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Thursday, 14 May 1936


Senator ARKINS (New South Wales) . - I agree with the Acting Attorney-General (Senator Brennan). Indeed, one of the first votes which I recorded in this chamber was against the growing practice of government by regulation. As such regulations were of a retrospective character, I recorded, by my vote, my opposition to this tendency in modern government ; but, while praising the work of the members of the Regulations and Ordinances Committee, I suggest that they have arrogated to themselves another form of authority; they are setting themselves up as a high judicial authority, and constituting them selves, as it were, a second high court of the Commonwealth, passing opinion on various laws. The committee includes, so it is said, three lawyers, one of whom apparently admits that he is only a bush lawyer; the other two, I admit, are fully qualified barristers.

Judging by the eulogies uttered this evening, the members of the standing committee are men of the highest possible qualifications, who have made a wholehearted study of the subject of government by regulation. They have devoted hours of time and thought to that matter. I grant that they have rendered very valuable service. I agree that the growth of government by regulation is undesirable; but it is not for the committee 'to take a whole set of regulations now in existence, and point out to the community that, if their validity were contested in the High Court, they would be held to be null and void. It would be of some advantage, however, if the committee could show a way in which each member of the Senate could be given due notice of the intention to table regulations, with a view to having them withdrawn if they are regarded as wrong in principle. I do not claim to be qualified to express an opinion on all matters of this kind, nor am I prepared to accept the judgment of seven members of this Senate, two of whom are barristers. After all, the regulations are drafted by the high legal authorities in the AttorneyGeneral's Department whose qualifications to judge the form and validity of regulations are possibly higher than those of the committee. The Acting AttorneyGeneral has made a most generous gesture by moving, as an amendment, that the report of the committee shall be received and passed on to the Government for its consideration. To ask more would be unwise.

Even the two barristers on the committee will agree, I should think, that, although I am a layman, I have shown good judgment in saying that it is not for them to set themselves up as legal authorities. Members of the committee have the right to express their opinions, but not to set themselves up as a body that has powers greater than those of the Senate. The committee, in my opinion, has shown a lack of good judgment, whereas the Acting Attorney-General, who has a keen legal sense, has displayed a great deal of commonsense and fine courtesy. Senator J. V. MacDonald remarked that to " receive " a report was to take no action upon it; but that is, at least, a pleasant way of dealing with it. The Acting Attorney-General has put salve on the wound, because he desires that the report should be not only " received,-"' but also " commended to the Government for its consideration ". I support hi.3 amendment. At the same time, I object to government by regulation and desire to prevent the growth of the practice.


Senator Abbott - The honorable senator who has just resumed his seat accused me of being a barrister. I plead not guilty to the charge, particularly as I heard Senator Brown remark yesterday that he knew barristers who were congenital idiots.







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