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Wednesday, 4 May 1921


Senator E D MILLEN (NEW SOUTH WALES) (Minister for Repatriation) . Mr. President-


The PRESIDENT - -Does the honorable senator propose to speak in reply?


Senator E D MILLEN (NEW SOUTH WALES) - Yes.


The PRESIDENT - The amendment must be disposed of before the honorable senator is entitled to speak in reply to the general debate.


Senator E D MILLEN (NEW SOUTH WALES) - One matter to which I wish to refer has a reference to the amendment, and I shall speak upon that. Have I the right to cover both amendments in my remarks ?


The PRESIDENT - The honorable senator is entitled to speak to both amendments, but not in reply to the general debate.


Senator E D MILLEN (NEW SOUTH WALES) - The amendment submitted by Senator Gardiner is a proposal that the Government should proceed by way of legislation. In debating that amendment honorable senators urged many objections against regulations, and I want to point out that those objections would apply with equal force to legislation. It has been said, for instance, that under a regulation the small farmer might be hurt, but he might be hurt by legislation just as much.


Senator PRATTEN (NEW SOUTH WALES) - But if we proceeded by legislation, would we not have an opportunity of discussing that?


Senator E D MILLEN (NEW SOUTH WALES) - The honorable senator has had that opportunity today, and has taken advantage of it twice. In any case, the honorable gentleman would not know the nature of a regulation until it was issued. Whatever Bill may be introduced it must contain provision giving power to the Executive to make regulations ; and it stands to.reason that no one would know, until those regulations had been gazetted, what they, were and what would be their purport.


Senator Gardiner - It may be taken for granted that any regulations issued will be bound to be in conformity with the Act.


Senator E D MILLEN (NEW SOUTH WALES) - Undoubtedly.

Another objection which an honorable senator has voiced to-day is contained in the suggestion that if the Government proceed with their proposition by way of regulation the latter may be taken to Court and pronounced ultra vires. I would point out that such procedure could apply just as easily to a measure passed by Parliament as to a regulation framed by the Executive without reference to any Statute.


Senator PRATTEN (NEW SOUTH WALES) - I was referring to the powers under the Customs Act, and not to such powers as may be embraced in a new Bill.


Senator E D MILLEN (NEW SOUTH WALES) - If this Parliament were to pass a special Bill dealing with the proposition of the Government, and the Executive were subsequently to issue regulations, those regulations could be just as much endangered by challenge before the Courts as any regulations made under the Customs Act itself.


Senator PRATTEN (NEW SOUTH WALES) - I was referring to the question whether the export of wool would be harmful to Australia under the present Customs Act.


Senator E D MILLEN (NEW SOUTH WALES) - Many of the objections which have been urged concerning the dangers lying in the Executive proceeding by regulation could be urged with equal force against the powers sought to be taken by way of legislation. As Senator Keating has lucidly pointed out, we cannot have a Bill which may be regarded as complete unless there is provision therein for the Executive to make regulations. Therefore, the Government must be trusted in this as in all similar circumstances. I have examined the Act referred to by Senator Keating, and I draw the attention of honorable senators to the fact that it is contained upon the side of one sheet of paper, while the regulations under it occupy both sides of a similar sheet.

The Government invited honorable senators to discuss their proposal, and to co-operate in bringing it about. The Government have not thought for one moment of proceeding by regulation merely to avoid the necessity for introducing legislation. But we thought, and still think, there is very great danger in proceeding along unexplored, paths iri tying the hands of the Executive too tightly. Even those honorable senators who have advocated the scheme point out that the proposal is leading us into unknown territory. The Government did not advance their proposition with any very robust faith in its efficacy. Let us suppose that we were to pass an Act of an extremely binding nature. At the other extreme we could enact a law which would be so general that all its potency would be brought to bear through the regulations framed under it. But that would leave us in no better case. If we were to pass an Act too tightly drawn, and which removed from the Executive any power to alter that which was specifically contained in the Statute, a dangerous position might arise.


Senator Elliott - What about the happy medium ?


Senator E D MILLEN (NEW SOUTH WALES) - The Government have not always the brain-wave necessary to suggest the happy medium. An Act, if it were so hard and fast as to leave no degree of elasticity in its administration, might involve this country in very grave danger if something should happen during recess, which required instant action or immediate modification. If whatever Act was passed were drawn so generally as to require the framing of regulations-


Senator Keating - It would involve,, at any rate, the assertion and maintenance of control by Parliament.


Senator E D MILLEN (NEW SOUTH WALES) - That would' be so if we proceeded to govern by regulation without consulting Parliament. But there is a difference in the Government shaping regulations upon an entirely new subject, without reference to Parliament, compared with our declining to move unless Parliament had first expressed an opinion concerning the course proposed'. That latter action represents what has been done on the* present occasion. The Government have informed both Houses of what they propose. In brief, it is to endorse the Bawra proposal, with a modification of the selling price. Nothing, whether by way of legis- lation or otherwise, can effect that, and were we to proceed to put it into effect by regulation or legislation the result would not be different.


Senator PRATTEN (NEW SOUTH WALES) - Is the Bawra proposal confined entirely to export wool?


Senator E D MILLEN (NEW SOUTH WALES) - That is so. Any one can sell wool to anybody in Australia, and at any price he likes.


Senator Foster - I have been informed that that also could be regulated under the Customs Act, and I am curious to know how, if such is the case.


Senator E D MILLEN (NEW SOUTH WALES) - I am sorry that the honorable senator has been misled, but it has certainly not been from anything I have said. The Commonwealth has no constitutional power to prevent the sale of wool within Australia. Our powers can only become operative through our authority over export.

I ask Senator Gardiner to withdraw his amendment for the reasons I have indicated. The opinion of the Senate has been sought and secured, and the Government only desire to obtain support for its proposals. I ask that the amendment be withdrawn for the reason that the whole matter will not be given effect to until either a Bill has been introduced and passed or a series of resolutions has been agreed to setting out precisely what would, in either circumstances, be contained in the Bill.


Senator Gardiner - I will accept that.


Senator E D MILLEN (NEW SOUTH WALES) - Whatever power is sought to be given effect to - either under a special Act or by a series of resolutions - administration must be in the hands of the Customs Department. Many sections of the Customs Act will be involved. The whole matter is now under review by the CrownLaw authorities, in order that they may see how far the necessary portions of the Customs Act may be safely taken out and introduced into another enactment, or whether it will not be preferable for the Government to place a series of specific motions before Parliament.


Senator Gardiner - With the consent of the Senate, I am willing to withdraw my amendment. I moved it largely because I saw a. danger of the method of procedure indicated by the Government being ineffectual.

Amendment, by leave, withdrawn.







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