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Wednesday, 25 March 1942


Senator A J McLACHLAN (SOUTH AUSTRALIA) . - As I was expecting a long-distance telephone call, I asked for the adjournment of the debate, but the request was refused. I scarcely appreciated the tone of the refusal of my application for an adjournment of the debate on an abstract question on which I venture to think that the mover of the motion was endeavouring to assist Australia to prevent confusion arising in the administration of what I, and I think the mover also, must regard as a necessary measure.


Senator Keane - Particularly regulation 13. which provides that no lawyers shall appear.


Senator A J McLACHLAN (SOUTH AUSTRALIA) - Let us see how much the Government knows about its own regulations. "When I saw them I realized that confusion would arise. Senator Spicer spoke to me about the matter. He only needed to mention it to the Attorney-General (Dr. Evatt), who understands something of the difficulties to be encountered, and within a week, we have a proposal for the repeal of the very provision with which the Minister for Trade and Customs (Senator Keane) seems so familiar. I had hoped that when the Leader of the Senate (Senator Collings) ceased to shout, we should see some degree of reason brought to bear by the Government as to why it should summarily reject the temperate proposal made by Senator Spicer. I agree with the Leader of the Senate that it is necessary to get on with the prosecution of the war, but the Government said that it desires the machinery to work smoothly. We were endeavouring to improve that machinery. It is clear from the remarks of the Leader of the Senate that he is not quite so ignorant of the regulations as is the Minister for Trade and Customs. But he has not quite appreciated the effect of what has been done.

It is proposed to hand over to the courts, the Leader of the Senate tells us, the power to do certain things, and, because those courts are named in the regulations, the Leader of the Senate says, " What better could we have ? They are better than the tribunals suggested by Senator Spicer ". I am not altogether disposed to disagree with the Minister in that observation. But I say that the jurisdiction is not beinghanded over to the courts with the full rights that they have enjoyed under the statutes under which they exist. They are to be hamstrung because there is no appeal tribunal by which the principles can be brought into line. One decision may be given in South Australia and another in Victoria. To-day, an application for relief was made in Victoria, I am informed by a colleague in this chamber, and the judge refused the application; but, owing to the provisions of these regulations, there is no appeal from that decision. I do not know the merits of the case. It may be that relief was merited, but now the party concerned must abide for ever by the decision to which the judge came on the first application made under these regulations. There is no method by which relief can be obtained. We have never had legislation of this class in operation, under which the decisions by half a dozen courts in different States may all vary in the principles applied in determining the rights of the parties. The matter will be in a hopeless muddle unless the efforts of certain large companies to get their people to agree to an arrangement, postponing the incidence of the contracts until after the war, are successful. Personally, I think that it would be better for the matter to he dealt with under the regulations submitted this evening, which would have regard for the rights of the various parties, and by providing for the right of appeal. I hoped that the Government would see the necessity for making proper representations to the 'Crown law officers that there should be some right of appeal in order to bring harmony into these transactions.


Senator Arthur - Does regulation 6 provide for an appeal?


Senator A J McLACHLAN (SOUTH AUSTRALIA) - No.


Senator Collings -Read subregulation 2 of regulation 3.


Senator A J McLACHLAN (SOUTH AUSTRALIA) - That sub-regulation states -

If, on any application to a tribunal under these regulations, any objection is taken to the jurisdiction of the tribunal based on the value of the matter at issue, the tribunal shall determine the objection summarily, but the decision of the tribunal shall not operate as an estoppel between the parties or other privies in any other proceedings.

That relates only to the question of jurisdiction. The jurisdiction is of two classes, both of which have reference to an amount in dispute. Regulation 16 begins - " Subject to Regulation 7 of these regulations". That regulation refers only to the right of the particular tribunal to adjudicate because of the amount involved in the particular contract before it. There would he a dispute as to whether the case should be dealt with by the superior class of tribunal, or by the other class of tribunal, but when we come to the merits, the jurisdiction is established and the tribunal decides. Regulation 16 states -

Subject to Regulation 7 of these regulations, any order of a tribunal determining an application under these regulations shall be final and no order, whether interlocutory or final, in the matter of any such application, and no other proceedings under these regulations (including a determination as to the value of the matter at issue in any application) shall be appealed against, questioned or reviewed in any manner whatsoever, or be restrained or removed by prohibition, injunction, certiorari or otherwise.

Under regulation 13, practically the same thing as is set out in regulation 7 is provided for. I was wrong, therefore, in admitting that there was an appeal with regard to value, because, with great skill, that has been omitted under regulation 17. The appeal as to quantum under regulation 7 vanishes into thin air. Senator Spicer brought this matter to the notice of the Attorney-General (Dr. Evatt) before he left Australia for the United States of America, and pointed out that it might give rise to great hardship in numerous cases. As a Minister in a previous government, I had the experience of dealing with people who had formed companies for the purpose of obtaining benefits and royalties to which they were legally entitled, and I found them to be particularly skilful in all matters concerning their own interests. They had minds as keen as the edge of a razor. Are we to deprive individuals of the assistance of a paid agent and leave them to battle alone against astute men, who will not be slow to take advantage of every point in their own favour? After this matter was pointed out to the AttorneyGeneral, we heard no more of it, butI noticed that the regulation was deleted. I had hoped that we might have been able to show to the Crown law officers the error into which the Leader of the Senate has fallen when he says that the matter is left in the hands of the courts. If we were giving the jurisdiction to the courts with the right of appeal -


Senator Collings - "We are still giving it to the courts.


Senator A J McLACHLAN (SOUTH AUSTRALIA) - When a matter is given to a court, it is given to the court with all the rights that pertain to that court. For instance, dissatisfied litigants in the Local Court of South Australia have certain appeal rights. If we take the case that has been mentioned, it will be seen that a body of people may be deprived of relief because of provisions which the Government has inserted in these regulations which prevent any appeal from the decision of the tribunal. Is that right? The Leader of the Senate talks about vesting jurisdiction in the court and he thinks that he triumphed over Senator Spicer, but the lower courts cannot get any help from the higher courts in regard to the principles which should operate.

I admit that the Government has endeavoured to place the decision upon the conscience of the tribunal, but we all know how consciences differ. If there is to be no set of principles to guide these tribunals, I fear that there will be a great deal of confusion. What possible objection can there be to restoring the right of appeal to the appropriate tribunal under the law which brings these courts into being? I realize that the setting up of these tribunals may cause more confusion than would be caused by giving the jurisdiction to a Court, but, when the jurisdiction is given to a court without any appeal, the confusion, particularly among the courts of inferior jurisdiction which will have nothing to guide them, will be considerable. It is because of new conditions for which there is no precedent that these regulations have been promulgated. I realize that the Government has much to do, and that the preparation of regulations may, in consequence, be somewhat hurried; but, when the position is pointed out calmly and dispassionately, as Senator Spicer has done, the Government should give further consideration to it with a view to putting things right.

The Opposition takes no credit to itself for raising these matters. We on this side believe that it is our duty to bring to the notice of the Government what we believe to be weaknesses in the various regulations that are promulgated from time to time. In these regulations we see a contradiction between regulations 7 and 16. I do not know what the Crown law officers will have to say on that matter when their attention is drawn to it. The Leader of the Senate says that there is the right of appeal in relation to quantum, but that there is no appeal on any other point. I do not know how these tribunals are to function to their own satisfaction, or to the satisfaction of litigants without some principles to guide them. I agree that the words " equity and good conscience " are high-sounding, but I am reminded that a prominent man once said that a man's conscience varies according to the length of his foot. I fear that we shall get a medley of decisions which will lead to trouble, and therefore I urge that we should get uniformity if we possibly can. The Leader of the Senate says that he is sure that the Government is right, but the fact that he was far from right in regard to regulation 7 should be sufficient to shake that supreme confidence in himself which he so frequently displays. I advise him not to be too sure about anything which may lead to a disturbance of the economic life of Australia. I shall support the motion, which is an effort on the part of the Opposition to grease the machinery which the Leader of the Senate says it is the duty of the Governmen to set up. If the Government will not accept our help, it must accept the responsibility for so doing, but I predict that the Government will soon find itself flooded with letters pointing out the lack of uniformity among the decisions "that will be given. I do not urge the disallowance of regulations which can be made workable, but in this instance I urge the Government to accept the view of the Opposition. Should it fail to do so, the responsibility will rest on the Government.







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