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Thursday, 3 December 1936


Senator DUNCAN-HUGHES (South Australia) .- I trust that the committee will not agree to the deletion of the clause as suggested by the House of Representatives. When the bill was previously before this chamber it was debated for some days. It is, therefore, unnecessary for me to go into the whole subject again. I should, however, like to remind the committee of one or two salient points which were brought out during the previous debate. On that occasion I was criticized by the Leader of the Opposition for reading a letter from the Solicitor-General to the Clerk of Committees in which it was stated -

With reference to your remarks in the Senate on 17th September, in committee on the Acts Interpretation Bill (Hansard, page 212), I am authorized by the Solicitor-General to say that your statement to the effect that "sometimes regulations are made and put into operation without having been first perused by any legal practitioner " was quite correct.

When I made the statement referred to itwas denied. The matter was referred to the Solicitor-General, who stated that my statement was quite correct. It was then suggested that I had committed a breach of confidence, but I was able to prove that that was not the case. Before quoting the letter I had asked a second time whether it contained anything of a confidential nature, and had been told that it did not. The letter continued -

Mr. Knowlestells me, for the information, of the committee, that " more than half " of the regulations which are made go through his department; but there are many simple changes, such as the alteration of rates of charge, or the designation of positions, about which there could not be any legal question, which have been made without the AttorneyGeneral's Department being consulted. Steps are being taken, however, to arrange for all regulations to he seen by an officer of the Attorney-General's Department before they are made, in future.

Therefore, one half of the regulationsis not submitted to the AttorneyGeneral's Department. We are all awareof the fact that, in recent years, regulations have been upset in the courts, and have also been disallowed by the Senate acting within its power. Moreover, someacts of Parliament have been held by the courts to be invalid, and, in fact, one would not be exaggerating the position by saying that groups of acts have been held to be unconstitutional.


Senator Sir George Pearce - Then what would be the value of a certificate attached to a regulation?


Senator DUNCAN-HUGHES - It would show at least that it had been drafted by a trained man and, therefore, the possibility of its being held to beultra vires would be reduced to a minimum.


Senator Collings - Even then the honorable senator could not protect himself from a decision of the Privy Council.


Senator DUNCAN-HUGHES - I agree; but that question is not involved. I do not regard the Privy Council as an enemy as apparently the Leader of the Opposition does. It may be a friend; at any rate, it is able to give an absolutely unbiased legal opinion.


Senator Collings - Does the honorable senator suggest that the opinion of the Attorney-General is not unbiased?


Senator DUNCAN-HUGHES - I am making no comparison between the AttorneyGeneral and any other authority. I have the greatest respect for the Attorney-General and his department. The Regulations and Ordinance Committee was actuated only by the desire to ensure that regulations ave properly framed. We have seen that the recent form in which regulations have been cast - probably due to the desire to issue them in large numbers - has been unsatisfactory, and the committee has made an attempt to improve matters. The Minister who asks that the amendment made by the House of Representatives be accepted had many alternative defences to submit. He referred to the procedure in the House of Representatives. I was not present in the other House when the discussion on this subject was proceeding, and I do not know whether it was lengthy or otherwise.


Senator Brennan - It was a very thorough debate.


Senator DUNCAN-HUGHES - On this particular clause?


Senator Brennan - Yes.


Senator DUNCAN-HUGHES - It was not debated until yesterday. The bill which was passed by the Senate on the 24th September was not debated in the House of Representatives until yesterday. In these circumstances not much time was available for the consideration of any views that were put forward in support of the proposed new section. Although the Minister has stated that it was thoroughly debated, its deletion was not included in the circulated . list of amendments which the Attorney-General (Mr. Menzies) proposed to move in the other chamber.

When I obtained the list of amendments to-day, I was surprised to find that this one was not in the list to be moved- by the Attorney-General or in the list of amendments to be proposed by the honorable member . for Bourke (Mr. Blackburn). This is the only amendment - and admittedly it is the most important - which was not included. I emphasize the point because it appears to be highly probable that this amendment was passed through the House of Representatives without the members of that chamber realizing what it was all about. When the proposal came before this chamber on a previous occasion, it was threshed out in detail. Senator McLeay, Senator Millen, Senator Payne and I supported the proposed new section, and it was opposed by the Assistant Minister (Senator Brennan), who was in charge of the bill, and the Leader of the Opposition (Senator Collings). Twenty voted in favour of it, and it was opposed by nine, including three Ministers, the Government Whip, Senator Brand, Senator Collings, Senator Cox, Senator Dein and Senator Hardy. Senator Guthrie was paired with another honorable senator. This is not a matter of the greatest importance, but the drafting of regulations should be undertaken with the greatest care. No adequate reason has been given as to why this provision should not retain its place in the bill. It appears to me that this is an attempt to override the decision of the Senate, which was reached after most careful consideration had been given to the matter. It is well known, of course, that we have a. regulations committee in this chamber and that there is no such committee in the other chamber. Personally, I think that a regulations committee1 is or should be a valuable adjunct to Parliament. It would be a matter to be deplored if the decision, to which this chamber and, I think, practically the whole of the members of the committee as individuals came, that this would be a useful provision, should be sacrificed by a hasty decision of the House of Representatives. I cannot imagine a state of affairs existing in the Solicitor-General's Department of such life and death urgency as would make it impossible for a legal man to be called in to attend to the drafting of a regulation. It is not as though he would have to perform a major surgical operation. I can see no justification for omitting this proposed new section which, without being of first-class importance, is a useful one. I accordingly ask tie Senate to stand by its decision.







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