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Thursday, 24 September 1936


Senator A J McLACHLAN (SOUTH AUSTRALIA) (Postmaster-General) . - In our enthusiasm for Lord Hewart's ideas regarding the " new despotism ", we are in danger of being led away from realities. As honorable senators know, regulations used to be embodied in schedules to acts as part of the legislation; but in order to facilitate the passage of. bills through Parliament, and to enable Parliament to devote its attention to broader considerations, a regulationmaking power was embodied in most acts. Safeguards are providedwhereby the regulation-making power vested in the Executive is controlled by the Parliament. . Although the procedure which had been followed since 1904 was recently challenged successfully, that does not mean that we are to throw back on to one, or both, of the Houses of this Parliament the executive government of the country. That would be the effect of the amendment if it were agreed to. By a sudden vote a recalcitrant House could wipe out regulations framed by, say, the Postal Department or the Trade and Customs Department, and cause chaos and confusion. The administration of the country could not go on. The whole of the departments of the Commonwealth Public Service are being administered to-day under a set of regulations for which the Government of the day has to take responsibility. Sight seems to have been lost of the fact that if this amendment be carried and a regulation be regarded as obnoxious a majority in either House of the Parliament could at any time, after due notice, disallow it. If that happened, it would be the duty of the leader of the party responsible for the disallowance of the regulation to face the position and demand the resignation of the Government. If that power were exercised without warning the country would be cast into chaos. That some limitation of the power of either House of Parliament to disallow regulations is necessary must be clear. The existing safeguards against bad regulations becoming law are sufficient. Members of the Senate and the House of Representatives must have sufficient confidence in their ability to carry out their duty not to allow the issue of regulations which do not accord with their notions of what is proper. At any time within fifteen sitting days of the tabling of any resolution a motion may be moved in either House for its disallowance, and I consider that that provision meets all that is required. "With the exception of Mr. Homburg, none of the distinguished gentlemen whose views on this subject have been quoted by Senator Duncan-Hughes have had experience of government, and in criticizing this aspect of public policy Mr. Homburg did not suggest changes so sweeping as that which is proposed in the amendment. Mr. Homburg said that it was a new principle of British jurisprudence that without passing an act both Houses of the Parliament should, at any time, have the power to disallow regulations. That would be taking the administration out of the hands of the Executive.


Senator Millen - Government by regulation is a new thing in British jurisprudence.


Senator A J McLACHLAN (SOUTH AUSTRALIA) - Not at all. It has been recognized for many years as a necessary aspect of public administration. At one time acts of Parliament contained in a schedule the regulations required for their operation, but in order to enable the legislature to deal with broad principles without having to consider minor details of administration, the principle of empowering the Executive or its agents to make regulations, was instituted. It was decided to transfer to the responsible Ministers the power to make regulations and the onus of accepting the challenge if they were regarded as being wrong. The acceptance of the amendment would make it impossible for any persons or departments to have any certainty regarding the regulations under which they worked.


Senator Millen - There is no certainty in the customs regulations, even to-day.


Senator A J McLACHLAN (SOUTH AUSTRALIA) - There is certainty until they are challenged. If the amendment were agreed to, all existing regulations could be upset. Is that the intention of the mover, or does he intend to confer on both branches of this legislature a power which neither would be prepared to use? If, however, this amendment is no mere gesture, then Senator DuncanHughes wants us to return to the former practice of including regulations as schedules to bills. If that procedure had to be followed the attendances of honorable senators in this beautiful city would be much more frequent and of longer duration than they are at the present time. That the Executive must possess power to make regulations has been recognized over a long period of years, but this Parliament has not granted that power without imposing safeguards.For some of those safeguards the honorable senator who has moved the amendment is responsible, and their need is conceded by the Government ; but that either House of the Parliament should be empowered at any time to disallow regulations and create chaos is inconceivable. The practice of passing regulations as an integral part of an act has gone into the discard, and this new practiceof passing legislation, empowering the subsequent issue of regulations has replaced it. Lord Hewart has pointed to abuses which are conceivable if the Executive unduly exercises its power to make regulations, and has suggested that these abuses should be checked, and remedied. I consider that this bill effectively disposes of all objection on that score. To enable a majority of either House of Parliament to disallow regulations to the extent envisaged in the amendment would be to take the power out of the hands of the Executive, as it is constituted to-day, and, to make the Parliament itself the Executive. If that be not so, then this amendment has no meaning. This bill leaves undisturbed the rightof any honorable senator to give notice within fifteen sitting days of the making of any regulation of his intention to move for its disallowance, and. I offer the opinion that if any regulation were made which affected the trade and commerce of this country, it would very promptly be brought before the notice of one or both branches of the Legislature, and appropriate action would be taken. As a matter of practical politics, the amendment is impossible; even the proposal made by Mr. Homburg is not within the realm of practical politics.







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