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Wednesday, 1 December 1965


Mr WENTWORTH (Mackellar) .- Mr. Chairman,I believe that what the honorable member for Parkes (Mr. Hughes) has said illustrates a feature of the Bill that is a little dangerous. I consider that it is dangerous to allow these practical questions to be quibbled about by lawyers. I have no doubt that what my honorable friend has said is impeccable in point of law. He is, after all, a senior member of the Bar. But what he said does not really make common sense when one looks at it in the context of the Bill.


Mr Kelly - It does not pretend to be common sense. It is a legal view.


Mr WENTWORTH - The honorable member for Wakefield has put the matter better than I could put it. Would the Committee mind looking at clause 52 (7.) of the Bill? I am hoping that this subclause will be altered when we come to it, but for the purpose of my argument we must take it that the clause stands unless the Attorney-General can now give us some assurance to the contrary. Clause 52(7.) states-

Orders of the Tribunal have the force of law.

This means that the Trade Practices Tribunal is, in effect, a law making body because it has no precedents to guide it and the guide lines that we are laying down are so wide and nebulous that the Tribunal is, in point of fact, to be vested with the functions of the Parliament. It is being set up as a law-making body.


Mr Malcolm Fraser (WANNON, VICTORIA) - Part time.


Mr WENTWORTH - Part time, as my friend says. If we have a law making body set up outside the control and cognisance of the Parliament, and if the Committee does the foolish and, I think, reprehensible thing of passing clause 52 (7.) in its present form, then we have to be particularly careful about a clause such as the one now before us. The honorable member for Parkes has quoted a maxim which relates to the actual doing of specific acts, but he has applied it in a context where laws are being made. With respect, I point out that the sub-clause to which I have referred even contemplates circumstances where the Tribunal consisting of one member is making the law. In these circumstances, I think, it is incumbent upon us to be particularly careful that the Tribunal is properly set up and properly constituted. I do not think we should be swayed by the kind of quibbles which no doubt would sway a court of law; I think we must look beyond the legal form to the facts of the case. The facts of the case are that the Committee is at present being asked to put the law making powers of Parliament into the hands of another body which, in some cases, might consist of a single member of the Tribunal. While there is no redress for the Parliament in respect of the laws thus made, I think it is incumbent upon us to be particularly careful about how the Tribunal is constituted. I think there is force - perhaps not legal force, but the force of common sense - in what the honorable member for Moreton (Mr. Killen) has said.







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