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Wednesday, 1 December 1965

Mr WENTWORTH (Mackellar) . - I have had the opportunity of refreshing my mind and I find that my memory was correct with regard to the principle that Sir Owen Dixon was putting forward in the article quoted by the honorable member for Parkes (Mr. Hughes). As would be expected, Sir Owen Dixon expressed it rather better than I could do. May I therefore quote his words? He said -

An inexorable application of the general principle that a nullity produces no legal consequences would mean that, since such a man was no more than a private citizen, his public acts must be considered ineffectual. It would mean, for instance, that an order of a court of summary jurisdiction would bind no one, if the appointment of a magistrate who made it were found to be invalid for want of the requisite qualifications: that an assessment for income tax was no assessment if the appointment of the Deputy Commissioner by whom it was authenticated were found to be void. . . .

That is quite obviously a practical approach. Sir Owen Dixon says that we have to adopt this principle in regard to particular cases, because otherwise administration would be hard to work. But in the case before us, there is a different principle involved. The orders of the tribunal will have the force of law, according to the Bill before us. I suggest that they will have also the force of precedents binding all subsequent decisions of the tribunal. Under these circumstances, when we are giving a law making power in general, we have to be actuated by somewhat different principles. Sir Owen Dixon is correct. It is obvious that the Chief Justice would be correct in a matter of this nature. What he says is based on the principle that administrative convenience requires this principle to be adopted in regard to particular cases. But this is not just the adoption of a principle in regard to a particular case. As my friend from Moreton (Mr. Killen) has pointed out, there is no appeal from decisions of the tribunal.

Mr Killen - There should be.

Mr WENTWORTH - Of course there should be, but that is not provided for in the Bill. We are conferring on this tribunal something more than a power to make a decision in a particular case; we are conferring on it - wrongly, I think - a power to make a decision which has the force of law. Under those conditions, I would suggest that the principle put forward by Sir Owen Dixon and quoted by the honorable member for Parkes is not strictly applicable. The circumstances are different. My friend from Parkes has perhaps been misled by not reading the full quotation from the Chief Justice.

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