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Thursday, 14 May 1936


Senator DUNCAN-HUGHES (South Australia) . - in reply - The remarks of the Acting Attorney-General (Senator Brennan) to-night reminded me of several things. The first was that in giving evidence in the proceedings of the select committee, which led to the formation of the Regulation and Ordinances Committee, Sir John Peden, the present President of the Legislative Council of New South Wales, said -

I remember one barrister saying of an extraordinarily good under-secretary that his idea of an act of Parliament was that it should consist of two sections: (1) the title: and (2) provision that the department might make regulations to give effect to the purpose of the act.

Again, I do not see that any action would be forced upon the Government by the " adoption " of the report which has been submitted by the Regulations and Ordinances Committee. Some twelve years ago when a member of the other branch of the legislature, I submitted a private motion, and it was carried unanimously. It was passed on the voices without any speech being made in opposition to it, but as far as Australian legislation is concerned nothing has yet come of that motion, although I believe that a bill is to be introduced this session which is likely to be the first step taken as th result of it. It, therefore, is possible that, even if the present motion were agreed to in its original form, the Government would not be in a much worse position. The Regulations and Ordinances Committee is required to make occasional reports to the Senate. It is but a creature of the Senate, and it exists to safeguard the interests of the Senate, of the Parliament, and of the man in the street. Nothing could be more incorrect, if I may say so, than the remark of my commonsense friend, Senator Arkins, when he suggested that the committee was attempting to usurp powers belonging to the Senate and the justices of the High Court. It has done no such thing. It makes no claim to have legal acumen comparable with that of the justices of the High Court.


Senator Sir George Pearce - In paragraph 5 of the report it. does.


Senator DUNCAN-HUGHES - No. On that paragraph the Leader of the Senate (Senator Pearce) seems to base the whole of his opposition to the committee's attitude. I think he said that the inclusion of paragraphs 3 to 7 was entirely improper, but his objection is now boiled down to one paragraph. The committee makes no claim to the right to override the rights of the Senate. It exists at the nomination of the Senate, for the purpose of giving its opinion as to the effect of regulations and ordinances which come before it. In its conclusions it may be wrong, or it may be right, but it is appointed at the behest of the Senate, which can reject its reports or eject the members of the committee at any time if it so desires. I should say that some members of the committee would not be heartbroken if they were ejected. No member of the committee wishes to force its opinions upon a reluctant Senate. We merely say what we think of regulations which we have examined, but which other members of the -Senate have not.


Senator Sir George Pearce - But the motion invites the Senate to endorse the opinions expressed in the report.


Senator DUNCAN-HUGHES - Yes. If the right honorable gentleman is returning to that point, I still maintain that the adoption of the report would be perfectly in order. I shall refer to the amendment later, but I do not wish to depart from the original motion.

The select committee took much evidence from legal lights in various parts of the Commonwealth. Sir Daniel Levy, Speaker of the Legislative Assembly of New South Wales, said the committee would have to consider whether or not regulations were ultra vires of the act. That, of course, is a quasi-legal matter. It was realized before this committee came into existence that it could not consider regulations and ordinances without acting in a quasilegal manner; but that did not involve setting itself up as a body to overrule the High Court. It involved what might be called concurrent jurisdiction. That aspect of the matter is dealt with extremely well by the select committee in the following: -

1.   Witnesses referred to the difficulties likely to be experienced by persons seeking the judgment of the High Court on the validity of regulations. Your committee was impressed by the probable usefulness of affording such persons an opportunity of submitting their criticisms of regulations to a standing committee, a submission which from the point of view of persons affected would be both more timely, and obviously cheaper than attacking the regulations in court. Some notable examples of decisions of the High Court declaring regulations to be ultra vires of acts may be quoted.

It is clear, therefore, that it was never intended that we should set up our opinion, against that of the High Court. Nor was it meant that any regulation should be kept from the purview of the High Court. It was always understood that the court could pronounce upon any regulation that was brought before it, but the select committee thought that, in the interest of the public, there should be an alternative and cheaper method, by which a committee of common-sense men would advise whether,, in their opinion, regulations complied! with the prescribed requirements.


Senator Arkins - If the Senate adopts the report it agrees, in effect, with thelegal opinion expressed therein.


Senator DUNCAN-HUGHES - Thecommittee does not give a legal ruling. It does not say that, if the cases went tothe High Court, that body would rule in each case against 'the regulations concerned.


Senator Sir George Pearce - But that is just what the report does say.


Senator DUNCAN-HUGHES - No. We say that " the committee considers ". We do not say that the regulations are void or voidable. To say that " the committee considers " is not to give a ruling; it is merely an expression of opinion, and the Senate is entitled to know what is our opinion.


Senator Brennan - But the committee asks the Senate to agree with it.


Senator DUNCAN-HUGHES - We ask that the report be adopted.


Senator Foll - Would that not be tantamount to adopting an opinion of the committee?


Senator DUNCAN-HUGHES - The report has been challenged on the ground that we are not lawyers; but we are not meant to be lawyers. As a matter of fact, however, the committee includes the whole of the legal talent available in the Senate, except that of Ministers who could not act as members of the committee. It has also been stated that we were wrong in some instances, but I draw attention to the fact that, in only three out of fourteen cases, does the Government make any reply. Senator Pearce has said that there are other cases in the list which are not affected by the High Court's decision, but he does not specify them. He also stated -

It is true, however, that the principles of the decision are applicable to some of the statutory rules in the list, and that there are also other statutory rules, made over a long period of years, which might be affected by those principles.

He admits that, in some of the cases under review we were right, and also admits that there were other cases in past years in which we were right also. That is surely evidence of the essential soundness of our report. Again I ask, if we are wrong, why is the Government bringing in a bill to amend the Acts Interpretation Act, which has stood since 1904?


Senator Sir George Pearce - Our criticism is not directed to whether the committee was right or wrong. We say that these are legal questions, upon which neither the committee nor the Senate should be asked to express an opinion.


Senator DUNCAN-HUGHES - If the Government thinks that we are ill equipped legally for our work, why does it not take steps to ensure that proper legal advice is available to us? If that were done, it would take a great deal of work off our shoulders.


Senator Sir George Pearce - If the committee will make that recommendation, I am prepared to agree to it.


Senator DUNCAN-HUGHES - I have personally not practised law since the first years of the war, and my law is very rusty. I would not presume to set myself up against the justices of the High Court. It is proposed that the amending bill will contain a provision validating all the flaws and errors of the past. That is sound, and I agree with the principle, but it is an admission that there were flaws and errors in the past. It is also proposed to give wider powers to the Executive than it enjoys at present. I do not propose to go into that now, because, when the bill is before us, we can discuss whether or not the Executive should enjoy those wider powers. 1 contend that, in the main, the report of the committee has been fully justified. The committee has no desire to thrust its opinion on the Senate or on the Government. It desires to co-operate in every way with the Government in the passing of more satisfactory laws. I think that the second suggestion of the Acting Attorney-General is quite a good one. While I believe that, hadwe gone ahead with the original motion, a considerable number of senators would have been found to support us, the amendment is a compromise which can be honorably accepted by all sections, and I am personally agreeable to its being accepted in its present form. I add that we hold ourselves completely free to deal with the amending bill when it comes before the Senate.

Amendment agreed to.

Motion, as amended, agreed to.







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