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Thursday, 24 September 1936


Senator BRENNAN (Victoria) (Assistant' Minister) . - The honorable senator's amendment is the first step in course of action designed to deny to the Executive Council any power to make retrospective legislation.


Senator Duncan-Hughes - And the additional powers which the Government is seeking.


Senator BRENNAN - I want to be quite sure about that. Does the honorable senator not agree that, if the whole of the amendments of which he has given notice be carried, the effect will be that no regulation having retrospective operation will be valid?


Senator Duncan-Hughes - Yes. That is the present position, and I think that it should continue.


Senator BRENNAN - First of all, I want to call attention to the extent to which the Government has in the proposals which it has put before the Senate limited the previously existing power of making retrospective regulations. In the 1904 act the Government could have given power to make legislation retrospective. It did not do so, as the Broadcasting ease decided.


Senator Duncan-Hughes - Is not that enough ?


Senator BRENNAN - The honorable senator is proposing not only to take away that power, but also to limit the power of making retrospective regulations proposed in the bill. There are certain well-established principles with regard to the making of laws having retrospective operation. They have to be made sparingly, and should not be used in such a way as to interfere with rights which have really accrued. But in large departments it is sometimes necessary to correct an error. Honorable senators will recollect that such a neces- sity arose some time ago, in connexion with the salaries of persons engaged by the Dried Fruits Board in London. That regulation was given retrospective operation.


Senator Duncan-Hughes - It was made retrospective for six years.


Senator BRENNAN - That is so, but why ! It was done only in order that the necessary legal authority should bo given for the payment of the salaries of certain persons in London, and there was no way of providing this authority except by giving retrospective operation to the regulation which was passed. It was wholly remedial in its effect. It did not inflict a hardship upon anybody, but, on the contrary, cleared up, it was thought, the law regarding this matter. In each circumstances the making of retrospective legislation has always been deemed to be proper. If this amendment were carried such a regulation would be bad; in fact, there would be no power to make it. To-day government departments have grown to great magnitude, and the necessity for retrospective legislation may occur at any time - for instance, for the remedying of a wrong. The honorable senator's amendment, if accepted, would, however, deprive the Government of the power to make such a regulation.


Senator Duncan-Hughes - I have no desire to deprive the Government of any power which it possesses at present. I am quite prepared to restore to the section the words " unless the contrary intention appears ".


Senator BRENNAN - I do not follow the honorable senator when he says that he does not desire to deprive the Government of any power which it at present possesses. The Parliament at present has full power to pass regulations with retrospective operation. Though the honorable senator's amendment looks harmless, it proposes to strike out the whole of sub-section 2, which limits the operation of the regulation-making power. That sub-section provides in express words that regulations shall not be passed affecting rights which at present exist, or imposing on any person liabilities in respect of anything done or omitted to be done before the date of notification. There are two provisions, each of which is designed to ensure that wrong shall not be done to any person. Power to give retrospective operation to a regulation is sometimes necessary. For instance, a department may fix rates of pay as from a data which has passed in order to do justice to a particular person. A government rarely tries to make a regulation which would affect accrued rights; but should it do so, the position is safeguarded by the provision that any regulation which contravenes proposed subsection 2 shall be void and of no effect. I cannot understand why the honorable senator should wish to take out a provision which supplies a remedy for something of which he strongly disapproves. I ask the committee not to accept the proposal of the honorable senator.







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