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Thursday, 17 September 1936

Senator DUNCAN-HUGHES (South Australia) .- : I move -

That in proposed, new section 48, sub-section (1), the following new' paragraph be inserted:' - -' - ... (aa) shall be'dertified to by the Solicitor- General 'or some duly qualified legal practitioner in the Attorney-General's Department as being, in his opinion correctly drafted and not ultra vires.

The reason for my moving this amendment is first, that I understand that sometimes regulations are made- and put into operation without having been first, perused by any legal practitioner.

Senator BRENNAN (VICTORIA) - I do not think that is so.

Senator DUNCAN-HUGHES - Well, that is the information which has been given to the Regulations and Ordinances Committee. That ought not to be. Every regulation, equally with every bill that is introduced, should be, if I may use the term, " vetted " by a legal practitioner. This is a point which was emphasized by the South Australian committee which said -

The next point for consideration is the method of preparation for subordinate legislation. It is obviously of importance that the methods of drafting should be uniform, and that the same care and skill should be exercised in framing regulations as is employed in the drafting of parliamentary bills.

They may be just as drastic and just as effective as bills which we -pass; indeed, in some instances, they may be of far greater importance. In some cases we delegate far greater powers to the Executive or to the department than we use. ourselves.- The committee's report continued -

A uniform enacting provision should be adopted, care should be given to the arrangement of regulations, offences and sanctions for breaches of the regulations should be more clearly stated than in the past, amendments to regulations should be bo framed that the amendments are capable of being conveniently incorporated with, the principal regulations upon a reprint thereof, and generally the principles upon which modern legislation is drafted should he followed. In the case of regulations made by the Governor" or a Minister of the Crown, these safeguards arc usually secured, as- the regulations in such cases are framed by tile Crown law officers. Regulations made by authorities other than the Governor or a Minister, ase, in. the main, required to be approved by the Governor, and the committee feels that approval should be withheld unless they conform to proper standards of drafting. It is 'of the highest importance that all regulations promulgated should be properly drafted.

I emphasize that in my opinion some of this bad drafting comes from hoards which we create from time to time. Indeed, I am inclined to the view that these boards are more likely to fail in this respect than is the public servant. The latter are more likely to know the lines on which regulations should be drafted than are other persons. Some of the boards having sudden power thrust upon them feel that it does not matter very rauch in what terms they express that power. But regulations so framed are very inconvenient to the man who has to read and comply with them. The South Australian committee's report continued - the committee, therefore, recommends that a system be instituted to provide that before the Governor's approval be given to any regulation to be made hereafter, the parliamentary draftsman or a Crown law officer be required to certify that they are correctly drafted, and in his opinion are not ultra vires. This certificate would, undoubtedly, tend to prevent the promulgation of badly or loosely drafted regulations and attain uniformity in the framing of all regulations.

Senator Collings - Would that be any greater guarantee against challenges?

Senator DUNCAN-HUGHES - Yes.

Senator Collings - Half a dozen opinions can be obtained from half a dozen legal men.

Senator DUNCAN-HUGHES - That is true.

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