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Thursday, 14 May 1936


Senator McLEAY (South Australia) . - The work which the Regulations and Ordinances Committee performs is of the utmost importance. If honorable senators can be encouraged to take a greater interest in the regulations which are promulgated, good government will be promoted. The committee is essentially non-party, and has on it two members of the Opposition, who have rendered valuable service. The chairman (Senator Duncan-Hughes), with a characteristic thoroughness which does credit to the Senate, has spent a great deal of his spare time on this matter, and his industry deserves commendation. I hope that the Leader of the Senate ('Senator Pearce) will accept our assurance that we have every desire to assist the Government, and that we fully appreciate the difficulty experienced by Ministers keeping in touch with the thousand and one details which demand their attention.

As a new member, I was amazed at regulation 3 of Statutory Rule (No. 29, which read -

Amendments effected by the preceding regulations shall be deemed to have taken effect on the 28th day of April, 1926.

The chairman, with the approval of the committee, moved in theSenate for the disallowance of that regulation because, in the light of the decision given in the broadcasting case, it was evident to us that the regulation was invalid. I was rather astonished at the opposition of theGovernment to its disallowance, despite the fact that the Acting AttorneyGeneral (Senator Brennan) had stated on the floor of the Senate that, in his opinion, it was invalid.

The committee presented its third report in good faith. It was actuated by a desire to impress upon honorable senators the importance of regulations, and to direct attention to those which it considered were invalid. I expected the report to have a more favorable reception than was given to it by the Leader of the Senate.


Senator Sir George Pearce - I said that that was not the reason for the constitution of the committee. Not being a legal body, how do its members know whether regulations are invalid or not?


Senator McLEAY - During 1935, no fewer than 136 StatutoryRules were placed before the Senate, and two of them contained as many as 500 regulations, of which there were numerous sub-regulations and paragraphs. The book of regulations for 1935 contains something like 957 pages. Honorable senators will thus realize the vital importance of a careful scrutiny of them. In the course of his remarks, the Leader of the Senate criticized the committee on several occasions, because it is mainly composed of laymen.


Senator Sir George Pearce - That was not the basis of my criticism. I questioned its competence to give legal judgments.


Senator McLEAY - Legal men of prominence and outstanding ability in Australia gave evidence before the select committee appointed by the Senate in 1930. They included Professor K H. Bailey, Mr. F. W. Eggleston, Sir Robert Garran, Mr. J. H. Keating, the Honorable R. G. Menzies, and the Honorable Sir John Peden. The report of that select committee enunciated four cardinal principles which should be observed in the close scrutiny of regulations. They are -

1.   That they are in accordance with the statute.

2.   That they do not trespass unduly on personal rights and liberties.

3.   That they do not unduly make the rights and liberties of citizens dependent upon administrative, and not upon judicial, decisions.

4.   That they are concerned with ad ministrative detail, and do not amount to substantive legislation, which should be a matter for parliamentary enactment.

Those principles have guided, and still guide, the committee in its deliberations. I do not hesitate to say that a perusal of the 136 statutory rules presented in 1935 will disclose the fact that one or other of those four principles has been violated, not once, but on several occasions. In having drawn attention to that fact, the committee has acted in the interests of the people of this country. I understand that some regulations are not submitted to the Crown Law Department, and that others have not been laid on the table of the Senate within the stipulated fifteen days. We all know that it is an impossibility for the officers of . the Crown Law Department to scrutinize the thousands of regulations which are framed. It is no wonder, then, that they are haphazard, and, in some cases, invalid. All regulations should be placed before some responsible legal authority.


Senator Sir George Pearce - Would the honorable senator describe the Commonwealth Crown Law officers as responsible legal authorities?


Senator McLEAY - I should say that they are.


Senator Sir George Pearce - The regulations are placed before them.


Senator McLEAY - It is impossible for the Solicitor-General and his officers to devote the requisite amount of time to regulations. Every High Court decision which goes against the Commonwealth is a reflexion on the Senate, and if we take steps to avoid such a contingency we shall follow the right course. While considering the list of regulations, I noted that, on the 15th January, statutory rule No. 7, in connexion with the Meat Export Control Board, signed by T. C. Brennan, was gazetted, and that, on the 24th January, it was repealed by statutory rule Wo. 7, signed by Dr. Earle Page. I lay no blame for that on the Crown Law Department, but the officers of that department must share with Ministers the responsibility for it.

A prominent Adelaide legal gentleman, Mr. G. C. Ligertwood, K.C., read an excellent paper before the First Australian Legal Convention, held in Melbourne at the end of 1935. It was a plea for simplicity in statute law, and dealt with the haphazard character of regulations. I make the following quotation from it: -

The legislature is not directly concerned with legal principles. Its function is to govern, not to evolve a system of law. It makes a particular rule for a particular occasion. The occasions are haphazard, and the rules are consequently haphazard. If they fail to work they are amended, and the amendments are haphazard. From day to day, it almost seems from hour to hour, a steady stream of regulations, orders and by-laws pour forth to overwhelm the citizen.

It is for the legislature to see that the new despotism is made as tolerable as possible by being organized on principles which approximate to those of absolute justice.

There are no fewer than 70 sales tax acts, the regulations under which have been amended on twelve different occasions. That is a matter which should receive the attention of the Government.


Senator Sir George Pearce - It has, because a consolidating Sales Tax Act was passed last session.


Senator McLEAY -I now direct the attention of the Senate to paragraph 8 of the committee's report, which the

Leader of the Senate commented upon rather drastically. That paragraphreads -

The committee, further, draws attention to the provisions contained in Statutory Rules 1935, No. 93 (amendment of the telephone regulations) by paragraph (2), whereof a new regulation (16a) is inserted-

The change is so drastic that it should not be made by regulation. The paragraph continues -

Under these provisions the onus of proof is not only shifted from the department on to the person doing certain acts or suffering them to be done, that he acted without the authority of the department; but further, any prosecution for an offence made under this regulation, the averment of the prosecutor that the proprietor of the land or building upon or within which an offence is committed by any person permitted or suffered that person to commit the offence, shall be deemed to be proved in the absence of proof to the contrary. There appears to be no authority in the act enabling the department to so alter the burden of proof. In the opinion of the committee, such a provision trespasses unduly on personal rights and liberties, and should only be brought into force, if at all, by parliamentary enactment.

Such a vital amendment by means of a regulation demands the earnest consideration of the Senate. To justify the committee's objection, and to strengthen my view, I asked a prominent Adelaide solicitor for a considered opinion upon that point. He said -

It is admitted that the object of the regulation is to prevent " tapping a line ", but why should an unfortunate householder or landowner have cast upon him the onus of proof when by general principle of law he should be innocent until proved guilty. The principle in any event is, even upon the construction of a regulation by the court, upon, such an onus depends upon this, namely, whether the matter is essentially and peculiarly within the knowledge of the defendant. The department or its investigating officers or the police have every opportunity of questioning a defendant, of obtaining evidence and of satisfying the general and old-established methods of " proving their case ". If such an undue interference by changing the onus of proof is kept up, the whole of our principle of criminal and quasi-criminal law will be altered. Persons now have sufficient to keep pace with the statute law, but Lord Hewart's description in The New Despotism is certainly justified when one sees departments trying to prove wholesale their prosecutions, not by real proof, but by mere allegation or averment alone. Every man shall be deemed innocent until he is proved guilty is as important to-day as ever it was, and it should be maintained as a fundamental principle of British law and not continually and persistently whittled away inthe manner in which the parliaments are doing.

That opinion supports the views expressed in the committee's report. I now propose to deal briefly with the speech delivered by the Leader of the Senate on the 28th November, 1935, and reported in Mansard at page 2016. The Minister said -

Thu committee is taking upon itself the functions of a court in that it makes a declaration as to the legality or otherwise of certain regulations. I submit that the committee was not appointed for that purpose. The proper authority to determine the validity or otherwise of a regulation is a competent court. Any citizen may take action to have a regulation declared invalid.

The committee took such action, but the Government opposed its recommendation. The committee has the right, not only to question the validity of a regulation, but .also to bring the matter before the Senate and to move for its disallowance.


Senator Sir George Pearce - That is not correct. Any honorable senator may move that a regulation be disallowed on grounds other than its validity.


Senator McLEAY - The committee has a perfect right, apart from the question of validity,, to object to a regulation* on one of the grounds I have mentioned. On that point the Minister evaded the issue.


Senator Sir George Pearce - I did not cavil at that; I challenged the right of the committee to determine the validity or otherwise of a regulation.


Senator McLEAY - I can mention an instance in which the Leader of the Senate admitted that some of the regulations were invalid.


Senator Sir George Pearce - That does not justify the action of the committee in declaring regulations invalid.


Senator McLEAY - On that point the committee must satisfy itself to the best of its ability. On December 4, 1935, Hansard, page 2470, the Leader of the Senate quoted a report from the Crown Law authorities, a portion of which read -

It has always been the policy of the AttorneyGeneral's Department to discourage the making of retrospective regulations. This is borne out by the fact that in October, 1934, general instructions were issued by that department to all Commonwealth departments in. which the following statement appeared: " As a general rule it is not advisable to attempt to make regulations having retrospective operation."

That notification was issued to departments in October, 1934, but regulation No. 3 under Statutory Rule No. 29 issued in 1935, was made retrospective for nine years. According to a recent decision of the High Court, the Government has not the power to issue such a regulation. I do not blame the Attorney-General's Department, but the existence of such conditions shows that there is room for improvement. At a later stage, the Leader of the Senate said -

It is true, however, that the principles of the decision, in the broadcasting company's case, are applicable to some of tine statutory rules in the list, and that there arc also other statutory rules made over a long period of years which might be affected by these principles. As a rule, regulations have been made to operate retrospectively only when they confer a benefit, and not in cases where they prejudically affect existing rights.

That statement was not borne out in the broadcasting company's case. I sincerely trust that a majority of honorable senators will support the action for the adoption of the committee's report ; in doing so, they will not be reflecting upon the Government. The committee made an honest attempt to place before honorable senators the far-reaching effect of government by regulation. I trust that the committee's recommendations will be a warning to Ministers, and to heads of departments, that what are generally regarded as guiding principles in matters of this kind must not be violated. If the Crown Law officers said that the validity of a regulation was beyond doubt, the committee would not question it. Even if the High Court ruled that a regulation was invalid, it would not necessarily prove that the Crown Law officers were wrong, because in some instances the Privy Council has reversed decisions of the High Court. Under existing conditions regulations are necessary, but the power which the executive possesses in this respect should not be abused. We have been told that the validity of a regulation should be tested in the court, but what has happened in the broadcasting case and others ? An injustice may be done to an innocent person. For instance, the Leader of the Opposition, failing to obtain satisfaction, might decide to go to law, and, even should he win his case, he would lose financially.

I trust that the Senate will adopt the committee's report, and in that way strengthen it in endeavouring to assist the Government in the important duties it has to perform.







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