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Thursday, 14 May 1936


Senator BRENNAN (Victoria) (Acting Attorney-General) . - The debate on this motion reminds me of a debating society whose members have forgotten the subject that they are supposed to discuss. Some honorable senators who have spoken appear not to have realized that the motion before the Senate is the adoption of the third report of the Standing Committee on Regulations and Ordinances, notwithstanding that you, sir, reminded them of that fact. The remarks of Senators McLeay, J. V. MacDonald and Brown were directed, not so much to the adoption of the committee's report, a* to the general subject of the use of the regulation-making power. There are not many men in public life to-day who do not think that the power of government by regulation has gone too far. Especially since Lord Hewart published his book The New Despotism has that opinion become pronounced. The report of the committee does not deal with that subject,, yet a great deal of Senator McLeay's speech was devoted to it. Senator Brown said that the value of the committee'.; report was recognized by most of the newspapers of Australia. The report does not deal with the general question of the regulation-making power. It takes specific illustrations, draws conclusions as to their validity or propriety, and then asks the Senate to adopt its report. Senator McLeay accused the Leader of the Senate (Senator Pearce) of having adopted an unfriendly attitude towards the committee, but I remind him that the right honorable gentleman paid a tribute to the good work that it had done. I now add my word of praise t;o his. The Leader of the Senate called attention to those things in the report with which he disagreed, and which he thought the Senate ought not to be asked to adopt. The motion before us asks the Senate to adopt paragraphs 5 and 7 of the committee's report. Paragraph 5 reads -

The committee considers that these regulations it referred to a number of regulations issued in 1935, each of which in the committee's view appeared to infringe the provisions of the Acts Interpretation Act by a retrospective clause of a similar type- are void or voidable, in whole or in pari:, and would be held so to be if contested in the courts, in view of the decision of the High Court mentioned above. In some of the statutory rules enumerated above, the retrospective regulations appear to be separable from other regulations to which the}' have no reference.

Paragraph 7 submits either that the Government should withdraw and cancel such of the regulations as are mentioned in paragraph 3 or alternatively that it should move for their disallowance within the prescribed time. Two of the five members of the committee are lawyers, although one of them modestly disclaims that this is so ; another says that he is a bush-lawyer. The remainder of the committee is composed of laymen. Yet the Senate is asked to accept it as a guide as to whether the High Court would disallow regulations if they were placed before it. If honorable senators want an assurance that the committee is not made up of experienced lawyers, they can find it in the fact that it has ventured an opinion as to what the High Court would do. I am not unacquainted with the duties of the committee, as I preceded Senator Duncan-Hughes and succeeded Senator Sir Hal Colebatch as chairman. Furthermore, I have spoken strongly on the subject of regulation-making power, and I hope I shall continue to do so, but at the same time, the power of making regulations is one that is essential to the Government.


Senator McLeay - But it should not be abused.


Senator BRENNAN - There is no right in nature to abuse anything. But it is useless for members of Parliament to abuse regulations if they have neglected to discover that they are objectionable before they become law. Because they do become law, Senator McLeay paints a picture of the Leader of the Senate going to the Crown Solicitor's Department, and saying, concerning a regulation against which he has offended, " Look at this, can you do anything for me ?" He complains because the advice would be to take the matter to the High Court. Senator

McLeay would not expect officers of the legal department to interfere with the course of justice. What sort of criticism would it lay itself open to?


Senator McLeay - We do not want regulations to go through which would be a laughing-stock if taken to the High Court.


Senator BRENNAN - I have had greater acquaintance with the High Court than the honorable senator has had, and I have never seen any particular hilarity displayed in the consideration of regulations. The first thing members of the committee should remember - I am sure that the Chairman has not forgotten it - is that Parliament gave the regulation making power to the Executive. Unless that power were in the hands of the Executive, no regulations could be made. Therein, lies the first opportunity for honorable senators to interfere with the Executive's right to make regulations. The second means for doing this in the possession of honorable senators or of honorable members of another place, is the stipulation that new regulations shall be laid on the table within 30 days of the making thereof, or within 30 days of the next meeting of the Parliament, and within fifteen days of the tabling the House may by resolution disallow, during which period either House may by a simple resolution, disallow any or all regulations which have been tabled. A regulation immediately ceases to have any force if it is disallowed by resolution of either House. It will be seen, therefore, that both Houses have full control over the power under which regulations are made, and also control over the regulations themselves for fifteen sitting days after they have been tabled.


Senator Hardy - Does the Minister suggest that it is practicable for an honorable senator to scrutinize every regulation?


Senator BRENNAN - No, but I do suggest that honorable senators should scrutinize all regulations in which they have a particular interest. Ordinarily, Parliament is representative of different sets of interest, and generally speaking, each member of Parliament has some interest in which he is concerned and, as a rule, he does know what regulations are made affecting the interest which he represents. The action taken by Senator McLeay when he induced the Senate to disallow the dried fruits regulations last year is a good illustration of the point I am making. Nothing can be done about dried fruits without Senator McLeay knowing it. If a new regulation were made changing dried fruits into wet ones, he would immediately place it before the Minister concerned, and show him his signature, which he may have forgotten that he had put there. But Senator McLeay does not forget ! It is also important to remember that a regulation may be disallowed for any reason or for no reason. The Leader of the Senate (Senator Pearce) pointed that out by interjection. A regulation could be disallowed for no other reason than one of caprice.

A great deal has been said about retrospective legislation by means of regulations. Again, this is a subject on which I have spoken, and, at times, voted against the Government- when I was not a member of it, of course. My views on retrospective legislation have not changed, but in many special cases, it is necessary, so long as it does not interfere with the accrued rights of any person. In this respect, it is extremely unfortunate that the Senate saw fit last year to reject the dried fruits regulations, because nothing better than they could illustrate the need for power to regulate retrospectively. These regulations dealt, inter alia, with the salaries of employees of the Dried Fruits Board in London. The right of the Dried Fruits Board to pay certain of its employees in London had been questioned. These employees had been employed for several years, but it had not been considered necessary to prescribe their salaries. When the matterwas questioned by the Auditor-General, it was decided to remove any doubts by fixing their salaries by regulation - the regulation being ante-dated to the date when the employees first commenced duty. That they were entitled to be paid some salary was not disputed, and to remedy the situation the regulations which the Senate disallowed were made. Naturally, those regulations had to be retrospective in order to validate the past payment of salary to the officers concerned. Therefore. the regulations were made, not to inflict a wrong, but to redress a wrong, despite which the regulations were disallowed when they came before the Senate. Since then, there has been no power to pay these men the money to which they were entitled, and they cannot be so paid until an act is passed by this Parliament to provide for retrospective payments to them. Numberless matters of a similar nature arise frequently; they are matters of minor administration, and it wouldbe most awkward if the Executive were not in a position to correct errors or injustices by the simple process of regulations, which have to go through the gauntlet of this Senate.

I do not think that, on any previous occasion, has a report of the kind provided by theRegulations and Ordinances Committee ever come before this Senate and a motion has been moved for its adoption.


Senator Hardy - Because we have been weak in the past is no reason why we should not be strong now.


Senator BRENNAN - When the honorable senator mentions weakness he forgets what I have just told him, namely, that I was once chairman of this committee, and Senator Colebatch was chairman on another occasion, and that Senator Duncan-Hughes is now chairman. If the Senate adopts the recommendation of the committee that certain regulations are invalid, the standing of all regulations will be imperilled, and with great respect to the committee, whilst fully recognizing the most excellent and painstaking work that it has had to do on these regulations, I suggest that it has no right to ask the Senate to adopt its report. By doing so, we might easily place ourselves in a very false position, because, later on, as one branch of the legislature, we may have to deal with a bill which may be in conflict with certain paragraphs of the report.


Senator Abbott - The report is merely an expression of opinion.


Senator BRENNAN - I accept the modification suggested by the honorable senator, and, to that extent, what I have said may be weakened, but if honorable senators look at the position, they must see that the whole of the individual members of this Senate and the Senate itself as a legislative body, would be placed in a false position if they adopted a report containing expressions of opinion which they themselves have no means of checking.


Senator Hardy - What would be the attitude of the honorable senator in dealing with the report of a select committee on a certain subject? Would he still say that this Senate should not adopt it?


Senator BRENNAN - I should look at the Standing Orders dealing with the appointment of the select committee and at the purpose for which it was appointed, and if the committee were appointed to decide some question of fact, I would accept the findings. But if honorable senators study the Standing Orders under which this committee is appointed, they will see that no such decision on a question of fact has arisen. Honorable senators would frankly admit that they have bad no opportunity to test what the committee reports, and if they adopted the report, I emphasize, they would place themselves in a false position. However, the Government recognizes the very excellent work that the committee has done. It is due to the efforts of the Regulations and Ordinances Committee that regulations issued are now subjected to a much closer scrutiny from the heads of the Attorney-General's Department than they formerly received. Moreover, it is intended to amend the Acts Interpretation Act, and some of the clauses of the amending bill will have to be considered in connexion with the plight of the dried fruits employees in London. We, therefore, do not ask the Senate to reject the motion moved by Senator Duncan-Hughes. We feel that such action might indicate that the Government is ungrateful and ungracious and does not realize the importance of the work it has done. That would be a false impression, to avoid which I move -

That the word " adoptedbe left out, with a view to insert in lieu thereof the word " received".

If the amendment were carried no offence

Could be taken by the committee. It would have commendation for the good work it has done, and the danger of this Senate being placed in a false position would be removed. I commend to honorable senators the amendment which I have just moved.







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