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Thursday, 17 September 1936

Senator DUNCAN-HUGHES (SOUTH AUSTRALIA) - Surely it should not be necessary for me to remind the honorable gentleman that every statute law which has been issued from this Parliament is the result of close scrutiny by some person or persons possessing legal knowledge!

Senator Collings - Perhaps that explains why so much of our statute law is ambiguous.- 1

Senator DUNCAN-HUGHES - The honorable gentleman will,I know, admit that it is not easy for a : draftsman suddenly to put into precise legal phraseology, say, my whirling thoughts on a particular subject. First of all, he has to get the sense of them, if they contain any, and then clothe it in the most appropriate legal language.

The South Australian committee, which examined the bill brought in by the then Attorney-General, Mr. Homburg, recommended that, in drafting regulations to supplement legislation, there shouldbe1consultation with the sections of the -business community that would' be most vitally interested.

Senator Collings - Of course! There is altogether too much interference by sections of the business community with the responsibilities of. Parliament.

Senator DUNCAN-HUGHES - On that particular point, I am in general agreement with the honorable gentleman. I think . that what he says is probably true. There is a tendency to consult, perhaps too closely, sections of the business community as to what legislation should be passed; but my view is that when a law has been . passed, and regulations under it are . being framed, it is better to consult the people most concerned in order to have workable rules, than to- produce what might prove to be unworkable regulations which have- to be altered later. I- see no harm in that recommendation because the Executive -is not bound to adopt the suggestions of industry. My view is that if there is an act under which an industry has to . operate, it surely would make for more satisfactory working of the law if such consultation took place.

Senator Arkins - Is it, suggested that the industry would advise as to the spirit and not the letter of the law? . .

Senator DUNCAN-HUGHES - I do not think so, because the spirit of the law would be embodied in the act, so it would appear to me that the industry would advise as to the workability or otherwise of regulations to be made under it.

Senator Arkins -Would it not be better to allow the draftsman to determine the precise language to be employed in regulations?

Senator DUNCAN-HUGHES - Possibly it would. But- before a draftsman could do that he would require to know what it was he had to put into words, in order to determine the form in which a regulation would, in his opinion, be most satisfactory. However, I do not wish to haggle over what is, after all, 'a question of verbiage. I should say that the language to be employed for regulations would be determined by the spirit of the law as laid clown in the act, and it seems, to me that those who have to work under a particular regulation- should be given an opportunity to advise as to what, in their view, would be the form it should take. It does not follow; as I have already said, that the. Executive would accept such advice.

Senator Arkins - There might be a tendency on the part of the persons consulted to advise in a direction which would suit them best.

Senator DUNCAN-HUGHES - No doubt they would-be influenced in their opinion by that consideration, but, as I have explained, their advice might not be followed. I still think that, in order to ensure' the enactment of regulations which would be workable, and as tolerable as possible, it is advisable to consult -the people who have to work under them.

The committee also recommended that there should be a joint committee of both Houses. Perhaps I should remind the Senate that this recommendation relates to South Australia. In this Parliament we have a committee of only one House - the Senate Committee. In South Australia a joint committee of both Houses is recommended to . be appointed to consider and advise with regard to regulations and rules.

The committee further recommended that the English Rules Publication Act 1893 should be followed. That act lays it down that, before any regulations can have the force of law, unless they deal with really urgent matters, they must be available for inspection for 40 days. This gives any one who is interested an opportunity to know what is intended to be done, and, if necessary, to lodge objection and suggestions. It might be argued that, in some cases, this would make for an intolerable delay; but, as I have stated, there is provision in the English act for the earlier promulgation of urgent regulations.

The final recommendation of the committee is that regulations may be disallowed at any time by resolution of both Houses of Parliament. I find myself in general agreement with this recommendation. Is there any reason why the right of this Parliament to object to regulations should be limited to fifteen sitting days? There is an alternative suggestion that power should be given for one House to disallow a regulation at any time, provided that an absolute majority of the members voted in the- affirmative.

Senator Arkins -Would not that provision make for instability of regulations?

Senator DUNCAN-HUGHES - It would not make for any greater instability than exists at present.

Senator Grant - Even an act of Parliament may be amended at any time.

Senator DUNCAN-HUGHES - That is so. I point out, also, that any regulation may be reversed by the High Court., or cancelled at any time by the Executive.

Senator Arkins - But the course which the honorable senator suggests would involve the procedure necessary for the repeal of statute law.

Senator DUNCAN-HUGHES - No ; the Executive of course has authority to annul any regulation, just as the Senate disallowed some regulations a few months ago.

The reason for the recommendation that both Houses, should be vested with authorityto disallow regulations after the expiration of fifteen days is, I. think, plain. Very often, as honorable senators know, the full effect of a regulation is not apparent to the people working under it, until some considerable time after it has been promulgated. This being so, why should the right of Parliament to disallow a regulation be limited to any fixed period ?

The South Australian committee also made some further comments which I should like to read to the Senate because they bear on a point which the Leader of the Senate has emphasized on two occasions when suggesting that the Regulations and Ordinances Committee was really interfering with work which ought to be done by the High Court; that, in short, it was assuming judicial functions. I have always maintained that it was doing nothing of the sort. The South Australian committee said, among other things, and I would like honorable senators to listen carefully -

It is essentially the duty of Parliament to scrutinize regulations and to disallow any which are harsh or unnecessary.

And again -

A regulation which may be harsh in its incidence may still' be valid in law, and Parliament has the right to consider whether such regulation gives effect to its true legislative intent. The courts are confined to the question of legality of regulations.

It would seem, therefore, that there is definite intention that a.part from the question of legality, Parliament should have the power to annul a regulation which appears to be harsh or unconscionable. I do not know if honorable senators have studied the bill, but I direct, attention to proposed new section 48 (2).

It reads-

Regulations -shall not be expressed to take effect from a date before the date of notification in any case where, if the regulations so took effect -

(a)   the rights of a person (other than the Commonwealth or an authority of the Commonwealth) existing at the date of notification, would be affected in a. manner prejudicial to that person. "What constitutes " the Commonwealth or an authority of the Commonwealth"? Suppose the issue is the validity of payments which ought to have been made at some earlier period, but which were not made. Surely while that affects the Commonwealth which has to make the payments, it also affects the taxpayer who has to provide the money for the payments. Every retrospective payment to Commonwealth employees obviously has to be made good not by the Government but in the end by the taxpayer. I find it difficult to see how the rights of a person, other than the Commonwealth, or authority of the Commonwealth, would include the rights of the taxpayer. I should, say that every taxpayer's rights would be affected by any retrospective payments under the provision which I have read.

Senator COLLINGS - Rights of taxpayers are affected by every payment, retrospective or otherwise.

Senator DUNCAN-HUGHES - Very likely the honorable senator is right; but we are dealing with retrospective provisions of the law.

SenatorCOLLINGS. - The logic of the honorable senator's argument is that every regulation should be endorsed by the taxpayers.

Senator DUNCAN-HUGHES - No. That would be impossible. If I agreed with the honorable senator it might be better to start at the beginning and ask - Is it necessary for any regulations to be made under any act?

I have here a summary of the evidence given by Mr. H. Mayo, K.C, before the South Australian committee. Referring to the rights of the taxpayer, he said -

Any person willbe entitled to impugn the validity ofa regulation, whether he willbe affected thereby by virtue of his being a. member of the public or belonging to a particular class or body, or otherwise, and it will not be necessary that he be already or be about to be so affected.

If such a person thinks that a regulation will be detrimental to his interests, he would, according to Mr. Mayo's suggestion, have the right to object to it becoming operative.

It is not. easy to amend legislation which has been in operation for many years, because the people have become accustomed to the law. On this point, Mr. Ligertwood said -

The trouble with this kind of legislation-

He is speaking of taxation laws- is that it prevents the High Court from building up a consistent body of principles relating to taxation and increases enormously the difficulties of those who are called upon to advise the taxpayer. One sees a case reported in the Commonwealth LawReports and, after careful perusal, one masters its principle and feels that it can be looked to as a beacon for future guidance. But, within a few months, the legislative guns are brought into action, the beacon is smashed to atoms, and the taxpayer is left once again to the dangers of uncharted seas.

It seems extremely unwise and unnecessary to amend an act which has been in operation for 32 years.

Senatorcollings. - But conditions have altered during the last 32 years?

Sena tor DUNCA N-HUGHES.- Probably. There should not be any amendments to change the original provision, and if there are, we ought to be told why a change is necessary. There is no necessity to amend the law in this respect, and I contend that sub-section 2 of proposed new section 48 should be omitted. Moreover, the bill should provide a penalty for cases which sometimes occur. The tabling of regulations within fifteen sitting days is covered by sub-section 1 of proposed new section 48. If this proposed new section is to remain in the bill, I shall move an amendment to provide that if regulations are not tabled within fifteen sitting days after they are made, they shall be invalid. There have been instances - they are referred to in one of the reports of the Regulations and Ordinances Committee - where that omission has occurred, but there is no penalty. It is even uncertain if the failure to table regulations within the specified time does or does not invalidate them.

Senator Arkins - The word " shall " is used.

Sen ator DUNCAN-HUGHES. - Yes, but the law makes no provision for penalty in cases in which regulations arc. not tabled within fifteen days. The law should provide that, if that condition be not complied with, such regulations shall not be regulations within the meaning of the act. A certificate should be issued by the SolicitorGeneral, the Parliamentary Draftsman, or some responsible legal officer, stating that every regulation promulgated is legally drafted and is not ultra vires. We should also incorporate in the bill the suggestion that one House of Parliament, by an absolute majority, should nave power to exercise its prerogative of disallowing regulations, not only within fifteen sitting days, but at any time it feels disposed to do so. There is no reason why the period should be limited to fifteen sitting days. On the other hand, if a longer period were allowed, inconvenience might be caused to those engaged in business, should a regulation be disallowed after it had been operative for some time.

Senator Payne - Has not Parliament the right to move for the repeal of any regulation?

Senator DUNCAN-HUGHES - I think not. Our only power is to disallow a regulation within fifteen sitting days after it has been tabled. I propose to test the feeling of the Senate on the question of allowing an absolute majority of either House to disallow a regulation at any time after it has been passed. I understand also that Senator McLeay proposes to move an amendment to clause 12 which relates to the validation of past mistakes in the framing of regulations. Sub-section 2 of proposed new section 48 provides in effect that retrospective regulations are mot in future to affect prejudicially the rights of any persons, or impose any liabilities upon him. Apparently Senator McLeay is right in saying that no provision has been made in the respect of regulations framed in the past. If a regulation which is ultra vires is validated, the person concerned will be debarred from getting redress by bringing '-rtn action in the . High ' Court. It validates everything that has been done except in the case of a man who has had a judgment. With Senator McLeay I think that it should be made clear that any person who possessed rights under' past legislation should not be prejudiced by the validation of regulations, and particularly those which have not been specified. Numerous regulations are to be affected by this provision, and it is highly important that the rights of individuals should not be prejudiced.

Senator Arkins - The Government will not know when such persons would learn that their rights had been prejudiced.

Senator DUNCAN-HUGHES - If they did not act it would be assumed that they had no such rights or.- that they were unaware of- the: rights' ,they possessed. >

Senator Brennan - Should the Statute of Limitations apply ? Would the honorable senator apply that limitation?

Senator DUNCAN-HUGHES - I do not see why it should apply. If a person has accrued rights they should not be taken away from him by a drag'-net provision.

Senator Collings - Should 'not the Government be supreme in these matters ?

Senator DUNCAN-HUGHES - That is why the law is being amended. The Executive represents Parliament, and exists at the behest of the majority of members in the House of Representatives. The Government has the right to perform executive- acts. It is our' duty to see' that its actions are in accordance with . the Law, and that regulations made under the law are valid. I am not attacking the Executive. The present Executive is quite as good as many we have had in the past, .and possibly is better than some we may have in the future. We should provide that Parliament, and not the Executive, however, satisfactory it may be, should possess the power. The Regulations and Ordinances Committee was appointed to ensure that Parliament retained its power, and it has .performed its work with a minimum of- attacks upon the Government. The .main object of appointing the' committee was- to have a body to advise the Senate, and to direct the attention to those occasions on which regulations which are unjustified, and in some cases illegal, have been promulgated. The Leader of the Opposition -'(Senator Collings) has said on different occasions that we are sent here to do our job. Scrutinizing the regulations is a part of the committee's responsibility. It has to see that the rights of the Parliament are retained. It exists only at the behest of the Senate, and any of its members can be removed at any moment. I do not think that any member of the committee would have any profound regret -if "he were removed, because a great deal of detailed work is involved. The committee is simply doing what it believes to be right in the interests of the people. If the Senate agrees to the course of action proposed the Committee's powers will bo strictly limited. In effect it means, as the Leader of the Opposition seems to think that it should, that the Executive will have full power to do what it likes. I do not think that this or subsequent governments should have that power.

Senator Arkins - Certain powers must be exercised by the Executive. Is there not a middle course?

Senator Grant - The Government has too much power.

Senator DUNCAN-HUGHES - I do not agree that a middle course is at all certain to be the right one to follow.

Senator Collings - It is usually the most vicious.

Senator DUNCAN-HUGHES - There is a good deal to be said in support of that contention.

Senator Arkins - It may mean keeping on the straight road.

Senator DUNCAN-HUGHES - The honorable senator is in favour of travelling mid-way between two clearly defined tracks - slipping one way and then another.

Senator Arkins - The honorable senator wishes to go from one extreme to the other.

Senator DUNCAN-HUGHES - Not at all. The proposed amendments of the law which I have mentioned are not justified, and . when the measure is in committee, I hope that the Leader of the Opposition will support some of the amendments I propose to move. No genuine attempt has been made to show that the alterations which the bill proposes are justified. The main purpose of the measure is to validate past errors, and it has been suggested that these errors are. either few in number or that there are none at all. If the law is amended in the manner proposed it will be easier for the Executive to act without the support of Parliament than it has been in the past. I do not approve of some of these provisions, but insofar as the bill will effect a very desirable codification of the existing laws, I shall certainly vote for the. second reading, leaving the suggested alterations tobe discussed in committee.

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