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Thursday, 3 December 1936

Senator BRENNAN (Victoria) (Assistant Minister) . - I move -

That the amendment be agreed to.

Honorable senators will recall that a good deal of discussion took place in this chamber before this proposed section was inserted against the desire of the Government. This is by far the most important of the amendments. I assure honorable senators that the Government has given much consideration to the new section 48 which, with the exception of subsection 3, was inserted in the bill on the motion of Senator Duncan-Hughes. If the new section were to become law, it would super-impose an additional condition to the validity of a regulation. It would thus increase the area of the attack and would, in effect, render a regulation more vulnerable and add uncertainty as to the validity of the regulation. Surely the present methods and grounds for attacking the validity of regulations are ample for all purposes. The idea appears to be current among some honorable senators that the giving of a certificate will result in the regulations being less liable to challenge. The giving of a certificate will be no absolute guarantee that the regulations are not ultra vires the act under which they are made. Indeed, a false impression may be created in some quarters as to the actual effect of a certificate. For example, it may be thought that the regulations in question, when certified to, are valid for all purposes and not subject to appeal. This is, of course, not the case. The regulations will still bo liable to be challenged in the courts. As I stated yesterday we cannot be the interpreters. We can merely pass laws in what we consider a valid form, but in the end the court is the interpreter of any regulation or act of Parliament. It would, we think, be dangerous to suggest that, because a certificate is attached to a regulation, its validity is guaranteed.

Senator Abbott - It surely can be only a safeguard. Should we worry what people think about regulations? It is a matter of what the regulations provide.

Senator BRENNAN - Yes, but until the court has interpreted them we do not know what they do provide.

Senator Abbott - The court would have an assurance that care had been exercised in their preparation.

Senator BRENNAN - I shall give the committee an assurance before I have concluded that care will be taken in that direction.

Senator Abbott - We do not want only the assurance of the Minister that care has been taken.

Senator BRENNAN - I adhere to the point previously made, that the giving of a certificate in relation to a regulation would be calculated to convey to a layman the idea that it was a guarantee in some form that a regulation is intra vires. Another objection to the provision is that, in some emergency, the Government may, by reason of the absenceof a certificate, be greatly hampered by not being able to make a regulation, however simple, from a drafting or legal point of view, and however urgently necessary. Honorable senators who have not had experience of administration may wonder how this would be possible, but I assure them that it is very difficult to forecast the circumstances in which regulations may be urgently required, and it is much more difficult to comply with a multiplicity of requirements. Ministers of State take responsibility for the advice they tender to His Excellency the Governor-General, and it may surely be assumed that they would only advise His Excellency to make regulations, the drafting of which had been thoroughly examined. Great stress has been laid on the views of an honorary committee appointed in South Australia to consider the matter of subordinate legislation. That committee was considering a system that does not exist with respect to subordinate legislation in pursuance of Commonwealth acts. Commonwealth subordinate legislation has, for very many years, been prepared upon uniform lines, and the remarks of the South Australian committee as to the probable effect of the adoption of its proposals with regard to the certifying of regulations have no application to regulations made under Commonwealth acts. One further point is this: there is just the possibility - a possibility which honorable senators will realize is ever present where things are done of necessity - that the requirement of a certificate may come to be regarded as a mere formality and may affect, unintentionally of course, the degree of care which is at present exercised with respect to regulations scrutinized, by the Attorney-General's Department.

In conclusion, I give honorable senators an assurance that directions will be issued to all the departments to submit all draft regulations for the consideration of the Attorney-General's Department. In other words, the object of the proposed new section will be attained by administrative action, which will, in practice, bc equally as effective as the proposed certificate. During recent years two members of the staff of the Attorney-General's Department have been engaged on preparing a consolidation of the Commonwealth acts. This work is now practically completed, and it is anticipated that staff arrangements will permit of all regulations being promptly examined by legal officers early in the new year. When this scheme is in operation, all draft regulations will be examined minutely and according to definite legal principles, both as to the matter and form of the regulations. This is all that honorable senators desire, and I ask them to accept the assurance I have mentioned. This proposal was carefully considered by legal members in the House of Representatives, and they expressed themselves as being in favour of the amendment now before the committee. In these circumstances I earnestly ask honorable senators to reconsider the decision previously given and to agree to the amendment made by the House of Representatives.

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