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Wednesday, 2 April 1941


Senator HERBERT HAYS (Tasmania) . - Honorable senators will recall the circumstances in which this committee was set up. Many honorable senators were of opinion that the Executive was disposed, for reasons of convenience supported by the attitude of heads of departments, to legislate by regulation instead of by act of Parliament. Honorable senators will also recall that when Sir Hal Colebatch., as a member of this chamber, brought the matter forward he quoted a warning by the author, of The New Despotism, the late Chief Justice of Great Britain, against the growing tendency in Great Britain to legislate by regulation. Subsequently, a committee was appointed to inquire into the position, and it recommended the appointment of the Regulations and Ordinances Committee. Speaking generally, it will be admitted that this committee has done its work ably. Originally, the main question which occupied its attention was whether regulations issued from time to time were in conformity with the respective acts under which they were promulgated. No difficulty was experienced on that point; but following the passage of the National Security Act a real difficulty arose. At, that time I raised the question at a meeting of the committee as to whether or not the practice of the

Executive to legislate by regulation was not accepted by the Parliament itself. Under the National 'Security Act the Government, was empowered to issue regulations in respect of, not a particular act, but anything and everything. Parliament, with its eyes open, gave that power to the Government, knowing quite well that the Government would have to be' guided by circumstances as they arose. For all practical purposes that meant that the Government was empowered to legislate by regulation rather than by act of Parliament. I pointed out to the committee that no limitation whatever was placed upon the Government in that respect, and that any other act of Parliament, or any other regulation, could be over-ridden by a regulation promulgated under the National Security Act. Insofar as no such regulation could be considered ultra vires any legislation, I concluded that it was a waste of time for the committee to review regulations issued under that legislation. I urged that it was a matter for each individual member of the Parliament to take the initiative in challenging any particular regulation if he thought that it interfered unduly with the liberty of the subject. That is not the responsibility of any committee; it is the responsibility of individual members of Parliament. I emphasized that the responsibility of the committee was mainly to challenge a regulation only on the ground that its subjectmatter bc the subject not of a regulation but of legislative enactment. Parliament cannot rely upon this committee to say whether any regulation interferes with the rights or liberty of the subject; that is the concern of individual members of Parliament. Individual members may differ as to whether .a regulation interferes unduly with the liberty of the subject. I still maintain that the committee should review regulations issued from time to time, but only with the object of curtailing the tendency on the part of the Executive to legislate by regulation on matters which should be the subject of legislative enactment. In view of the provisions of the National Securitiy Act, the committee should not be asked to challenge a regulation simply on the ground that it is not in conformity with the act under which it is proclaimed.


Senator Allan MacDonald - The honorable senator is not suggesting that the. committee should be disbandoned ?


Senator HERBERT HAYS - No. The question has been raised as to whether the committee should have legal assistance. My opinion is that a lawyer would not be in a position to advise the committee whether interference with the liberty of the subject was or was not involved. That is purely a matter for the individual. Honorable senators must realize that if the committee is to meet only when Parliament is in session, it cannot possibly cope with all the work that it is expected to do. Private members have to attend party meetings and deal with correspondence, and the duties of the committee occupy considerable time. It is idle to say that we have not agreed to all regulations framed under the National Security Act. What is there to disagree with unless it is ou questions of policy? Is policy to be decided by individual members of the committee? It was never intended that an individual should determine whether a regulation interfered with the liberty of the subject.


Senator Cameron - Should the committee deal with those regulations?


Senator HERBERT HAYS - I would prefer not to deal with them, because I do not think that the committee could agree unanimously whether a particular regulation interfered with the liberty of the subject. In the matter of regulations framed under ordinary legislation, the committee can readily draw the attention of the Senate to anything which it considers may not be in conformity with the act under which it is framed or it can recommend that a certain matter should be the subject of legislation.







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