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Thursday, 1 April 1965


Senator MURPHY (New South Wales) . - This is a most important matter. It is a fundamental issue which has been raised once again in this chamber. It was last raised in September 1963 and a satisfactory solution was reached with the accord of all parties. In my view this amendment ought to be accepted generally. The Minister opposes the principle of the amendment. I am sure that if he gives it due consideration he will join in the general acceptance of the amendment. The fundamental issue arises in this way. There are three arms of government - the legislative, the administrative and the judicial. Each has to keep to its proper sphere. The Parliament makes the legislation, the Executive administers, and the courts interpret and enforce. The Parliament, for the sake of convenience, sometimes delegates legislation. It can delegate the making of legislation to any person, whether that person be the Governor General, or the Minister as was first suggested by Senator Wright, or some private person or body. But in every case the delegated legislation ought to be subjected to the approval of Parliament. It ought to be dealt with in such a way that Parliament can disallow the delegated legislation. Parliament should be able to supervise it in that way.

When regulations are made automatically under the Acts Interpretation Act the subordinate legislation is subjected to supervision by both Houses of Parliament acting separately. If the subordinate legislation is made not by regulation but merely by instrument then that subordinate legislation is not subjected to that supervision.

The Minister has given an answer which misses the point. He said that this clause concerns a matter of policy. By that he means that it is a matter of administration. It is not a matter of administration. The question of the approval of a particular lender is a matter of administration and ought not to be done by regulation, lt would be quite wrong to say that that type of thing should be done by regulation. That is in the administrative sphere. That is the type of thing that will be done under the next clause, clause 5 (2.), which provides for the approval of a person. Under that clause it happens to be by the Corporation. If it were approved by the Minister, that would be all right. There would be no problem about it. That could and ought to be done by instrument in writing, or in some other manner, but not by regulation, because we do not want all the administrative acts to be subjected to this kind of supervision by each House of Parliament which is appropriate for delegated legislation only.

However, when one designates a class of persons, as in clause 5 (1.) which we are considering, that is not administration but legislation. It is making the law. By designating a class of persons, the Government is doing something which applies to the community in general. It is not dealing with a particular person or a particular act of administration. That is clearly and undeniably subordinate legislation which ought to be subjected to the supervision of Parliament in the same way as other delegated legislation is subjected to that supervision.

Therefore, I think that the Minister, in line with the precedents and with the fundamental nature of our Australian Constitution, should agree to the proposal. It is dangerous to set up a precedent whereby one will have delegated legislation not subjected to the supervision of Parliament. I ask the Minister to consider this question not as being a party political one. No one wants to score any advantage at all. It is a most important matter of democracy and of the supremacy of Parliament. I ask the Minister to again consider the question in that light.







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