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Thursday, 24 September 1936


Senator DUNCAN-HUGHES (South Australia) . - The first point I wish to make is with regard to the drafting of my amendment. The 'Assistant Minister (Senator Brennan) suggested that the Government courteously drafted it for me, and that I was endeavouring to give the impression that the Government was in favour of it. I did not even take the initiative in approaching the parliamentary draftsman to alter the amendment which I had drafted, because I was satisfied with my own phraseology, and I am still satisfied with it. My only reason for asking leave to withdraw it and present it in another form was that I understood that, from a drafting point of view, the suggested new form would be preferable. I did not say that the Government was in favour of it, although I thought that probably it would be, because surely it is preferable that a legal document should be in sound legal form, as might be expected if it had issued from the law department instead of being issued by some board without good legal knowledge. I know that some further amendments which I intend to move will not be approved by the Government, but I did. imagine that probably Ministers would be in favour of the one which is now before the committee. I am sorry to learn that they are not. In regard to the remarks of the Solicitor-General concerning the supervision over ordinances and regulations, I simply say that some time ago I instructed the secretary of the Regulations and Ordinances Committee, in the course of his duty, to see the Solicitor-General on this subject. He did so and informed me in terms which I have disclosed to the committee this afternoon. I should add that, before making this statement, I instructed the clerk to refer the matter to the Solicitor-General to make sure that there would be no disclosure of a confidential statement, and I was given to understand that there would not be. In the circumstances I fail to see why there should be objection to my giving the foots to the committee. What harm can arise from the statement? What is there to hide? I confidently believe that my amendment will improve the bill, and. therefore, I ask the committee to support it. Senator Brennan cited paragraph b of proposed new section 46. That provision simply enacts that regulations issued must not be in excess of the power conferred by the act. My amendment will provide that they shall be certified to be not in excess of such power, and that without such certification they shall be void and of no effect. I did not read the long report issued by the South Australian honorary committee which sat recently to consider subordinate legislation, but I may add that one member of that committee is now an acting judge, another has been Attorney-General for the State, and the third is a legal practitioner in the State Parliament. On this particular matter the committee, reported -

It is of the highest importance that all regulations promulgated should be properly drafted. The committee therefore recommends that a system be instituted to provide that before the Governor's approval be given to any regulations to be made hereafter, the parliamentary draftsman or 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 tend to uniformity of drafting in the framing of all regulations.

This does not appear to me to be an epoch-making matter. The amendment has been moved with the object of making the measure more intelligible and less liable to be upset in courts than it would be without this provision.







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