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Thursday, 11 April 1946


Mr MENZIES (Kooyong) (Leader of the Opposition) .- This bill will terminate the National Security Act as from the 31st December next. As honorable members know, some doubt, has existed in the public mind as to when the National Security Act, in its terms, would come to an end. Section 19 of the original act, which was passed on the 9 th September, 1939, provided-

This Act shall continue in operation during the present state of war and for a period of six months thereafter, and no longer. " The present state of war " was defined in these terms - " The present state of war " means the state of war existing between His Majesty the King and Germany during the' period commencing on the third day of September, 1939

.   . and terminating on the date of the issue of a proclamation that the war between His Majesty the King and Germany has ceased.

According to the terms of the original act, there could be no doubt that the termination of the war for the purposes of the National Security Act and regulations thereunder, would be marked by the issue of a proclamation. In 1940, an amending act was passed, in which the definition of " the present state of war " was repealed, and a new section 19 was substituted therefor. I cannot say that I either personally recall or have been able to discover the precise reason for the abolition of the definition ofthe present state of war ". I do not know whether the Attorney-General (Dr. Evatt) has been able to discover why the amendment was made.


Dr Evatt - It was thought that that definition was limited to the war with Germany, and a new position was created when Italy entered the war.


Mr MENZIES - I realize that changes had to be made because of the entry of Italy into the war, but I have not been able to satisfy myself as to why that useful definition of " the present state of war " was not carried on in some manner. No doubt it was my own responsibility, as I was Prime Minister at the time; but I frankly admit that I cannot recall or discover why the change was made.

During the last few months in particular, a good deal of discussion has occurred as to whether the war ended with the surrender of Japan, or would end only with the issue of a proclamation of peace. Consequently,there has been considerable uncertainty in the mind of the outside business community in particular as to how long the regulations under the National Security Act would operate.

My own view has been in conformity with that of the Crown Law authorities, namely, that the war would end when a proclamation was issued, but, admittedly, that is a matter upon which some doubt has existed. What this bill does is to produce a terminating point for the National Security Act.From the standpoint of those who said that VP-Day was the end of the war, and, consequently, that the act terminated six months thereafter, this bill represents an extension of the time of the operation of the National Security Act.From the standpoint of those who believe that the war would end when a proclamation was issued, this act represents a curtailment of the operation of the National Security Act. As my own view has been, and is, that the issue of a proclamation of peace was the normal time, this bill, to me, represents a provision for terminating the National Security Act at a date earlier than it might otherwise have come to an end.

I do not desire to occupy the time of the House unduly at this stage of the sittings by discussing the legalities that are involved in this matter, but it may be useful if I were to say to honorable members a few sentences on the broad legal questions involved in it. In making this statement, I have little doubt that my own view is shared by the Attorney-General. In the determination of the constitutional validity or statutory validity of a National Security regulation, two questions always arise. The first is whether the regulation is within the terms of the National Security Act. Once this bill is passed, that problem, so far as it involves consideration of time, will be cleared up. But the second question is not whether a regulation is within the terms of the National Security Act, but whether, assuming that to be so, the regulation is one which may be made properly under the constitutional power. In other words, at this moment, on this day, in this month, does the Constitution authorize the Government, under the National Security Act, to pass a certain regulation? That is a matter which, in spite of certain remarks made outside the Parliament, cannot be answered in any broad simple proposition. It can be answered only by considering the intrinsic nature of each regulation which is concerned.

For example, under the National Security Act, a. 'censorship regulation could be made quite validly up to the 31st December next. I am now taking the present bill into account. But the question which the court would have to ask itself would be : Once the actual war ends and the fighting finishes, is the imposition of censorship related to the defence of Australia? Does it come within the naval and military defence of Australia? It may very well be that three or six months ago the High Court would have said that a censorship regulation was invalid, not because it was not within the terms of the National" Security Act, but because it was not within the Constitution.' On the other hand, certain regulaions which the Government introduced would undoubtedly continue for a substantial period after the war. The court would say that, just as it is within the defence power to impose certain economic and financial restrictions in war-time, so

Chey may be maintained in time of peace so long as they are related directly to the war economy. The. result is that, in regard to every different subject-matter, there may be a different point of time at which regulations cease to be related to the defence power of the Commonwealth. I say that, not because I desire to occupy the time of the House with these technical legal matters, but in order to make it clear to people who are interested that this bill will provide a terminal point for all National Security regulations, but makes no provision, in the meantime, regarding the validity of National Security regulations. I for one, as the member of this House who was initially responsible for the introduction of the National Security Bill in 1939, welcome a definite statement and a definite legislative proposal regarding the termination of the , act. I welcome also the announcement that, after the termination of this act, those regulations which the Government desires to continue will take ordinary statutory form, so that they may he discussed in the Parliament, and, if they become law, their validity will have to stand examination in the light of established legal principles. They will be just as open to legal examination as are ordinary regulations, but the great advantage will be that the Parliament will have had an opportunity to discuss them,, and their form and principles, so that they will represent the will of the Parliament and not merely the will of theExecutive.

At this stage I shall say no more exceptto add a retrospective remark. This Parliament, throughout the war, entrusted the Executive with vast authority. That was, I believe; the proper course. It hasundoubtedly proved a very useful thing todo, but it has involved an abandonment to a substantial degree of parliamentary authority. During the years of crisis the Parliament delegated its authority to the Executive. This bill marks the return tothe Parliament of its ordinary legislative authority, and, to that extent, it marks the resumption of the ordinary democratic processes as opposed to the necessarily more autocratic processes which occur in war-time and in time of emergency. Many unusual things have been done. Under these regulations many citizens have been brought into the service of the Commonwealth. The nation, in fact, has received remarkable service, from the most highly placed individuals exercising the widest possible authority downto the humblest private citizens who have worked in the war effort. This occasion, should not be allowed to pass without an expression from the members of this House of its profound gratitude for the work that has been done by many citizens under the authority of this legislation. I suppose there is not a single department of the Commonwealth Service in which great authority has not been exercised by citizens who, in many instances served in a voluntary capacity in the cause of the nation. Many citizens' completely abandoned their private' pursuits and surrendered their usual emoluments in order to do some notable piece of work. Other citizens, who may not have been able to go so far as that, have substantially sacrificed their private interests. Many others have willingly accepted great personal inconvenience in order to undertake work which was necessary for the maintenance of the stability of the country. The Attorney-General is familiar with trie names of citizens who in munitions establishments, in the various service and public departments, and on boards of business administration and the like, have done magnificent work throughout the war. 1 take the opportunity provided hy the introduction of this measure to terminate I he operation of emergency regulations to meet emergency circumstances, to say, not only as Leader of the Opposition, but alSo as Prime Minister for the first two years of the war, that we are profoundly grateful, in this Parliament, for all the work that has been so well done.







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