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Thursday, 24 September 1936


Senator BRENNAN (VICTORIA) (Minister without portfolio assisting the Minister for Commerce) - In one sense that may be quite true, but the letter which the honorable senator read gives some explanation of the situation. Many regulations have to be issued in order to amend other regulations in minor details. Several boardshave been created by this and other Governments, which have the power to fix rates or to take certain other action. For instance, one of the existing boards may fix a levy on a product at a11/2d. To do this a regulation must be issued. Subsequently, it might be desired to change the rate of the levy to 2d. or 1d., and an amending regulation would be necessary to carry out the intention. It may be that such a regulation may never be placed before the legal department. Indeed, most people would say that it would be the quintessence of red tape to require such a regulation to receive the approval of the Attorney-General's Department. As Assistant Minister for Commerce, I know the procedure adopted in the Commerce Department, which has most to do with the boards to which I have referred. A great many regulations pass through the department, but, if there should be the slightest doubt about any one of them, it has to be submitted to the legal department for approval, or, if necessary, for re-drafting. It is only in the minute matters that the department acts without the oversight of legal officers. The same thing applies in. the Defence Department, and the PostmasterGeneral's Department, which are constantly issuing regulations covering the same sort of subject, and changing only in minor detail the main regulations. Throughout the Commonwealth Public Service the procedure is observed that if there is the slightest doubt about the validity of regulations they must, before being promulgated, be examined by the Attorney-General's Department. With regard to the amendment itself, I ask what it will attain. It provides that -

No regulation shall be made accordingly, unless the Attorney-General or the SolicitorGeneral or some officer of the AttorneyGeneral's Department thereto authorized in writing by the Attorney-General or the Solicitor-General certifies that the regulation, if made, would not be in excess of the power conferred by the act under which it purports to be made.


Senator McLeay - The carrying of the amendment might save the Commonwealth a considerable amount of litigation costs.


Senator BRENNAN - I do not. think that it would. In any case, the honorable senator's solicitude for the Treasury is unnecessary, because every other department is as anxious as he is to save the Commonwealth from unnecessary costs of whatever nature they may be.

I invite honorable senators to consider how much further the amendment would carry us. In the first place, under the existing law, no regulation can be made in excess of the powers conferred by the relevant act. Is it suggested that regulations that are laid on the table of the Senate from time to time have not been examined by the proper authorities to ensure that they are not ultravires? Of course they are. Again, there is in the bill a section which deals with the issue of regulations made under any act. I refer to proposed new section 46, which reads -

Where an act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws) then, (ft) Any instrument so made, granted or issued shall be read and construed subject to the act under which it was made, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section have been construed as being in excess of the power conferred upon that authority, it shall nevertheless he a valid instrument to the extent to which it is not in excess of that power.

The intention of the first part of this proposed new section is quite clear. It states that no regulation shall be made in excess of the authority given by the act. The second part deals with circumstances that arise sometimes when a regulation is divisible into parts. Some part of it may be beyond the authority given in the act under which it is made; but the other parts may be within that power. The latter portion of the section has been designed to save those parts that are intra vires the act. The amendment will merely add to the uncertainty of the law and that is a result against which lawmakers should guard. Therefore, I ask the committee not to accept the amendment. I remind honorable senators that the representatives of the Government in this chamber have exactly the same desire as Senator Duncan-Hughes has, namely, not to inflict unnecessary hardship upon any person in the community.







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