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Thursday, 19 November 1959


Mr J R FRASER .- The bill before the House seeks to amend the Seat of Government (Administration) Act. It can be said to fall into two parts. The first part deals with procedures for the making and tabling of ordinances and regulations of this Territory, and the procedures that can be adopted for disallowance by this Parliament of those ordinances or regulations. The second part of the bill deals with the procedures to be adopted for the presentation to the Parliament of any proposed variation of the plan of Canberra, and the procedure to be taken if any member of the Parliament, of either House, seeks to move for disallowance of those variations.

With the first part of the bill, relating to ordinances and regulations the Opposition has no disagreement. It approves of the steps that have been taken. As to the second part, the Opposition feels that the safeguards which should be maintained in the act are not present in the bill which is now before the House, and therefore the Opposition will oppose that portion of the bill. Approving, as it does, of one portion of the bill, and disapproving strongly of another portion, the Opposition will not vote against the motion that the bill be read a second time, but at the committee stage I will seek to move amendments to give effect to what I believe, and what the Opposition believes, are necessary safeguards.

It is necessary to refer to the provisions of the bill relating to ordinances and regulations in order to make one or two points which seem to me to have value. The principal act was the Seat of Government (Administration) Act 1910-1955, which provided that an ordinance of the Territory must be laid before both Houses of the Parliament within 30 days of the making thereof, or, if the Parliament was not then sitting, within 30 days after the next meeting of the Parliament. The bill now introduced proposes that an ordinance shall - be laid before each House of the Parliament within fifteen sitting days of that House after the day on which the Ordinance is made.

That is a provision which is common to many acts of this Parliament, and we offer no objection to it. We believe that as speed of communication has increased considerably since the time when this provision was first enacted, there is no longer a need for the lengthy period stipulated originally. It has also become, of course, common practice to refer to sitting days rather than to days. The amendment goes on to provide -

If either House of the Parliament passes a resolution (of which notice has been given at any time within fifteen sitting days after the day on which the Ordinance was laid before that House) disallowing an Ordinance or a part of an Ordinance, the Ordinance or part so disallowed thereupon ceases to have effect.

This does not greatly change the existing provisions, but it does clarify the language of the sub-section, and the Opposition approves also of this change.

The bill makes certain other provisions, to which the Minister referred in his secondreading speech on 28th October. He said at that time -

Secondly, an ordinance would be void and ot no effect if not tabled within that time.

That is, fifteen sitting days. The relevant portion of the bill is clause 3 which relates to proposed sub-section (5.) of section 12. The Minister went on -

At present the act is silent on this point, and it is doubtful what is the legal effect of failure to table as required. Thirdly, either House ot Parliament would be enabled to disallow part of an ordinance, whereas at present a part of an ordinance cannot be disallowed without disallowing the whole. Fourthly, if notice of motion to disallow an ordinance or part is given, it will have to be dealt with within fifteen sitting days: otherwise the ordinance or part will be deemed to be disallowed. Under the existing act, the Government may avoid a debate on a motion to disallow an ordinance by keeping it at the bottom of the notice-paper.

We applaud the improvement that the Minister has made in this portion of the legislation. To my way of thinking, however, the major improvement is that effected by proposed new sub-section (6.) of section 12 of the act, which reads -

Where an Ordinance or a part of an Ordinance is disallowed, or is deemed to have been disallowed, under this section, the disallowance has the same effect as a repeal of the Ordinance or the part of the Ordinance, as the case may be, except that, if a provision of the Ordinance or of the part of the Ordinance amended or repealed a law in force immediately before that provision came into operation, the disallowance revives the previous law from and including the date of the disallowance as if the disallowed provision had not been made.

Admittedly there are many words wrapped around that provision, but it simply means that where the amending ordinance or regulation - because the provisions of this section refer to regulations as well as to ordinances - amends or repeals a provision of another ordinance, then if that amending ordinance is disallowed the law as previously existing will remain. The importance of this comes readily to my mind, because towards the end of 1955, the then Minister for the Interior introduced a regulation No. 13 of 1955, to amend the Leases Regulations of the Australian Capital Territory. The particular part to which 1 want to refer now was paragraph 3 of that regulation No. 13 of 1955. Tt provided -

Regulation 7 of the Leases Regulations is repealed, and the following regulation inserted in its stead.

The proposed new regulation was -

The period for which a lease may be granted for grazing, fruit growing, horticultural, dairying or agricultural purposes is a period not exceeding fifty years.

The second part of it was as follows: -

The period for which a lease may be granted for the purpose other than those specified in the last preceding sub-regulation is a period of 99 years.

My point is that the regulation which was to be repealed by that regulation had nothing whatever to do with the length of leases. It related entirely to a limit on the value of land to be held by one lessee. Regulation 7, which it was proposed to repeal, was as follows: -

No person shall hold under lease land of a greater assessed valued than £10,000 (exclusive of the value of buildings, fences, dams, ground tanks, wells and bores).

In this Parliament, in March, 1956, I moved for the disallowance of the new regulation, paragraph 3 of amendment No. 13 of 1955, which proposed a limit on the length of time for which leases of rural lands could be granted. I opposed the regulation because it repealed what I believed was an essential provision of the Leases Regulations maintaining a limit on the amount of land which any lessee could hold within the Territory. My motion in this House to disallow that regulation was not successful, but subsequently in the Senate, in May of the. same year, the Leader of the Opposition, Senator McKenna, moved to disallow the regulation on exactly the same grounds as those on which I had based my motion in this House, namely that the regulation then introduced related entirely to the length of time for which a lease could be held, but that it also repealed a regulation which related solely to the limit on the value of land that any lessee could hold. In the Senate that motion for disallowance was successful, and the position then arose that the new Regulation 7, imposing a limit on the length of leases, had been disallowed, but the disallowed regulation itself had repealed the previous regulation placing a limit on the value of land that any one lessee could hold.

Certainly I have had no legal experience, but my view was that if the Parliament, when considering a regulation which said, " Regulation 7 of the Leases Regulations is repealed ", disallowed that regulation, then it was saying, in effect, " Regulation 7 is not repealed ". But the legal authorities say that it was already repealed, because the new regulation had been substituted for it. While the intention of the Parliament was clearly to retain the provision of the former

Regulation 7, the new Regulation 7 had already supplanted it, and had then been disallowed by the Senate. There was then no regulation at all governing either the value of land that could be held by any one lessee or the length of time for which a lease could be held. Clearly, I would have thought that the Parliament was saying that the regulation should not be repealed, but in terms of the act as it stands, the position was that, there having been one regulation which was replaced by another, which in turn was disallowed, the first one was lost, and there was no regulation and no limit. In fact, there was an open go, if the Minister had chosen to take advantage of it. The Minister referred to that position in his second-reading speech in these terms -

The precise legal effect of disallowance will be made clear by a provision that a disallowance has the same effect as a repeal, except that any law repealed by the disallowed ordinance is revived. Under the present act, a disallowed ordinance " shall cease to have effect "; but this leaves room for uncertainty-

The legal experts in the Department of the Interior and elsewhere, who spoke to me, had no uncertainty at all; they said that there was just no regulation. The Minister continued - for example as to the position of accrued rights and pending litigation. Further, under the present act, the disallowance of a provision in an ordinance which repeals a provision in another ordinance does not revive the previous provision. This is unsatisfactory in that, generally speaking. Parliament would disallow such a provision because it considered that the previous law should remain.

I applaud the Minister's decision to have this amendment included in this legislation. lt will not. of course, relate to the regulations of which I have been speaking, but in the future the provision will apply so that, when the Parliament disallows an ordinance, a part of an ordinance, a regulation or a part of a regulation, which has itself supplanted or repealed a previous enactment, the previous law will be revived. The Opposition most heartily approves of the provision, and we commend the Minister for it.

The second part of the bill is, to my way of thinking, by far the more important. It contains a provision seeking to amend section 12a of the Seat of Government (Administration) Act, which lays down the procedure that must be followed in the tabling of any proposed variation in the plan of Canberra, and the action that can be taken by the Parliament or any member of the Parliament to disallow or to seek to disallow the variation. Sub-section (1.) of section 12a of the principal act provides -

The Minister may at any time, by writing under his hand, modify or vary the plan of lay-out of the city of Canberra ... as modified or varied prior to the date of the commencement of this section . . .

The time laid down in the principal act for the Minister to give such notice was specified in this way -

No such modification or variation shall be made until after the expiration of thirty days after notice of intention, published in the Gazette, so to modify or vary the plan has been given.

The Minister proposes in this bill to reduce the period from 30 days to twelve days. I can see no objection to that provision because, as I said earlier, great changes have occurred in the means of communication and travel, and the period of 30 days is no longer necessary for the notification. But the amendment also changes the period available to members of the Parliament to move for the disallowance of a proposed variation. Sub-section (2.) provides -

A copy of the instrument by which any modification or variation of the ulan has been made shall be laid before both Houses of the Parliament within fifteen days of the making thereof if the Parliament is then sitting, or, if not, then within fifteen days of the next meeting of the Parliament.

Sub-section (3.) provides -

If either House of the Parliament passes a resolution, of which notice has been given at any time within fifteen sitting days after the instrument has been laid before it, disallowing the modification or variation made by the instrument, the modification or variation shall cease to have effect.

The Minister proposes no change in subsection (2.), because it still requires that the Minister shall lay before the House any proposed variation within fifteen sitting days; but he does propose to reduce the time within which any member of the Parliament may move for a disallowance of that variation from fifteen sitting days to six sitting days. I propose to come back to that provision shortly.

The national capital, Mr. Speaker, is not the property of the Parliament; it is not the property of the residents of the Australian

Capital Territory. It is the property of all the people of Australia, and it is the duty of the Parliament, I suggest, to be ever watchful to protect and guard the rights of the people in relation to the national capital, because it is, in effect, the national estate. The Minister some time ago referred this proposal to the Joint Committee on the Australian Capital Territory. This is a committee established by resolution of both Houses of the Parliament to report to the Minister on matters that he refers to it relating to the development of the national capital. The committee, having considered the proposals that the Minister then had in mind, expressed itself as opposed to them because they did not then adequately safeguard the rights of Parliament to overlook the plan and to act, in effect, as the watchdog for the people of Australia. A subcommittee of the joint committee reported in these terms -

That the committee considers the amendments proposed by the Minister to section 12a of the Seat of Government (Administration) Act would not adequately protect the rights of the public and the Parliament to consider proposed changes in the plan of Canberra and take objections thereto. The committee, therefore, proposes that the period of notice of intention to vary the plan required by sub-section (1.) be twelve days.

The Minister has adopted that proposal; he has agreed that the period of notice of intention be twelve days. The committee approved the proposed second amendment, which referred to the tabling of the notification within fifteen sitting days, but it suggested that the Minister, when tabling an instrument of variation, should place before the Parliament, and make available for publication, a statement setting out in full the details of the proposed variations and the reasons therefor. That proposal also has been adopted by the Minister, and the bill we are now considering provides that, when he tables the variation, he shall also table with it an explanatory statement as to the reasons for the proposed change. The sub-committee went on -

The committee further proposes that proposed amendment 3-

That related to the reduction in time from fifteen sitting days to, I think, five days- be eliminated and a provision written into the act requiring the Minister concurrently with the tabling of any instrument of variation to refer such proposal to the Joint Committee on the Australian Capital Territory, that committee being required to report to the Parliament on the proposal within seven sitting days; and the committee proposes that the period provided by subsection (3.) within which notice of a resolution for disallowance may be given in either House shall be seven sitting days.

The Minister, having adopted the first two proposals of the committee, did not see his way clear to adopt the third suggestion and the proposal that is now before the Parliament provides for the tabling of the proposed variation within fifteen sitting days of each House after the making of the modification or variation, but reduces from fifteen sitting days to six sitting days the period within which anybody in either House of the Parliament may move for disallowance. That period is inadequate and fails to recognize that this Parliament must act to protect the rights of all people in Australia. It is competent, surely, for any member or resident of Western Australia or Tasmania to express a view on the development of the national capital and to protest against what may be proposed to be done in this place.


Mr Freeth - Your sub-committee recommended seven sitting days.


Mr J R FRASER - -That is right, but it also recommended a provision requiring the Minister to refer the proposal to the Australian Capital Territory Committee. I do not think the Minister will disagree with that.


Mr Freeth - No, I do not.


Mr J R FRASER - The Minister split the difference between five days and seven days and made it six days, but I think he felt that he has been forced to disregard our recommendation for a mandatory provision requiring the proposal to be submitted to the committee. I know that the Minister has given an undertaking that he, as Minister, will refer each proposed variation to that committee. In his second-reading speech the Minister said -

.   . shorter times than those prescribed in the present act would provide adequate safeguards, particularly as all proposed variations are now referred beforehand to the Joint Parliamentary Committee on the Australian Capital Territory.

Later in his speech, he said -

As I have mentioned, arrangements have been made for all proposed modifications or variations to the Canberra city plan to be referred to the Joint Parliamentary Committee on the Australian

Capital Territory for consideration before they are incorporated in a formal instrument for execution by the Minister.

The Minister referred to the request of the committee that there should be some statutory provision providing that each proposed variation should be referred to it. He said that the six days represented a reasonable compromise between five and seven. I admit that it was.


Mr Freeth - We could not have much less.


Mr J R FRASER - But I disagree with the Minister's further reasoning. In his speech the Minister said -

The committee also suggested that some statutory reference to it of the proposed changes should be made. As the committee itself is not a statutory body, I have agreed to refer to it all proposed changes.

There may be a valid reason in law preventing the Minister, by statute, referring something to a committee that is not itself a statutory body; but the Minister and the Government could easily overcome that difficulty, if indeed it is a difficulty, because they could promptly and with the full agreement of the Opposition pass a bill giving statutory standing to the Joint Committee on the Australian Capital Territory, which at present is established under a resolution of each House of the Parliament.

The Minister also referred, either in discussions with the committee or in discussing the measure before the House, to the fact that if any period longer than six days were given, that would run the time in which a member could act into a third week of the Parliament. Of course, that would occur when a variation or proposed variation was tabled on the first sitting day of a week. Six days would take us to the final sitting day of the second week, but it would not be true that all variations would be tabled on the first sitting day in the week. Therefore there is not a great deal of merit in that point. I see great merit, however, in the committee's original proposal that there should be a tabling for seven days, because then at least we would ensure that two week-ends elapsed, which would give people who may have been absent from Canberra, an opportunity to express opinions on proposed variations.

From fifteen sitting days to six sitting days is a sharp reduction in the time available to honorable members to give notice of a motion or to move for the disallowance of a proposed variation of a plan. This is not something to be undertaken lightly. There have been many examples in recent years, referred to not only in this House but elsewhere, when better and longer thought would have paid dividends. [ should like to quote from an editorial which appeared in the " Canberra Times " on Friday, 30th October, 1959. Let me say this of the "Canberra Times": It does, I truly believe, speak for this district and it seeks to speak fairly. I believe that it does speak fairly and without political bias one way or the other. It has only the interests of the Australian Capital Territory and the national capital at heart. The editorial stated -

Assurances by the Minister for the Interior notwithstanding, it is not surprising that the Parliamentary Labour Party has expressed concern at the Government's intention to reduce from 15 sitting days to six the period in which objection may be raised in the House to proposals to vary the Canberra Plan. The fact is that the Minister is on sensitive ground. The mutilations of the Canberra Plan which have taken place during the past 10 years, evidence of which is to be seen in far too many places, have resulted from changes which have been effected not so much with undue haste, but because of insufficient consideration.

I think the Minister would agree with that and I think he would agree that the proposal to replace the west lake with a ribbon of water was one such variation which, with proper scrutiny, would never have got past this Parliament. The west lake has now wisely been restored, no matter what golfers may feel about the inundation of that area - the Minister himself found the area inundated one morning at 6 o'clock. I believe that proposal is an improvement. The editorial continues -

It has been demonstrated time and again that what is put forward as expert opinion can be painfully wrong, and because sufficient information has not been before it, Parliament has not had adequate opportunity to detect the damage before it was inflicted. Thus any suggestion to speed the process of amending the plan, no matter how well-intentioned and on whatever grounds of expedition it may be advanced, is bound to be looked at askance. More substantial reassurance is required, therefore, than the Minister gave the House when he explained his proposals for amendment to the Seat of Government (Administration) Act on Wednesday.

There needs to be a positive assurance that the report which the Minister promises to give the House on changes proposed shall not only contain his own recommendation, but the views of the National Planning Committee and, most important of all, the views of the Joint Committee on the A.C.T. These precautions should not be at the Minister's discretion. They should be mandatory. They need not occasion delay. Proposals can be submitted to the Joint Committee as soon as they are prepared and the committee's findings can be tabled with the Minister's submission. The need for continuing supervision by the Joint Committee is underlined by the fact that the National Planning Committee is not, unfortunately, completely divorced from the National Capital Development Commission. The committees have an unfortunate quality in that the National Capital Commissioner is also chairman of the Planning Committee.

That is the committee which advises the commission on planning. The editorial continues -

It is no reflection on the integrity ot the commissioner to point out that he is, in his dual post, in a position of strong influence over the findings of the Planning Committee.

The essence of the situation is that Parliament, as the representative of the people, should remain the final arbiter in Canberra planning, and it should have at its disposal at every stage the fullest and most constructively critical material that is procurable. The Government should not resent such criticism as the Opposition sees fit to offer on this question; it should welcome it. The planning of the nation's capital city is not a matter for party politics.

With that I agree. The editorial continues -

If the forthcoming debate in the House pinpoints means by which potential loosenesses in the handling of the Canberra Plan can be removed, the Government will draw credit to itself by listening with open mind and adopting such precautions as may be recognisably desirable. Here is a situation in which, while speed may possess certain merits and attractions, safety is far more important.

With those views expressed by the " Canberra Times " I find myself completely in agreement.

It has been said that the provision in this bill to reduce the time for disallowance from fifteen sitting days to six sitting days is necessary because of the rapid changes that are now taking place in the development of this city. The Minister has said that the reduced time will be particularly important when variations are tabled in the House towards the end of a session of the Parliament. I suggest that with the National Capital Development Commission now responsible for the development of the capital, having the advice of the National Capital Planning Committee available to it, and with the Australian Capital Territory Committee of the Parliament, there is no need for any proposed variation to be submitted to this Parliament in the dying hours or in the dying days of any session. I believe, and I think that the Minister must agree, that planning in this city is so far ahead that arrangements surely can be made to have these proposals tabled early in a session, or at least before the session has reached its final stages.

I have said that the Opposition will not vote against the second reading of the bill because it approves most heartily the provision relating to regulations and ordinances, which is something that should have been introduced years ago. I give credit to the Minister for having taken action on n now. However, the Opposition is opposed to the sharp reduction from fifteen sitting days to six sitting days in the time in which members of Parliament can move for the disallowance of a proposed variation in the plan. It is regretted that when a debate on such a proposal takes place many honorable members who are required to vote come into the chamber without having specific knowledge of the procedures that have been adopted in the past and of the practical application of such procedures to the Canberra plan. They enter the chamber when the bells ring and vote according to where their party sits. I should be inclined to say, as the " Canberra Times " has said, that the planning of this national capital is not a matter of party politics. Certainly it is the responsibility of the party that is in government, but it should not be a matter of one party working against another party. We all should be working for the development of a national capital which truly can be a symbol of this nation, a symbol for which future generations will seek to praise rather than to blame us.

In the committee stage I shall seek to give effect to the third recommendation of the Australian Capital Territory Committee with, I think, an improvement on that recommendation. The committee recommended that when the Minister has tabled the instrument of variation, it should be referred to the committee which will be required to report within seven days. The committee further suggested that seven days should be the period in which any member may move for disallowance. I foresaw the danger there that the two periods were concurrent and, in my view, would not give ample time for the committee to frame its recommendations, place them before the Parliament and still allow a margin of time for any honorable member, either a member of the committee or not, to move for a disallowance.

In the committee stage I shall give honorable members the opportunity to vote on my proposal that, before the instrument of variation is laid -before each House of the Parliament, the Minister shall refer the proposal to the Australian Capital Territory Committee, which shall furnish a report to the Minister within seven sitting days. The Minister has adopted that practice, and I do not doubt that he will continue it. However, that being a very worthy practice, I can see no reason why it should not be incorporated in the legislation, thereby making it obligatory on any future Minister, perhaps one not having the goodwill of the present Minister, to see that the proposals are sent to the Australian Capital Territory Committee which would have the duty to inquire into these matters and to report on them to the Parliament within seven sitting days. The Minister has said that that is done, but let us make it statutory and obligatory on the Minister to refer the matter to the committee which must then report to him within seven sitting days and bring the matter to the "House, not only with the Minister's statement explaining the variation, but also with the report of the committee which, having .considered it, should have reached a judgment of some value to the House. Honorable members will have an opportunity to assess the value of my proposal during the committee stage.

Further, I shall move that the period of six sitting days mentioned in clause 4 of the bill - the period within which any member may move ito disallow a proposed variation - be extended to ten sitting days. I say quite frankly to the Minister that if he were to agree to the first amendment that I shall propose relating to the mandatory reference of a proposal to the Australian Capital Territory Committee, and the responsibility of that committee to report within seven days, the Opposition would be content for the period to remain at seven sitting days, as suggested by the committee to the Minister.

The important thing for all of us to remember is that the present provision has been in existence for a number of years. It has worked, I believe, quite well but, with the development that is now taking place, I admit the need for changes to be made.

I admit also that the speed-up in communications and travel enables those changes to be made. The Parliament itself, and every individual member of Parliament, either in this House or in the other place, have a responsibility to the people of Australia to see that nothing is done which will mar the future of this city which is the nation's capital and something of which I believe the people of Australia are becoming increasingly proud. They are quick to detect the shoddy and the mistakes that have been made from time to time. The Parliament must be the watch-dog, and it can act in that role if the Minister will adopt the suggestions that I have put to him, and which I shall seek to move in the committee stage. I hope that other honorable members who have particular knowledge of the subject will speak on this proposal. Some honorable members in the chamber are members of the Australian Capital Territory Committee, and I hope that they will advance views, not necessarily paralleling my own but at least recognizing the duty of the Parliament to safeguard the rights of the people, and to ensure that the Parliament itself does not hasten too quickly with too little consideration and with too many mistakes, because far too many mistakes have been made in the past. Let us not create any set of conditions in which we can make mistakes which the rest of Australia in the generations to come will regret.

Question resolved in the affirmative.

Bill read a second time.

In committee:

Clauses 1 to 3 agreed to.

Clause 4 -

Section twelve a of the Principal Act is amended -

(b)   by omitting from sub-section (1.) the word " thirty " and inserting in its stead the word "twelve";

(c)   by omitting sub-section (2.) and inserting in its stead the following sub-section: - " (2.) A copy of the instrument by which any modification or variation of the plan has been made, together with an explanatory statement by the Minister, shall be laid before each House of the Parliament within fifteen sitting days of that House after the making of the modification or variation."; and

(d)   by omitting from sub-section (3.) the words " fifteen sitting days " and inserting in their stead the words " six sitting days of that House".

Section proposed to be amended - 12a. - (1.) The Minister may at any time, by writing under his hand, modify or vary the plan of lay-out of the city of Canberra and its environs, published in the Gazette of the nineteenth day of November, One thousand nine hundred and twentyfive, as modified or varied prior to the date of the commencement of this section, but no such modification or variation shall be made until after the expiration of thirty days after notice of intention, published in the Gazette, so to modify or vary the plan has been given. (2.) A copy of the instrument by which any modification or variation of the plan has been made shall be laid before both Houses of the Parliament within fifteen days of the making thereof if the Parliament is then sitting, or, if not, then within fifteen days of the next meeting of the Parliament. (3.) If either House of the Parliament passes a resolution, of which notice has been given at any time within fifteen sitting days after the instrument has been laid before it, disallowing the modification or variation made by the instrument, the modification or variation shall cease to have effect.







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