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Thursday, 28 November 1935


Senator DUNCAN-HUGHES (South Australia) . - I move -

That the third report from tlie Regulations and Ordinances Committee, presented to the Senate on the 31st October, 1935, be adopted.

As this report was laid on the table of the Senate on the 31st of last month honorable senators have had ample time to read and consider it. In moving its adoption, I am simply following the procedure observed when the first and second reports of the committee were presented. It is neither necessary nor desirable that I should speak at length in support of the motion. The report speaks for itself, and as I assume that honorable senators have read it, no useful purpose would be served by my elaborating what is, perhaps, better said in the report itself. I may, however, be permitted to allude briefly to three or four matters mentioned in it.

Clause 3 makes mention of a series of regulations which, in the opinion of the committee, are in precisely the same position as the regulation, the disallowance of which I moved in the Senate a month ago. It is not the province of the committee to touch on matters of Government policy. Its function is to report to the Senate whether or not regulations laid on the table of the Senate are in accordance with the law and with certain general principles, but I may perhaps be allowed to go so far as to say that it does not appear to the committee that the noncompliance with the law which, in its opinion has taken place in connexion with a number of regulations mentioned in this clause, is of a very serious nature. The transgressions vary in degree. Nevertheless, the committee deemed it its duty to indicate the regulations which, in its opinion, were not in conformity with the law. I mention in particular Regulation No. 58, which deals with an amendment of war service homes regulations. In this case there is 710 evidence of moral turpitude - if I may use the phrase without conveying a false impression - in connexion with what was done, but the committee felt that it was improper to do it in this particular way. It appears that a person, after having contracted to pur-. chase a war service home, had left Australia. Proceedings for repossession were commenced, but it was impossible to prove to the satisfaction of the magistrate that the man had ever, in fact, entered into possession of the home. The department wished to resume possession but as, under the rules of evidence existing, it was impossible to do this, the department got over the difficulty by prescribing that a new set of rules of evidence should be applicable to this case. This, in the opinion of the committee, was not a proper thing to do. Although perhaps the objective was, in itself, quite good, the method, in the opinion of the committee, was bad.

Another reference in the report relates to regulations of the Postal Department with regard to telephones. It seems to me, and also to other members of the committee on whose behalf I am speaking, that a regulation which has been amended to deal with individuals who tap " any telephone system improperly throws upon the proprietor of the house in which the telephone is installed or the land over which the line is taken, the obligation to prove that he was not in any way responsible for the unauthorized tapping of the service. There may be some legal answer to' the committee's objection - it may be claimed that it is permissible under the act - but apart from legal technicalities, the committee considers that it is not in accordance with the general principles of the law that an individual who owns a house in which there is a telephone, or the land over which the telephone line runs, should be held responsible if the service is tapped by some unauthorized individual. In some instances, as we know, telephone lines traverse miles of open country to a distant house connexion, so it is possible for some unauthorized person to tap the line without the knowledge of the subscriber or the owner of the land. Indeed, the owner may be 12,000 miles away, on a visit to the Mother Country, and can have no knowledge of what has been done. This shifting of the burden of proof in connexion with the misdeeds of a third individual, is, in the opinion of the committee, an undue interference with the liberty of the subject. The fourth case to which I shall refer, and that briefly, relates to the censorship of cinematograph films. Three years ago in this chamber, Sir Hal Colebatch dealt with this matter and, so far as I know, nothing has been achieved, although attempts may have been made, to ensure that control of cinematograph films should be vested in the Commonwealth. I have as high a regard as any other honorable senator for the rights of the States but there are certain matters which, I consider, should obviously be under Commonwealth control. Wireless broadcasting is one, and aviation another.


Senator A J McLACHLAN (SOUTH AUSTRALIA) - Commonwealth rights as regards aviation art very much in the air at present. That subject has been twice argued before the High Court.


Senator DUNCAN-HUGHES - It is, I think, highly desirable that the Constitution should be amended in such a way as to make it clear that the Commonwealth has complete control of films, aviation and wireless broadcasting. These important matters should not be left in abeyance. Speaking on this subject in the Senate on the 28th September, 1932, Senator Sir Hal Colebatch, in presenting the first report, of the committee, quoted this passage -

Your committee would direct attention to the unanimous recommendation of the Royal Commission on the Constitution that the words " cinematograph films " should be inserted as a new paragraph in section 51 of the Constitution in order to give to the Commonwealth Parliament power to pass laws in regard to films made in Australia as well as those imported.

I cordially endorse that opinion. The report goes on to state -

Pending the taking of action to amend the Constitution or the reference of the subject to the Commonwealth Parliament by the State Parliaments, your committee would submit the following resolution for the consideration of the Senate: - "" That in the opinion of the Senate the time has arrived when public policy in regard to the censorship of imported cinematograph films should be set out in substantive legislation."

Senator Sir HalColebatch also made this quotation from the report of the committee -

Apart from the important principle involved in this recommendation, your committee is of the opinion that the passing of satisfactory legislation governing the censorship of imported cinematograph films would afford the strongest possible inducement to the State parliaments to refer > the subject of film censorship generally to the Commonwealth Parliament, thereby making it possible to achieve a highly desirable end without the delay that would be occasioned by an amendment of the Constitution.

In other words, he suggested that the Commonwealth Parliament should pass an act which would so satisfy the States that they might be prepared to give general power in these matters to the Commonwealth. Unfortunately, this has not been done and no legislation has been framed for the control of aviation or broadcasting. These important questions have not been submitted to the people for an expression of their opinion.


Senator Brennan - The States have been approached but they show no disposition to vest authority to control in the Commonwealth.


Senator Sir George Pearce - State Ministers have agreed in conference to this course, but have not passed the necessary legislation.


Senator DUNCAN-HUGHES - I am aware that the subjects mentioned have been discussed at conferences of Commonwealth and State Ministers for some years past, but nothing has been done. The reports of these conferences usually contain some such statement as the following : " This matter was referred back for consideration at a later meeting."


Senator Sir George Pearce - In this case the States were in agreement at the conference, but they did not take any action to give effect to that agreement.


Senator DUNCAN-HUGHES - Has the Commonwealth taken any action?


Senator Sir George Pearce - The Commonwealth could not take action to compel the States.


Senator DUNCAN-HUGHES - Was there any agreement that these matters should be controlled by the Commonwealth ?


Senator Sir George Pearce - Yes.


Senator DUNCAN-HUGHES - Surely, in that event, the Commonwealth could either have brought in a bill in accordance with the agreement - if there had to be agreement by both the Commonwealth and the State Parliaments - or referred the matter to the people at a referendum.


Senator Sir George Pearce - The States agreed to legislate to transfer to the Commonwealth any power that they might have in this connexion.


Senator DUNCAN-HUGHES - Perhaps I may be allowed to depart a little from my duty as Chairman of the Committee and express my personal opinion, that the States should not be allowed to use these important matters as subjects for bargaining. These things should be determined on their merits. Obviously, the questions which I have mentioned cannot be dealt with by any one State. If the Commonwealth cannot agree with the States regarding the control of these things, the sooner it makes up its mind to hold a referendum of the people, to determine whether these matters should be controlled by the Commonwealth in the future, the better it will be for the Constitution, and for every one concerned, for there will then be for the first time a responsible body to deal with these matters.

I have nothing further to say on the report, except to express the hope that honorable senators will give it fair consideration. The committee was faced with a difficult problem by reason of the fact - which I shall not over emphasize - that there appeared to be instances in which the strict law had not been complied with. It did not seem to the committee that it was the duty of any of its members, or of any private member of the Senate, to rise in his place and move that a number of regulations which did not appear to be watertight should be disallowed. The members of the committee think that in dealing with regulations they are discharging a duty on behalf of the Parliament, and are entitled to the support of the Government. If their action is either illegal or incorrect, that fact will, no doubt, be pointed out to them, but they are of opinion that so long as their recommendations come within the province of the committee, and are sound, the responsibility for the proper maintenance of the law is not with the committee. They hold the view that any errors which might have been made inadvertently should be rectified by the Government, and not by the isolated action of any individual, whether a member of the committee or not. I commend the report to the consideration of honorable senators. It was not produced without careful thought and much work. The committee is strictly non-partisan, and has acted solely with the object of carrying out the important duties entrusted to it by the Senate.







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