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Thursday, 17 September 1936


Senator McLEAY (South Australia) . - I propose to deal mainly with what is, perhaps, the most offensive clause in this bill. Listening to the. speech of the Minister who introduced it, I was reminded of the lines in Macbeth - bear welcome in your eye,

Your hand, your tongue; look like the innocent flower, .

Buthe the serpent under it.

The brilliant speech of Senator Pearce caused the Leader of the- Opposition (Senator Collings) to forget that he had already spoken to this bill. Although the practice of government by regulation has come in for severe criticism by many distinguished judges and legal authorities, both in Australia and in Great Britain, there is a consensus of opinion that in these modern days power to make regulations is necessary. All authorities, however, stress the duty of parliament to guard against the abuse of that power. When we reflect that last year 136 statutory rules were made, two of which contained 500 regulations, and that 142 acts of Parliament authorize the making of regulations, we can readily believe that about 10,000 regulations are in force. I am concerned that clause 12 proposes to validate retrospectively certain regulations which have been held to be invalid. Retrospective legislation is . not only undesirable, but in many cases is also, offensive;, . retrospective regulations are even worse'. If the Senate considers the proposed, mew. section 48 in clause 11,., it will find that it deals mainly with retrospective regulations, and. lays. down, a definite principle tobe a guide to bureaucracy in the future. If the Go vernment accepts a principle for guidance in the future why. . should . not that principle . apply . to the past also ? By proposed new section 48. (2) the- Government . provides that no regulation shall operate retrospectively to the prejudice of the accrued rights of . any individual. But in one clean sweep clause 12 makes valid retrospective regulations made before this bill was introduced and declared invalid. If this bill becomes law any man who has accrued rights to-day will be debarred from the enjoyment of those rights.I think ' that this is offensive to every principle of British justice. Clause 12 contains this striking proviso -

Provided that nothing in this section shall affect the operation of any judgment, order or ' conviction obtained or madebef ore the. commencement of this act.

If a man has obtained a judgment in his favour he is protected, but if a man has a right and has not commenced action, he will be deprived of his rights. The Senate should pay serious attention to that sweeping change. The reason for this drastic- change. is the decision by the High Court in the broadcasting case. The Postmaster-General's Department introduced regulations reducing the amounts to be paid to certain broadcast' ing companies. The regulations were promulgated in August, 1928, and not being satisfied to have the reduced rates operate from the day the regulation was made, the department made them retrospective for about nine months. The High Court decided that there was no power under the act to make those regulations retrospective, but this bill validates them. That was never the intention of the Parliament. If the case had not gone against the Postmaster-General's Department, the broadcasting companies would have lost £5,000. Judgment was given against the Commonwealth with costs. Retrospective regulations are reasonable if they confer a benefit, but they are unreasonable if they prejudicially affect the accrued rights . of : anybody. . There are eases in which regulations making, powers have. been abused, . and this bill,, if passed, will place in the hands-, of. the: bureaucracy a very deadly weapon,


Senator Collings - What does the honorable senator' mean by "bureaucracy " ?







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