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Thursday, 3 December 1936


Senator J V MACDONALD (QUEENSLAND) . - I was a member of the Regulations and Ordinances Committee which went into this matter, but I may say that I was appointed to it without my knowledge or consent. However, we did our best, and in the course of our investigations discovered that there was a good deal wrong with many regulations which were in force. Senator DuncanHughes, who is responsible for the Amendment which it is now proposed to drop, drew his inspiration from an honorary committee which sat recently in South Australia to consider subordinate legislation. That committee consisted of an acting judge, a former solicitor-general and a lawyer who was a member of the South Australian Assembly, so that with the two legal members of our Regulations and Ordinances Committee we had five lawyers in agreement as to the advisability of enacting the section which the Senate is now asked to omit. That committee reported as follows : -

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 he 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.

The lay members of our committee, viewing these matters from a somewhat lower elevation than that occupied by the legal members, were convinced that many regulations had not been properly drafted, and that action was needed to correct the position. Senator Duncan-Hughes said that less than half the number of regulations drafted were ever seen by the Attorney - General's Department. Although they have the force of law, they i)v:>. in fact, never seen by a lawyer before they are promulgated. They are turned out like sausages from a machine. The object of the clause now under discussion was to ensure that all regulations should come before the Crown Law Department for consideration. The committee went very carefully into this matter, and it was even proposed that the services of a third lawyer should be obtained to study carefully and to advise the committee regarding the effect of regulations. The clause, which it is now proposed to omit, was agreed to by the Senate when the bill was before it on a previous occasion, and I hope it will be insisted upon now. The bill originated in this chamber, and we have a special feeling for it. I am sure that if the Minister is forced to drop the measure he will do so with a certain amount of regret. Senator Brennan did not seem to consider that a safeguarding section of this kind would serve any useful purpose, though in respect of other matters, he has always displayed a tendency to make doubly sure. He reminds me of the story of the Scottish king who. upon coming out of a church, was asked by one of his followers what he had done. The king replied " I doubt I have slain Comyn ". The follower thereupon went into the church, and he, too, used his dirk upon the victim, saying, " I will mak' siccar ". Like the king's retainer, Senator Brennan generally wants to make sure, but in this instance he has abandoned his native caution. We know that there is a feeling of doubt in the public mind regarding the power of lay officials to draft regulations which have the force of law. It is felt that they should be brought before the Attorney-General's Department for approval, and that is why this section was inserted. I voted for it before, and I shall vote for it again, and I ask those other honorable senators who voted for it when the bill was previously before the Senate to insist now upon its retention.







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