25th Parliament · 1st Session
The PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 3 p.m., and read prayers.
– My question is directed to the Minister for Defence. Is the Minister aware that the Department of Supply, which is one of the defence departments, is establishing a tracking station on the Gove peninsula in Arnhem Land in an area which was the subject of an inquiry by a select committee of the House of Representatives in 1963? As that committee recommended the establishment of a Parliamentary standing committee to watch the interests of the Aboriginal people, I ask: Will the Minister discuss with the Minister for Territories the necessity of implementing this recommendation? I remind the Minister that the present Minister for Territories was a member of the select committee and was a party to the recommendation. Finally 1 ask: As mining interests are commencing large scale operations in the area, and as the tracking station activities are increasing in this region, will the Minister treat the matter as one of urgency?
– The Minister for Supply and the Minister for National Development are involved in this question. I shall certainly take the matter up with the Minister for Supply and ask him to confer with the Minister for Territories. As to the other aspect, of which I have no ministerial knowledge, I shall refer it to the Minister for National Development.
– I would like to address a question to the Minister for Repatriation. Can the Minister advise the Senate of any Budget benefits to repatriation pensioners, additional to those he announced yesterday?
– In addition to the benefits I announced yesterday, medical sustenance is to be provided for outpatient treatment. Eligibility for payment of sustenance at the equivalent rate of the special totally and permanently incapacitated rate pension is to be extended to cover exservicemen who are prevented from following their usual occupation because of the necessity for outpatient treatment of a war caused disability, for continuous periods in excess of one month. On completion of a period of one month’s outpatient treatment this higher rate of sustenance will be payable retrospectively to the commencement of the period involved. The earlier position was that, although the patient while in hospital received the T.P.I, rate pension of £14 5s. per week, on being discharged from hospital, unless he was a T.P.I, pensioner he then came back to the general rate of £6 per week. Naturally his disabilities, the illness he had suffered or the injury from which he was recovering, prevented him from earning a living. It was felt that this position should be altered, and we have done so in the way I have indicated.
The additional benefits provided in other service pensions and allowances are as follows -
Supplementary assistance to be increased by 10s. a week - from £26 to £52 a year - and the maximum rate to be reduced by the amount by which the pensioner’s means as assessed exceed £26. 2. (a) Supplementary assistance to be extended to a married service pensioner otherwise qualified whose wife receives a wife’s service pension.
– Has the attention of the Minister representing the Minister for Trade and Industry been directed to a recent statement by the Premier of South Australia that his Government was having difficulty in getting information from the Commonwealth Government about the proposed timber agreement with New Zealand and the extent of protection to be afforded to the South Australian timber industry? In view of Press reports from New Zealand timber interests to the effect that they expect a freer exchange of timber products, will the Minister indicate the extent of protection that is to be afforded to the South Australian timber industry and the communities in the south-eastern portion of South Australia which are dependent upon timber and machined timber products?
– As I said yesterday in answer to questions, the agreement has yet to be ratified. As soon as that is done, we will be able to make it available to honorable senators and will be able to make available to the State Premiers the information that they seek. I understand what the honorable senator is worrying about. The softwood industry of South Australia has been built up to a great extent and it is a credit to that State. Naturally, the welfare of this industry comes within the sphere of interest of the honorable senator. I shall furnish him with some information about the matter as soon as I can.
– My question is addressed to the Minister representing the Postmaster-General. Has the attention of the Postmaster-General been directed to a London newspaper report of 20th August to the effect that there has been an alteration of the times for showing crime stories and westerns on television, the Independent Television Authority having decided that such programmes at peak hour viewing on British commercial television should be reduced to three a week because it is desired that there should be more high quality programmes at this hour of family viewing? Will the Postmaster-General consider taking similar action in Australia? It would accord with the recommendation contained in paragraph 151 (3) of the report of the
Senate Select Committee on the Encouragement of Australian Productions for Television.
– I shall direct the honorable senator’s question to the PostmasterGeneral and obtain a reply as expeditiously as possible.
– I ask the Minister for Customs and Excise: Should it be found necessary to amend the States Grants (Petroleum Products) Act, which will come into operation on 1st October next, will the Government consider making the subsidy for power kerosene payable also in respect of domestic kerosene, which is used for home lighting and refrigeration purposes in towns and districts where no electric power is available?
– The subsidy will be paid on the various commodities mentioned in the Act without regard to the end use. That being so, I should think that possibly there is some misunderstanding on the part of the honorable senator. However, so that the position may be clarified, I shall examine the position and give a further reply to the honorable senator.
– I direct a question to the Minister representing the Prime Minister. Does the Government intend to sit on the Report of the Vernon Committee of Economic Inquiry until the Budget debate is over? Have arrangements been made for ample copies of the Report to be made available for the many members of the public who are eagerly awaiting the Report of this Committee, which was set up in February 1963?
– I cannot have any confident expectation that the Report of the Committee will be released to senators and members prior to the end of the Budget debate. As the Prime Minister said in a statement only last week, the Report is of such a type and of such scope that it requires closer Government attention than was anticipated; but it will be released just as soon as the Government’s examination is completed. I understand that, as is the normal practice, ample copies will be available for senators, members and other interested parties.
– I direct to the Minister representing the Minister for Primary Industry a question which refers to the proposed legislation for the wool reserve price plan referendum. The Minister will have noticed that in the Bill submitted in another place there is reference to the fact that a document under the hand of the Minister for Primary Industry, containing a statement of the plan, will be prepared by the Minister and approved by the executive committee of the Australian Wool Industry Conference. Inasmuch as that document is to be prepared before the referendum, I ask the Minister whether it is now reduced to writing. If not, will it be reduced to writing before the Senate deals with the Bill, and will a copy of the plan be circulated to honorable senators before final consideration of the Bill? I am prompted to ask this question because of the last statement in the provision that for the purposes of the act the statement shall bc taken to be a full and correct statement of the plan. This carries an implication that wc need to have before us a full and correct statement of the plan.
– I shall convey the request of the honorable senator to the Minister for Primary Industry and obtain an answer.
– I direct a question to the Leader of the Government. Is a record on film being taken of the part Australia and Australians are playing in the Vietnam war? Which Departments are filming the activities of their personnel? If no factual and historical record is being taken on film, will the Government give consideration to this suggestion?
– I shall inquire as to the exact position and let the honorable senator know the answer to the question that he has asked. I am aware that the film records that become available from a variety of sources are being retained. I am not aware whether an official and continuous record is being taken by the Army or by an agency employed by the Army. I shall make inquiries and I shall certainly give consideration to what I regard as a very interesting proposition.
– My questions are directed to the Minister representing the Minister for Labour and National Service. Has the Minister considered the powers of Commissioners under section 28 of the Conciliation and Arbitration Act in the light of suggestions in the Eight Annual Report of the President of the Commonwealth Conciliation and Arbitration Commission? Will the Minister advise whether, in his view, the services of Commissioners should be made available to settle the types of disputes mentioned in that section of the report, even though the Federal Court may be without jurisdiction? Has the Minister noted the remarks of the President on over award payments and the suggestion that it may be advisable to permit the Commission to act as conciliator in disputes concerning over award payments? Does the Minister agree with the suggestion? If so, will he make provision accordingly?
– I know that the Minister for Labour and National Service, who is in another place, is very closely in touch with all developments relating to his Department and with those with whom his Department has to deal. I could not, of course, express a view on his behalf, as I am asked to do by Senator Cavanagh. However, I can see that Senator Cavanagh’s question is brought to the notice of the Minister who can reply to the honorable senator according to his own desires.
– I preface my question to the Minister representing the PostmasterGeneral by advising him that a television antenna has been erected in Wivenhoe, a suburb of Burnie, Tasmania, to serve a group of people who are clients of a television merchant. The antenna interferes with and distorts the reception of other television sets in the area that are not serviced by the communal antenna. In view of the fact that representations made to the Australian Broadcasting Control Board have shown that power to act on this nuisance does not rest with the Board - although it does in the case of radio - will the Minister ask the Postmaster-General to take measures to amend the Broadcasting and Television Act to provide similar powers relating to television interference as at present apply to radio interference?
– I certainly could not say that the Postmaster-General will take steps to amend the Act. However, I shall most certainly draw his attention to the substance of the honorable senator’s question. The Postmaster-General may be able to reply to the honorable senator at an early date.
– In view of the widespread hardship in several States consequent upon the severe drought, will the Minister representing the Prime Minister inform the Senate whether Commonwealth assistance has been sought by the State Governments involved? Is the honorable gentleman aware of the great support in primary producers’ organisations for the proposal I have made frequently in the Senate for the establishment of a national disaster fund to meet such situations which unfortunately are each year taking more and more toll of Australia’s resources and causing great distress to people in extensive areas of the Commonwealth? If so, will he give consideration to the setting up of such a fund which already has been found workable in New Zealand and the United States of America?
– In answer to the first part of the honorable senator’s question, representations have been received from both the Premier of Queensland and the Premier of New South Wales seeking Commonwealth relief because of drought conditions. The matter has been under quite active consideration by the Government. It is the intention of the Prime Minister to reply within the very near future to the representations he has received from both States, and I would think that at that time, or just after the despatch of the letters, he will make a statement about the drought, the representations that have been made and the nature of the reply which by then will have been furnished to the Goverments concerned.
As to the second part of the question, Senator Tangney has returned to a subject in which I acknowledge she has shown a continuing interest ever since I have been in this Senate. I can only give her now the answer which, on investigation, has been given to her on a number of other occasions.
This suggestion has been looked at but tha plain fact of the matter is that it is quite impossible to relate to peacetime conditions the circumstances which applied in time of war when there could be, if necessary, compulsion, on all people to subscribe to this kind of fund. If you set up in time of peace an insurance scheme to cover flood, fire or drought you will get the situation in which those people not likely to be affected by flood will not insure, those less likely to be affected by fire will not insure and those less likely to be affected by drought will not insure. AH I can say to the honorable senator again is that the representations she has made have been considered and examined and have been rejected for good reasons, some of which are included in the sketchy outline I have just given.
– In directing my question to the Minister representing the Minister for Shipping and Transport I refer to the fact that although the Commonwealth Bureau of Roads Bill was passed by this Parliament in 1964, only within the last few days has the appointment of a Chairman of the Bureau been made and announced. In view of the Government’s claim when introducing the legislation that the Bureau would represent an important step in the development of Australia’s road policies and programmes, when is it expected that the other appointments will be made and the work of the organisation be allowed to begin?
– As the honorable senator has said, the appointment of the Chairman has just been made and announced. The appointment of the other members of the Bureau is now being considered very closely. I am not in a position to tell him offhand when it is expected the appointments will be made and the work commenced but I will obtain an answer for him from my colleague.
– My question to the Minister representing the PostmasterGeneral relates to the question asked by Senator O’Byrne. In view of the interference with television reception by families living on main highways, will the Minister consider introducing legislation similar to the legislation in the United Kingdom which makes compulsory the fitting of suppressors on motor vehicles which cause this interference?
– I hardly think that this is a matter for consideration by the Postmaster-General. However, I will refer the honorable senator’s question to him.
– by leave -
Earlier today Senator Benn directed a question tome concerning the States Grants (Petroleum Products) Act which will come into operation in October. Senator Benn’s question related to the payment of a subsidy on kerosene. The operative factor in this connection is that power kerosene will attract a subsidy. The intention of the legislation is to give a concession which will benefit users of petroleum and power kerosene in country areas. Domestic kerosene is in another category and there is no provision in the Act for a subsidy on kerosene of this type. 1 said earlier that the legislation had no regard to the end use of the fuel. I was referring to power kerosene and certainly not to domestic kerosene.
– I present the report of the Parliamentary Standing Committee on Public Works relating to the following proposed work -
Additional aprons, vehicular pavements, engineering services, roads and instrument landing system at Melbourne (Tullamarine) Airport, Victoria.
I ask for leave to make a statement in connection with the report.
– There being no objection, leave is granted.
– The recommendations and conclusions of the Committee are as follows -
– When informing the Senate on Tuesday of last week of the appointment of Lord Casey as Governor-General of Australia, I said I hoped soon to be able to announce the date on which he would be installed in this office. I am now able to inform the Senate that arrangements have been made for the swearing in ceremony to take placein the Senate chamber at 11.30 a.m. on Wednesday, 22nd September and for the Government to give a reception to His Excellency and Lady Casey afterwards at Parliament House.
Motion (by Senator Gorton) agreed to -
That leave be given to introduce a bill for an act to increase to eight the maximum number of members of the Australian Universities Commission.
– I move -
That the Amendment of the Customs (Prohibited Imports) Regulations, as contained in Statutory Rules 1965, No. 91, and made under the Customs Act 1901-1965, be disallowed.
I explain the regulations at the outset by pointing to what was the position under the regulations before the regulation in question came into being. I refer the Senate to regulation 4 sub-clause (2.) of the Customs (Prohibited Imports) Regulations which states -
The importation into Australia of the goods specified in the second column of the Third Schedule to these Regulations is prohibited unless the conditions, restrictions or requirements specified in the third column of that Schedule opposite to the description of the goods are complied with.
I now refer the Senate to the Third Schedule of those regulations, appearing on page 7 of the regulations. The goods the importation of which is prohibited are described as aircraft, air frames and aircraft engines. The condition upon which their import may be granted is that -
The importer shall produce to the Collector the permission in writing of the Director-General of Civil Aviation to import the goods.
In other wor,ds, nobody may import aircraft, and the other items to which I have made reference, without the written permission of the Director-General of Civil Aviation. The regulation about which the Opposition is concerned, contained in Statutory Rules 1965, No. 91, alters the Third Schedule to substitute the name of the Minister for Civil Aviation for that of the Director-General of Civil Aviation. Also in these statutory rules is a saving regulation to which I need make no reference. It is purely a machinery one. The regulation we wish to disallow is the one in which the name of the Minister was substituted for the name of the Director-General of Civil Aviation.
Before I embark upon the reasons that actuated the Opposition to propose the motion I would like to clear the air of some matters by stating a few propositions with the object of narrowing the issue that I put before the Senate. First, there is no suggestion at all from the Opposition that either the original resolution or the Statutory Rule which we are considering is unconstitutional. There is no question about the constitutionality at all. Secondly, there is no claim that either regulation - the one that proceded the amending one or the amending one - is ultra vires the Customs Act. Thirdly, there is no claim that, on the face of it, the change affected by Statutory Rule 91 is undesirable. Fourthly, on the contrary, on the face of it the change affected by Statutory Rule No. 91 is desirable. Under the original regulation, the Director-General of Civil Aviation could, of course, grant or refuse permission to import, in defiance of the Minister and the Government. He is not directly responsible to Parliament; the two Ministers concerned - the Minister for Customs and Excise (Senator Anderson) and the Minister for Civil Aviation (Senator Henty) - are responsible. Their actions can be reviewed by the Parliament far more readily than can those of the DirectorGeneral of Civil Aviation. The fifth proposition that I put before the Senate on behalf of the Opposition is that we oppose any effort to fetter or cut down the Commonwealth Parliament’s absolute power to make laws in respect to imports and, I might add, exports. This is one of the relatively few great clear economic powers enjoyed by the Commonwealth Parliament.
I come now to our reason for seeking the disallowance of these regulations and it rests entirely and solely upon the circumstances in which the regulations were made. What are those circumstances? The facts are that Ipec - Air Pty. Ltd., a wholly owned subsidiary of the Australian company, Interstate Parcel Express Co. (Aust.) Pty. Ltd. - it is one of quite a large number of subsidiaries of the main company - has been engaged since 1954 in express surface delivery of parcels throughout Australia. In February 1963, it began operating, under a licence granted by the Department of Civil Aviation, a DC3 air freight service between Launceston and Melbourne and, on the information available, both aspects of the company’s business prospered.
Some time in September 1963 the company opened discussions with the Department of Civil Aviation, asking for two things. It asked first for a charter service to extend its air freight business throughout Australia and, secondly, for permission to import five Douglas DC4 cargo aircraft - a particularly modern development in cargo freight aircraft. The company, by affidavit which was before the High Court claimed - and its claim has not been contradicted in the High Court or elsewhere - that several applications for an interview with the DirectorGeneral of Civil Aviation and with the then Minister for Civil Aviation, Senator Paltridge, were refused and that a senior officer of the Department of Civil Aviation advised the company that there was little point in the Director-General or the Minister seeing its representatives as the company’s proposals would have to be rejected anyway, on the ground that Trans-Australia Airlines and Ansett-A.N.A. had a governmentguaranteed monopoly of interstate aviation.
It is interesting to recall that not long after that, the particular officer concerned joined the staff of Ansett. After an unsuccessful attempt to interview the present Minister for Civil Aviation the company submitted a formal application to the Director-General on 21st July 1964. I think a copy of that document has been sent to all honorable senators and I am sure that those who peruse it will recognise it as a most efficient and comprehensive presentation of the company’s case and of the facts that went to support it.
In August 1964 - a month later - the company submitted to two requirements of the Department of Civil Aviation. It underwent a complete departmental investigation of its solvency and its stability and it supplied to the Department the fullest possible information on the whole of its surface freight business throughout Australia, in the terms required by the Department. In short, I am making the point that the company promptly and completely complied with every requirement of the Department. Then from this company came a flood of letters, some addressed to the Director-General of Civil Aviation and some addressed to the Minister for Civil Aviation and they were, very largely, unanswered. In fact, in the following December, some five months after the original application was made, a reply was received.
I think, too, that every honorable senator has received a copy of the company’s subsequent application to the High Court. AH that correspondence, verified by affidavit of a director of the company, is set out in that formal application. It makes most informative and interesting reading. As far as I know, no portion of the facts alleged has been contested, either in the High Court or elsewhere. So that the Senate has had an opportunity, if I am rightly informed, of addressing its mind in the most complete detail to the course of the negotiations.
I proceed from the document I have just mentioned to the letter that at last brought some action. The letter is dated 1st December 1964. It appears on page 35 of the document that is available to us. I shall read two brief extracts. It was written by Gordon Barton, a director of Ipec-Air Pty. Ltd. to the Director-General of Civil Aviation. It concluded -
To summarise, our proposals have been known to the Department for over twelve months. Our formal application has been before you since July.
We have had only two letters from you on this subject since then, the latest dated August 20th. It is now December 1st.
It stated further -
In consequence of this we think we are being no more than reasonable in requesting an immediate decision on our application, failing which we will have no option but to seek legal redress.
At last that stirred the Department into some kind of activity. A telegram was addressed by the Director-General of Civil Aviation to Mr. Barton on 7th December, a few days later. The relevant portion of the telegram states -
That was followed up some little time later by two letters from the DirectorGeneral of Civil Aviation. One dealt with the application to import five Douglas DC4 aircraft, and the other with a charter licence to operate throughout the mainland of Australia. The letter of 22nd December 1964, addressed by the Director-General to Mr. Barton, contained this statement -
My Minister has informed me, and he has asked me to let you know, that the Government has now considered the policy matters mentioned in my telegram to you dated 7th December. The Government does not favour the importation of the five DC4 aircraft applied for by Ipec Air Pty. Ltd.
Later it said -
The Government is of opinion that the provision of further facilities for the operation of trunk route freight services by air at the present time would not be justified on economic grounds.
This letter was accompanied by another letter of the same date refusing the application for a charter licence to operate by air throughout Australia on the ground that they had no aircraft available. Having refused the opportunity to import aircraft, the Director-General then denied a charter licence, after obtaining the views of the Government in regard to both these matters.
The company had busied itself about these two matters since September 1963, it had lodged, its application in 1964 and it had sent officers around the world to acquire aircraft or to take options on aircraft. Every honorable senator will realise that the purchase of aircraft is a matter that takes a great deal of negotiation and a great deal of time to come to fruition. The company was not informed for nearly 14 months from the time it began discussions and filed its application in July that its application had been refused. That was a -long process of frustrating delay which cost it very much money.
– Fourteen months?
– Yes, from September 1963 to December 1964, the application having been lodged on 21st July 1964.
– I thought the honorable senator said 14 months from the lodgment of the application.
– No. I think I said 14 months from the time discussions began to the making of the decision, the application having been lodged in the interim. The whole thing took 14 months. One must realise that it was at vast cost that the company sent its skilled, experienced executives around the world. During that period of long delay the company had the exasperating experience of discovering that authority had been given to T.A.A. and AnsettA.N.A. to acquire the very aircraft over which it had options. Because of the delay those aircraft could no longer be held. The company witnessed the arrival of the very aircraft it had bespoken and saw them go into operation in the hands of these other two organisations.
The Director-General’s decision having been made, I.P.E.C. took proceedings in the High Court without delay for a writ of mandamus directed to the Director-General of Civil Aviation requiring him to do two things - first, to issue a charter licence under Regulation No. 199(2) of the Air Navigation Regulations and, secondly, to grant written permission in the terms of Regulation No. 4 (2) of the Customs (Prohibited Imports) Regulations, to which I have already referred. The High Court heard the matter very promptly. The hearing took place on the 25th, 26th and 29th March of this year. Judgment was delivered on 28th May last and is reported in 39 Australian Law Journal, No. 2 of 30th June 1965. 1 propose to refer very briefly to the various aspects of the judgment. I refer first to the reference to the application for a charter licence. Regulation No. 199 (2) of the Air Navigation Regulations reads -
Where the proposed service is an interstate service, the Director-General shall issue-
It is mandatory upon him - an aerial work, charter or airline licence, as the case requires, unless the applicant has not complied with, or has not established that he is capable of complying during the currency of the licence with, the provisions of these Regulations, or of any direction or order given or made under these Regulations, relating to the safety of the operations.
To boil it down, the regulation states that the Director-General must grant a licence unless he finds that the applicant cannot comply wilh the safety provisions, in particular, of the various regulations. The regulation has been enacted in that form for the very good reason that in 1945 there was a regulation which gave to the DirectorGeneral power either to grant or to refuse, for such reasons as seemed good to him, any such application for a licence. The High Court, ruled that that regulation was quite invalid as it offended against Section 92 of the Constitution which provides that trade, commerce and intercourse between the States shall be absolutely free. Then the regulation had to take its present form of requiring the Director-General to issue a licence unless the applicant could not comply with the safety requirements of the regulations.
The High Court upheld the application of the company and it directed, by a majority decision of three to two, a mandamus to the Director-General requiring him to issue a charter licence. In other words, on that leg of the application the company had a victory. The two judges who dissented did so, I think I can say, wholly on the ground that it would be futile to grant a licence when the applicant was not able to purchase the necessary aircraft. I do not want to go into that further, but that is broadly the base upon which the two dissented.
Then I pass to the other aspect of the company’s application, the question of the right to import five Douglas DC4 aircraft. I have already indicated the regulation under which that was possible, with the consent of the Director-General of Civil Aviation. In this matter the High Court, again by a majority of three to two, refused to issue a mandamus directed to the DirectorGeneral. The two dissenting justices favoured the issue of a mandamus because the Director-General, they claimed, had not exercised his own mind at all on the company’s application; that is, the refusal was really not his own; it really was the refusal of the Government. I indicate to the Senate that the High Court had before it copies of all those letters to which I have made reference and, in particular, it had before it the telegram of 7th December and the letters of 22nd December, which clearly indicated that the Government had been consulted and had expressed its mind on the matter.
– The honorable senator is speaking only of the mandamus to reexamine?
– Yes. The court refused the mandamus. It did not issue one to the company. It took no action, but two of the judges thought that a mandamus should be issued, requiring the DirectorGeneral to address his mind properly according to law to the application that was before him, and not merely to express the mind of somebody else who had no power in law.
Against that second decision, the company sought from the Privy Council special leave to appeal. It moved with celerity; there was no delay, and by agreement, we are told, between the Commonwealth and the company, the hearing was fixed in London for either 5th or 6th July. I am not quite certain as to the date. On Monday, 5th July, the Solicitor-General, who was in London for the Commonwealth in this case, armed with a defence to the proceedings, advised the company’s counsel, also in London, that a regulation had been gazetted at Canberra on the preceding Thursday, 1st July, substituting the name of the Minister for Civil Aviation for the name of the Director-General as the person whose permission was required. The “ Gazette “ that is before me simply gives the title of the regulations, in common with a lot of other regulations that had been made. It does not give any detail of the contents of the regulation.
– What is the date of the “ Gazette “?
– 1st July 1965, No. 56. So to those who were not in the know the mere publication of that “ Gazette “ conveyed nothing other than that regulations had been made under the Customs Act and that there had been an amendment of the Customs (Prohibited Imports) Regulations. The Senate will see at once that it was thus quite useless for the company to proceed with its application to the Privy Council, because even if the Privy Council had been persuaded to issue a mandamus directed to the Director-General, by the change that was effected he was deprived of all power to give any permission at all and the power was transferred to the Minister for Civil Aviation. That was communicated to the company’s people on the day before the hearing in the Privy Council.
The company’s counsel then put to the court that there ought to be an adjournment, that it would be futile to go ahead with the proceedings, that the ground had been cut from under the company’s feet, that the one possibility was that the regulation could still be disallowed by either House of the Parliament and that if that were done the matter of the appeal could proceed. The company sought an adjournment until October of this year and the Court granted that application.
The point I make to the Senate is that the whole Cabinet, without any doubt, was involved in the original decision to reject the two applications back in December. I have referred to the two letters and the telegram. I would like to know whether the repeal of the Regulation and the enactment of the new Regulation have Cabinet approval. It would seem, on the surface of it, that at least three Ministers are involved in what took place on 1st July. I refer first to the Attorney-General (Mr. Snedden) who, on his own admission in the Parliament in the last few days, had knowledge of the proposed regulation No. 91 of 1965 two or three days before it was promulgated. His representative in the Senate, Senator Gorton, yesterday told us that the drafting of the regulation had been commissioned on 24th June in case it was needed. He did not tell us by whom it was commissioned and I hope that when he addresses himself to this debate, he will tell us by whom the regulation was requested. Was it the Minister for Civil Aviation? Was it the AttorneyGeneral? It is a point that should not be left at large.
The Minister for Customs and Excise also comes into the firing ‘line because he is necessarily the Minister who, under the Customs Act, had to make the regulation and put it forward to the Executive Council. He told us yesterday that he knew of the decision, or that he made the decision, on 29th June, about two days prior to the making of the regulation. From what the Minister said yesterday it appears that he did what he was asked to do. I and members of the Opposition are interested to know by whom he was asked to make the regulation. Again, was it the AttorneyGeneral? Was it the Minister for Civil Aviation? Was it the Department of Civil Aviation? We are entitled to be told these things. Of course, the Minister for Civil Aviation comes directly into the firing line in that the transfer of power was made from his Director-General to himself. What knowledge he had and what part he played in it we are not told. I hope that we will be told.
The regulation was gazetted on Thursday, 1st July. No notification was given to the company’s solicitors in Australia, the people on the record, until after the matter came before the Privy Council on the following Tuesday. They knew about it for the first time on the Thursday. They then had a copy of the regulation for the first time. Strangely enough, no advice was given to the Commonwealth Solicitor-General until the day before the hearing. That is what we were told yesterday.
A cable had gone astray. Somebody had forgotten to put the address on it. It was not until an airmail letter caught up with the Solicitor-General on Monday that counsel for Ipec-Air Pty. Ltd. were told that the regulation had gone through and found that the ground had been taken away from under their feet. It was the gravest of discourtesy and the gravest of incompetence not to ensure that the people concerned were immediately notified of the making of the regulation which had such grave effect upon proceedings that were immediately pending. Whatever is the excuse, we are entitled to hear it in detail. Mr. Barton, one of the directors of Ipec-Air Pty. Ltd., claims that only twelve copies of the regulation were prepared and that all copies were airmailed to London. I have no knowledge of the facts, but pending advice to the contrary I accept what he says.
These are the circumstances in which we of the Opposition claim that the regulation should be disallowed. If it is disallowed, the original regulation will be revived and the application before the Privy Council can continue. I want to project, first of all in sporting terms, just what has happened. I cite to the Senate the comparable case of two boxers about to enter a ring for a boxing contest. Outside the ring, one hits the other on the head with a sledgehammer, knocking him unconscious, climbs into the ring, and claims victory by default of the appearance of his opponent. That is an exact replica of what happened in this case.
I give another example. We have had instances in horse races of a jockey in a tight finish grabbing the arm of another jockey and retarding his progress. That is a classic example in that sport of foul riding which is usually and very properly visited with life disqualification. I say deliberately to this Senate that that is a mild performance compared to what happened in this contest. Here three jockeys - the AttorneyGeneral, the Minister for Customs and Excise and the Minister for Civil Aviation - combined to pull the horse right out from under the jockey at the start of the race.
– Does the honorable senator suggest life disqualification?
– I merely say that this is a worse performance than the comparable one for which people are disqualified for life. I say that it is the worst kind of dishonorable conduct. Its sole purpose and its sole effect was to render futile the I.P.E.C. application as the parties were about to enter the portals of the Privy Council. It is incomprehensible to me and to all Opposition senators that three Ministers of the Crown - if there were three - should have lent themselves to this. Only a mind completely lacking all sense of principle and fair dealing could have conceived, let alone have carried out, such a performance. It was promptly and properly condemned in Press editorials in newspapers throughout Australia. I shall refer to some of the terms that were used in the editorials. The “ Daily Mirror “ of 7th July 1965 had this to say -
The Commonwealth Government appears to be behaving like an unscrupulous bully . . . I.P.E.C. has been tricked by the Commonwealth at a cost of thousands of pounds.
The “Sydney Morning Herald” in a very comprehensive editorial on 8th July 1965 used these terms -
Contempt for the law . . . Based on a degree of indifference to I.P.E.C.’s rights amounting to extreme hostility if not malice … A larrikinish attitude.
The “ News “ of Western Australia on 8th July 1965, referred to the Government’s actions as -
This kind of bullying . . . This latest trick.
The “Sydney Morning Herald”, on 13th July 1965, again dealt with the matter and referred to the Government’s performance as “ a sneaky business “. Mr. Barton, a director of I.P.E.C., in an Australia wide statement referred to what had been done as “ a national scandal “ and “ a national conspiracy “.
On behalf of the Opposition I endorse every one of those comments. Both parties, the Commonwealth and I.P.E.C., had their counsel in London. At the very last minute they were confronted with this desperate decision which had been arrived at perhaps by a few Ministers or perhaps with the authority of the full Cabinet. Whoever made the decision, I should like some member of the Government to tell the Senate how it was arrived at. The Government’s action in the matter is wholly unjust and dishonorable. As an Opposition, we will have no part in the Government’s unconscionable action - an action of which I claim the Government and every one of its supporters should be thoroughly ashamed.
For what it is worth, I proffer the opinion that the Privy Council may well issue a mandamus to the Director-General of Civil Aviation, not to grant permission for the importation of cargo aircraft but to direct his mind to the matter in accordance with law and not merely, as he did, to adopt the opinion of the Government. I doubt that I.P.E.C. will present any serious argument on the question that prohibition of imports offends section 92 of the Constitution. 1 think it most unlikely that the Privy Council will reverse the unanimous decision of the five High Court Justices on this point.
I hope that Senator Anderson or Senator Henty - or perhaps Senator Gorton who represents the Attorney-General in this chamber - will tell us frankly who master minded the iniquity which has been perpetrated. I, and the Opposition, will not go into the question of why the Government behaved with such irresponsibility. We are concerned only with what it did.
Irrespective of whether the regulations are disallowed, I submit there is a strong moral obligation on the Government to pay the whole of the actual costs - not taxed costs because very often the Privy Council will not allow the cost of transporting counsel from Australia - involved as a result of I.P.E.C.’s abortive application to the Privy Council on 6th July last, because the application was rendered abortive purely by the Government’s decision to amend the regulations at the last minute.
In moving to disallow these regulations the Opposition is not expressing, and is not asking the Senate to express, any opinion upon the merits of I.P.E.C.’s application. We do not do that. We are concerned solely to ensure to an Australian company a fair go - a term well established and understood in this country - in its litigation against the mighty Commonwealth which has resorted to foul play. This can only be achieved by the disallowance of the regulation in question. Whether the action was taken in ignorance or thoughtlessness, or with a full appreciation of its nature, it should be both condemned and corrected. It should not be condoned.
– I am sure that the Leader of the Opposition in this place (Senator McKenna) would be the first to admit that accusations of foul play and other extravagant language and charges of that kind are not shown to be true merely by the fact that they are made. In the course of what I have to say I hope to be able to show that these accusations are in fact untrue. However, in endeavouring to do so I shall necessarily have to traverse some of the ground which Senator McKenna traversed because basically this is a matter depending on facts and legal processes. The real battle of ideas and principles takes place in this context, which is common to both Senator McKenna and myself. I believe that in traversing the happenings I will be able to emphasise points which he overlooked and to reply to suggestions which he made, as I believe, without basis.
I want to refer first to the admission by Senator McKenna, on behalf of the Opposition, that the regulation which is now before us and which it is suggested we should disallow is a desirable regulation in itself. It is admitted that this is a desirable regulation. But I would go very much further than that. I believe that it is using weak language to refer to a regulation such as this as desirable. I believe it is very nearly essential that a regulation such as this should be defended, not disallowed, by the Senate.
Strictly speaking, the matter before us is whether amendments made to customs regulations by Statutory Rules 1965, No. 91, should be disallowed. I ask honorable senators to consider first what they are being requested to disallow and to consider whether, as a matter of general principle and general policy, they would wish to deprive themselves of the authority of which they will deprive themselves if they disallow this regulation. 1 say they will deprive themselves of authority for these reasons: The existing regulation which is the subject of this debate and which we are asked to disallow, gives the Minister for Civil Aviation the power to decide whether to give permission to import aircraft or to refuse that permission. So, as the regulation stands, the Minister has this power. But, as the regulation stands, however he exercises it he is subject to questioning in this chamber by senators. His actions are subject to motions of no confidence and he has to defend whatever actions he takes against attacks from senators in this chamber. He is accountable. That is the position in which Ministers are generally placed, in regard to their administration in the House of Parliament to which they belong.
I should have thought that this was a position that members of the Senate would want to exist and that they would want to defend it and not merely say it was desirable; for with this regulation, honorable senators can carry out their duties as seems best to them. This is not a position I would expect honorable senators to seek to destroy. Yet if the motion for the disallowance of this regulation is passed, they will destroy that position. If the regulation is disallowed, a public servant - not a member of the Government accountable here - will be vested by law with the authority to decide, as he sees fit and on principles that he does not have to defend here, whether a person shall have permission to import aircraft or whether that permission shall be refused. The public servant concerned will not be subject to the direction of the Minister in this matter, and the Minister will have no responsibility for the decision that the public servant takes. Therefore, the Minister will not be held to be accountable in this place for any such decision. No Minister can be held responsible for actions of other persons when he cannot direct those actions.
On these grounds I say that if the regular tion is disallowed, the Senate in a very real sense will be taking, power not only from the Minister and from the Government but also from itself, and will be transferring that power to a public servant. From all that I know of the approach of honorable senators to this and similar matters as they have been debated since I have been a member of this House - an approach that has been put forward by members of the legal profession in this chamber who sit on the Opposition side including Senator Cohen and Senator Murphy on many occasions - it seems to me that it would be an extraordinary action for the Senate to take. This action in principle would not be conducive to responsible Government and is the sort of action that the Senate ordinarily would not take.
I am so certain that most honorable senators on both sides of the chamber normally would adopt this attitude, that I am led to believe that if the present law were disallowed is would be done only because of a feeling among honorable senators that extraneous matters - and not matters of principle or concerned with the responsibilities of Government - weighed so heavily in their minds that they considered these extraneous matters should outweigh the real principles of which I have spoken. Only in that way could they destroy what normally they would defend and so divest themselves of powers which normally they would demand. So the only argument that can be advanced in favour of the motion for the disallowance of this regulation is one that holds that although it is of the essence of responsible government that the regulation should continue to exist, there is some case so sHona that the regulation should be destroyed and senators should abdicate some of their powers.
What is this case? We have heard it put forward by the Leader of the Opposition and it boils down to a belief that a particular company has been treated illegally or unjustly in some way and that this is of such importance that the principles to which I have referred should be abdicated’ by senators. Let us see just what this case is. On 2nd July 1964, Ipec-Air Pty. Ltd. applied to the Director-General of Civil Aviation for a licence to operate an interstate air cargo service throughout Australia and for written permission from the DirectorGeneral to import aircraft to operate that service. So far as I know, that was the first formal application, as the law required, from I.P.E.C. to the Director-General of Civil Aviation to get the written permission which has to be produced to the Department of Customs and Excise before aircraft can be imported. The company did not get that permission from the DirectorGeneral.
About six months later, on 22nd December 1964, the company was informed by letter from the Director-General that both the requests had been refused. The company was told that the Director-General of Civil Aviation would not permit it to have a -licence to operate an ah- cargo service and that written permission would not be given for the importation of the required aircraft. It was within the province of the DirectorGeneral to make that decision. That has not been questioned in this debate. It cannot be questioned that the Director-General has the right to make that decision.
I.P.E.C. was dissatisfied with the decision and made an application to the High Court of Australia asking the Court to issue an order to the Director-General requiring him to give written permission to I.P.E.C. to’ import aircraft or alternatively directing him to re-examine the application made by I.P.E.C. according to law. The significance of the alternative request that the DirectorGeneral should re-examine this application according to law was a claim by the company that the Director-General had refused to give permission because he followed a decision on the matter made on policy grounds by the Government and that he did not refuse to give permission solely on his own judgment of relevant factors as it was said the law required him to do. This was the basis of the application to the High Court by Ipec-Air Pty. Ltd.
On 26th March 1965 the case came before the High Court of Australia and the Court handed down a judgment on 28th May. All five Judges of the High Court were unanimous in refusing to order the DirectorGeneral of Civil Aviation to give written permission to I.P.E.C. to import the aircraft which the company sought to import by the processes of law. I repeat that all five Judges unanimously refused to give that direction to the Director-General. Three of the Judges - a majority of the High Court - refused the request that the DirectorGeneral should be ordered to re-examine the application which the company had made and make a decision on the matter again.
There can be no doubt - and I do not think any doubt is anywhere expressed - that, at this point of time, I.P.E.C. had received justice according to law as the law is interpreted by the highest legal tribunal of Australia, in one case by a unanimous decision and in the other case, by a majority decision. All we have heard from the Leader of the Opposition up to this point of time which might seem to suggest that some injustice or something wrong had been done to I.P.E.C. is answered by the fact that justice according to law was done by the High Court in both these cases of appeal.
But two Judges out of the five High Court Judges sitting on the case said they believed the Director-General of Civil Aviation should be required to consider the matter again, not because they thought the Director-General’s previous decision was right or wrong, just or unjust, but purely because they believed that in making his decision, he had followed what he believed to be Government policy, and that he had not taken account of relevant facts and judged purely on them. The two Judges believed that the Director-General had given too much weight to what he believed to be Government policy.
As a result of this minority judgment, Mr. President, two things happened. One was that the Government, through the AttorneyGeneral (Mr. Snedden) and the SolicitorGeneral, examined the judgments of those two minority judges and saw what they had to say as to the state of the law and where authority in the law on this matter placed responsibility. . The Attorney-General, the Solicitor-General, and members of the Attorney-General’s Department examined the implications of those two judgments. They came to the conclusion - which can hardly be denied - that the law as it existed, and as it will exist if this motion which the Opposition has moved is passed, places both the Minister for Civil Aviation (Senator Henty) and the Director-General of Civil Aviation in an impossible position; that it was not the law normal or usual in analogous cases in other Government departments, in such matters as the importation of ships for example; and that it ought to be changed to restore that ministerial and parliamentary responsibility of which I spoke earlier.
– Was the SolicitorGeneral party to that opinion?
– Yes. The other thing was that I.P.E.C. informed the SolicitorGeneral that, encouraged, no doubt, by the minority opinion of the High Court, it proposed to seek from the Privy Council special leave to appeal. It would appeal on two grounds. It would ask the Privy Council to over-rule the High Court and to order the Director-General to give written permission to I.P.E.C. to import aircraft. Honorable senators have already heard some words from the Leader of the Opposition on this matter in which, I think, he indicated that no one would imagine that the Privy Council, in fact, would do this. I do not believe that anybody at all believes there was the slightest possibility of the unanimous judgment of the High Court on the matter being over-ruled. So the only point at issue would have been this matter around which all argument must eventually resolve - the second ground,of appeal. That is the request to the Privy Council to order the DirectorGeneral to examine the application for the import licence again and to come to his own decision again, taking all relative factors into consideration.
That was all that I.P.E.C. could have hoped to gain had this appeal gone to the Privy Council. It could not have hoped to gain a decision that it could import aircraft - not for a minute. The law leaves that decision to the Director-General. But it could have hoped to gain an order that the Director-General should re-examine I.P.E.C.’s application once again. That is all it could have hoped to gain. It is because I.P.E.C. was prevented from trying to gain that order that allegations of injustice, of foul play, of false riding, and all the extravagance we have just heard have been made, and on that ground alone they must rest. How much injustice, if any, there is in this is for the Senate to judge.
Let us assume that the appeal had gone on. Let us assume - and it is by no means certain - that the Privy Council had told the Director-General to examine the matter again. Even then the Director-General, on grounds which he alone has the right to decide, could have repeated his former decision and refused permission to I.P.E.C. to import the aircraft. The most - the very most- disadvantage that I.P.E.C. could claim to have suffered is that it might possibly have lost the chance of having the application examined once again by the same man who had already examined it and refused it. If that is of sufficient importance in the minds of honorable senators, if they regard that as sufficiently unjust to lead them to divest themselves of the powers they should have for the proper government of this country, then it is a matter which each senator will decide for himself. For myself, I do not believe that the authority of the Senate should be denigrated for what I have set out as being the facts and what I do not believe to be any significant injustice at all.
We are told that the timing was wrong. Senator McKenna had a great deal to say about the timing and the way in which this alteration of the law - this desirable alteration of the law - was brought about. We are told that the present regulation which gives responsibility to the Minister and to Parliament should not have been brought in when it was, even though any disadvantage suffered by I.P.E.C. was as slight as I believe I have shown that it was. We are told the regulation was brought in hurriedly and that this was quite wrong and indicates foul play.
Mr. President, I have already said that the Solicitor-General and the DirectorGeneral, following the High Court judgment, studied the implications of the views of the two minority judges. Having done so, they decided to recommend this alteration to Cabinet. This alteration to a regulation is a
Cabinet- decision for which the Government takes full responsibility. Having decided that this should be done, instructions were given to the Parliamentary Draftsman on the 24th June to prepare regulations to bring in the present law which is the subject of this debate. But in the meantime I.P.E.C. had given notice of appeal. We are told that this should have led to the Government’s refraining from taking the action it intended to take of altering the regulation. But if it were proper to alter the regulation, if it were desirable, in itself, to have this law instead of the old law, then if it were not to be altered as soon as possible when was it to be altered? Was it to be done during the actual hearing of the case when I.P.E.C. was before the Privy Council? Those who say the Government did wrong in acting when it did, would say that it would have been worse if it had waited until the case was on. Or was it to be done after a judgment had been delivered? But if the High Court had directed the re-examination of the matter, clearly the law could not be altered then because to do so would be to nullify a judgment obtained at law. Nor, on this assumption could it be done while the Director-General was making any, reexamination, because he would be following out the process to which he had been directed to attend. Nor could it be changed if the Director-General’s re-examination resulted in another refusal by him of permission to import aircraft, and this refusal was in turn challenged in the High Court by the company. Nor could it be changed, I gather, according to the argument, if some other company had a case pending or in process before the High Court or some other court complaining against the decisions of the Director-General.
I think, Mr. President, unless the position were to remain indefinitely that a civil servant had power which a Minister should be answerable for to Parliament, then the proper time to change the Regulation was as quickly as possible after the matter had been brought to the Government’s attention by the two judges of the High Court. That is what was done. Nobody would deny that this involved speed. But that speed was only evident and only occasioned because the Commonwealth, at the express request of I.P.E.C.’s counsel, acceded to his wish that because he was going to be in London on other business at a certain date he would like the matter expedited. The Government, seeking to meet I.P.E.C, agreed to expedite the time of hearing.
If the Government had been less accommodating to I.P.E.C., if it had refused to meet its convenience, if it had allowed normal time to elapse, then the present regulation would have been promulgated when it was or within a few days of that time.
That could have been weeks and weeks before I.P.E.C’s case was due to come before the Privy Council. So all this question of speed and haste and the paraphanalia that is hung on the hooks of speed and haste would have been as non-existant as at the present moment it is irrelevant. All we have heard as to the timing and haste would not have been heard; yet the basic position would have been exactly the same. Events would have followed exactly the same course and the results would have been the same. I.P.E.C. desired a speedy hearing and the Government was willing to meet this desire and no doubt to assist the company’s finances because it had counsel in London on other business. So it was necessary to act with speed.
I have heard, not from the Leader of the Opposition (Senator McKenna) but in public discussions df these matters - and we may all hear again - thunderous denunciation of the inherent wrongness of altering a law while some case which is based upon that law is being heard or is pending. I ask honorable senators not to be confused by this argument. We are not discussing the punishment of someone or a penalty inflicted on someone for an act which, when it was committed, was lawful. We are not here discussing a matter where a litigant has obtained judgment against the Crown and the Crown seeks to legislate to overcome the effect of that judgment. Not at all. We are considering only the alteration of a law and if we are told that it is wrong for any law to be altered while any case depending on that law is pending in any court, I suggest it would be difficult, if not impossible, ever to alter a law at ail.
I have spent some time on these arguments and I remind honorable senators again why I have done so. I have done so because if we are to believe that the new law is not just desirable but is thoroughly necessary for good government and for the powers of the Senate; if we believe that a Minister and the Parliament should be responsible, if we believe that such significant executive power should not reside in a civil servant, then it is essential that before we act to overthrow what we believe to be right, we should very carefully weigh the reasons advanced as to why we should do so. What are the reasons why, we are told, we should disallow what we believe to be right? They are, first, that the Government acted hastily in changing the law. But if it was correct to change the law,” doing it hastily did not make it incorrect. In fact, in this case I have shown that the haste flowed from a desire to meet the convenience of I.P.E.C. and nothing else.
– That is not true.
– I believe I can show that it is true that we acted hurriedly from a desire to meet the convenience of I.P.E.C. and its counsel. A request was made on 9th June to the Solicitor-General by Mr. Holmes, counsel for I.P.E.C, saying that because he would be in London on other business at about that time he would like the case to come on if possible on June 28th or July 5th - or words to that effect. That is the reply to Senator Cohen’s interjection that it is not correct that we acted quickly in order to meet the request of I.P.E.C. That was one of the grounds.
It is said that I.P.E.C. suffered some grave injustice from the change in the law. I suggest that it suffered no injustice. There was no change in the law designed to inflict a penalty retrospectively or to overcome or thwart a judgment. The highest at which any alleged injustice can be put is that the Commonwealth’s action might have prevented I.P.E.C. from gaining a judgment, not giving permission to I.P.E.C. to import the aircraft but ordering the reexamination of the application to see whether I.P.E.C. should be allowed to import the aircraft. We are told that a government should never change a law while any action under that law is pending anywhere. That would mean that the law could be changed only with immense difficulty, if at all.
I put it to you, Mr. President, and to honorable senators, that these are not reasons for repealing the present law and that any injustice to I.P.E.C.-if there is any in this matter and I do not believe that there is - is not sufficient reason for us to destroy a basic principle which all members of Parliament ought to require - the principle of Ministerial responsibility. The Senate will not be able to hold a Minister responsible for his actions in this field if the Senate disallows the present law as the Leader of the Opposition suggests it should.
.- The Minister for Works (Senator Gorton) had a very difficult case to argue. He did his best, but in the end he failed, because he did not face up to the fundamental question which is involved in the Opposition’s attack on these regulations. That question is this: Why were the regulations amended at that particular time. Was it done in order to establish what we of the Opposition have often argued, the importance of subjecting the responsible Minister to the scrutiny of the Parliament? If this were the case, we would not be in conflict with the Government. Or was it done in order to frustrate an appeal which had reached the very portico of the Privy Council, and to deny a litigant the opportunity of having its case decided on the same law that was litigated in the High Court? It is as simple as that. Despite a great deal of fortitude, a great many words and, incidentally, some crocodile tears about these things being the Minister’s responsibility rather than a civil servant’s responsibility, the Minister has not faced up to this question.
We, in this Senate, are not engaged today in destroying any right that we have to cross-examine a Minister. We are engaged in destroying an attempt by the Government to abuse its power to make regulations in the circumstances in which it was done in this case. That is the point that the Senate is concerned with and I do not think that the Minister’s remarks really confronted that fundamental question. We are not going to protect a government that has abused its powers. That is the first point. It is not a question of destroying our own privileges or opportunities; it is a question of asserting that we will not be made rubber stamps to ratify regulations that are made in such an abuse of conscience and in such disrespect of the law.
The second point is that the Minister, with his tongue in his cheek, stressed to the Senate the importance of the Minister, rather than a civil servant, being the responsible officer to make decisions under the Customs (Prohibited Imports) Regulations. But that is not the question at all, because what the Minister did not tell us was that in this case the decision, for practical purposes, was the decision of the Minister and not that of the DirectorGeneral of Civil Aviation. In the very brief which went to the Privy Council and from which my leader, Senator McKenna, quoted various extracts there is set out the reply by the Director-General of Civil Aviation refusing the applications that were made on behalf of I.P.E.C. What did the DirectorGeneral say? Did he say: “ I did this “, “ I did the other or “ I decided that “? Writing on 22nd December 1964 to Mr. Barton and giving the considered reply to the application for the importation of five Douglas DC4 aircraft for interstate freight carrying operations, the Director-General said -
My Minister has informed me, and he has asked me to let you know, that the Government has now considered the policy matters mentioned in my telegram to you dated 7th December. The Government does not favour the importation of the five DC.4 aircraft applied for by IPEC/ Air Pty. Ltd. and of another three DC.4 aircraft applied for by another road express company. The Government is of opinion that the provision of further facilities for the operation of trunk route freight services by air at the present time would not be .justified on economic grounds.
The Director-General then went on to say that after considering the various factors and having had regard to the Government’s policy views expressed in the letter, the application was refused. What humbug it is in these circumstances to talk at this time about the importance of the Minister being made the person responsible for the administration of the regulation. The Leader of the Opposition has made it perfectly plain that we do not quarrel with that proposition. Indeed, we regard this as a desirable amendment. But in the context and in the circumstances here, this is not a bona fide exercise of the power to make an otherwise acceptable amendment. This is a gross abuse of the powers which the Government undoubtedly possesses to amend the regulations.
The next point I make is that the Minister for Works did his best, as I have said with a very difficult task, to attempt to explain that what was done here was normal, ordinary, proper and hasty only because it was done to co-operate with the appellant company before the Privy Council, and perhaps also, as I gathered from his last remarks, to suit the convenience of counsel. I know nothing of that last matter. But the Minister did, in effect, admit here during the course of the debate that the Government had agreed to a speedy hearing before the Privy Council. Whether it was to suit the convenience of counsel, whether it was to accommodate Mr. Barton in his desire to have his company’s matter expedited because in the meantime the aircraft that he had under option of puchase were being acquired by those operators at present having charter licences, or whatever the purpose, the Government did co-operate in the proposal that there should be a speedy hearing.
The matter was fixed for Monday, 5th July. In fact, the case was not called on, until the morning of Tuesday, 6th July. But it was not until the Monday, 5th July, the day before the hearing, that counsel were informed that the regulation had been amended. That action had not been attended, apparently, by any publicity in the Australian Press. In a matter of such great importance and because of the public controversy that was involved in the I.P.E.C. application, I would have thought that as soon as the matter was specially gazetted on 1st July, some notice of it would have been given to the Press. In fact, so far as I am aware, no public mention of the amendment of the regulation appeared until after it had been disclosed in London to the appellant company.
That is not a state of affairs of which any Government can be proud nor for which any Government should be allowed to escape. Words are not going to cover up the plain fact that there was a considerable departure from frankness in the Government’s method of approaching the matter. I am using very modest adjectives indeed to describe the matter. My leader, using words of his own and quoting from restrained editorials in the national Press, used language that was much stronger. The Melbourne “ Age “, as recently as a few days ago, said -
The official moves to prevent … the upsetting of the two-airlines policy reflect no credit on the responsible Ministers … To uphold established policy is one thing; to resort to procedures that could be interpreted as sharp practice is quite another.
These are not epithets that are flowing in the heat of political debate or inspired by party altitudes. They are expressions of opinion from what are normally regarded as responsible journals of opinion; indeed, most of them, in ordinary circumstances, are supporters of this Government.
Let us have a little frankness in the matter, and let us appreciate that what is being put here on behalf of the Opposition represents the public conscience. This Government is always prating about the rule of the law. It is always admonishing workers, who come up against the arbitration system, upon the importance of conforming to what the courts and the various tribunals have decided. It is always taking high ground when it lectures in this moralising way the many Australians who fight for what they believe in and who work for something better. In the field of international relationships this Government is always talking about the importance of respecting international obligations, and treaties, and of the need to respect the law in the international sense. A matter of this kind lays bare in its naked hyprocrisy the attitude of the Government.
Australia at the present time is playing host to a number of guests who are attending the Commonwealth and Empire Law Convention in Sydney. Many of the guests are distinguished lawyers, and they come from all the member nations of the Commonwealth. It is surely a poor thing to exhibit a matter of this kind in our shop window; to show that in order to defeat a particular litigant, we have a Government willing to enter upon a dishonest attempt to alter delegated legislation. After all, let us be clear on this point. We are not dealing here with legislation which has become part of the law of the land because it has received the scrutiny of Parliament, been passed by both Houses of the Parliament and approved by His Excellency the Governor-General. We are dealing with delegated legislation. It is legislation that devolves, by virtue of the various principal acts, upon particular Ministers or departmental representatives.
It has long been established as a principle of delegated legislation that the delegation should be done publicly. A noted scholar on the subject, Dr. Cecil Carr, many years ago wrote a book on delegated legislation in which he emphasised, as one of the essential characteristics of. such legislation, that: “ There should be public notice “ - and I emphasise those words - “ both of the intention to make the regulation, as well as of its promulgation.” In the circumstances of this case there has been neither. There was no notice to the company or to the public that the Government intended to amend this regulation, and there was no public promulgation of the matter except in the formal way by advertisement in the “ Gazette “. If Mr. Barton’s statement is to be accepted, there were about 12 copies printed and they were all airmailed to London. There was not, in fact, any other publicity until about 8th July, which was two days after the hearing by the Privy Council.
We are not dealing with a case where the Senate is calmly debating whether it is desirable that the power to grant permission for the importation of certain aircraft should reside in the Minister or in the Director-General. If that were the detached, academic question before us today, we would not be having the type of debate that we are having. The Opposition has moved the disallowance of the amendment to the regulations because, in the view of Opposition senators, the amendment was not a bona fide exercise of the power that devolves upon the Federal Government.
The Minister for Works referred to the time that was taken to consider the consequences of the decision of the High Court. The refusal to grant the applications made by I.P.E.C. was communicated to the company on 22nd December 1964. Apparently it was not until shortly before 1st July 1965, when the amendment was promulgated, that the need for it became obvious. What had happened in the meantime? Was there no study of this matter before it went to the High Court? Several weeks elapsed between 10th March, when notice of motion was given originally to approach the High Court for writs of mandamus, and May 29th, when judgment was delivered by the Court. In fact approximately two and a half months elapsed. In all that time apparently it had not occurred to the Government that the regulation ought to be amended; It was only when the matter was proceeding to the Privy Council that steps were taken to make the amendment.
If the Government had in mind amending the regulations a week or two before the Privy Council hearing, why did it not tell I.P.E.C. and those who were to represent the company before the Privy Council that certain matters had arisen and that the Government would not consent to a speedy hearing. Why did it not say frankly: “ We intend to amend this regulation “? This was not a matter about which it had to remain silent. That is why we are complaining about the action of the Government. There was no need whatever for secrecy or furtiveness. What was needed was a frank discussion with those persons who, for a long time before the amendment was gazetted, had been relying upon the Government’s giving fair consideration to their application.
The Minister for Works said: “The Cabinet made the regulation. The Government accepts full responsibility.”
– AH acts of a government are the responsibility of the whole government.
– The Minister, of course, is defending the Government’s position. We have not been told when the actual decision to amend the regulation was made. In his reply to a question asked yesterday by Senator Turnbull, the Minister did indicate that as far back as 24th June the Attorney-General’s Department had been alerted to prepare the necessary amendment in anticipation of a Government decision being made. Although the Minister’s reply did not make it explicit, presumably that reference was made by the Attorney-General (Mr. Snedden) himself. The Attorney-General’s Department was notified on Thursday, 1st July, of the amendment having been approved, but we do not know when the decision was made. What we do know is that people were allowed to travel to London to present a case before the Privy Council on the basis that they were appealing from a decision of the High Court in relation to the construction of certain regulations. When they got there they found that the law had been altered with the result that, even if the Privy Council would have decided the matter in their favour, the whole thing had been rendered meaningless. That shows a profound disrespect for the law. It shows an overhasty desire to enforce the Government’s point of view irrespective of the price to be paid in terms of public esteem. The Government said, in effect: “ Let us go ahead and have the regulation amended to frustrate and defeat the application that is before the Privy Council, and let us deal with the consequences later”. The motion to disallow the amendment is one of the most important of those consequences, and I strongly support it.
.- Mr. President, this is a rather remarkable debate. A great deal of interest is being displayed on one side of the chamber. I ask the Leader of the Government in the Senate (Senator Paltridge) why there is a pathetic silence on the other side. It is rather unusual in a debate which is being held on a Wednesday, and which the spokesman for the Government today has said is vital, that the Government should not be able to find two speakers to support its action.
– We were dying to hear the honorable senator. That is why.
– That is very complimentary. Or am I correct in saying that supporters of the Government are so disgusted with its action that they are not willing to stand up and fight? I know that the majority of honorable senators opposite will be like sheep and will vote for the Government. But it seems to me that those who have played the principal part in the promulgation of the amendment cannot have too much support from within their own ranks.
The facts of this case are clear. No question arises as to whether any honorable senator believes that responsibility should rest upon the head of a department who cannot be questioned in this House rather than on the head of a Minister who can always be called upon to answer. We are not debating that matter. What we are concerned with is the timing of the amendment, as was emphasised by the preceding Opposition speakers. I do not argue with the Minister for Works (Senator Gorton) when he says that an agreement was entered into between the company in question and the Government to obtain an early hearing of the appeal before the Privy Council. That may have been quite so, and it may have been done to suit the convenience of counsel for the company; but that does not enter into the discussion today. What we are discussing is the fact that the Government, after facilitating the hearing of this appeal before the Privy Council on 5th July, caused an amendment to be gazetted which cut away the grounds of appeal.
– Order! Two hours having elapsed since the meeting of the Senate, Standing Order No. 127 requires that the debate be interrupted.
Motion (by Senator Paltridge) agreed to -
That the consideration of Orders of the Day be postponed until after the disposal of Business of the Senate, Notice of Motion No. 1.
– 1 thank the Leader of the Government for his usual courtesy. The Government knew that this appeal would take place. In fact, according to the Minister’s own words, the Government facilitated a hearing at an early date. As he said, and as is no doubt true, this was in order that the hearing would fit in with the visit of counsel for the company to London. Surely, one would have thought that the advice tendered by the AttorneyGeneral’s Department to the party, who no doubt thought of this idea, would be that the company’s whole case would fall through as a result of the alteration and counsel for the Commonwealth would attend the Privy Council without having any work whatsoever to do in relation to this case. We have heard in this chamber time and again how certain people do not respect certain laws, particularly people who engage in stoppages of industry. When one comes up against such a regulation as this, which has such far reaching effects, the request by Government supporters for respect of the law seems to be as one sided as a lot of their other requests, when only certain people are affected.
The facts of this case are clear. The law provides that anyone who wants to import aircraft must get a permit from the Director-General of Civil Aviation. He is supposed to act on grounds apart from those’ of Government policy. If he refuses an application, the persons who desire to import aircraft have a right of appeal. This company appealed to the High Court of Australia on two points. One was that the Director-General had refused the com pany a charter licence. The High Court agreed, by a majority of three to two, to give the company the right to operate a charter service. However, by a majority of three to two, the company’s application for an import permit was refused.
If we believe in anything at all under the system by which we live and are governed, we believe that all citizens, irrespective of who they are, have the right of. recourse to law. I have always believed that the High Court of Australia ought to be the court of final appeal, but the law of the land today provides to any individual or company, a party to litigation, a right of appeal to the Privy Council. The Government’s action, in view of its timing, would not suggest that the Government had a sense of fairness. Any person has a right of recourse to law if he feels aggrieved. From an answer given yesterday by the Minister for Works, I gather that counsel for this company was not advised of this regulation as early as he might have been, because something went wrong wilh the cable that was transmitted from Australia to London. We are all prone to make mistakes, but it seems remarkable that in this matter, when tremendous speed has been shown in bringing in a regulation to stop this company from getting a hearing before the highest tribunal, the company was advised of the regulation only the day before the hearing.
When the Lord Chief Justice adjourned the case until October, he mentioned that either House of the Parliament could disallow the regulation. I hope that the Senate will disallow it and give to this company its right of appeal. Afterwards, when no case is pending, when there is not a desire for haste, the matter could be reconsidered. The haste was such as to make one wonder whether the action was taken for any ulterior motive. Was it only to stop this company? I have no reason to say that it was, but the timing suggests that it was done to deny these people their right to take their case, if they felt aggrieved, to the highest tribunal.
I am not now discussing whether the Government is acting correctly in promulgating the new regulation. By a stretch of the imagination, it may be said that there could be a proper time for such an action, but the Government’s timing in this matter must
Impress on the mind of anyone that it had an object in view. Surely, if the Government had given this matter a second thought, it would have delayed the framing of the new regulation at least until the case had been dealt with by the Privy Council. Then, whatever the decision might be, the Government could have altered the regulation and in that circumstance would not have been and could not have been accused of acting unfairly in respect of pending litigation. 1 do not wish to explore in detail the facts of the case, as the Senate has heard them already on two occasions and, no doubt, will hear them again. 1 hope that the Senate will reject the new regulation and will give to I.P.E.C. an opportunity to proceed with its appeal. If what the Minister has said is correct, even should I.P.E.C. win its appeal to the Privy Council the vital decision will be made only when the matter is reconsidered by the Director-General of Civil Aviation. I hope he will make his decision without being too heavily influenced by Government policy in respect of the importation of aircraft.
– I find myself in a rather awkward position, because I strongly believe that the terms of the regulations proposed by the Minister for Customs and Excise (Senator Anderson) are correct. In other words, I believe they are proper regulations, but I do not believe that they have been properly brought in. I believe that some injustice has been done to Ipec-Air Pty. Ltd. The action of the Government in promulgating the new regulations, more than anything else, makes it appear to me that it is imperative for this Parliament to appoint an ombudsman to protect the rights of individuals and companies and to protect society against the autocratic decisions of any government which wishes to make them, as has happened in this case.
The decision of the Government to alter regulations whilst a relevant matter was still sub judice can be described, I think, only as reprehensible and irresponsible. In fact, I think it is the most reprehensible and irresponsible action that the Government has taken for some time. Not only did the Attorney-General (Mr. Snedden) know that the regulations were to be altered, but he concealed that fact. In my reference to the Attorney-General I include his Department, the Solicitor-General and the Department of Civil Aviation. They concealed their knowledge and allowed I.P.E.C. to proceed with its appeal and thus incur very expensive legal costs. It appears that the Government takes some pride in this rather sneaky, slick, snide and snoopy action. I do not know whether the Attorney-General is responsible personally, but it appears that he has a tendency to tell half truths. It was pointed out - I think by Senator McKenna - that the Attorney-General said that he knew about the alteration of the regulations only on the 27th or 29th June, but in answer to a question I asked I was told that he had been given instructions on 24th June.
– I think the honorable senator was told that the Parliamentary Draftsman had been given instructions on 24th June.
– It may have been the Parliamentary Draftsman, but it seems peculiar that the Attorney-General and the Solicitor-General did not know anything about it, unless the Parliamentary Draftsman is such a different entity that he does not even discuss these matters with the Attorney-General’s Department.
Some words of Sir Samuel Griffiths have been brought to my notice which are so appropriate to the occasion that I shall read them. He said -
I am sometimes inclined to think that in some parts of the Commonwealth the old fashioned traditional and almost instinctive standard of fair play to be preserved by the Crown in dealing with subjects, which I learned a long time ago to regard as elementary, is either unknown or thought out of date.
Apparently the Attorney-General has never been taught that elementary rule yet he is, I understand, a lawyer. If I were a member of the House of Representatives I would even go so far as to say that a vote of no confidence should be expressed against the Attorney-General for his handling of this case. I think the whole thing has been done in a most despicable manner, contemptuous of the rights of the people of Australia.
We have heard a lot about the convenience of I.P.E.C.; that the Privy Council hearing was set on a date for the convenience of I.P.E.C. I wish to read a copy of a letter written by Mr. Holmes, Senior Counsel for I.P.E.C. He writes -
July 5th was not a date which would suit me at all.
– Does the honorable senator tell the Senate that Holmes wrote and signed that letter himself?
– I have only a copy and I cannot swear that it is his signature.
– I think the honorable senator will find that it is not.
– I can tell the Senate only that I have been given a letter by the solicitors for I.P.E.C. I can read the signature, which is “ J. D. Holmes “. If the Senate wishes, I shall read the whole of the letter, but it may take too much time. Does the Senate wish me to read the letter?
Senator TURNBULL__ I do not have permission to use the letter, but I presume that I can. The letter is dated 28th July 1965, and states -
My attention has been drawn to a report in the Daily Telegraph of 19th July, in which Senator Henty is reported to have said: - “ In ordinary circumstances the hearing of Ipec’s petition to the Privy Council would have been heard well” after the making of the amendment. However, the hearing of the petitions was fixed for July 5 on the application of Ipec.”
The ordinary time for the hearing of a petition for special leave to appeal to the Privy Council is ten days after lodgment of the petition.
Secondly, the 5th July was but one of two suggested dates, the other being 12th July.
The report continues: - “ Senator Henty said he had been informed by the Attorney-General that senior counsel for Ipec asked for a hearing on that date.
This was on the grounds that Ipec wanted an urgent hearing.
A hearing on July 5 would suit the personal convenience of Ipec’s counsel as he would be in London on another matter.”
July 5th was not a date which would suit me at all. Though I went to London for a matter fixed not before the 19th July, I had no intention of being in London before the 12th July. Furthermore, when the date for Ipec was discussed by me with the Solicitor-General, he made reference to the fact that I was in another case in London, and I said to him that was still not certain, but the dates suggested had nothing to do with that case. Though in that conversation a preference was expressed for the 5th July, it was not for my convenience. Indeed it was an inconvenient date for mc since I then had at least fourteen days to wait fur the next case. In fact it was sixteen days.
I think that these facts should be made known to the client.
Then appears the signature: “ J. D. Holmes “.
– Over the name of Allen, Allen and Hemsley?
– I have a copy of a letter which was written not by Holmes but by solicitors who purport to say what Holmes said.
– This is a letter to Allen, Allen and Hemsley from J. D. Holmes. If the honorable senator would like to see it he may, but I object to being told that this is a false document.
– I do not think I told you that. I do not think I told you that you were doing something false on purpose.
– It is a letter to Allen, Allen and Hemsley and it is signed by J. D. Holmes. If it is a false document I do not know how I got hold of it. Obviously if it was a false document it was submitted through the Department of Civil Aviation which seems to have a very snoopy way of handling things.
Another matter to which I wish to refer is the speed with which the regulations were amended. It is all rather strange. If you want to get anything done by the Government it takes weeks and weeks but in this case instructions were given one day and a week later the regulations appeared. If that was not a snide action, I do not know what is. I have said that it was the sharpest of sharp practices for any department to act in the way this Department did. If I were a member of the Department of Civil Aviation I would not be sitting in this House smiling; I would be hiding my head. I would be sad to think that I, a public servant of this country, would stoop to such tactics.
– The officers probably acted on instructions.
– They probably did but they seem awfully pleased about it from what I have seen of their conduct in this House.
I know that the cable really has nothing to do with this case but it seems absurd to get a reply from the Minister to the effect that a cable was sent to London informing the Solicitor-General there that the regulations had been altered, but the cable was never delivered. I wonder whether tha
Minister would tell us what happened to that cable because surely the PostmasterGeneral would have the power to find out. Was it ever delivered to anyone? Is it still sitting in London? How was it accepted over the counter by an officer at the cables section if it did not have an address? Surely the first thing a clerk receiving such a cable would say is: “But you have no address on it”. Perhaps now it is my turn to question the Minister. Perhaps he did not give me a truthful answer on that aspect.
I find myself in an awkward position because I believe these regulations should go through. I am opposing them only on the ground of injustice to the company. If this injustice is eliminated I will be quite happy about the regulations. If we support Senator McKenna’s motion and disallow the regulations, that will mean that the company will have the right to continue with its appeal to the Privy Council in October. It may win and it may not. By its actions so far the Government has shown its determination to keep I.P.E.C. out. If the company did win its appeal to the Privy Council I can see the Government introducing other legislation to eliminate any chance that I.P.E.C. has of establishing an airline. 1 am not going into the question of whether it is right or wrong that I.P.E.C. should be allowed to have aircraft. My own view is that it should, but I do not think that comes into the question. This is a matter of whether we believe these regulations are correct and whether we believe that they were introduced in such a - shall I say - shady way that we should throw them out. I have always said that my interest in this has been only that an injustice was done to the company. It did not matter to me whether it was I.P.E.C. or any other company. I had never heard of I.P.E.C. before this. I do not know anyone in I.P.E.C. It was only the injustice of the thing which made me burst out into the Press and say that this was a pretty dirty underhand method of doing business.
If the Government is prepared to give an undertaking that it will compensate I.P.E.C. for the expenditure incurred in going to the Privy Council I am prepared to support the motion. I presume that such compensation would not be completely adequate for I.P.E.C. but at least, from my point of view, it would get away from the fact that the company has been unjustly treated. However, if the Government will not help I.P.E.C. by meeting the company’s unnecessary expenditure, I will support the amendment. The fact that the Senate has taken such an interest in this case indicates that we all believe that an injustice has been done. I think that the Government will listen to reason - I do not know what its decision will be - if I.P.E.C. comes to it with another application. I think I read something to that effect in the Press. How true it is remains to be seen.
I want to make myself clear. I will support Senator McKenna’s amendment unless this injustice to I.P.E.C. is removed by the Government paying the company’s expenses.
.- I think that I should participate in this debate because, as Chairman of the Regulations and Ordinances Committee, I have taken certain stands over the years in relation to regulations and ordinances. I point out that I do not speak for the Committee in this instance because the Committee has not considered the matter now before the Senate.
Quite frankly, the Government has got itself into a real mess over these regulations. The Government cannot be very proud of the situation which has developed. The result is that we now have a motion before the Senate to disallow the regulations. I have given the matter a great deal of consideration. My first feeling was to wipe out the regulations, but on looking at them more closely I have come to the conclusion that none of us can say that they are not good regulations. But that does not mean that I agree with the manner in which they were introduced.
The regulations put great power into the hands of the Minister and this Parliament. One of the matters on which I have spoken very strongly in the Senate is the passing of the power of this Parliament into the hands of the civil service or the executive. I have always believed and said that the Parliament should be the focal point of democracy in this country. Therefore, as much power as possible should be retained in the hands of the Parliament. If I remember rightly, under a previous Labour Administration the power to which I have referred lay within the hands of the Parliament. For some unknown reason our Government . transferred it to the civil service or the executive. In my opinion that was the wrong thing to do from the point of view of democracy. Now we find our Government returning the power to where it originally lay, which I believe to be the right place for such power to rest. lt is unfortunate that the circumstances in which these regulations were passed are extremely bad. I have no doubt in my mind that the reason for passing the regulations was not based on high parliamentary principles. It was done purely to defeat the aims of I.P.E.C. which had an appeal before the Privy Council. To allow the case to reach the stage at which I.P.E.C. almost had its hands on the door of the Privy Council, the highest level of jurisprudence, was most unfair. It seems to me that the Government did not play the game with I.P.E.C. I am not a legal man. I look at this matter from the point of view of the common rights of the people. I try to take a sensible logical view and I believe that powers of government should be handled so that justice is granted to the people. I have here a judgment by the High Court of Australia in the case of Isles v. Daily Mail Newspaper Limited in 1912. In this judgment Mr. Justice Isaacs stated - referring to a statement of law by Lord Lindley in an earlier case - . . a statement of fundamental importance, and applicable in an infinity of instances, and I will read it again. He said: - “ Powers must be exercised bona fide, and having regard to the purposes for which they are created, and to the rights of persons affected by them “.
I believe that statement is closely related to the case we are debating and the rights of the persons concerned. There is no question that I.P.E.C. had certain rights in the course it was pursuing. It was about to appear before the Privy Council. Those rights were changed by the new regulation. This is the weakness of the situation into which the Government has got itself. As a senator I have always tried to consider regulations in the light of the traditions of Parliament and the fundamentals of democracy. The regulation we have before us returns a right to this Parliament and to this chamber. The Minister for Works referred to this but I should like more consistency from the Government in this respect.
As a senator and a member of the Regulations and Ordinances Committee 1 have fought to retain powers in the hands of Parliament. I remember very well a Bill relating to civil aviation. In that case, we wanted power retained in the hands of the Parliament. If I remember correctly, the power was being passed over to the Executive without any approval from this Parliament. The Minister who is leading for the Government in this debate has spoken of these things and I hope the Government will always keep these principles in mind when it is dealing with legislation and regulations. I hope that its attitude will be consistent in retaining the greatest power possible for this Parliament in accordance with the highest traditions of democracy in Australia.
From a legislative point of view, nobody could cavil at or criticise this regulation. The objection - is to the way in which it was promulgated. As a parliamentarian, I have to judge the matters under debate on the basis of whether the regulation is good or bad. From my point of view, it is a good regulation, and I believe the Opposition should have adopted a different approach. If I had been in Opposition I would not have moved this motion of disallowance. Instead, 1 would have moved a vote of Censure of the Government for the very bad way in which this matter has been handled. The Opposition should have attacked the Government from that aspect because the Government deserves very severe criticism for the way it has handled the whole business.
I am concerned also about the cost of the processes of law to which I.P.E.C. has been subjected. The company was stopped short in its proceedings .when it was on the very point of its appeal to the Privy Council. I should like to have some assurance from the Government on this matter. 1 know that such an assurance cannot be given immediately in terms that everybody can understand but there are ways of expressing these things. I believe the Government should compensate I.P.E.C. completely for all costs up to this point so that if the company adopts other processes of law, at least it will not be at a disadvantage as to the costs it has already incurred.
As I have said, I am not a legal man. 1 am a parliamentarian trying to see this matter according to the highest parliamentary traditions and 1 believe the Government has made a very bad job of this case. The way the Government has gone about this does not redound to its credit and I believe the Attorney-General (Mr. Snedden) who issued the regulation is deserving of castigation. I hope this will be a lesson to the Government as to how the country should be administered and how powers to introduce legislation and regulations should be used. The Government should make sure always that the Parliament, and not the Executive or the Public Service, is the focal point of democratic processes in Australia.
In my view this regulation is good as a regulation. It is designed to place the relevant power where the Opposition placed it when it was in office. I am glad that this power is to go back where it rightfully belongs. The Government should learn a lesson from this experience. The Opposition’s motion is the wrong type of motion in this context. I believe the Opposition should have adopted a different approach. In the circumstances, I cannot support the motion that has been moved by the Leader of the Opposition (Senator McKenna).
– Naturally, I am tremendously disappointed with Senator Wood’s speech. The honorable senator set out to say that to move power from a public servant to a Minister is a good thing. I am afraid the honorable senator cannot see the- wood for the trees, and that is not a pun although it probably sounds like one. If the honorable senator subscribes to that point of view he should support the views of people who want to ban the bomb, who are anti-war or who want more milk for mothers and children. This simple proposition is the latest form of red herring. Any member of Parliament who has been in this place for a long time and anybody who knocks around sees propositions of this sort put up all the time. It is in accordance with the half case that the Minister for Works (Senator Gorton) has put before the Senate today. Obviously it is the sort of half case that has been put to people like Senator Wood and others who have shown some independence in this Parliament in the past.
But to put the simple proposition as Senator Wood did, completely ignores the fact that a small Australian company, Ipec-
Air Pty. Ltd., has been denied the due processes of law as they are known and as they should be accepted by Governments as well as individuals. That is the proposition. All that has to be done is to alter a regulation. I am amazed when I hear the Minister for Works and other members of the Liberal Party say that this is what ought to be done and that we should stand up and agree with the doctrine of ministerial responsibility.
How often have we in the Opposition put the argument, when Bills have been passing through the Parliament, that too much power is going into regulations and that the doctrine of ministerial responsibility should be retained in the Parliament. But never have we had support from Senator Gorton or from other honorable senators on the Government side. Now, suddenly, it becomes a great principle. Suddenly this is the sort of thing that ought to be done and this is the time it should be done when the Governnent and a department have consistently followed a line against a small company for reasons best known to themselves. Twenty-four hours before the case was heard by the highest tribunal in the Commonwealth of Nations, the Government decided to amend a regulation and timed its actions with this appeal to the Privy Council in mind.
I do not intend to go over the whole structure of the case that has been put by the Leader of the Opposition (Senator McKenna). He did a great service to the Senate by laying down a formula to shorten our debate. But is not this a fairly simple story? Is it not the simple story of an Australian business that, was going through the normal procedures of expansion? It had concentrated on one side of transport. It had specialised in parcel freight and that type of light freight for which there was obviously a need in the business community. It had begun using aircraft in order to go across to Tasmania because, obviously again, that is where pressure was coming on it to speed up delivery. Across the stretch of water it had not been able to achieve fast delivery previously. Evidently the new arrangement worked very satisfactorily for everybody concerned and it was natural, in that form of expansion, that it would then move into the air field elsewhere.
As I say, there was obviously a need for air parcel freight in Australia in spite of the fact that all the airlines, both the interstate or the intrastate companies were carrying freight of some kind. It is obvious to anybody who uses their services that they have concentrated, as is their right, on passenger traffic. This was a case of natural expansion on the part of I.P.E.C. It would appear to me that this is the type of company which should have been encouraged. I might say that I, like Senator Turnbull, knew very little about the company before this matter arose. One would have thought that a Government which is always prating about giving small businesses a chance, and always talking of competition and the rights of free enterprise, would have been the type of Government to encourage these people to develop a business which was obviously a successful one and for which there was obviously a need in the business community of Australia.
Indeed, when I.P.E.C. first made its application and when the Director-General of Civil Aviation went to the trouble to examine its financial standing that, to me, would have been a suggestion that the Government was making an investigation to see whether it was the type of company suitable to move into this field. But we find that that was a red herring. That, obviously, was not a sincere effort at all because the Government never had any intention at any stage of granting this application by the company and this was just another one of the delaying tactics. The company, of course, then followed the normal legal course.
Senator Gorton said that this regulation is a desirable one. I repeat that that statement is merely a red herring to take the minds of honorable senators away from the whole general atmosphere and the actual wrong that has been done in the community. In effect, Senator Gorton has said that on this occasion with hundreds of thousands of regulations lying, theoretically, on the table this is one time when the power should be brought into the hands of the Minister. Senator Gorton asked: “What should the timing have been? “ He mentioned all sort of times when this action should not have been taken but he knows as well as I do what the timing of it should have been. The correct time for such action as was taken would have been when this case had been cleared up in the courts. We do not have cases of this type before us every day. Let this case go through the due processes of law and then amend the regulation. Conversely to what Senator Gorton said today this Senate will not destroy the right of Ministers and of this chamber to have oversight in respect of these regulations in the future if this motion is passed today. The matter could be brought back to this chamber in six months. Government senators could seek the support of the Opposition to bring it back before that time if they so desired. The Government should show its good faith by accepting, as everybody else does in this community, the decision of the High Court of this land instead of misusing its power by trying to flaunt it. If honorable senators accept this motion today, all they will do is to allow this matter to proceed through the courts. They will give no handout to I.P.E.C. They will merely allow I.P.E.C. to retrace its steps to the Privy Council and allow it to take up the cudgels where the Government struck them out of the Company’s hands on the 5th July last. That is all that honorable senators would do. You would give the company no handout. Even if the Government paid the expenses involved, as has been suggested a couple of times today - and I am not against that proposal, far from it - the Company would merely be put back into the position it was in on the 5th July. So the Government would be giving it no great handout. Senator Gorton made a great song and dance about the case here today. He suggested we were rejecting our rights and responsibilities to the people. Under these regulations we have been rejecting them for donkeys’ years. Nobody has previously reared up on his hind legs and decided something ought to be done about it. If the regulations are rejected today the matter can come back to this Chamber in six months time or less and it will be clear of the atmosphere that has been created and clear of the undeniable charge that the Government is misusing its powers against a small company. When the matter is taken away from that atmosphere it could then be considered in the proper light in which a regulation should be considered.
Sitting suspended from 5.45 to 8.00 p.m.
– Before the suspension of the sitting I was dealing with the disallowing of the regulations which have had such a marked effect on I.P.E.C. throughout Australia. During the suspension I marshalled the following points: This is an Australian company which has been going through a normal period of expansion and because Australia is an air minded community this organisation, carrying light freight and parcels and fulfilling a need in the business community of Australia, was meeting with marked success. The company’s history is an Australian success story. This is the type of company which could expect encouragement from this Government but, instead of helping, the Government has done just the opposite. Assistance to such a company would be expected particularly from a Government which talks so much about its desire to help free enterprise, but in this case the Government has not helped free enterprise.
Senator Gorton spoke about the timing of the alteration to the regulations. We have complained that, with the alteration being made within 24 hours of the company’s appeal coming before the Privy Council, the timing was wrong, unfair and immoral. The Minister asked when the alterations should have taken place. I answered that by saying that it seemed pretty obvious that if the regulations had been in force for donkey’s years another few months would not have mattered and the law could have been continued as it was in order to allow the Privy Council to deal with the company’s appeal before the alteration was made.
I said that the Government should accept the law as every citizen is expected to accept it and that it should not do less merely because it cannot get its own way in thwarting the wishes of a. small company. I emphasise that this would not be denying the principle of Ministerial responsibility for decisions, because it would simply mean carrying on for a few months a law which has existed for many years. Surely in doing that we would not be denying the doctrine of ministerial responsibility. If the Government would allow the law to remain as it was until the appeal was heard by the Privy Council there would be no objection to its amending the regulations. There would be no objection if the Government would shear its action away from pointing directly at the heart of a company that it is determined, with all its misuse of power, to stop.
The Minister said that the hearing in London was fixed at a time to suit the convenience of I.P.E.C. Senator Cohen dealt with this earlier today. One would think that if I.P.E.C.’s counsel was in touch with the Commonwealth authorities that would be the time for the company to be informed of what was going to be done. Surely the practice in the legal profession, particularly at this level, would be to inform opposing counsel that there would be a radical change prior to the hearing by the Privy Council. I would have thought this would be normal practice among responsible lawyers. Surely one of the tenets upon which one lawyer would judge another is honesty in revealing any radical departure in pending procedures. I was more than ever amazed when the Minister said that the legal representatives had been in touch because I would have thought the natural course would have been to disclose the Commonwealth’s proposal. Surely the felony was compounded when Commonwealth officials did not have the decency or common courtesy to notify the company of the proposed alteration. They should have said frankly: “An alteration of the regulations is pending. Your case will be prejudiced and it will not be to your advantage for Us to agree to meet you in London at this time “.
When the Minister says that the Government has dealt with this matter on high principles and that the whole purpose of its action is to ensure ministerial responsibility, one cannot take that statement seriously. How can the Minister use the word “ principles “ in a case such as this? The Minister went on to say that I.P.E.C. had suffered no injustice. When 1 met the executives of I.P.E.C. they seemed to me to be a competent young team, and if they have been .fooled into believing that they have suffered an injustice when they have not, they must also have fooled me. Was there no injustice when the Director-General of Civil Aviation refused to meet the company’s representatives and discuss the matter before the application was made; when the Minister was not available on any occasion when they wanted to see him; when their letters were all unanswered; and when the Department knew that the company had officers travelling around the world taking options on aircraft - things that are not bought like pounds of butter over the grocery counter?
When the company got to the end of the road and was about to get a decision from the highest court of the Commonwealth of Nations, the Government stepped in with this misuse of power. Yet Senator Gorton asked what the company was complaining about and said that it had suffered no injustice. He then said that the best that the company could have hoped for was that the Privy Council would order the Director-General to examine the company’s application again. I pose the Minister this question: If that is all that would have happened, what was he worrying about? If everything is so fair and above board and if this Government has treated I.P.E.C. as it should treat a business coming before it with an application of this nature, what is he worried about?
As Senator Turnbull said the Minister’s speech consisted of half truths and of pulling a veil across the real story. What did the Government fear? The Government was afraid that an order to the Director-general to re-examine the application would have been accompanied by wide publicity. Also, who knows what the Privy Council might have written into its order had the company been successful? The Minister is no more able than I am to say what is in the mind of another man. The Privy Council could have given a direction which would have ensured a vastly different examination of the application. The Director-General could have been forced to examine the application free from the interference of Cabinet, which had its own policy to preserve.
Who is trying to fool whom? We all know what the situation is. There is not one Liberal Party or Country Party member who believes what the Minister has put forward today. They all know perfectly well that the Government’s action was not taken merely to strengthen the regulations. If they have any honesty in their hearts they will acknowledge that injustice has been done. The mere fact that options on aircraft cannot be held month after month and year after year meant that an injustice was being done to I.P.E.C.
I seriously suggest that in this matter the Government has refused to accept the decision of the law. It was not willing to follow the due process of law and to abide by the law just as every citizen, businessman and trade union leader in the community has to abide by it. The Government was not prepared to take defeat anywhere along the line. It adopted a bullying attitude, as one of the newspapers quoted by Senator McKenna today said. It was not going to be beaten by a small company. That is the attitude the Government has taken. It was protecting itself and other interests in this country. It was protecting the strong against the weak. It was a complete misuse of power. No amount of talking about the desirability of ministerial responsibility and the strengthening of a regulation can hide the fact that this was a grave misuse of power. No business dr professional man who had done a thing like this would get a client back into his office. People would never do business with him again.
It is obvious, I think, Mr. President, and hardly needs to be repeated, why this was done, lt was not for the reasons given by the one Minister who has spoken today. As I mentioned earlier, an interesting note has crept into the discussion. It is that the Government ought, perhaps, to pay I.P.E.C’s expenses up till now. Senator Turnbull, if I heard him rightly, made that a condition of the way in which he will vote. I would have no quarrel with the suggestion that the expenses should be paid, but I can see no circumstances in which money can alter the principle that applies. I can see no circumstances in which the Government can buy its way out of the decision or buy the votes of people on this issue. Whatever the amount of money is - and I would have no idea of it because I have never employed counsel - this could be a bolt hole for the Government. I suppose the Government could say: “ Well, they did not suffer any injustice, but if somebody thinks so, we will give them £5,000, £10,000, £15,000 or whatever the expenses amount to”. As Senator Wood said, the fact is that the Government has put itself into this position. The only honorable and manly way out of it is to repeal the amendment and allow the proceedings to go ahead. Let the final court of appeal in the British Commonwealth of Nations give its decision and when it does so the Government should abide by it, as every citizen is bound to do.
Senator Gorton made the point today that in moving to disallow the regulation we are doing something terrible to ourselves. He said we are throwing away the responsibility for which we have always asked. I do not think the Government honestly believes in that argument but is trying to hide behind it. We agree as a general principle that the Minister ought to have control instead of the Director-General. But that is something that the Government has denied time and time again in legislation. We do not see those great defenders of the principle stepping forward when Bills are before the Senate. The Labour Party time and time again has asked for ministerial responsibility and that power be conferred by substantive legislation instead of by regulation. We do not see members of the Liberal and Country Parties coming forward to defend the principle when we are dealing with Bills. Suddenly the principle becomes a stick with which to beat a small company that is in competition with bigger companies in the community.
Contrary to what Senator Gorton said this afternoon, all that disallowance of the regulation would do would be to delay this matter for a few more months. AH that we are asking the Government to do is to allow the law of the land to operate, as the Government has been operating under it for many years. We ask the Government to allow the former position to apply for a further few months to permit the company, which is seven-eighths of the way through the processes of law, to continue with its case. We also ask the Government to abide by the decision that is made. Every honorable senator sitting behind Senator Paltridge, knows that the Government has acted completely wrongly and with a great misuse of power. There is no need for me to tell them that. This matter means more than merely propping up two or three Ministers who have put themselves on a hook. They have been too long in power and have become arrogant. They have said that because they are Ministers they are not going to be pushed around by anybody in the community.
That is why this matter has been handled in this way and not as Senator Gorton said, to strengthen the regulations. The only honorable and decent thing to do is for the Government to accept the processes of the law, whatever the final decision might be. Government supporters should accept their responsibility as senators and vote to disallow the amendment of the regulation which has been made in a most disgraceful manner. It should never have been done in that way by a government which professes to believe in free enterprise. It seems that the Government believes in free enterprise only when it wants to do so and that it discriminates between small companies and large companies. The Government is misusing processes of law which are time honoured in the British Commonwealth of Nations and are accepted by Australia.
– The business of the Senate tonight concerns a matter of considerable principle. I am particularly pleased that the debate is directed to a subject which the Senate has made its particular province. I refer to the supervision of subordinate legislation by regulation. We are concerned here tonight with the impact which an amending regulation made by this Government on 1st July has had upon the rights of a company which is a trader in this country. That trader, Interstate Parcel Express Co. (Aust.) Pty. Ltd., having built up a business of quite creditable proportions, in the latter part of 1963 advised the Government that it was considering ‘ making an application for an aircraft licence to take the business off the road and transport it by air. Ipec-Air Pty. Ltd., a subsidiary of the company I have mentioned, made a formal application to the Government in July 1964, for an interstate charter licence and also for a licence to import DC4 aircraft to operate on that interstate aviation service.
As one of the learned judges of the High Court said, there was an inordinate delay in dealing with the application. It was not dealt with formally by the Director-General of Civil Aviation until December 1964. During this time I.P.E.C, being a prudent company, had gone to considerable expense in getting together an executive that knew something about the business in which it intended to launch. Of .course, for every month that this matter is delayed while it is immersed in politics the company is involved in unproductive expenditure. These are matters that would concern any individual to whom the law is applied in this country.
In that situation the Director-General of Civil Aviation refused a licence, not merely for interstate aviation, but also to import aircraft. The company took the matter to the High Court. The High Court, not surprisingly I would think, and not unacceptably I hope, to every member of the Liberal Party who remembers the case of Australian National Airways Pty. Ltd. in 1947 when section 92 of the Constitution was the basis upon which free enterprise in the air was established so that A.N.A. could survive, said: “ Mr. Anderson, you are abrogating I.P.E.C.’s interstate freedom under section 92.” I should think that everybody would have been completely in accord with that decision. Two judges of the High Court thought that the Director-General of Civil Aviation had considered the application for an import licence on a ground not permitted by law, and the other three judges thought that there was no reason to order a reconsideration by the Director-General of the application for an import licence. So in March the company, which had a declaration from the High Court that it had perfect freedom to carry freight by air interstate according to section 92, was left without aircraft. Why was that? I suggest it was because there was a regulation which provided that aircraft were prohibited imports, and that unless a person presented to the Collector of Customs permission in writing from the Director-General of Civil Aviation stating that he could import aircraft, he was not allowed to import them. I will have something more to say on that matter in a few minutes.
That was the law from the time I.P.E.C. put in its application, while the case was pending before the High Court, and while the Court was considering its judgment for six or seven weeks. After I.P.E.C. instituted proceedings for leave to appeal against the judgment and until 1st July that remained the law. Then the amendment which the Senate is asked tonight to disallow was put through secretly and without any candour whatever. And so far as the public knows’ and so far as I as a parliamentarian know - I inquired on the 7th or 8th July as soon as this matter was publicised - every printed copy of that law of the Commonwealth was transmitted to London by air and within 24 hours of the hearing was presented to counsel who were about to argue the I.P.E.C. case on appeal. I have recited those facts because I think’ they should go on record as indicating whether or not I shall justify the use of power to make a regulation which completely defeats the law upon which a litigant is basing his appeal. I shall develop reasons why I think the Senate should disallow the amendment.
No question of policy is involved in this debate but, if the Senate has the sense of purpose that I hope it has in this sessional period, it will have, a complete discussion on policy at a very early date. The policy involved is what we on this side of the chamber refer to as the two airline policy. That policy is designed not to grant a monopoly to a government enterprise such as the Chifley Government attempted to grant before 1947 but is designed to maintain a two airline system with a monopoly for those two airlines and for them only. Let me state it in the following stern terms which were used by Mr. Justice Kitto -
I think the truth of the matter should be faced. The refusal of the licence was based upon nothing whatever but a policy against allowing anyone to participate in the relevant form of interstate trade other than those already engaged in it.
This policy is advanced to give a monopoly to the two present major operators in relation to not only the carriage of passengers but also the transport of freight.
The form of the amendment contains nothing that is material to the reasons which have led to my conclusion. Of course, the form of the amendment has been canvassed by some speakers who have preceded me; Senator McKenna said that he agreed that it was desirable. I wish to make my position clear and consistent. I remind the Senate that in the roundest terms I have condemned regulations in either the old form or the new which give a right that is not examinable by any court to a Minister arbitrarily to refuse the import of any goods for you, Mr. President, or me. On another occasion of great significance - may I be permitted to say that it has been recorded in the journals of Canada and Australia - I said that a regulation in this form creates a despotism which, if it is not new, is no better because we have become somewhat cynical about it.
Before I leave the arbitrary action of the Government, through a Minister or a Director-General, in taking the absolute right to prohibit the import of aircraft, let it be understood how that action permits discrimination. In the case under discussion the two monopoly operators were permitted to import aircraft during the pendency of the proceedings but I.P.E.C. met with a refusal. So we have the situation in law where an article may be a prohibited, import if A applies for it but -a permitted import if B applies for it.
We are asked to be attracted to the amendment of the regulation because the Minister is substituted for the DirectorGeneral of Civil Aviation and because, the Minister being here in person, his actions may be debated. I hope our sense of ministerial responsibility is not becoming so blurred and dulled that we think that it is only for his personal decisions that the Minister accepts responsibility to the Parliament. It is fundamental to ministerial responsibility to a democratic Parliament that the Minister should accept responsibility for his own actions and for the administration of his department. As the Critchel Downs case shows, if there has been double-dealing in a department - not illegal dealing, but dealing which is designed to defeat the rights of an individual - the Minister concerned, upon discovering it, has walked into the House of Commons and has resigned. Ministerial responsibility would not require that he should do that in the case of a bona fide mistake which has been made within the department; but the Minister would reveal the mistake to the House and, unless’ he immediately proceeded to correct it, the House would exert its authority and not vote another penny to him until his administration conformed to the will of the Parliament. That is ministerial responsibility.
Before I leave the form of the regulations and come to the real substance of the reason why I shall vote for disallowance of the amendment, let me show the extent to which the free enterprise trader in this case was prepared to submit to ministerial authority. One matter that concerned the Minister was that, if an import licence were given to this trader to enable him to import aircraft for the transport of freight, he might expand his operations into passenger transport. The trader pointed out that the aircraft which he sought to import were DC4’s. I would have thought that any business airmen would have suggested there would not be many passengers flying in DC4 aircraft when there were Boeing 727, Electra and Viscount aircraft available.
But not content with that, the company was prepared to alter its articles of association so as to appoint a nominee of the Minister to the board. It was prepared to alter the constitution of the company so that the Minister’s nominee should have a share which would have overriding voting powers if ever the company transferred from freight to passengers. It was prepared to vest the ownership of the aircraft in a trustee nominated by the Minister and it was prepared to grant the Minister an option to purchase these aircraft exercisable at any time within 30 years. Finally, it offered to give a bond of £50,000, conditioned to be forfeited if it transgressed by switching from freight to passengers.
– In other words, it bent over backwards.
– It bent over backwards and was ready to accept an element of Government control in .the private management of its own business so as to buy its immunity to trade freely under section 92, it wanting to trade, and being satisfied to trade, in air freight, and the Minister’s object being to prevent it from extending to passengers.
In these circumstances, Mr. President, 1 am not at all attracted to the idea that this is a desirable form of regulation. It is an arbitral form of regulation and on three occasions the Regulations and Ordinances Committee of the Senate has brought regulations of this sort before the Senate for condemnation. By a regulation in this form is being produced a situation similar to that of the old Star Chamber, which was condemned because it became an extension of the Executive, consisting of politicians enforcing a policy, instead of a court enforcing a rule of law. It is at that point that I leave the policy of the regulation and I leave my views on the form of the regulation, and I proceed to put before the Senate the reasons why I think that in these circumstances it would be an indelible mark of discredit to this Senate if it allowed this regulation to go without voting for disallowance. The system that distinguishes our present parliamentary democracy from the arbitrary government of Great Britain before 1640 is derived from the supremacy of Parliament that was then established. Here in the Senate tonight I am one who urges - as usual - an unrestricted freedom of judgment on the part of every member of the Parliament here. Nothing else is worthy of our position in the Parliament, in my view.
Having established the supremacy of Parliament over the Executive by a civil war, the Long Parliament made one of its first acts the erection of a judiciary, and in 1688 it established the complete independence of that judiciary. It is my proposition to the Parliament that we are drifting nearer and nearer to authoritarianism, first, if we refuse to exert the supremacy of Parliament; and secondly, if we impair in one iota the independence of the judiciary. The independence of the judiciary involves this, if it involves anything but a delusion: Every citizen in the country has a right to put his case before a court and to get a decision of the court according to law. That involves the principle that it is a gross contempt of the judiciary and the system of which it is one essential of the three arms, for Parliament, or the Executive exercising the authority of Parliament by regulation, to alter the law contrary to the decision of a court already given, or in defeat of the right of a litigant when the court has yet to pronounce upon that right. I would remind this country that the architects of our Australian Constitution knew all that from America as well as Britain, and wrote into the Constitution the complete inviolability of our judiciary, as established in one of the four epoch making decisions in the decade in which we have been privileged to live, from 1945 to 1955. In 1955 the High Court, in the Boilermakers’ case, said: -
The Constitution demands that you shall neither subtract from our jurisdiction, nor shall you immerse us in other than judicial work, so that our independence shall be preserved as the third arm of government, to which every citizen of this country can appeal for an interpretation of the law objectively, not according to a ministerial discretion or permission or consent but according to a rule of law.
I am satisfied, without any doubt at all, that the purpose of this regulation was to defeat the appeal of I.P.E.C. before the Privy Council. First, the regulation was printed on 1st July and the appeal was due for hearing on 5th or 6th July. Those four days were availed, of to alter the law, with the appeal only four days from audience by the Court. The law upon which I.P.E.C. based its appeal had stood unchanged since 1952 and it was changed in those four days. The inference is overwhelmingly that whoever got this idea was acting upon it only for the purpose of being able to present this regulation to counsel for the company in London and to say, in effect: “The right that you came here to establish has been abrogated overnight and now it is of no use to appeal to the Privy Council to get a mandamus that the Director-General should consider a power that has existed. You have to address any future claim for mandamus to the Minister for Civil Aviation “. Those four days become an important period in this case after what, as I remind you, Mr. President, Mr. Justice Windeyer referred to as the inordinate delay that was taken to consider the application of the company between July and December of last year.
Secondly, the fact that this alteration of the law was made for the purpose of abrogating the right of I.P.E.C. is shown by the fact that all copies of the regulation that were printed on that day were flown to London. It was in London that they were to operate. They were not made for the purpose of altering the application of the law to other Australian citizens. Thirdly, Mr. President, I feel obliged to adopt the conclusion that the purpose was to defeat the right of I.P.E.C., because not one copy, notice of the copy, or oral communication of the rejection was conveyed to the very well known Sydney firm of solicitors acting for I.P.E.C.
I agree completely with Senator Willesee that the lowest level of candour to be expected in matters of this sort would be that the solicitors for I.P.E.C. would be advised by letter of the making of the regulation weeks before. I am fortified in my view by an answer given by Senator Gorton this afternoon to a question I asked. The Minister’s answer revealed that advisings to which the Attorney-General, the Solicitor-General and officers of the Attorney-General’s Department were party, took place on this subject obviously before the SolicitorGeneral set out for London. Mr. President, I believe that this is an instance of shabby and unworthy secrecy and, for the reasons
I have stated, I believe the action was undertaken for the purpose of defeating a litigant’s right.
Two other facts leave that conclusion inescapable. I direct the attention of honorable senators to the fact that in the old regulations it is schedule 2 that is wholly devoted to the prohibition of imports, except with the permission of the Minister. So, when the item of aircraft which is in schedule 3 ceases to be a prohibited import at the instance of the Director-General, the change does not take the form of a regulation to repeal item 1 in schedule 3 and insert item X in schedule 2. Why is that? Because the Senate in its vigilance might repeal the second part and not reinstate the first. So this form of amendment is resorted to in order to ensure that, on’ disallowance, the old position will be revived and the Director-General will have authority still to prohibit, whereas if it had been transposed into schedule 2 and part of the amendment were disallowed, the Government would have been without authority.
The second matter which is interesting to me - not that I have gone into the regulations with a very close scrutiny - is that regulation 2 goes out of its way to say -
A permission Issued by the Director-General . . before the commencement of these Regulations shall, … be deemed to be a permission issued by the Minister of State for Civil Aviation . . .
But it does not say anything about refusals. It does not exempt from the operation of this regulation the refusal of the DirectorGeneral, which was the specific matter in dispute before the Privy Council. All permissions to competitors of I.P.E.C. are thus preserved. It abrogates the refusal that I.P.E.C. was putting before the Privy Council as the subject matter of its claim. It is therefore my view, Mr. President, that this regulation was made, in terms that Senator Willesee has used, to defeat the due process of law, and in my language, to undermine the courts to the damage of individual rights of the litigant who was then before the Court. In my view, for that reason, it is clearly a regulation that should be condemned and disallowed.
I am not at all attracted by the idea that the wrong could be remedied by the Government’s paying the costs of Ipec-Air
Pty. Ltd. I.P.E.C. has been subject to expense far transcending the amount of its litigation costs, by recruiting and maintaining an experienced administrative aviation staff for many months, I am informed. It has incurred great expense in maintaining readiness of that staff to get going. It has built up its road/air freight from nothing in 1955 to 44,000 tons in 1963. In that period the two airline operators have allowed their air freight to slump from 84,000 tons in 1955 to 60,000 tons in the present year. Any trader with enterprise and ability of that sort is guaranteed under our Constitution freedom of trade between the States and I find completely unacceptable an arbitrary prohibition against the importation of aircraft when the only purpose of that prohibition is to prevent the trader from exercising his constitutionally guaranteed right of free trade. When I find that the Company has persuaded two High Court judges that an arbitrary right had not been exercised according to law, and that it has exercised its right under the advice of experienced counsel, to go to the supreme court of the Commonwealth, it is to me shameful that that right should be abrogated on the eve of its obtaining an audience before the court of appeal. For those reasons, Mr. President, I ask the Senate to disallow the regulation.
– It is not my intention to deal with the merits of the claim of Ipec-Air Pty. Ltd., nor is it my intention to deal with the history of that company’s relations with the Department of Civil Aviation. The Leader of the Opposition (Senator McKenna) in opening the case for the disallowance of the regulation, very comprehensively traced the history of events. The Senate has just heard an excellent speech by Senator Wright in which he explained the principles involved and the reasons why he felt the Senate should disallow the amended regulation.
When I became possessed of information concerning this case, as one who has had long experience in administration, I could scarcely believe what I read. I was unprepared to accept all that I read until I had an opportunity to confirm it. I was absolutely amazed to think that any government would descend to such a clumsy indecent method of. winning its point against a private company and, what is more serious, of frustrating and short circuiting the process of law. That is the principle involved in this case and, as Senator Wright has very properly put it, that is the thing about which you, Mr. President, and I should be concerned tonight. The question of compensation to the company, as suggested by Senator Wood, is only secondary to the major principle involved in this case.
I want to assure Senator Gorton that my attitude on this subject was not influenced by any extraneous matters. When I had satisfied myself on the facts of the case I, as the Leader of the Austraiian Democratic Labour Party, made a public statement to the effect that if the official Opposition did not move for the disallowance of these regulations I would. I certainly would have done so but I had no doubt that the official Opposition would see the situation as I did and would take the necessary action to arrest these amended regulations.
If it was so urgently important for the power and authority to be transferred from the Director-General to the Minister, why on earth was this not done before now? According to Senator Wood, the power and authority were vested in the Minister in the days of the Labour Government but that was altered by this Government and the power was placed in the hands of the Director-General. Now we are being asked to agree to these regulations which give the power and authority to the Minister again. What has prompted the Government to take this course of action? Surely Senator Gorton will not ask the Senate to believe that the I.P.E.C. case had no influence on the alteration of the regulations. Surely he would not expect the Senate to believe that. He may as well ask us to believe in Santa Claus, and I think we are all past the stage when we do. Of course the regulations were amended to defeat the process of law.
The company had its counsel in London ready to go before the Privy Council, but the day before doing so counsel was told that the case would have to be postponed because of an alteration in the regulations. Such discourtesy has never been equalled in my long experience. We have nothing to be very proud of in this. For the life of me, I cannot understand why the Government felt it so imperative, so necessary, to alter these regulations at a time when it knew that this company, which had engaged in so much litigation in Australia before the High Court, was about to go before the Privy Council. The Government adopted a mean despicable method of trying to win its point.
If the Government’s intention was not, as I have claimed, to defeat I.P.E.C, why did it not, when it amended the regulations, provide for an exemption for the I.P.E.C company? Why did not the Government exempt the company from the provisions of the altered regulations? If the Government is sincere in what it wishes to convey, if the Government means to tell us that what it did was not directed at the I.P.E.C. company, why does it not even at this stage provide for I.P.E.C. to be exempted from the provisions of the amended regulations?
Senator Wood’s attitude was very puzzling to me. He condemned the regulations strongly. He even suggested a vote of censure on the Government. All that, of course, would be of little advantage to I.P.E.C. which has been thrown out of court by the amendment of these regulations. He also spoke of compensation. I have already said that compensation in any amount is only secondary to this very important principle.
I repeat that my interest in this matter relates to the principle involved. I readily saw a very grave injustice being perpetrated by the National Government of Australia upon a company, a new young company, which sought to enter into competition with existing companies in the business of air freight. That, I believe, is revolting to the average man. It is on that aspect, and on that aspect alone, that I have interested myself in this case. It is most regrettable that the Ministers concerned should have gone about resisting and defeating this company by such secretive and devious means. If the Prime Minister (Sir Robert Menzies) was not aware of what was going on, I have the utmost sympathy for him. I know that many Prime Ministers have discharged Ministers for considerably less than has happened in this case. This matter has brought ridicule on the Parliament of Australia because we are all involved in it. If we permit these regulations to stand, we become equally as responsible as the Ministers who perpetrated the act. That is why all honorable senators should seize the opportunity now to register their protest in the name of fairness and in the name of justice, and disallow these regulations unless the Government is prepared to exempt the I.P.E.C. company from their provisions.
, - I congratulate Senator Gair on his maiden speech in the Senate. The Opposition can agree with the sentiments expressed by him tonight as the Leader of the Australian Democratic Labour Party in this chamber although I fear that often in the future we might not agree with him altogether. We feel, however, that tonight he started well. The honorable senator began on firm ground.
The motion before the Senate is one by which this House can exercise its supervision over the regulation making power which the Parliament entrusts to others. The Parliament has entrusted to the Government the power to make regulations under the Customs Act. The regulation that has been made altering the nomination of the person who is given the power to grant permission to import aircraft is not one to which the Opposition would object if we ignored the background. But we accuse the Government of having abused the regulation making power in this instance.
How low can a government sink when it states that justice is extraneous? How low can it sink when it says that abuse of regulation making power is extraneous? That is what this Government has said in effect tonight.
The history of this deplorable affair is only too clear. Ipec-Air Pty. Ltd., an Australian company, applied to the DirectorGeneral of Civil Aviation, as it was entitled to do under the then existing regulations, for permission to import aircraft. The Director-General refused. On 10th March this year, I.P.E.C. applied to the High Court of Australia for an order directing the Director-General to grant the company’s application. On 28th. May, the High Court gave its judgment and by three to two the application by I.P.E.C. was defeated. Two of the judges - the minority - held that the
Director-General of Civil Aviation had not really exercised his mind but had given a decision dictated, in effect, by the Government.
As was its right, I.P.E.C. sought leave to appeal to the Privy Council and here we see the sorry chain of events that followed. Instructions were given to the Parliamentary Draftsman on 24th June to prepare an alteration to the regulations - an alteration which would defeat the attempt by I.P.E.C. to appeal to the Privy Council. It was not until 5th July that Ipec-Air Pty. Ltd. was told that this alteration to the law had been made. This was told to the company’s representatives in London at about 8 o’clock on the morning the case was due to come on for hearing. What disgraceful conduct this was. The Minister for Works (Senator Gorton) endeavoured today to excuse it by saying, in effect: “ Well, it was not so furtive at all. The mail we sent across did not get to the right place. The cable was not properly addressed.” What nonsense is this? Were the representatives of I.P.E.C. on Venus or Mars? It is said that the company’s counsel was on the way to the United Kingdom. Actually its counsel were there through July. Its solicitors were in Sydney a couple of blocks away from the office of the Solicitor-General of the Commonwealth. What kind of conduct is it when the Commonwealth Government in this furtive manner prepares only 12 copies of the regulation?
The haste was explained in a most curious way by the Minister for Works. He said: “ We were hasty, it is true, but only because I.P.E.C.’s application was coming on so speedily. If it were not coming on so speedily, we could have done it later.” What does that mean? It means only this: The alteration to the regulation was made to defeat the appeal by I.P.E.C. Why else did the alteration have to be done so speedily when I.P.E.C.’s case was coming on hastily? There can be no other answer; and if anyone on the Government side is going to try to justify this course of conduct, I should like an answer to that question. Why did the Minister say it had to be done speedily because I.P.E.C.’s case was coming on in such a hurry?
The Minister said it is a good regulation. “ If it had to be brought in “, he says, “ when was it to be done? Was it to be brought in before the case started or during the hearing or after the hearing? “ The answer has been given in this chamber: The regulation could have been brought in at any time provided there was an exemption from that regulation touching the application which had been made to the Director-General by I.P.E.C. This is the course that has been adopted on other occasions. The Senate will find many examples of it in the legislation of New South Wales. Do not tell me that the Parliamentary Draftsman was not aware of this. Do not tell me that the SolicitorGeneral and the Attorney-General were not aware of the way to protect the rights of any company or citizen with a pending case. After attempting to deceive the public of Australia, the Government’s representatives come into this chamber and endeavour to brazen it out by claiming that they did not know the way to bring in this good regulation and yet not to hurt I.P.E.C.
I have the highest respect for Senator Wood. I regard him as a great parliamentarian and I believe he endeavours to act in accordance with the highest parliamentary traditions. I believe that on consideration of this matter he will feel that he ought to’ have expressed himself differently. The argument which was advanced by the Minister “for Works and which Senator Wood apparently accepted was the most evil argument of all - that the end justifies the means. The end does not justify the means. Sometimes there can be said to be an argument that there was no other way than to injure some one in the course of doing something good. That argument cannot be advanced in this case. Everything the Government wanted to achieve could have been achieved by the introduction of this regulation with an exemption of the application by I.P.E.C. from its operation. That is: Everything could have been achieved unless the Government wanted to cheat I.P.E.C. of its rights which it had under the law and which it would be entitled to if the Court found in its favour. What kind of an argument is it when the Minister comes here and says: “ Well, they did not lose anything. I do not think they suffered an injustice because if they had gone on, they would have lost “. What right has the Minister to say that they might have lost or they might have won? The Minister for Works said also: “ Anyway, if they had won, it would only have gone back to the Director-General and that would not have done them any good because he would have given the same decision “.
– It is the right of the Privy Council to say what decision, they would have got.
– Of course it is the right of the Privy Council. I thank Senator Wright for that observation. If the company had succeeded in its claim, it would have been the duty of the Director-General to give his decision and his own decision. He might have granted the application. He might have refused it. But it is not for the Minister to say that the company suffered no injustice because it would not have got anywhere by the proceedings before the Privy Council.
– It is not for Senator Murphy to say I said the company would lose because I did not. Please be accurate.
– The Minister said it would not have done the company any good.
– I said the best the company could have done was to get it looked at by the same man who had refused it before, and that is all I said.
– You implied there would be no injustice because its petition for leave would not get it anywhere. If an order were made in its favour, the DirectorGeneral may grant or he may refuse the application. It was entitled to everything it could get from these legal proceedings. If we are to have the rule of law in this community it should be applied not only as between citizen and citizen but it should be applied as between the Government and its citizens. What can be done to I.P.E.C. today can be done tomorrow to any citizen. The Government is setting up a precedent of injustice to citizens and it is all the worse when that injustice is perpetrated by Ministers of the Government. It is no credit to them, it is no credit to the Cabinet which endorsed the decision, and it will be no credit to this Senate if it approves of the Government’s action.
Senator Turnbull said that he would be satisfied if I.P.E.C.’s costs were paid. Surely that involves the proposition that I.P.E.C. should not have been affected by the change of the regulations. It should not have been affected insofar as costs are concerned. It should not have been affected at all. It should have been exempted from the regulations in respect of that application which was pending and on which it was entitled to have the judgment of the courts. If we are going to deal with matters such as this by the mere payment of costs it means that this Senate would concede the right of the Government to abuse its regulation making power and to redeem its abuse by the mere payment of costs - the payment of some moneys. Senator Turnbull has said that this shows that we should have an ombudsman. He said that was the way to deal with this thing. I hope, Mr. President, that we will not need any ombudsman to deal with this kind of abuse of power. I hope that the Senate will protect the liberty of the people and that we will not have to go outside and set up any other person to seek out abuses of power and condemn them. This is the place where abuses of power should be condemned.
Senator Wood has suggested that this is not the appropriate motion to deal with the matter. Of course it is the appropriate motion. We do not need any motion of censure. If there has been an abuse of power the way to deal with it is by rejecting the regulation which was made in abuse of power. This was a mean, contemptible, furtive action by the Government and I trust that the regulation will be disallowed by the Senate.
– Mr. President, I join issue with the Government in this debate because I believe that the action which has been taken, by whom ever it was taken - and this is something of which we have not been informed up to date in this debate - was designed to use the law courts of Australia and of England to defeat the rights of the ordinary people in this land.
Senator Gorton is the only one of the ten speakers - I think I am the tenth speaker in this debate - who has attempted to support the Government’s action on this particular occasion. I notice on the list of speakers that Senator Henty will attempt to wind up the debate but I advise him that Senator McKenna has the right of reply. So the whole facts of the case, will come out. But it is amazing to me that there should have been ten speakers and yet the Government has been able to get only one supporter.
Surely this is an indication of what, the Senate, at least, thinks about the Government’s actions in this particular case. It is true that Senator Turnbull said that on the condition that the expenses - and I take it he meant the expenses for the London appeal - were paid by the Government, he would support the change of the regulation. 1 believe that if Senator Turnbull has given an undertaking of this nature to the Government then he has given it without due thought to the processes of what he was prepared to do because the Interstate Parcel Express Co. (Aust.) Pty. Ltd. has been put to many other expenses and inconveniences in order to try to get justice in this particular case. I think Senator Turnbull should give some of these other matters further consideration before he decides what he shall do.
asked when the Government should have taken this action to change the legislation. I think the Government always considered that it had the power to grant or refuse a licence. I think that the Minister for Civil Aviation (Senator Henty) thought all along that, despite what the regulations stated, he was the authority who could refuse or grant a licence to import aircraft into this country. I think that is quite plain when one looks at the correspondence that took place between I.P.E.C. and the Director-General of Civil Aviation. Early in September 1964 - and I am reading from the “Australian Law Journal “ report of the case - the DirectorGeneral said -
Without replying to I.P.E.C, that was the view expressed by the Director-General. It was clear at that time that the DirectorGeneral had the idea that the authority to issue the import licence was vested in the Minister and not in him. Again, it is stated in the “ Australian Law Journal “ report, referring to the Director-General -
Towards the end of October 1964 he said in answer to a telephone inquiry: “ It is no use. ringing me about this matter. The matter is out of my hands. If you want any information you had better contact the Minister.”
Again the matter was to go back -to the Minister and not remain with the DirectorGeneral. So at that point of time the Government, or at least the Minister, was of the opinion that there was no need for a change of the regulation. I again refer to the “ Australian Law Journal “ report relating to events on 1st December 1964 where it states - “ Only the government can make decisions on those matters of government policy which are relevant to my consideration of your applications. The Minister has asked me to tell you that he submitted the matter to the government shortly after receiving (certain) legal advice. . . .
Yet we are told by Senator Gorton that from June to July the three Government legal advisers were of the opinion that the regulations would have to be altered. They had not come to that opinion before. The report continues - “… and he is hopeful that the government views will be made known at an early date. Until this is done it is not possible for me as DirectorGeneral to give an immediate decision on your applications . . . The applications will be considered on their merits as soon as I am in a position to consider all matters which are properly held to be considered (sic) in deciding whether or not to grant your applications.”
Again we find that the Director-General, who has responsibility under the regulations, is being dominated by the Minister. On 22nd December 1964 the Director-General advised I.P.E.C.-
My Minister has informed me, and he has asked me to let you know, that the Government has now considered the policy matters mentioned in my telegram to you dated 7th December. The Government docs not favour the importation of the five DC4 aircraft applied for by Ipec-Ai, Pty. Ltd.
The crux of this matter is to be found in the minority judgment of the High Court. Mr. Justice Kitto finally said -
To hold valid a decision given at the political level instead of at the permanent administrative level would be to contradict the Regulations. The proper conclusion seems to me to be that the application which the Director-General purported to refuse still awaits a decision according to law - a decision which in truth is a decision of the person to whom alone the Regulations entrust the power and duty of deciding whether the general prohibition of importation should be lifted in the particular case.
Mr. Justice Kitto recommended that the matter should go back to the DirectorGeneral to be settled according to law; but this did not satisfy the Government. It was afraid that the Privy Council might come down on the side of the minority judgment and refer the matter back to the DirectorGeneral for decision, acting at his own discretion and not on the wishes of the
Minister. The amending regulations were therefore promulgated in secrecy and were not given to anyone in Australia - not even to the Australian Solicitor-General in London. The Minister for Works (Senator Gorton) who led for the Goverment in this debate, said that a cable was sent to London with the information, but without an address. How silly can you get when you send a cable without an address on it? We are expected to believe that is what happened. If there is someone in a Government department who is sending overseas cables on important legal matters and not putting addresses on them it is time the Government looked at the Public Service to find out where the neglect lies. I do not believe that it happened, despite the fact that the Minister said that it did.
It is interesting to note that Senator Gorton advised the Senate that the Draftsman was asked to prepare these regulations on 24th June in readiness for a Cabinet decision to have them promulgated. At the time when the Draftsman was asked to prepare the legislation, officers of the AttorneyGeneral’s Department were preparing a defence against an appeal by I.P.E.C. to the Privy Council. The two things were going on at the same time and the Government knew that if it promulgated the amending regulations it was unnecessary for the SolicitorGeneral to go to London on the appeal. It knew that the regulations would be published in the “Gazette” and would be law until this Parliament disallowed them. That is exactly what happened. I.P.E.C. had to get an adjournment of the hearing until October of this year. It has to wait and see what action will be taken by this Parliament and then determine whether it can proceed on the application it now has before the Privy Council or start all over again.
At this point of time I am not concerned to argue whether or not I.P.E.C. should have the aircraft. But I am concerned that the Government takes action to defeat a due process of law when in other respects it is demanding that the citizens of Australia uphold the law. If an industrial organisation goes on strike, then, in the Government’s eyes, there is immediately something wrong with it; it is lawless, Communist dominated or something else. But is the Government Communist dominated when it sets out to alter the law to suit its own purposes?
That is the question which the Government should look at. When it starts to attack the privileges of the ordinary people in this country it is no longer fit to be the Government. The Ministers - whoever they are - who perpetrated this hoax on the people of Australia should be dealt with through their own parties.
– Who is responsible?
– No one will say who is responsible. Senator Henty, on his return from overseas, disclaimed any knowledge of the matter, if he was correctly reported by the “ Sydney Morning Herald “. I do not know whether he was correctly reported or not, but the report states -
Does one explain this behaviour of the D.C.A. by incompetence or arrogance? Apparently by a mixture of the two. Senator Henty, who returned yesterday after three weeks overseas, said he was not in u position to discuss the matter properly, l ie said the new regulation was a “ postponement action “.
We were not advised that this was a postponement action, although this is what Senator Henty is alleged to .have said. The report continues -
He referred vaguely to comment in the High Court “, and said the Commonwealth’s case for the Privy Council and the amendment to the regulations had been prepared at the same time.
That is what Senator Henty knew about it and we all know he was overseas for three weeks. But this report appeared in a publication of 8th July and we were advised by the Minister for Works that the departmental officers were instructed to prepare the regulations on 24th June. So it is quite possible that Senator Henty knew something about the matter before he went overseas. But whoever is responsible - of course, the Minister for Customs and Excise (Senator Anderson) must accept some responsibility being the Minister administering the Customs (Prohibited Imports) Regulations - should be put on the mat and the Government should advise us who is responsible. I believe the Senate will do itself an injustice if it fails to disallow these regulations.
.- I would like to assure Senator Cant that I have not been waiting to wind up the debate, because I know quite well that the mover of a motion winds up the debate on it. But I felt it my duty to listen to the points of view put forward and the statements made by honorable senators and list them as I went along, in order to make some comment on them. I feel that this is what the Senate would wish me to do. I want to make some comments on what the Leader of the Opposition (Senator McKenna) said. He said that the regulations are desirable regulations and that their purpose is a desirable purpose. He accepts that and I am with him there. He said, further, that the Opposition would do nothing to cut down the powers of any Australian Government to make laws to regulate imports and exports.
I want to deal with the points the Minister made. The Director-General of Civil Aviation is not responsible for Government policy. Under the regulations as they stood, it was quite evident that a Director-General who wished to follow his own course entirely and act on his own responsibility could have licensed the import of any number of aircraft - passenger or cargo - that he thought necessary to any applicant. This, of course, would have affected the regularity of imports and that is one of the aspects which the honorable senator raised.
Senator McKenna said further that the firm of I.P.E.C. had operated a DC3 service to Tasmania under a licence. That is not correct. It engaged the King Island charter firm of Brown and Brain,, which has had a charter licence for many years. I remember when it operated Anson aircraft from King Island to Melbourne in order to get the trade going. I.P.E.C. chartered this firm to carry its cargo. It had two DC3 aircraft and it was given some assistance to purchase them.
– The High Court ordered that the company had to be issued with an operating licence.
– I am commenting on what Senator McKenna said, that I.P.E.C. had an operating licence for two DC3 aircraft that it was operating to Tasmania. That is not correct. I want to deal with the statement that Trans-Australia Airlines and Ansett-A.N.A. purchased aircraft after the application was made by I.P.E.C. If honorable’ senators turn to the third annual report of the Minister for Civil Aviation for 1962-63 they will find the comments of the previous Minister for Civil Aviation on this matter. On page 2 of the report this appears -
The capacity entitlement of the airlines is based on the actual capacity provided during the preceding period and adjusted to lake into account the estimated traffic growth during the period to bc covered by the Determination. In the case of the all-cargo or freighter operations I have suggested to the airlines that they should take special steps to promote further traffic growth, and if this should happen I will be prepared to review my capacity determination at the appropriate time.
In fact, permission was given to Ansett.A.N.A. on 16th June to purchase one aircraft and T.A.A. was given permission on 6th July to purchase one aircraft. That was before any application had been received from I.P.E.C. I want to clear that matter up. Further permission was given to both airlines on 15th March 1965 to purchase two freighter aircraft. The Minister for Civil Aviation in the 1962-63 report commented on the fact that he was encouraging the airlines to buy further aircraft to step up the carriage of freight.
I want to come now to other matters that have been raised during the course of the debate. I have quite a few points to answer. I want to refer to the cablegram which has been mentioned. I have a copy of it here. It was an outward cablegram from the Department of External Affairs addressed to the Australian High Commissioner in London. What was left out of it on receipt in London was: “For Solicitor-General from Crown Solicitor “. The cablegram read in part: “ Amendment of the Customs (Prohibited Imports) Regulations “. Because the words: “ For Solicitor-General from Crown Solicitor “, had been left out, it was delivered to an officer of the Department of Customs and Excise in Australia House.
– How did those words come to be left out?
– That is how it arrived at the Australian High Commissioner’s Office in London. The words: “For Solicitor-General from Crown Solicitor” were not on it. Therefore, it was sent to an officer of the Department of Customs and Excise.
– Would the Minister read it to us?
– Yes. It reads as follows-
Amendment of Customs Prohibited Import* Regulations in form forwarded to you on 29th June signed by the Governor-General and notified In the Gazette yesterday. The regulations am Statutory Rules 1965 No. 91.
Twelve copies of the Gazette have been air expressed by Qantas flight arriving London on Sunday and addressed to you care Coward Chance.
Coward Chance are solicitors in London.
I want to refer to the matters raised by Senator Wood and Senator Turnbull. They spoke about compensation being paid to the company. I have given some thought to this matter. I think I should say to the Senate - and I think the Senate would wish me to say it - that I could not at this stage, and I think I should not at this stage, attempt to answer the honorable senators, but the Senate can feel assured that the Government realises that I.P.E.C. has been involved in expense. If such a request is made at a time when no litigation is in train, the Senate can depend upon the Government making a decision appropriate to what has occurred. I repeat to the Senate that I could not at this stage, and I think I should not at this stage, attempt to answer this question.
I want to refer to some other matters which have been raised. I particularly want to refer to one or two points which Senator Wright raised because I think they are very relevant. I had every proposition that the company put forward regarding the guarantee that it would not use the freighter aircraft as passenger aircraft examined by our legal advisers and our legal authorities. The company put about five different proposals to me. I was advised that not one of them would hold water under section 92 of the Constitution. I have to rely on the legal advice given to me by the highest legal advisers to the Government. They said that not one of the proposals would hold water under section 92.
I want to turn now to another point raised by Senator Wright. He said that the company wished to purchase secondhand DC4 aircraft which are unpressurised. He asked: Who would want to travel in those aircraft? He said they would not carry passengers. That is a very short sighted point of view because if the company was given permission to import secondhand DC4 aircraft and it began a service and the aircraft were worn out in the company service, it would be entitled to replace them. We have always followed the policy that a company which wishes to replace aircraft has the opportunity to choose the aircraft it wishes to have.
– Why did not the Government allow T.A.A. to choose the Caravelle aircraft a few years ago?
– The honorable senator does not know what he is talking about.
– Yes, I do.
– I am not going to be diverted from this important subject by a silly little senator who yaps like a puppy dog.
– I withdraw the remark.
– I ask for a withdrawal of the remark.
– I have withdrawn it. I am talking about the importation of DC4 aircraft. When such aircraft are worn out, how can one deny to the operators the right of replacement? What is to happen if they say that they have their own right of choice and that they want some modern jet freighters? When I was in America I saw new Q.C. jet aircraft which could be changed completely in 20 minutes from first class passenger carrying planes to cargo aircraft.
– They are airconditioned?
– They are airconditioned. Perhaps I should not mention names, but Boeing 737 and DC9 aircraft will soon be produced which can be converted completely in twenty minutes. Because of section 92 of the Constitution, once such aircraft are in Australia nobody can prevent them from carrying passengers interstate.
– It took the Minister a long time to find that out.
– It did not. I am replying to Senator Wright’s assertion that because DC4 aircraft are old and are not pressurised they would not be used to carry passengers. I am saying that that is a short sighted attitude to adopt. We must not think just of today or .tomorrow. Surely we should not let this airline start in service and then renounce its right to get replace-? ments when its aircraft are worn out. It should be able to obtain replacements of its own choice. Once those aircraft came here, nobody could deny the operator the right to carry passengers. That is the point. Senator Wright said also that permission to import aircraft was not granted to I.P.E.C. because of the policy of the Minister for Civil Aviation. Let me say that the policy is the policy of this Parliament. It was accepted not once only in 1952, but again in 1957 and 1961. It was rank injustice to say that it was the policy of any one person. I happen to be the Minister for Civil Aviation now, but this policy has been laid down in the Airlines Agreements Act. That legislation provides that there shall be two, and not more than two, operators on the main trunk lines. That is part of the agreement with the airlines. That is the policy that I was administering. I reply to Senator Wright by saying that his assertion was quite incorrect. This argument has centred on one company. Honorable senators overlook the fact that other applications were submitted.
– How many?
– There were four such applications and one for a passenger aircraft service, making five altogether. I was rather astounded when I heard Senator Gair, I think, say that we ought to have granted exemption to this one company. What was to happen in regard to the other companies who submitted applications? Does the honorable senator suggest that because one becomes involved in litigation one should be in a protected position? Senator Wright said that all should get a licence or none should get one. He said that nobody should be treated differently from anybody else.
– Ansett would take them over, anyway, if they got a licence.
– That is very shallow. Now I wish to deal with the regulation which is before the Senate and which is designed to substitute the words “ Minister of State for Civil Aviation “ for the words “ Director-General of Civil Aviation “ in the Third Schedule to the Customs (Prohibited
Imports) Regulations. Senator McKenna commenced his speech by saying that this was an acceptable proposition. In the case in question, the positions of both the Minister for Civil Aviation and the DirectorGeneral of Civil Aviation were quite untenable. No Minister could accept responsibility for the actions of a departmental head who had special authority outside ministerial control and quite outside the control of the Government and the Parliament. The High Court said to the Director-General, in effect: “ You cannot make a decision on government policy. You have the law before you and your interpretation of the law is all that counts. You may take government policy into account, but your decision on the law is what counts.” No civil servant would want to be in that position for five minutes. No Minister would want to be placed in such a position. The position would be untenable for both. I have the highest regard for the Director-General of Civil Aviation and his integrity.
– There are hundreds of cases in which civil servants are in such a position.
– The honorable senator may know of hundreds of cases in which a court has said that an officer is altogether outside the control of the Government, a Minister or the Parliament. Because of my limited legal knowledge, I do not know whether that is so. But this particular case has come to my attention, and I say that nobody could work in a department in such circumstances.
Reference has been made to the alteration of the regulations. When the judgment of the High Court first came to me - this was before I went overseas - -I read it and said: “ I am not too clear about some of it. There are one or two points I should like to have cleared up.” I inquired about the Specific matter we have been discussing. I was struck by the fact that the DirectorGeneral of Civil Aviation was able to act outside the control of the Parliament or the Government. I said to the Director-General: “ I do not think this is a tenable position “. He said at first: “ I don’t know; I think it is fair enough. I think it is all right.” But eventually he said: “ Yes, I see your point of view “. I said: “ I think this regulation ought to be altered “. If my memory is correct, I said: “ In view of what three judges of the High Court have said, 1 think the Minister should be substituted for the Director-General “.
– Why did the
Minister not have it done?
– This happened on the 29th or 30th May, or 1st June - somewhere about then. That is when I told the Department that I believed this provision ought to be altered. I did not give any direction at that stage that it should be altered. During the discussion I expressed the view that this was something that we could not live with, and I still hold that view. Senator Cant referred to my comment when I came back from overseas. I said at that stage that I thoroughly agreed with the alteration of the regulation and that I thought it was the right and proper thing. Until I had spoken to the Attorney-General (Mr. Snedden), I was not aware of anything that had taken place. Let it not be thought that I am trying to abrogate any responsibility in this matter. I have mentioned that because Senator Cant raised the matter. I thoroughly agreed at the time, and I still agree, that the change should have been made.
The people of Australia have tens of millions of pounds invested in air navigation and safety facilities throughout the Commonwealth. The Commonwealth Government itself has a vast responsibility for safety as well as efficiency in civil aviation. It is necessary for any government with that responsibility to have a policy. It cannot abdicate its responsibilities to anybody. The Government’s policy is to determine import applications. That being so, the appropriate authority to grant permission is the responsible Minister, not the head of the department concerned.
– Who is the responsible Minister in this context?
– Myself. The recent High Court judgment revealed a very unsatisfactory position. No one has disputed this aspect. The Opposition would be hard pressed to dispute it, as I propose to show in a minute or two. The Deputy Leader of the Opposition (Senator Kennelly) and Senator Willesee talked about free enterprise. I think it is fair to say - and I think everyone in this chamber will concede - that since 19S1 this Government has kept free enterprise in competition in the aviation business.
We are responsible for free enterprise still being in the business. As honorable senators opposite know, their policy was directly the reverse. So in answer to the comments that were made, I say that we have kept free enterprise in the air, and there is good reason for this.
Let me clear up one point, which I think honorable senators will concede. I am not at liberty at this stage to discuss the merits or otherwise of the particular application, for two obvious reasons. First, if the Senate were to decide to disallow this regulation, the disallowance would have the practical effect of reinstating the company’s petition to the Privy Council; and it would be quite improper for me to debate in this chamber the issues directly involved.
– The others did.
– It would be quite improper for me, as the Minister, to do it. Secondly, if the Senate sees fit to allow the regulation to stand - and I firmly believe it will - the Minister for Civil Aviation will be called upon to decide all future applications for permission to import aircraft, including any applications that might be made by this company, I.P.E.C, as well as those made by other companies, in accordance with the Government’s policy at the time of the applications, and acting upon the technical advice of the Department. Therefore, it would be completely improper, I suggest, for me to canvass this position at this stage. I put those two propositions because I believe that they are valid.
– Will Cabinet reconsider the question of the two airline policy?
– I cannot comment on policy at this stage, as the honorable senator knows. I want to make one or two other points before 1 close. The basic’ principle involved in the motion before the Senate is whether any Australian Government can have an aviation policy and whether that policy can be made effective by the control of aircraft imports; because the downfall of airline after airline after airline - the rock upon which they have foundered - has been over-capacity. As soon as you get overcapacity in the airlines you get uneconomic competition and you return to the jungle days of 1949. It is vital that if any Australian government - I am not talking about this Government only - wishes to have an airline policy and wishes to make it effective, its policy must be made effective by control over imports of aircraft. The issue at stake is whether the Government can have an effective civil aviation policy, no matter what the policy happens to be at any time. To have an effective policy, the Government must be in a position to decide on policy grounds whether or not aircraft may be imported.
This is fundamental. The authority to control the import of aircraft is the very keystone of any aviation policy of any Australian government, whatever that policy happens to be at any time, and whatever the political colour or beliefs of that government may be. Once the aircraft are in Australia they can easily and simply be used for interstate passenger services. The Commonwealth cannot, by virtue of section 92 of the Constitution, impose any legally enforceable conditions restricting their use. I mention these things, because these are the problems that have come up in the course of consideration of all aspects of this case. I might point out, too, that in the recent case before the High Court none of the judgments cast any doubt upon the propriety of the use of the customs power to implement government policy on civil aviation. Indeed, Mr. Justice Windeyer said -
The Parliament can, if it wishes, use its constitutional powers of customs control of exports and imports to enable the Executive to pursue economic policies that it considers conducive to the welfare of the Commonwealth.
We have a tremendous investment in civil aviation. Our annual expenditure in this field is currently running at about £21 million and our total investment is well over £75 million. We have very extensive facilities for safety as well as efficiency of air navigation. We cannot abdicate these responsibilities, nor do we wish to do so. We have a policy and we want that policy to be effective. The Opposition is not disputing the principle embodied in the new regulations - that the issue of aircraft import permits should be a ministerial responsibility rather than the responsibility of a departmental officer. I would be very surprised if it did, because in 1947 it did exactly this. There are several senators in this chamber today who were supporters of the Labour Government which in 1947 amended the regulations to provide that the Minister and not the Director-General should have the power.
– There was not a court case pending in 1947, as there is today.
– Is that why a Labour Government altered the regulation in 1947? That is the valid point I am making. If any honorable senator cares to examine the record, I refer him to Statutory Rules 1947, No. 66, paragraph 3, item 1, which shows that the Labour Government of that time altered the regulation to transfer the power to issue aircraft import permission from the Director-General to the Minister for Civil Aviation. The Labour Government took this action for one reason only- to enable the issue of permission for the importation of aircraft to be vested in the Minister on the grounds of Government policy. 1 disagreed with the Labour Government’s aviation policy of that time, but the reason for the alteration of the regulations was to make that Government aviation policy an effective policy. That policy was the nationalisation of airlines into one Government monopoly.
I imagine that there will be those who will see some irony in the fact that in 1951, when the present Government came into office, the regulation was again changed to transfer the authority back to the DirectorGeneral. I have made a careful examination to discover the reasons and I found them very interesting. On the only contemporary material available, the assumption I make is that during the four years from 1947 to 1951 no applications had been considered on any grounds other than technical grounds. As they appeared to be technical decisions, in 1951 the authority was returned to the Director-General. Honorable members opposite cannot avoid the accusation that the matter under discussion - the altering of a regulation to transfer authority - has equal application to the action of the Labour Government in 1947 for the purpose of upholding its policy at that time.
The question has been asked: “ Why did the Government not alter the regulation long ago “? It was not until the Government became aware of the challenge in the High Court that it became clear that the powers of the Director-General made him, one might say, almost a power unto him self. It was not until the High Court drew attention to this that the position was examined. That was the first time it was examined by the Government. There are hundreds of regulations in operation. No vested rights are involved in this case. I am informed that the legal position at all relevant times has been that permission to import is not a matter of right. There is no right to import prohibited imports except with the permission of the relevant authority. The lifting of the prohibition was a matter for decision by the DirectorGeneral, and now by the Minister. If the Senate disallows the regulation, a stalemate will result which may last for many months until finally dealt with by law. No-one can judge for how long this situation would obtain. I hope that the Senate will carefully weight this issue and decide against disallowing the regulation.
– in reply - I begin by expressing appreciation to those honorable senators who have participated in this debate. They have made very powerful and thoughtful contributions. In particular, I congratulate Senator Gair upon his maiden speech and upon addressing himself to a matter of such fundamental importance. I also congratulate him upon the knowledge he showed of the principles involved. It has been a very remarkable debate which has continued since about 3.30 this afternoon. We have heard only four speakers from the Government side - two Ministers and two private members. The two Ministers opposed my motion to disallow the regulation. The other two senators were most critical of the Government. Senator Wright announced that he will join with the Opposition in opposing continuance of the regulation and will vote for its disallowance. Senator Wood, while highly critical of the Government to the point where he claimed that the Government should be censured, indicated that, because of his admiration for the form of the regulation alone, he would vote to uphold it. I merely point out that that outlook completely ignores the fundamental issue involved in this case and the point at which the Opposition has directed its attack. I refer to the mean, contemptible and unprincipled action of the Government in taking away from a private litigant who is contesting an issue with it before the Privy Council, the very foundation of that litigant’s application before the Privy Council can hear it; in fact, when the Privy Council is right on the point of hearing it. I hope that Senator Wood in due course, when we come to decide this matter presently, will have regard to the observation 1 have made. The fundamental issue is the justice or injustice involved in allowing Ipec-Air Pty. Ltd. or any company to be dealt with in the circumstances that have been outlined in the course of this debate.
– Is the honorable senator accusing Senator Wood of arriving at this conclusion by unprincipled methods?
– I said nothing of the kind. I hinted nothing of the kind. I am inviting the honorable senator to address his mind to the argument I have put: That he has expressed too much admiration for the form of the new regulation as against the old regulation. In doing so, he throws completely into the discard the point of attack of all speakers from the Opposition today. I refer to the grave injustice done by a powerful government to a litigant opposed to it. lt is a situation that can be rectified instantly by the disallowance of the regulation. The Senate can tonight put I.P.E.C. back into the position it occupied before the new regulation was made; that is, that it had the portals of the Privy Council open to it and could get a decision on its application. That position can be restored by disallowance of the regulation, The power to grant permission would then revert to the Director-General. A mandamus, if any, directed to him by the Privy Council, can be fully effective and operative. It is in the power of the Senate tonight to rectify a grave injustice.
If the regulation is disallowed, it can be made again: It does not go permanently. The Acts Interpretation Act states that it cannot be resubmitted in the same or a substantially similar form for a period of six months unless the Senate revokes its earlier disallowance motion. So long as time is given for the conclusion of the litigation which I.P.E.C. has instituted, we of the Opposition will give favorable consideration when it is over to supporting a shortening of the six month period by revoking the decision that the Senate will now make, I hope, to rectify an injustice.
– This is a pseudo intellectual bribe the honorable senator is proferring
– I am putting to the Senate that this is not an irrevocable decision upon the form of the regulation. It can be restored. It may be that it could be restored within three months. If the Government would approach the matter in good faith, get together with Ipec-Air Pty. Ltd. and facilitate and expedite a hearing by the Privy Council, it might be done even sooner.
On the question of the form of the regulation, the Minister for Civil Aviation (Senator Henty) quoted me as saying that the new regulation was desirable. If the honorable senator will look at the record he will find that in contrasting it with the old one I said- I used the words with the utmost deliberation - that on the face of it the new one was desirable. I went on to point out why it was better than the old one. In each case I was referring merely to the form - on the face of it - and reserved all questions relating to right of appeal, the kind of thing that Senator Wright had in mind when he spoke. I was not giving my unconditional blessing to the regulations. The honorable senator did me an injustice when he failed to appreciate the significance of the words that on their face, not on their merits and general context-
– I would not do that intentionally.
– I completely appreciate that but as the honorable senator directed my attention to it, it is incumbent upon me to make quite plain exactly what I did say and that my speech did not fit into the terms attributed to. it by the honorable senator.
He saw fit to take up the point that I had said that from 1963 I.P.E.C. operated, under a licence, from Launceston to Melbourne. He told me that it was not I.P.E.C.’s licence but the licence of another company. What point does he hope to make out of that? I.P.E.C. operated under a licence whether the licence was held directly by the company or was used by the company. Does the honorable senator think that denigrates the case we have put today on behalf of I.P.E.C?
One honorable senator from this side of the chamber indicated that he would be inclined not to disallow the regulations so long as I.P.E.C.’s costs of its application to the Privy Council and so on were paid. I suggest that is the kind of approach a very large heavyweight would make after he had battered severely a very much smaller person. He would say: “ What are you growling about? I am prepared to pay your hospital costs “. That is the attitude that was taken, that nothing should be done about the battle, that the battle does not matter, that the deprivation of the rights of the subject do not come into the picture. Whilst there has been no assurance from the Minister about the payment of costs - I advocated that there should be some consideration of that aspect - I think it is right that he should not express himself on that matter at the moment. I press again the point that ultimately, when this matter is concluded, the Government has a moral obligation to look at the financial plight in which it has placed this company over the months, particularly in its application to the Privy Council which this Government rendered completely abortive.
I want to refer to the speciousness and falsity of some of the arguments addressed to the Senate today by Senator Gorton. Let me mention one or two considerations. He said that the instructions to the Draftsman for the preparation of the regulations at issue were given on 24th June. Having had a good deal of experience - some time ago, of course - of the inside workings of the Draftsman’s office, I would say that a regulation which came to the surface within months of instructions being presented would be very fortunate. I have known the time when regulations were years in arrears awaiting drafting. On the occasion in question this must have been a record performance by the Draftsman’s office. Instructions were given on 24th June, and the regulations were drafted and published in the “ Gazette “ within a week. I challenge anyone to set up a better speed record in the Draftsman’s office than that.
What was the purpose of the speed? Was other litigation pending? Were there floods of applications for import licences? There was no great hurry, and anyone with common sense and honesty must know that the regulations were rushed through to inter cept the Privy Council’s handling of this matter, in fact, to take it right away from the Privy Council. The Government’s action permits no other construction in common sense or honesty. The cable despatched on the next day did not arrive until the Sunday and was available to the parties on the Monday. It is perfectly clear that the sole intention was to defeat I.P.E.C.’s right to pursue its appeal to the Privy Council.
Senator Gorton said that if the Government waited it would never make any regulation until all litigation was out of the way. Did he give one instance of any litigation that was in the way apart from the one with which we are concerned? In truth, was any other litigation of this nature in the field of civil aviation pending? The truth is that there was not. The Government does not allege that there was.
– There has not been for 20 years.
– That is very likely true. There has been none since 1947 which is almost 20 years ago. I agree with the point that was made by Senator Gair that it would have been so easy to have made an exception of the I.P.E.C. application. Indeed it would have been easy, if the Government wanted to do justice, to provide that these regulations would not come into operation for three months - until 1st October. But the Government wanted the regulation before the Privy Council by 5th July. Had the Government given the regulations prospective operation of some months there would have been no interference with I.P.E.C, no interference with the Privy Council and no injustice of any kind. If cases were pending, everyone else in the community would have been put on notice and could have arranged their courses of action accordingly. On that count too the speciousness and emptiness of the argument that was advanced to the Senate become apparent. Those two aspects taken in conjunction are the clearest evidence of bad faith on the part of the Government. They are an example of ruthless determination to subvert the company at all points.
The Minister addressed himself to matters which literally took him all over the sky. He mentioned the Government’s two airline policy. The Opposition did not make an issue of that. We are not concerned with it now but we would be happy to debate it with him, perhaps earlier than may be convenient for him but, at any rate at his convenience if we can so arrange it. Obviously it is the kind of thing that is on his mind, and pursuant to it his argument was that the sensible two airline policy in interstate trade justified what the Government did to I.P.E.C. That was really the burden of his address to the Senate. Quite certainly it does not, and I invite the Senate to adopt that view when a vote is taken on this motion.
The honorable senator is labouring under misapprehensions about the High Court judgment. I am sure I heard him say - he can correct me if I am wrong - that he thought three Justices had said that the regulations should be altered.
– I thought the honorable senator said tonight that he thought three Justices had said that the regulations should be altered to transfer the power from the Director-General to the Minister.
– No, that the power should be with the Minister.
– Three Justices said that the power should be with the Minister?
– That is right.
– I have read the judgment very carefully and only one judge referred to the matter of regulations being with the Minister. That was Mr. Justice Kitto. He never expressed the view that it should be divested from the DirectorGeneral and transferred to the Minister. In the right hand column on page 70 of the “ Australian Law Journal “ Mr. Justice Kitto is reported in this way - lt is worth observing that the relevant item of the Third Schedule stands in marked contrast with other items (see 8a and 24) in that it selects as the repository of the power to permit importation, not the Minister who is the political head of a department, but the permanent head of the Department.
That comment was made by his Honour for the sole purpose of saying, “ Here is a clear contrast “. The Director-General is told in relation to aircraft to exercise his own mind. If the Government wants the Minister to do that it would say so in the regulations. It is not recommending a change at all. It is easy to see how the honorable senator has mis- read the judgment and got a wrong impression of it. On my reading of the judgment that is the only inference. It is not attempting at all to differentiate between the wisdom of having the Director-General as the authority or the Minister as the authority. I repeat that the judgment has merely pointed out that the duty and the power of granting permission are vested in the departmental head and not the Minister.
– By Parliament.
– No, by regulation.
– Parliament gave its power by statute.
– By regulation; not directly by Parliament under a statute but only indirectly by the Parliament by this delegated legislation. The Minister for Works (Senator Gorton) claimed that the Government had met the convenience of I.P.E.C. by hastening the Privy Council appeal. All I can say is that it persuaded I.P.E.C. to climb the tree all right and then immediately chopped the tree down bringing I.P.E.C. down with it.
I cannot close this debate without referring to the frustration to which this company has been subjected throughout the long period from 1963 until July 1964. The Minister would not see the company’s representatives; the Director-General of Civil Aviation would not see them. In desperation, nine months later they lodged their application. Then they encountered five months delay during which the Minister for Civil Aviation in a delaying tactic referred to the Attorney-General the question of whether any grant of an import licence might be in conflict with the Airlines Agreement covering the two airlines policy. We then come to the grossly unfair action in destroying the very foundation of their appeal to the Privy Council. It will not be rectified merely by paying the costs and doing nothing about the injury.
The Senate has heard the case amply expounded from this side of the House and from the Government side. I hope that honorable senators will see the position as I see it - as a matter of conscience to look at the ill in this matter; to recognize that we all have the duty and above all the power to rectify an injustice done to an Australian company. I invite the Senate to join the Opposition in disallowing the regulation.
Question put -
That the motion (Senator McKenna’s) be agreed to.
The Senate divided. (The President - Senator Sir Alister McMullin.)
Majority . . . . 2
Question so resolved in the affirmative.
Bill presented by Senator Gorton, and read a first time.
Standing Orders suspended.
– I move -
That the Bill be now read a second time.
The Australian Universities Commission Act 1959 established the Australian Universities Commission and limited its membership to a full time chairman and not more than four part time members. In 1962 the Act was amended to permit an increase in the number of part time members from four to six. The present Bill seeks permission to increase the number of part time members of the Commission to not more than eight. Its practical effect will be that there will be eight part time members of the Universities Commission instead of six.
The reason for the proposed increase is that the work of the Commission has greatly expanded. In 1962 when the Commission was last enlarged there were ten universities, one university college and 63,000 students. This year there are thirteen universities, some of them not yet teaching but needing the close collaboration of the Commission in the vital planning stage, two university colleges and 83,000 students. This involves more detailed work, more travelling, and more time from part time members of the Commission, all of whom are persons who have large responsibilities not connected with the Commission and who find it difficult to give more than a certain proportion of their time to the work of the Commission.
An increase in numbers of the kind suggested will enable the Commission to form special committees for special inquiries and will also enable a reasonably high proportion of Commission members to visit any particular university while at the same time relieving the pressure on the time of any individual part time member. Should the Bill be passed the Government proposes promptly to appoint two part time members. I commend the Bill to the Senate.
Debate (on motion by Senator O’Byrne) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Paltridge) read a first time.
– I move -
That the Bill be now read a second time.
The purpose of this Bill is to authorise the borrowing of £51 million to be advanced by the Comomonwealth to the States for housing. This money will be used to construct homes for families of low or moderate means and to provide finance for loans to those wishing to buy privately built homes. The advances made by the Commonwealth at a concessional rate. of interest will permit the States to build and lease cottages and flats at very favourable rentals, and enable many to buy or build their own homes with the assistance of a long term loan at a relatively low rate of interest.
This £51 million is the total amount requested by the States to be advanced to them this year under the Commonwealth and State Housing Agreement. It will be distributed as follows -
The amount requested by the States is some £350,000 less than the amount requested and advanced in 1964-65. However, this does not necessarily mean that the Stales will spend less on housing in 1965-66 than in the past financial year. Other sources of funds are available to, and used by, them for housing purposes. The advances will be made under the authority of the Housing Agreement Act 1961. They are repayable over 53 years and bear interest at 1 per cent, per annum below the long term bond rate.
At least 30 per cent, of the amount advanced to each State must be allocated by the State to what is called the Home Builders’ Account. Advances are then made from this Account to building societies and other approved institutions who, in turn, make loans to individuals wishing to buy or build a home. During the four years since the Agreement was last re-negotiated, the Commonwealth has advanced some £200 million to the States for housing purposes. Of this amount more than £132 million was allocated to State housing authorities who used it to construct some 41,000 dwellings. The remainder, or some £68 million, was advanced to home seekers through the Home Builders’ Account. Funds in the Account were used to make loans to some 27.000 individuals who acquired their own homes.
Of the amount advanced to each State housing authority, up to 5 per cent., or such larger sum as may be agreed, must be used, if the Commonwealth so requests, for the construction of dwellings for serving members of the Forces. Under this arrangement the Commonwealth also makes available to the States for the housing of servicemen an amount at least equal to that allocated by the State for this purpose. During the past four years the Commonwealth has so allocated a sum of close to £11 million.
Of the total of £51 million to be advanced by the Commonwealth in the current financial year, £33,650,000 is being allocated by the States to their housing authorities for dwelling construction and £17,350,000 to Home Builders’ Accounts. Such an allocation to the Home Builders’ Accounts will be £250,000 less than in 1964-65. Nevertheless, the accumulation in these accounts of net repayments should make it possible for lending from this source to building societies and other institutions to be maintained at not less than last year’s level.
The number of dwellings completed in Australia in 1964-65 was a record 112,500. This compared with 96,700 completions in the previous year. It is interesting to note that the rise in completions was largely in flats and home units. The number of houses completed rose from 81,100 to 84,400, but the number of flats and home units completed jumped from 15,600 to more than 28,000.
Over the twelve months to last March, the number of persons working on jobs carried out by builders of new houses and flats rose from 66,700 to 75,500. During the March quarter there was a slight reduction in the numbers engaged in building homes, but this was more than counterbalanced by an increase in employment on other types of building. Due largely to the growing requirements of labour for nonresidential building, the industry is relatively fully occupied in all States. During recent months there has been evidence of a slight decline in the number of new houses commenced, but the building of flats and home units has continued at a higher rate than in the corresponding period last year.
The Minister for Housing (Mr. Bury) is now giving active consideration to the question of a new Housing Agreement to extend or replace the existing Agreement when it expires in June next. I commend the Bill to honorable senators.
Debate (on motion by Senator O’Byrne) adjourned.
Senate adjourned at 10.40 p.m.
Cite as: Australia, Senate, Debates, 25 August 1965, viewed 22 October 2017, <http://historichansard.net/senate/1965/19650825_senate_25_s29/>.