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Thursday, 14 May 1936

Senator ABBOTT (New South Wales) . - I have no desire to prolong the discussion on this subject, because I think it has been dealt with very ably by Senator McLeay. As a member of the committee, I desire to associate myself with the opinions expressed in the report which, I trust, the Senate will adopt. I cannot claim much kudos for the work which has been achieved, but I pay a tribute to Senator Duncan-Hughes and to Senator McLeay, and other members of the committee, for the industry and ability which they have shown in connexion with the committee's work. The Government should seriously consider the appointment of a legal officer to peruse all regulations, and, when necessary, to assist the committee. Regulations tabled in the House of Representatives are not scrutinized by a regulations and ordinance committee ; the practice is peculiar, I believe, to this chamber. Therefore, it is all the more important that some very close scrutiny, whether by this committee or by some other person or body, should be made for the information of honorable senators, so that when they are asked to approve of regulations they need not fear that they may be carelessly consenting to something which may involve perfectly innocent citizens in litigation. I cannot help drawing attention to paragraph 8 of the report which refers to the offence of interfering with telephone lines. I suggest to the Senate a hypothetical case: While I am engaged on public duties in Canberra, my son may be looking after my little place in the country; someone may interfere with telephone lines passing through that property, and, under the regulation as it stood, I, as the registered owner of the land, might be held guilty of having permitted or suffered somebody to interfere with the department's property. It might be contended that that is an exaggerated illustration because I, being in Canberra, could not have committed the offence, but one may act through an agent - my son, for instance - and I might have to prove that I was not guilty of the offence. The Senate should hesitate to approve of any regulation which so shifts the onus of proof. Apparently, in the Post and Telegraph Act itself, there is no legislative authority for the establishment of the principle of shifting the onus of proof to the extent attempted by this regulation.

Senator Sir George Pearce - Does the honorable senator say that the committee is competent to give the opinion expressed in paragraph 5 ?

Senator ABBOTT - I have heard quite a lot this evening about competence. I am perfectly willing to agree that if the committee is not competent to make a report, it is not competent to bind the Government even if the report is adopted. But not only is the committee competent to make the report, it also has a clear duty to report its honest opinion, right or wrong, and it is not for the Leader of the Senate to challenge that duty. It is a well known principle of law that a person exercising discretion, even if he exercises it wrongly or foolishly, will not be interfered with by a court of appeal. Therefore, if the committee is justified in making this report, so long as it is made honestly and sincerely, it should be free from the criticism levelled by the Leader of the Government, that it is not a legal committee and therefore not competent to express an opinion. If the committee is not competent to express an opinion, what precautions will be taken to prevent errors from being made in either the regulations or the principles on which they are founded, or to prevent departments from usurping the functions of the legislature ?

Senator Sir George Pearce - That is not dealt with in paragraph 5. Paragraph 5 deals with legal validity.

Senator ABBOTT - What is the honorable senator's objection to that paragraph ?

Senator Sir George Pearce - It contains a legal opinion expressed by a committee of laymen.

Senator ABBOTT - The committee has a right to express an opinion ; indeed, it was appointed to do so. The honorable senator has a perfect right to object to, or disagree with, that opinion.

Senator Sir George Pearce - I neither agree nor disagree with it.

Senator ABBOTT - Whether a committee is composed of lawyers or laymen has no bearing upon this matter. It is entitled to express an opinion, and that, rightly or wrongly, it has done.

Senator Foll - Its job is not to interpret the law.

Senator ABBOTT - It was asked to report whether in its opinion regulations referred to it may run contrary to the law. I urge the Senate to adopt the report, because it does not force an obligation upon the Government. Honorable senators must realize that to check the validity of a single regulation means looking up, not only the parent act under which the regulation purports to have been made, but also every amendment of that act, and over a period of years there may have been many amendments. If the whole of that labour is undertaken conscientiously, it is more than any committee of the Senate can be expected to do perfectly. The committee will, no doubt, make mistakes. The chairman of the committee has given enthusiastic attention to his work, and the Senate is indeed fortunate to have his services in that capacity. That the committee has served a useful purpose is demonstrated by the fact that the Government is bringing down legislation to cure defects which have been pointed out by it. If the Leader of the Senate or the Government disapproves of the committee-

Senator Sir George Pearce - That is not so. I have never expressed any disapproval of the committee, but only with a particular phase of its report.

Senator ABBOTT - I have no desire to quibble over words; if the committee is not regarded as satisfactory, I am sure none of its members will desire to continue to serve on it. I discussed the work of the committee informally with the Attorney-General some time ago, and pointed out to him that the work was sufficiently heavy to warrant the appointment of a legal officer attached to the Senate staff. Such an appointment would not be necessary for the House of Representatives, which does not follow the procedure adopted by the Senate for the oversight of regulations and ordinances. I suggest that if the committee as at present constituted is not considered satis factory, the Attorney-General and the Leader of the Senate should give consideration to that proposal. Such a legal officer could devote his whole time to the task. The work which the committee is called upon to carry out is much heavier than honorable senators ever imagined it would be.

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