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Thursday, 30 April 1942

Mr MENZIES (Kooyong) - A few years ago it was my great privilege to sit in the gallery of the House of Commons on the celebrated occasion when Mr. Winston Churchill, who was not then in office, described the then Prime Minister, Mr. Ramsay MacDonald, as " the boneless wonder ". My mind ran back to that remark while I was listening to the honorable member for Reid (Mr. Morgan). We who are sitting in the outer darkness of the Opposition were given a mere fleeting glimpse of what goes on in what is called " the Caucus ".

Mr Calwell - What happened at the right honorable member's own party meeting?

Mr MENZIES - I shall tell the honorable member later, with great pleasure. Never previously have I heard an honorable member so frankly inform the Parliament that whilst he was proposing to speak in one direction, because that was how he thought, he proposed to cast his vote in another direction, because that was what he was compelled to do. For the first time, I regret that I am not a member of the Labour party, because I see great advantages in that line of action. What an advantage it is, in an electorate such as is represented by the honorable member for Reid, which was represented previously in this House by a conscious humourist, to be able to go to the more conservative portion of the electorate and say - "Ladies and gentlemen, I supported Statutory Rule No. 77 : I know that you like Statutory Rule No. 77 because you think that it is going to be used against the coal-miners. I voted for it." I can imagine how every body would applaud! And then to be able to go to the other end of the electorate, where the Left wingers live, and say - "Boys. I review what I said about Statutory Rule No. 77 and if you do not believe me, here it is in Hansard". It is a wonderful advantage and, whilst I could pursue the topic with profit, I do not intend to do so. I shall come back to the question before the chair and discuss whether Statutory Rule No. 77 should or should not be disallowed. I am glad that the Prime Minister has done me the honour of coming from his other important work in order to listen to this debate, because I think it has given rise to a discussion of firstclass importance. The honorable member for Bourke (Mr. Blackburn) initiated the debate with a speech which was, as usual, a thoughtful contribution in which he endeavoured to base his arguments on the ground of high principle. I want to pursue that a little further, and whilst I do not desire to engage in an academic discussion on this matter, I want to refer to the principle which is affected by Statutory Rule No. 77. At the outset. I shall inform the Prime Minister that I thoroughly agree with him that the provision that was made in 1940 in the amending National Security Act was not only justifiable, but. imperative. I do not qualify in the slightest degree any word that I spoke on that occasion, and I know that he does not qualify any word he spoke on that occasion. But that does not determine the matter. It is quite true that Statutory Rule No. 77 is almost in terms identical with the amending National Security Act 1940, but again that does not conclude the matter. It is not the scope of any regulations, but the essential character of the particular regulations themselves that are being criticized in this debate. It is quite true that in time of war the Government, whatever its political colour may be, ought to be given the widest authority that the Constitution entitles it to have. I am not prepared to say that this Government should be denied the authority which I should want if I were in charge of the government of the country. I am as prepared to entrust the present Prime Minister with great powers as I would be willing to receive them myself from this House. The real question is whether this particular form of statutory rule is the kind of law that was contemplated by Parliament, whether it has any defects which are incurable, or defects which are curable. Undoubtedly it has certain defects, which I think are, for the most part., curable. I invite the Prime Minister to consider whether he should not, even at this stage, introduce certain amendments into the regulations which will make them more consistent with an orderly scheme of government. *.I shall deal presently with what, I believe should be the teste applied to any regulations under a statutory rule. What I have already said has been said in order to indicate thatI have not a narrow-minded approach to the problem of what power ought to be given to the Executive. I go further and say that when any doubt exists, in a time of war, we ought, to resolve that doubt in favour of the executive government of the country.

Mr Calwell - That is unconscious hum our !

Mr MENZIES - If the honorable member for Melbourne(Mr. Calwell) can perceive humour in that statement, I shall have to recommend him for suitable medical treatment, because it is not humorous. If there is any doubt in the mind of Parliament about whether a certain regulation ought or ought not to be approved, then I am prepared to resolve that doubt always in favour of the executive Government, because I be lieve that it is far better, in a time of war. to err by trying to do too much than to fail by doing too little.

I shall now deal with Statutory Rule No. 77 itself. It is true that it specifically provides -

These regulations shall be administered by the Minister of State for Defence Coordination.

That is a form of words with which we all are familiar, and it places' on the Minister for Defence Co-ordination the responsibility for the administration of the regulations. It then goes on to provide, in regulation 4 -

(   1 ) A Minister-

That is not the Minister administering the statutory rule, but any Minister of State in the Cabinet - or any person authorized by a Minister to give directions under these regulations.

I direct attention to the fact that that authorization by the Minister is not in writing, and it is not by an order in council or anything of that sort, but is merely an authorization with no limitation and no statement of form - 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.

In other words, there is unlimited power in any Minister to delegate to any other person, by any form that he thinks fit, powerto direct any other person in Australia to perform unspecified service, unspecified duty, or to incur unspecified obligations in relation to his property. That, I venture to say, is the most farreaching regulation in the world. I should be surprised if any regulation could go further than that. The regulation also provides -

(2)   Any such direction may be given so as to apply -

(a)   to persons generally:

(b)   to all or any persons in a particular area. and so on. The direction may be given - and this is important - "either orally or in writing ". Finally, it is provided that -

(3   ) Every person to whom any such direction is applicable shall comply with the direction.

I.   call attention to that provision because failure or refusal to comply with it is an offence under the National Security Act and is punishable by fine or imprisonment within the terms of that act. Let me give an example: I am a private citizen. A person enters my house or place of business and says to me: "You are to perform a certain duty ". Or he says : " These premises of yours are to be banded over to the Commonwealth". I say to him: "Are these instructions in writing and may I see them ? " He says : "No; you are getting them by word of mouth". I say: "Oh! What is your authority for giving me these instructions?" He says: "I am orally instructed by a member of the Government ". I say : " And what is his name? " He says: "That is no concern of yours. The fact is that I have my authority and r am giving you a direction ". It is a commonplace of life that a person who enters another's home and holds himself out to be the gas-meter checker, or the telephone mechanic, must produce some authority that has been issued to him in order that the person whose house he enters may know that he is a duly authorized person. Yet under these regulations a man who is entirely unknown to me may enter my house, and, without a skerrick of evidence in writing that he has authority to do so, may give me instructions, also not in writing, and if I tell him that I propose to test the matter in order to find out whether he is really the person he purports to be, or a bogus person, I instantly, through desiring to make that investigation, become guilty of a breach 'of the regulations and liable to be prosecuted under the National Security Act. I have no desire to whittle down ibc powers of the Executive, but I ask the Prime Minister to give his earnestconsideration to this question - and this is not a party matter. Why in any regulation of this kind should not. provision be made that all delegations shall be in writing, and all instructions given by delegated persons shall also be in writing? Why should any citizen of this country have taken away from him a privilege which he has enjoyed all his life of being given some evidence of whether an order given to him is duly authorized or not?

Air. James. - Orders have been given in. writing in all resumption cases of which I have any knowledge.

Mr MENZIES - -This is not a matter of compulsion, but of choice. These regulations provide that a specific direction may be given either orally or in writing. Great powers of this kind, which, invade the private rights of citizens as they have never been invaded before - and, admittedly, these are times when the rights of citizens must be invaded as never before - should in my opinion repose in the head of the Government, who, by virtue of his position and character, whatever party he may belong to, is entitled to exercise great authority in the country. But powers delegated by him should be delegated in writing, and any orders given under such delegation should also be given in writing so that private citizens may know exactly where they stand. If that be not done we shall be in a position in Australia which will be hard to distinguish from, the position of people subject to the operations of the German gestapo.

Mr Calwell - The right honorable gentleman should come over here !

Mr MENZIES - I shall be over there sooner than the honorable gentleman imagines.

Mr Curtin - 'Cannot the right honorable gentleman conceive of circumstances in which a direction may need to he given orally?

Mr MENZIES - I can conceive of some circumstances in which an oral direction would need to be given, but I can see no reason why such oral direction should not be confirmed in writing within a specified period.

Mr Curtin - I have accepted that proposition.

Mr Spender - It should be provided for in the regulations.

Mr MENZIES - The Prime Minister should realize that we are concerned as the representatives of a people who are presumed to know the law under which they live. I am not making any mental reservations in this matter, for nobody knows better than I do that governments come and go, sometimes with, painful frequency. What I am concerned about is the laws that govern the people of this country, because whether we be at war or at peace, the greatest gift of citizenship a still security ,under the law. I am sure that the Prime Minister agrees with that view.

By what yardstick should we measure regulations? I am not prepared to measure them by a consideration of the Government that is in office at that particular time, nor am I prepared to consider them according to any argument that may be advanced in relation to the importance of any section of the community, .coal-miners, for example. In my opinion, regulations should be submitted to a perfectly sound objective test. When we learned that this debate was imminent, I took the trouble to write down what I thought were fair principles to apply to regulations of this kind, and, having done so, perhaps I may be allowed to use my own words. I submit in respect of any regulations of this order, first, that they should be designed directly to forward the war effort and be really for the public safety and defence of Australia. [ shall not attack these regulations on that ground because I believe that the House realizes that some such regulations ure necessary, but that is a fair test to apply. Secondly - and I attach great importance to this, as I think the honorable member for Bourke (Mr. Blackburn) does - any such regulations should reasonably and intelligibly convey to citizens some adequate conception of the duties and liabilities which they impose. As we are presumed to know our legal duties we should be given a fair opportunity to discover them. This is an important rest to apply to regulations. We must remember that when a bill is presented to Parliament it is required not only to pass through a general debate on the motion for the second reading, but also to pass through the committee stage ; and, except where the Chairman of Committees is able to obtain an affirmative answer to his question, "Is it the pleasure of the committee that the bill be taken as- a whole?", the measure is analysed closely and submitted to the keenest criticism of honorable members. But what happens in the case of regulations? Hundreds of these regulations may be gazetted in the course of a year, .and it is impossible to draft them with the quiet precision that is employed in the drafting of a bill. It is also impossible to give every aspect of the regulations the consideration which we give to the different provisions of a bill. The result is that, apart from the power of either of the Houses of the Parliament to disallow a regulation, we must rely largely on the knowledge that if an instruction is given and it turns out to be bad it can be altered very simply. If a regulation turns out to have some outstanding vice Parliament can attack it and disallow it. But within reasonable limits, the ordinary citizen is entitled to the opportunity to discover from the reading of a regulation what his duty under it really is. The regulations now under consideration can hardly survive that test.

Let me clarify one point. I have no objection to giving to Ministers who are known and accountable to Parliament the widest possible powers because, in the long run, if a Minister exercises wide Dowers badly he can be disciplined in Parliament or in Cabinet, and if he exercises wide powers with perverse ideas, he can be. disciplined by the country. Those are democratic remedies, but I point out that if an executive known and accountable to the people takes wide discretionary powers and hands them over to any group of unnamed people not known and not accountable, such safeguards are more or less useless. That is really the vice of this statutory rule. These regulations do not satisfy my second principle.

Mr Curtin - I ask the right honorable gentleman whether he thinks it would be possible for a Minister personally to serve orders on citizens?

Mr MENZIES - An order need not be served by the spoken word, for that method does not give a person, the opportunity to test it.

Mr Curtin - Oral orders would be given only in cases of emergency and such orders would be covered by th* assurance I have already given.

Mr MENZIES - It may well be that in the long run the only difference between the Prime Minister and myself is as to whether such an assurance is sufficient. With very great respect I prefer that a provision implementing that assurance should he included in the regulations.

Mr.Curtin. - I quite agree; but when I discussed that point with the Government's legal advisers it appeared that the only words that could be added usefully to the regulation on this point were, " where practicable ", because the Government would still need authority to give direction orally in the event of the enemy being actively engaged against our own citizens.

Mr MENZIES - Perhaps the right honorable gentleman's advisers are not so fertile in suggestion as they once were. If the Prime Minister will give me the opportunity a little later, I shall suggest to him a better form of words.

The third quality that should be included in regulations of this kind, is that when they provide for possible interference with life, liberty and property, or with normal civil rights, they should include proper safeguards, such as the requirement of writing to enable any citizen to see and test the authority of any person or body assuming so to interfere. Such a. provision, whilst not completely correcting the defects of this statutory rule revealed by the application of my second principle, would go a long way towards satisfying me. I should then find myself in this state of mind : Here are regulations which are not, in the true sense of the word regulations, since they regulate nothing; because a regulation is something that lays down a rule. This is not regulation; it is - if I may use the word - un regulation, because it hands over discretion to unnamed, unknown, and unaccountable people. I have had very great heartburnings as to whether such a provision should be allowed even in the state of emergency in which we now live. I have been left in grave doubts about the matter. Those doubts would be sensibly minimized if the Prime Minister would agree to make some amendment that would satisfy the third criticism I have made. If that were done, I should feel that I ought to fall back on the principle that I stated - apparently facetiously - at the beginning of my speech ; that was, that when your country is in danger, and when we are in doubt as to whether the Government ought to have a certain power, such doubt ought to be resolved in favour of the Government. I say that without hesitation, although the Government of the daymay be, politically speaking, my strongest possible opponents.

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