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Friday, 3 December 1965


Mr WENTWORTH (Mackellar) . - I move -

At the end of proposed sub-clause (1 >\.) add the following: - "in which case the Tribunal's decision shall only be made operative as a regulation under this Act ".

I do not regard this as being of as great importance as the matter coming within the compass of clause 52 (7.). The AttorneyGeneral (Mr. Snedden) has indicated, that, either by argument or amendment - I am not sure which - he proposes to bring forward matters which will rectify any doubts in my mind with regard to that latter clause, which is the important clause. I wait with interest to hear either his argument or the amendment. I am not clear yet as to how he proposes to do it. But whatever action he proposes, the matters covered by that clause are important.

The clause before us raises the same principle as does clause 52 (7.), but raises it in a less controversial and less important manner. If the small amendment to clause 49 that we spoke of were accepted, so that decisions made under this provision could be justified by reasons given and stated, then obviously the matter would become of less importance. But I turn my mind to the observations made by the Minister for Shipping and Transport (Mr. Freeth). I do not think he has appreciated fully my reason tor doubting this particular provision. This is not an administrative function that we are giving over; it is in point of fact a lawmaking function. It is a law-making function because it will be operative in a field where there are very few, if any, precedents. We are giving the Tribunal power to make the law.

This Parliament should not give away its law-making powers. It is very jealous of them. For example, it must approve regulations made under its Acts, but the regulations which come before us for approval very often deal with the most trivial things. I think the Minister for Shipping and Transport must have been joking when he said: " Surely the Parliament's time is not going to be taken up with a number of trivial matters arising from determinations made under this provision." If honorable members will look at the "Votes and Proceedings " over the last 10 days or so, they will see the triviality of the matters which have been brought before them by means of regulations. In point of fact, in practically no case have honorable members turned their minds to those regulations. Their volume is so great that obviously we could not do so. My point is that if there were an injustice done or a mistake made it would be brought to the attention of either the Government or the Opposition by people outside this Parliament who felt themselves wronged. Then the members of this House could turn their minds to it. I am now looking for an example in the regulations which were brought forward by the Minister for Shipping and Transport himself only a few days ago in this House. I find one, under the Navigation Act, which relates to the fees to be paid for the adjustment of compasses. Consider the triviality of a matter such as that; yet these are matters which should properly come before this Parliament because they are dealt with by regulations made under an act of the Parliament. It reads -

Where-

(a)   an adjuster of compasses is available at the time and place appointed for the performance of services in relation to a ship and is, for any reason outside his control, compelled to wait for a period in excess of half an hour after that time before he can commence the performance of those services;

(b)   an adjuster of compasses is performing service in relation to a ship and, for any reason outside his control, the Services are interrupted and he is compelled to wait for a period in excess of half an hour before he can continue with those services; or

(c)   an adjuster of compasses performing services in relation to a ship is compelled, for any reason outside his control, to wait on the ship after the completion of those services for a period in excess of half an hour, a fee calculated at the rate of One pound ten shillings for each hour, or part of an hour, of the excess, or a fee of Six pounds, whichever is the less, is payable, to the adjuster, by virtue of this sub-regulation, in respect of these services.

This is the kind of thing which the Minister brings before this Parliament, and very properly brings before this Parliament.


Mr Freeth - But that is the general rule. You are referring to particular cases.


Mr WENTWORTH - Of course; but what I am pointing out, and what the Minister has failed to understand so far, is that in this case we are giving away a law-making power because we are giving to the Tribunal a discretion to decide matters without giving it, by statute or by precedent, the principles of which it is to decide them. This apparently has not penetrated yet to the mind of the Minister. He must see the paramount need for asserting the power of this Parliament.

I will admit that the matter involved in this clause is by no means as important as that dealt with in sub-clause (7.) of clause 52 of which the Attorney-General was speaking a moment ago. But surely the Parliament is going to be jealous of its own law-making power. If this were purely an administrative or judicial Tribunal then, very properly, the Parliament should stand out of its decisions; but it is not as yet either of these things. Obviously, after it has been in operation for a decade or two and has established its own precedents, then the character of the Tribunal will change; but in its formative period when we are first setting up the Tribunal, it will be making laws in point of fact, and the Parliament - this is a paramount principle - should not part with its law-making authority.

This may seem a technical point, but it is not. This relates to the powers, functions and duties of Parliament. The AttorneyGeneral said a moment ago that this Parliament might not be the correct authority to review the Tribunal's decisions. He said the decisions will be technical matters. This Parliament is the correct authority to review law-making functions, but it is not the only authority. I have not suggested for one moment that any review body, other than the Parliament, should be eliminated from operating in respect of this legislation. I simply say that whatever may be the correct review authority in respect of technical matters, these are not in the Parliament's competence but it is in the Parliament's competence, and it is the Parliament's duty to make clear its authority in respect of law making. In this case we are giving to a Tribunal the effective power to make the law. If we put down more exact statutory requirements, not leaving so much to discretion, it would be different. If, as in the case of common law, there were a large body of accumulated precedent, the Tribunal would find itself bound by that precedent, but in this case we are entering a new field. There is no precedent; there is no law. We give to the Tribunal the power to declare the law. This we should not do.

I do not take kindly to the idea that the Parliament is too busy to keep its own law making powers intact. The Parliament very rightly has before it this stream of triviality by regulation. I read one example from the regulations presented by the Minister for Shipping and Transport only in the last few days. That is only one example, but it is quite proper. The Minister did the right thing, but it is a trivial thing. It is right that the Parliament should have the power to review these particular types of trivialities where law making functions are involved, in relation to a particular case or a class of cases. They are law making functions and the Parliament should have the right to review them. I ask the Opposition, I ask the Government, and I ask the AttorneyGeneral to consider this matter and to see whether in respect of this matter - not an important one - they could accept the amendment, and whether they might think more closely about it when we come to consider clause 52 (7.).







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