fraud would require a conspiracy on such a gigantic sc.11: as to put it beyond the scope of comprehension. One can say that the new system will work very well.
I understand that the Auditor-General’s officers were concerned with the customs officers in devising the details to provide for checks under the new system. The Auditor-General refers to it in paragraph 70, at page 46 of his report for the year ended 30th June, 1960, where he deals with the Petroleum Products Branch. He points out that a new branch has been created for the purpose, and he refers to the fact that ministerial approval was given to the change-over in the system. Amongst other things, he states -
As the new system has been in operation for only a few months, an Audit assessment of the efficacy of the new controls in the protection of the revenue is still in course.
The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid). - Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Senate do now adjourn.
Question resolved in the affirmative.
Senate adjourned at 10.30 p.m.
Cite as: Australia, Senate, Debates, 4 October 1960, viewed 22 October 2017, <http://historichansard.net/senate/1960/19601004_senate_23_s18/>.