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Thursday, 29 April 1965


Senator MURPHY (New South Wales) . - Mr. Chairman, parliamentary democracy is always in a precarious situation. Everywhere it exists it moves step by step towards the bureaucracy and despotism which ultimately destroy every form of democratic government. What is happening today is an example of what will be an inexorable process unless those who understand it have the strength and courage to resist it. We have not sought, and we do not seek, to make party political capital out of this matter, because we believe that the issue is fundamental.

Throughout history liberty has been gained by restriction of governmental power, not by its enlargement. In Australia our liberties depend upon the maintenance of a strong Parliament. Whatever weakens the Parliament weakens the liberties of our people. Parliament constantly has to protect itself against encroachment by governments. Government by regulation was the first method of weakening Parliament. That method was initiated many hundreds of years ago elsewhere. Over the centuries, and after many bitter battles and revolutions, the supremacy of Parliament was asserted. It is encumbent upon us in 1965 to maintain that supremacy. Government by regulation was met by parliamentary supervision of that form of legislation. That supervision is provided for here in the Acts Interpretation Act. Under that Act regulations may be disallowed. They have to be notified in the " Gazette ", they have to be brought before the Houses of Parliament, and they may be disallowed by a vote of either House of the Parliament. That is how the Parliament asserts its control over regulations. Persons who may be affected by a disallowance are protected in exactly the same way as are persons who may be affected by the repeal of a regulation. I am pleased that the Minister for Civil Aviation (Senator Henty) indicated that the opinion that he expressed earlier was not correct. I am surprised that he should suggest that there is any doubt about the matter, because the Act specifically provides in essence that disallowance of a regulation shall not affect its earlier operation or anything duly done under it - that it shall not affect any right or privilege acquired under the regulation.

It is undeniable that the particular provision we are considering grants subordinate legislative power. That was stated on the last occasion upon which the matter was discussed. The reasons given officially in another place and here suggest otherwise, but there has been no real attempt in either place to support that position. There is a number of eminent Queen's Counsel in this Parliament, but not one of them has publicly supported the proposition that the granting of power under this clause is not delegated legislation. If there were even the slightest doubt about that, would not the Government have produced to honorable senators opinions to the contrary, not by one such person but by several? If there were any doubt about the matter, opinions by the Solicitor-General and outside eminent legal authorities would have been produced. It is beyond doubt that the provision we are considering is subordinate legislation. Other provisions in the very same Bill indicate that this provision is clearly of that kind.

I shall not repeat what was said on the earlier occasion. The most disturbing feature about this debate has not been the official answer that has been given but the reasons that have been advanced in this chamber to support it. The Minister has said that the making of an instrument in writing is a simpler and more expeditious method of dealing with the situation than by regulation. On other occasions it has been admitted that a regulation may be made just as quickly as the putting of a notice in the " Gazette ". There is no doubt that, if the Government conducts its business properly, it may make regulations expeditiously and that those regulations then take effect. This is why the matter is so serious: The Minister has said that, if the Government proceeded by way of regulation, then the Parliament may disallow the regulation. That is an attack upon the whole principle of parliamentary control of the Executive in this kind of action. The Minister says, in effect: " Trust the Minister, but do not trust the Parliament ". The Minister may make an instrument, and it is said that that gives more certainty than if the matter were to be dealt with by regulation subject to the control of the Parliament. Of course, this is completely untrue. If the Minister can make an instrument, he can unmake it. What he does one week by instrument in writing he may undo the next week. The power which he is given to make such an instrument carries with it the power to unmake and to vary. There would be no more certainty for these business corporations than there would be under the law of the land. A regulation is the law which carries more certainty with it than a law which can be made and unmade by a Minister.

It is an attack upon the very fundamentals of our democracy to say that we must have government by instrument. It means that in 1965 we are entering a period when the Government, standing in front of the bureaucracy which really does these things, has found that the Parliament is properly exercising its supervision over regulations, and it wants to get away from this position. The Government always seeks to evade the control of Parliament. A new device has been invented. If we allow it this time, we shall see more and more of it. It will not be government by regulation; it will be government by instrument in writing which is not public or subject to disallowance by the Parliament. The argument will be advanced again and again: " Trust the Government. This is the way to govern. It can be done more expeditiously, more simply and so on. You will not be subject to the threat that either House of the Parliament may disapprove of what the Minister has done." What does this mean when you examine it? It means that the Minister wants to get into his hand the power by instrument in writing to do something of which a House of the Parliament may disapprove. He wants to have it in such a way that neither House of the Parliament will be able to do anything about it.

This is something which honorable senators can view only with disquiet. Why should the Minister be trusted and not the Houses of Parliament? Why should it be said that the Houses of Parliament would act irresponsibly? If the Minister made a regulation and persons operated under it, and the reasons were put to the Houses of Parliament, why would they nevertheless act irresponsibly and disallow the regulation thereby affecting, perhaps, the continuance of someone's business even though it would not affect anything done to that date under the regulation? It means that the attack is founded really upon the irresponsibility of the Houses of Parliament. The position comes down to this: You must trust the Minister but not the Houses of Parliament. They must not be in the position where they can control or where they can disallow what has been done by the Minister.

Mr. Chairman,I ask the Senate not to accept the view of the Government. We see today the party system at its worst. The Government knows that this is wrong. I believe that the Government now knows the issues which are at stake. The Opposition does not seek to make any advantage out of this situation. If the view that the Senate previously took is upheld we will not seek to say that it is a victory for the Opposition. It will not be a victory for any particular party. If the view is upheld it will be a victory for Parliament itself. I ask honorable senators to uphold the view which the Senate previously took.







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