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Thursday, 17 September 1936


Senator BRENNAN (Victoria) (Assistant Minister) . - in reply - In the first place I would like to deal with the suggestion raised by Senator Duncan-Hughes that this measure owes its origin to some action taken by the Regulations and Ordinances Committee. That is incorrect. In my second-reading speech, I said that the four subjects covered by the bill were the incorporation of the provisions of the act of 1904 into the original act, the commencement date of acts of Parliament, the application of amendments of the Acts Interpretation Act itself, and the commencement date of regulations.


Senator Duncan-Hughes - The bill was brought forward suddenly as a result of the action of the Regulations and Ordinances Committee, and it was- then held back and re-drafted.


Senator BRENNAN - I do not know what action taken by the Regulations and Ordinances Committee is supposed to have prompted the Government to bring this measure forward.


Senator Duncan-Hughes - Motions were moved to disallow three regulations ; one motion was carried. There is also the third report of the committee.


Senator BRENNAN - There is nothing in this bill which touches the action of the Regulations and Ordinances Committee.


Senator McLeay -What about clause 12?


Senator BRENNAN - It is true that clause 12 may have some 'relation to the decision in the Broadcastng Commission's case, where a regulation was disallowed because of its retrospectivity. Provision is made in the bill to confer or retain a very limited power of retrospectivity in the making of regulations. There is also a provision dealing with the validation of regulations which, in effect, may be invalid by reason of a purely technical and quite inoffensive provision that the regulations shall not commence from a date prior to publication in the Gazette. I believe that Senator Duncan-Hughes, who commends the consolidation of the law, asked whyreasons were not given for the action which the Government is taking. The reasons were given, if not directly, certainly in effect. I pointed out that there were two main Acts Interpretation Acts; the act of 1901 and that of 1904. I think that I am correct in saying that each of these acts has been amended on four different occasions.

Since the enactment of the Amendments Incorporation Act in 1905 there has been a provision in the law that when an act is amended, then in any reprint the act shall be printed as amended. To an extent, therefore, an act is kept up to date. But the Amendments Incorporation Act applies only to the reprinting of acts which have been expressly amended. Now the act of 1904 does not in so many words amend the act of 1901, and, in consequence, a reprint of the 1901 act would not contain the provisions of the 1904 act. The result isthat on the important question of interpretation - Senator Duncan-Hughes, who is a lawyer, must realize that it is very important - two main acts, together with the acts amending them, may have to be perused in order to ascertain the law. In these circumstances, surely reasons or apologies for the action of the Government are not required. The recent decision in the broadcasting case necessitated a change of practice in a minor way in regard to the issue of 'regulations, but the time is ripe for a general codification or consolidation of the numerous acts dealing with the interpretation of statutes. No one will appreciate that more than those practising law.


Senator Duncan-Hughes - Reasons for the consolidation of the law are obvious; I referred more particularly to clauses 11 and 12.


Senator BRENNAN - They are essentially self-contained, and I shall deal with them in committee. Senator Duncan-Hughes then suggested that the period in which a regulation should be disallowed by either House of Parliament should not be limited to fifteen sitting days. The honorable senator does not need reminding that the fifteen days on which the Parliament sits, allow persons likely to be affected by a regulation a fairly long period in which to consider its effect. Surely it is unreasonable to suggest that at anytime either House of Parliament should have power to . disallow a regulation. Law-making is a matter for both branches of the legislature, and if either branch of the legislature could disallow a regulation at any time, there would be uncertainty as to the law. Whilst it might be right to suggest that the period should be longer than fifteen days, or to propose means by which a regulation could be brought to the notice of the Regulations and Ordinances Committee, it seems to me to be unreasonable to ask that there should be no limit to the time within which regulations may be disallowed by cither House of the Parliament.


Senator Duncan-Hughes - Would the Minister agree that, as the regulations flourish and spread, they should be pruned more severely?


Senator BRENNAN - I admit that anybody looking over the bound volumes of regulations is presented with a formidable body of very uninteresting literature, but I point out that a great deal of that literature has long since ceased to have effect-


Senator Grant - I think that the Minister, when a private senator, had something to say about the number and size of those volumes.


Senator BRENNAN - Like other lawyers, I have seen that the growth of regulations has gone on to extraordinary limits. When the discussion took place in the Senate on the disallowance of the dried fruits regulations, I pointed out that one of the effects of Government interference in business was that the regulation-making power was bound to be extended. I also emphasized that the business people themselves were responsible for Government interference in business; they desired that interference, and they still demand it to a greater and greater extent. As long as that state of affairs continues, we must have regulations and regulation-making power. Honorable senators know that frequently periods up to six months elapse during which neither House of the Parliament is sitting, and even if both Houses of the Parliament are in session it is not always possible to pass a bill as speedily as circumstances sometimes require. Senator Payne charged the Government with having ignored the Tariff Board. I know how deeply he feels in regard to the creation of the Tariff Board and the tendency which Parliament exhibits to ignore that body. The honorable senator has quoted from a document containing some observations which I, in the absence of the Attorney-General, made to the press. Apparently, he has been greatly shocked at some of the things which I said. But my observations with regard to the provisions for reference of matters to the Tariff Board are quite true. Although on their face the words of the section are mandatory, what I said at that, interview with the press, none the less remains true and accurate. Parliament may ignore one of its own acts.


Senator Payne - Where does Parliament derive that authority?

SenatorSir George Pearce. - It is an inherent authority.


Senator BRENNAN - That is so. Parliament may ignore an act of Parliament which it has passed or it may pass an act that is inconsistent with an earlier act. Senator Payne has referred to that as breaking the law. Let me remind the honorable senator that where there is a breach of the law there is a remedy for it. What remedy could be applied if Parliament or one House of Parliament for the time being ignored the relevant provision of the Tariff Board Act and allowed certain tariff proposals to be brought before it in contravention of that provision? Who could be prosecuted? At what court would the offence be triable? It would not be triable in any court and, therefore, it would not be a breach of the law in the ordinary sense in which we use that expression. I then said that Parliament could amend or repeal an act without doing so in express terms. I went on to give an illustration. Suppose that Parliament, ignoring that provision in the act which created the Tariff Board were to bring down a tariff schedule and pass it into law; the passage of the law would itself override the provision which required reference to the Tariff Board.


Senator Payne - That would not minimize the offence.


Senator BRENNAN - It is not an offence; it may be improper politically, but it is not an offence. Another point is that it was never intended that that provision should apply to revenue duties. Revenue duties were not referred to the Tariff Board at the time the Tariff Board Act was passed, or before it was passed, and have never been referred to it since. Suppose, for instance, the Minister for Trade and Customs referred to the Tariff Board the question as to whether the duty on spirits should be increased. What would happen to the stocks of spirit, in bond? There would not be much spirit left to tax by the time a bill was passed through both Houses of the Parliament, following an investigation by the Tariff Board, during which the full amount of the suggested increase of duty would be mentioned.


Senator Duncan-Hughes - There is nothing in the Tariff Board Act about revenue duties or high government policy.


Senator Sir GEORGE Pearce - Would the honorable senator refer revenue duties to the Tariff Board?


Senator Duncan-Hughes - It is not a matter of customs duties at all.


Senator BRENNAN - Reference is made to duties in the sub-section of the Tariff Board Act, which sets out that the Tariff Board is to ascertain what duties shall be imposed or whether existing duties shall be increased or decreased.

I am sorry that Senator Mcleay should have waxed so eloquent, and seemed so upset over the supposed dangers of what seems to me to be a very harmless and very necessary bill. The honorable senator spoke about the serpent under the rose, but he seems to bo looking under every bush for what was not intended by the framers of the bill.


Senator McLeay - The honorable senator will see the poison and sting in the clause to which I referred.


Senator BRENNAN - I cannot understand the honorable senator's objection to it. Upon the remarks of the Leader of the Senate certain constructions were placed by Senators Leckie and Grant which did the right honorable gentleman far less than justice, and, indeed, misrepresented the view which he put to the Senate. Senator Leckie said that, in the view of the Leader of the Government, if the amount involved was large the regulation should be validated, but if the amount was small it could bc allowed to go. Nothing which the righthonorable gentleman said bears the slightest resemblance to that. The right honorable senator said, in effect, that a regulation is passed; everyone knows its intention; the Government expressed its intention and proclaimed it to the world. It is promulgated by gazettal and is in existence possibly for months. Nobody has ever thought that it means anything other than the interpretation which the Government placed upon it. Duties were collected under it. Then some person looking at the words queries their meaning and tests the matter in the court, not contesting its intention or its purpose, but only the words in which it is framed, and which were intended to carry out that intention. The High Court or the ultimate tribunal upholds the appeal of the taxpayer and confirms his view that the regulation does not- mean what everybody up to that particular time thought it actually did mean. The point that the right honorable senator made was that there wa.3 nothing wrong in amending the law to make its language carry out the intention of Parliament. Senators Abbott, Grant and Leckie seem to think that there is something immoral in the Government rectifying some line, some letter, or some mark of punctuation in the regulation.


Senator Abbott - I made no such suggestion. I replied to what was said about the legality.


Senator BRENNAN - The honorable senator said that in nine cases out of ten the disallowance of regulations was because they were ultra vires the act. I do not agree that anything like that proportion of -regulations is disallowed on the ground that they are ultra vires. On the contrary regulations are disallowed mainly because inapt or inappropriate language was used to give effect to them.


Senator ALLAN MACDONALD (WESTERN AUSTRALIA) asked whether there was anything in this bill calculated to curb the activities of the Regulations and Ordinances Committee. With the utmost emphasis at my command, I say that there is no ground whatever for suspicion that there is any desire to do so.


Senator Duncan-Hughes - The bill must have that effect.


Senator BRENNAN - On the contrary, the bill will add to the work of the committee. As a previous chairman of the committee, I know the useful work that it performs. I know, too, how hard and thankless is the task of its members, and the extent to which their meal hours and times for recreation are interfered with by' the work of the commi ttee. There is not a member of the Government who does not appreciate what the committee has done, -and'- does not entertain, the hope that it will continue to performsimilar work in 'the future-. Nothing in this bill is1 designed to hamper the operations of the committee. Its- work is' growing, and probably the time will come- when it will be necessary to place a check upon the making of regulations; in the meantime I can Only -say that there is no desire to- reflect on the committee or to curb its activities.

Question resolved in the affirmative.

Bill read a second- time.

In committee :

Clauses 1 to 4 agreed to.

Motion (by Senator Brennan) agreed to -

That the following new clause be inserted: - 4a - Section 2a of the principal act is repealed.

Clause 5 agreed to.

Clause 6 verbally amended, and, as amended, agreed to.

Clauses 7 and 8 agreed to.

Clause 9 (Judicial definitions).







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