Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Thursday, 17 September 1936


Senator DUNCAN-HUGHES (South Australia) '. - This bill arises out of certain action taken by the Regulations and Ordinances Committee with regard to regulations which the members of that committee believed to the ultra vires.


Senator Brennan - That is scarcely accurate. Some of the provisions of this till have been required for a long time.


Senator DUNCAN-HUGHES - The Minister will not deny that the reason for the introduction of the bill was that it was found that some regulations which had been gazetted were ultra vires. In reading, through themeasure I find that, although . it appears to make . a great many changes,, they amount, ; in fact, to very little. Although the bill contains twelve. clauses,, . the great majority of them effect cither.no change or only very small changes.

One of the main objects of the bill is to consolidate existing laws. I welcome the fact that this bill willconsolidate the twomain acts' which govern the interpretation of statutes - one of which commenced to operate in 1901, and the other, in1904. ' To that extent,' I am cordially infavour of.the bill,but that' is not its main object and:isnot the reason' for its introduction. AsIhave said, the reason is rather because of the action taken by members of the Regulation's and Ordinances Committee and the debate which followed the presentation of their report. The changes which it makes will be' f ound chiefly in clause 11, which inserts'new sections 41 to 50, and in clause 12. The Minister stated that retrospective regulations were usually for' the purpose of conferring benefits, He also said that action is being taken to see that everything will be in order in the future. If everything is to be in order in the future, what is the need to alter the law of the past? I confess that I can see no reason for it. If instructions have been issued to the various departments to take care' that in the future regulations whichare issued are not ultra vires, what is the need to also change the law? The Minister also said that it was essential that power to enact retrospective legislation should vest in the Execu- ' tive; but he gave no reasons in support of that contention.


Senator Collings - The reasons are so obvious.


Senator DUNCAN-HUGHES - They are not obvious to me. I repeat that if there are definite reasons why the law should be altered, they should be set out. "What are the reasons which make it essential that after a law has been in operation for 32 years, and has apparently worked very well, it should now be altered? My belief is that the reason for proposing to alter the law is that the contentions advanced by the Regulations and Ordinances Committee in its third report made this action clearly essential on account of past errors. Although the Government did not in so many words admit that any errors had been committed, the really effective part of the bill is that which provides for the correction of errors that have been made. Undoubtedly, mistakes have' been made ; and they have been sufficient in number and importance to make validation necessary. It seems to me most undesirable i.hat Parliament should validate all the mistakes in the regulations which have I een made during the last 30 years, without, it may be, first knowing the extent of the authorization. Why have we not a list of the mistakes which have been made and. of the regulations that have been made, ultra vires the act? During those 30 years thousands of regulations have been made, and it may be that hundreds of them have contained mistakes. Surely, before asking for a sweeping power of validation of all past regulations, the Senate should be told what regulations are now to be placed on a valid basis by this new legislation. If the mistakes be few in number, they can the more easily be set out.

It is unnecessary for me to go over the whole case dealing with regulations. I admit that in these days it appears to be inevitable' that there shall be more government by regulation than formerly. Instead of relying, in the main, on general principles, as formerly, and allowing the courts to interpret the legislation we pass, we now try to provide for every possible contingency, with the result that not only our laws, but also the regulations made under them, are incomprehensible to the man in the street. I challenge any honorable senator to contradict the statement that there is not one man in Australia who knows the laws under which he lives. He would have to know in detail both "Federal and State laws, and the regulations under them, as well as the regulations passed by local-governing bodies. But, whilst it may be true that regulations are increasing, and will increase, that surely does not mean that Parliament, or the Senate, should slacken in considering and, . if necessary, disallowing them. The very fact that regulations are on the

Senat or Dcan- 17 tighes.increase means, I suggest, that more attention should be paid to them, and that it should be easier, instead of more difficult than formerly, to disallow a regulation. I do not see any provision in the bill for the disallowance of part of a regulation. Where a part of a regulation is properly severable from the rest of it, that power should exist. It should not be necessary for the whole of a regulation to be disallowed as a condition of disallowance of a part of it.

I desire to refer again to the origin of the committee which was appointed to deal with regulations and ordinances. 1 do not propose to speak *at length on this aspect of the subject, but I wish to make one or two quotations. The select committee which considered the advisability of establishing a. committee of the Senate to review statutory rules and ordinances examined a number of witnesses, amongst whom was Mr. E. G. Menzies, the present Attorney-General of the Commonwealth. Mr. Menzies, on that occasion, said, inter alia -

My experience of a lower house suggests that members of that house will always concentrate their attention on the points of substance and are impatient about points of form. Probably that arises from the fact that legislationmaking in the lower house is almost always done just before Christmas, when members .have not the time to bother about questions of form. The upper house occupies a comparatively minor position in relation to matters of substance, and should therefore devote more attention to matters of form. . . I suggest that some small committee, composed of men with special qualifications, to subject bills to a critical examination, would bc extremely useful in any second chamber.

Whatever the theory may be, in practice we find that, while Parliament scrutinizes acts, it does not scrutinize regulations.

That seems to me to be an admirable and weighty criticism. Mr. Menzies proceeded -

Free criticism is not entirely possible in a house in which governments are made and unmade, but in a second chamber members should be free to express themselves as they think.


Senator Payne - They do.


Senator DUNCAN-HUGHES - That is frequently the cause of the trouble. Even when we admit that his evidence was given about six years ago, we can see in the remarks of Mr. Menzies a delicate compliment to the members of upper chambers. The further statement of Mr. Menzies supports another point of my argument -

Regulations are made by departments. That is all right when the details of administration are being provided for; but. if they go further, and introduce new ideas by way of regulation, the authority of Parliament is weakened.

Evidence was also given before the select committee by Mr. Blackburn, who is now the honorable member for Bourke in the House of Representatives. Mr. Blackburn said -

The Government is apt to treat as government policy matters that are not really of a party nature.

That is true -

There is a tendency for governments to consider that a measure which is noncontroversial in character is something for which the party claims credit, and to insist upon putting it through in its original form.

He was asked -

Do you consider that the proposals that we are investigating are worthy of a trial?

Yes, particularly as regards statutory rules and ordinances. At the worst, it, would be an instructive experiment, while it might possibly introduce a valuable change.

He added - and this is a little beside the question -

I remember asking a. very able member of our own House when he lost his seat, why he did not go into the Federal Parliament as his interests were considerable on international matters. He had been a Minister. He replied that there was no chance of inducing the Federal Parliament to give serious consideration to international questions.


Senator A J McLACHLAN (SOUTH AUSTRALIA) - We are remedying that.


Senator DUNCAN-HUGHES - Yes, but it is a little late. I pass very briefly again to a paper which was read by Mr. Ligertwood, K.C., of South Australia before the Australian Legal Convention last year. Some of this was quoted by Senator McLeay in a speech he made here some time ago, and I do not intend to repeat it. Mr. Ligertwood said - and it is perfectly true of regulations as every honorable senator whohas regard to the burden of regulations will know -

From day to day, it almost seems from hour to hour, a steady stream of regulations, orders and by-laws pours forth to overwhelm the citizen- and he knows that Government by regulation shows no signs of diminishing -

Government by regulation shows no sign of diminishing. In Australia it is definitely on the increase, subject of course, to what the Privy Council may say next year as to the meaning of section92, of the Constitution. It reached its extreme point in the regulations relating to the overseas marketing of dried fruity, the validity of which was recently upheld by the High Court.

That was written last year -

A person who acts justly and uprightly does not in general find himself in conflict with the rules of judge-made law, because those rules, although not perfect, arc nevertheless founded upon principles of justice and reason. It is the arbitrary nature of statutes and of statutory rules and regulations against which we revolt. However, just and upright our conduct, we are always in danger of offending against some obscure regulation or by-law.

I think I have said enough to show that the process of regulationshas increased, is further increasing, and should be diminished.


Senator Arkins - What will be the ultimate end of these regulations?


Senator DUNCAN-HUGHES - If the making of regulations continues at the present rate, so many regulations will be issued that no one will read any of them, and, therefore, no action will be taken except against offenders who are ignorant of the law, and we know that ignorance of the law is no excuse. The more you pour out statutes, the more you tend to create contempt for the general body of law. The people do not understand it; they feel that they are not receiving fair treatment, and ultimately nothing of the law is read except in special cases. I suppose that this will increase the work of experts- lawyers, taxation advisers, and the like - but the average man cannot possibly know the laws under which he lives.


Senator Arkins - It is a sort of unseen fascism. Men do as they are told and do not even try to find out the reason .


Senator DUNCAN-HUGHES - Will the people do as they are told when they do not know what they are told ? Breaches of regulations will sooner or later tend, to be followed by breaches of the law. There cannot be a shadow of doubt that many of the regulations are ultra vires. I do not wish to emphasize that thisGovernment has been more responsible than other governments for this, but that there have been some regulations of which a number is not within the four corners of the law is perfectly clear. The Senate has expressed that view by disallowing one or two of them. If the Government or the Executive issues regulations which are ultra vires it is only a step from ignoring the law; indeed, cases of that sort have occurred. I do not over emphasize the difficulties which may arise, for instance, in regard toemactments in which section 92 of the Constitution is concerned, because if a written constitution exists it is arguable, from different sides as to what the powers are, and each' side tends to take the view which is favorable to itself. But it is an entirely different matter,' when, as in a recent tariff schedule, the Government brought in this schedule without referring it to the Tariff Board as under the law of the laud it was its duty to do. If, on the one hand, it is not its duty to . do that, or, on the other hand, the Government did do it. andgot a reply, we ought . to know the facts. In that respect we hardly think that it could be owing to inadvertence that the Government did not submit the schedule to the board. The Government departed from the law of the land, and I shall be extremely glad if the Minister will give -me an answer to that.

This matter of government by regulations has been concerning- many minds in other places than this Parliament. It has been occupying the minds of members ofthe South AustralianParliament. A year ago, the State Government appointed' an honorary committee to inquire into and report on the subject of subordinate legislation. It was, I should- say, a good committee. It included 'two legal members of Parliament, one from each House ; one of them has been Attorney-General : whilst still another -was formerly a partner of the Postmaster-General, and is now an acting judge of South Australia. The committee reported ' that it was highly desirable that the drafting should be correct, and that the regulations should not be ultra- vires. It recommended that certificates should be issued with regard to every regulation from the parliamentary draftsman, or some other responsible legal officer, that, in his opinion, it was correctly drafted and not ultra vires. It seems to me to be a very desirable thing to request that we should be assured that regulations are watertight, and that there are no oversights or lapses which a regulations committee or any individual' could pick out. Mr. Ligertwood, in his article, emphasized the importance of the parliamentary draf tsman. He said -

But thereare some . ways in which matters may be improved. The first is to emphasize the importance and status of the Parliamentary Draftsman. The form of our statute' law has vastly improved since the creation of this . office. . It would seem that the qualities which make a good parliamentary draftsman are the result largely of experience.

Senator Abbottwill agree with this:

Most important is a profound knowledge of statute law as it exists at present, and ofits practical working in the community. As a class, lawyers do not become familiar with . statute law. Most of them consult "it in patches as the exigencies of their practice require. " '


Senator Abbott - A man would have to be a genius to have complete knowledge of all legislation.


Senator DUNCAN-HUGHES - He would -

But the' Parliamentary Draftsman hits an unique opportunity of becoming acquainted with the whole body of our legislation. It must be a painful process, and it must take a long time. It ought to be adequately remunerated.

I endorse that statement.


Senator Arkins - It would take a lawyer a long time to understand every phase of. some acts of Parliament.' .


Senator DUNCAN-HUGHES - What Mr. Ligertwood says is true. When a solicitor is instructed concerning a particular matter, he gives his attention to that part of the law dealing with it. Seldom is it possible for him to study the act from beginning to end. He serves his client if" he scrutinizescarefully those provisions of the law which, have . a bearing upon his subject.







Suggest corrections