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Tuesday, 7 December 1965

Mr KILLEN (Moreton) .- by leave - I move -

1.   In sub-clause (I.), omit "after such inquiry as it considers appropriate".

2.   In sub-clause (1.), omit "if it is satisfied".

3.   In sub-clause (1.), paragraph (b), omit " in accordance with its opinion,".

I am hoping that these amendments will draw from the Attorney-General something more than a desultory rejection. I trust that the honorable gentleman and possibly the Committee will be persuaded, cajoled, en. couraged or prevailed upon at least to consider some of the implications. The clause as it is presently worded means in effect that the Tribunal determines its own jurisdiction. As the Committee, I hope, is tolerably aware by now, the singular complaint that I have about this legislation is that it reeks of discretions given to the Tribunal. I fail to see why the Tribunal should be given this discretion with relation to jurisdiction.

As it stands, the clause says that the Tribunal, after such inquiry " as it considers appropriate ", having regard to the matters alleged by the Commissioner, " if it is satisfied " that an examinable agreement exists, or has existed, shall make a determination " in accordance with its opinion " and so on. Apparently we have now reached the rather ugly soporific state where these discretions seem no longer to disturb either the consciousness or the physical makeup of people but, be that as it may, we are giving this Tribunal, which is not readily susceptible to control or regulation by the courts, and which is not answerable to Parliament, powers to determine what sort of inquiry it shall embark upon, and I submit that it is up to the Committee to pause and to reflect upon that. There may be those who take the view that this is not of very great significance, but I would suggest with great respect that the words of Lord Esher, Master of the Rolls in: "The Queen versus Commissioners for Special Purposes of the Income Tax", reported in 21 Queen's

Bench Division, sum up the whole substance of clause 49. Lord Esher said -

When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more.

That is precisely what we are doing in terms of clause 49 of this Bill. Lord Esher went on -

When the Legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision--

I interrupt the citation to say there is no appeal in this case - for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.

I have said my piece on this. I hope no person in this Parliament or outside it will be under misapprehension at all as to what is meant by the provisions in clause 49 relating to discussions. They mean that the Tribunal may embark on any inquiry it sees fit to embark on. It may consider that an examination of a host of what would be to most persons highly irrelevant facts is necessary. Once it determines that such an inquiry is appropriate, that is the end ofit. These are the discretionary phrases beyond which it is quite impossible - immediately impossible - to control or to regulate the Tribunal. I have said it before, and I will say it possibly ad nauseam, that while I understand the philosophy behind this I have no sympathy with it at all. It is certainly the fashion of our age but it is a fashion that does not appeal to me one iota.

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