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Wednesday, 25 March 1942


Mr SPENDER (Warringah) . - I support the objections to these regulations voiced by the Leader of the Opposition (Mr. Fadden). It is well that the House should pay regard to what is being done under these regulations. I suppose that, in the history of parliamentary government, there has never been a greater surrender of power to the Executive than is achieved by them. Having regard to the emergency which faces Australia, we agree with their principle, but we are bound to point out how easily they could be abused. The honorable member for Dalley (Mr. Rosevear) has cited something which, whether it was done under these regulations or not, could be done under them. I direct attention to regulation 4 - ( 1 . ) A Minister, or any person authorized by a Minister to give directions under these Regulations, may direct any person resident in Australia -

(a)   to perform such services as are specified in the direction;

(b)   to perform such duties in relation to his trade, business, calling or profession as are so specified;

(c)   to place his property, in accordance with the direction, at the disposal of the Commonwealth.

Sub-regulation 2 indicates the directions which may be given by the person to whom the delegation is made either orally or in writing. The delegatee in turn can give an oral direction to an individual to do any of the things specified. In an ordered society, if an individual is called upon to do something and he refuses or fails to do it, he is involved in a penalty. The penalty in this case may be imprisonment. It is elementary thattheextent and content of hisobligation should be clearly defined. If an individual is called upon orally to do a certain thing, he has the primary right to say, "By what warrant do you call on me to do this?". The first objection of the Leader of the Opposition is well taken. Any delegation of these plenary powers which, in other times, Parliament would in no circumstances surrender, should be given in writing so that it shall be known that the man who claims the exercise of the powers has the authority of the Minister. If an individual is called upon orally to do a certain thing, he may be prosecuted later for having failed to do it. Then interminable dispute may follow between the person who gave and the person who received the instructions as to what the duty was. One knows that after a discussion between individuals it is easy for them to part, each believing that the other understood what was meant, whereas in fact there was misunderstanding. I cannot conceive of many cases where directions or instructions could not be put in writing, but in an urgency there may be occasions when urgency will demand oral instructions; in such cases those oral instructions should be followed withina reasonable space of time, not more than 48 hours, by a written confirmation.

The Opposition has not adopted any captious approach to this matter. Indeed it would have been open to us to move for the disallowance of these regulations, but, as the House knows, disallowance would prevent the introduction of regulations similar in substance to those rejected, and that would be something which we do not desire to run the risk of doing. So we have adopted the proper attitude in a time of war. We approve of the principle, but point out what appear to be undeniable defects. Speaking for myself, and in no way giving the official view of the Opposition, I do not understand why the different subject-matters covered by these general powers could not be dealt with by specific regulations. I know that that would entail great detail, and I appreciate the urgency of the problems which confront the Government, hut, in view of the fact that these regulations represent the surrender of the larger portion of the powers of the Parliament 10 the Executive and to the delegates of Ministers, is it not unreasonable to suggest that these regulations be withdrawn and that the different subject-matters be covered by specific regulations? If the 1'rime Minister be not prepared to withdraw these regulations immediately and issue fresh regulations to deal with each specific subject covered by them, he should at least give consideration to the framing of new regulations while the present regulations stand, so that when the present regulations were withdrawn the others would become immediately operalive. It seems to me, for example, that if the Government wants to direct the labour of individuals that matter can well be dealt with by a specific regulation. If the Government desires to take control of the property of individuals, that matter can be dealt with by specific regulation. I notice, for example, that nothing is said in the present regulations about the payment of compensation to individuals. I assume, as any one would, that if the property of an individual were taken, the Government would do the fair thing by him. I do not raise that as an objection, but I point it out as an item which could be well dealt with in a specific regulation. When such plenary powers as these are taken by the Executive a tribunal, or preferably a board, should be set up to keep an eye on the exercise of the powers, and to prevent the delegation of vital powers to persons who do not represent the people and may not even be public servants. I urge upon the Prime Minister, first, that there shall be no delegation by a Minister to another person of any part of these powers unless that delegation is in writing, and, secondly, that every direction to every person pursuant to these delegations shall, except when circumstances render such a course impracticable, be given in writing and that, in all other cases, the oral direction shall be confirmed in writing within a short period.







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