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Thursday, 24 September 1936

Senator BRENNAN (Victoria) (Assistant Minister) . - The legal position of regulations and ordinances was decided by the High Court, a higher tribunal than "the Tasmanian court. It is well set out in the judgment of Mr. Justice Dixon in words, following those read by my learned friend, Senator DuncanHughes -

In Darrach v. Thomas ( 1 ) Cullen C.J., Pring and Sly JJ., expressed the opinion that it would not sooperate.

Senator McLeay - Seeing that the judges differ, is it not better to put the matter beyond all doubt?

Senator BRENNAN - Again I fail to see what advantage would be gained by accepting the amendment moved by Senator Duncan-Hughes.

Senator Duncan-Hughes - What is the objection?

Senator BRENNAN - Instructions have been given to those responsible for the issuing of regulations, to see that they are laid on the table of each House within the time prescribed. But how much further will that provision take us? It seems to me that, if we provide that any regulation not so laid on the table of Parliament shall be void a great deal of trouble may ensue. We had an instance of this difficulty in connexion with an ordinance relating to the Northern Territory, to which Senator Duncan-Hughes has referred. That ordinance had been in force for many years, and was generally believed to be good law until someperson discovered by, I suppose, a perusal of the Journals of the Senate, that it had not been laid on the table of this chamber. I submit that the mere act of laying an ordinance or a regulation on the table in order to bring it before the public does not make it better law. The thing that matters is the publication of the instrument in the Commonwealth Gazette. The laying of a regulation or ordinance on the table of either House simply furnishes the Parliament with the opportunity to disallow it. Senator Duncan-Hughes mentioned the trouble over the earlier ordinance.

Senator Duncan-Hughes - I merely repeated what the Minister representing the Attorney-General in this chamber had said.

Senator BRENNAN - Yes ; we are all familiar with that " regrettable oversight ", as it was described. The honorable senator cited two such instances, one being an ordinance under the Northern Territory (Administration) Act, and the other under an ordinance for the Territory for the Seat of Government. I do not wish to challenge the honorable gentleman, but I ask him to give a single instance, within the last four or five years, of a regulation not having been laid on the table of the Senate within the time prescribed. I assure him that the greatest care is now exercised to see that every regulation or ordinance is brought before Parliament.

Senator McLeay - Could the Minister say the same of earlier governments?

Senator BRENNAN - I can say that, irrespective of the political colour of governments that have been in power, we have always had a good Public Service, which, after all, is responsible for the tabling of regulations. Provision has now been made to make it part of the duty of a responsible officer to see that all such instruments are laid on the table of each House, so that whatever may have happened in the past, every precaution is now taken to make it humanly impossible for these matters to be overlooked in future.I ask the committee not to accept the amendment.

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