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Wednesday, 25 August 1937

Senator DUNCAN-HUGHES (SOUTH AUSTRALIA) - It concerns the position of Parliament in relation to the making of regulations by the Executive, a practice which has increased enormously of late years. The majority of members in this chamber realize that the Senate's Regulations and Ordinances Committee does not act from personal motives or with party bias. Its solepurpose is to try to safeguard the interests of the Senate and general public, by perusing regulations that are promulgated by the Executive and submitting recommendations to the Senate as to their correctness or validity. I assure honorable senators that the duties of the committee are not very amusing. Nor are they light. As a result of its recommendations, the Senate has rejected at least one regulation and debated the validity of a number of others. The work that is done by the committee seems to me to be very useful. I quite understand, of course, that any government is not pleased to have its mistakes disclosed, because, the ministerial head of a department must accept responsibility for mistakes that are made by departmental officers. The work done by the committee is valuable and should have the full support of the Senate, unless it can be shown that it is in some way detrimental to the public interest. The bill, now before the Senate is practically identical with that which passed through the Senate last session, with the exception that it dees not contain the proposed new section which was inserted by this chamber.

Senator Grant - It was approved by a solid majority of the Senate.

Senator DUNCAN-HUGHES - When first I submitted my amendment, it was carried by 20 votes to 9. When the measure was returned from the House of Representatives which had struck out the proposed new section, it was re-inserted by the Senate committee by 13 votes to 12. I was surprised that no reason has been given by the Government for its refusal to accept the amendment. The AttorneyGeneral, said that it was unacceptable to the Government, which of course, was not argument. It was simply the use of the weight of members in the House of Representatives to assert the will of the Executive over the Senate. I am essentially a " parliament man ". I believe that Parliament has its proper place and that it should have full" opportunity to express its opinion and to assert its rights in respect of regulations made by the Executive. I am still of the opinion, which I expressed previously, and which I suggest, was confirmed by the action of the Government in dropping the bill, that the real purpose of the measure is to restrict the scope and functions of the Seriate Regulations and Ordinance Committee with a view to giving the Executive fuller power, and to over-ride the Senate. Is this an important bill or is it not? Was it not introduced originally as a result of action taken by the Senate with regard to certain regulations issued by the Executive ? Perhaps, I shall he permitted to cite an instance of what I regard as the undue exercise of this Executive power in connexion with the making of regulations or ordinances. I read in the Adelaide Advertiser, the principal daily newspaper in my State, on the 7th August, the following report from its Canberra correspondent -

Local agitation lias resulted in the withdrawal of what were considered by the dissatisfied, to be the objectionable features of the Unlawful Assemblies Ordinance. What gave most offence locally, was the special power taken to proclaim any part of the Federal Capital Territory, and presumably the whole, a prohibited area within which it would be unlawful, under a penalty of £100, for more than 20 people to gather to discuss public affairs.

This afternoon the Leader of the Senate (Senator Pearce), in replying, to a question on this subject, said that the ordinance affected only a very small %rea. If honorable senators look at the ordinance - by the way it lias not yet been laid on the table of the Senate, but can be seen in the Gazette - they will find that " the proclaimed place " means the area described in the schedule and includes also any place specified by the regulations to be a proclaimed place; hi other words the Attorney-General may by regulation prohibit public assembly in any part of the Federal Capital Territory, an area of SOO square miles! The. comment of the Advertiser correspondent continued -

The more reasonable of those opposed to the ordinance agreed that the deliberations of Parliament should be protected from disorder and from unauthorized gatherings, but the ordinance gave the Government power to prevent a public meeting being held on any pretext in any part of Canberra-

And, I think, in any part of the Federal Capital Territory -

The promulgation of an ordinance which has had to be vitally amended because of public protest, cannot be considered good electioneering tactics, lt has been said that the Minister for the Interior (Mr. Paterson), on whose behalf the ordinance was issued, did not know anything about it till it was gazetted.

I do not know whether this is a fact; I am only quoting from the published report of a newspaper correspondent who is considered to be good enough to represent in Canberra the leading South Australian paper. However, I should like to know whether the Minister for the Interior was aware of the ordinance before it was gazetted; it would seem strange to me that such a statement should be made if there were no foundation, for it. This report continued -

The whole episode recalls the strong protests which Senator Duncan-Hughes has made repeatedly against the extension of executive power by ordinances, which in practice, are put into effect without parliamentary sanction. Many of these ordinances are framed in terms which would not pass any parliament and the penalties invariably are fantastic in their severity, compared with penalties for similar offences made under, common law. A fine of £100 for meeting within about 400 yards of Parliament House to discuss public affairs is> an excellent example.

The evil of arbitrary government by regulations and ordinances which arc ineffectively policed by Parliament, or not policed at all, is a growing one at Canberra. Parliament, by acquiescing in this system, is sanctioning a breaking down of its own authority, and the transfer of its powers to the Executive, which in view of the long absences of most Ministers from Canberra during the recesses, means a transfer of power from the elected representatives of the people to officials responsible to no elected body . . .

It is an evil which must inevitably increase at Canberra as the years pass, unless Ministers can be induced to administer their departments from the Seat of Government during the long recesses.

I was particularly interested in this newspaper statement because it was obvious that this matter was directly linked up with the matter of regulations with which we are now dealing in this measure ; and I wondered what had happened to cause the promulgation of this ordinance. Had there been a riot in Canberra? Had. any one fired a revolver, or had there been bloodshed? Had any one been knocked on the head? So far as I can make out nothing of that kind occurred. I understand that a gathering took place in front of Parliament House with the object of expressing the views of the unemployed and their sympathizers, but that no violence took place at that meeting. Yet the Government has found it necessary, by ordinance, to assume powers similar to those which were found necessary in Melbourne in 1917, in the face of a really difficult situation, and during a period of great agitation. I put it to honorable senators that an action which might be applicable in war time in so densely a populated centre as Melbourne cannot be regarded as being essential in a peaceloving place like Canberra, with its 9,000 inhabitants, in a time of peace. I say frankly and deliberately that this is an instance of excessive use of executive authority. Since I have been a member of this Parliament, I have never shown myself to be opposed to firm action being taken by the Executive when, in my opinion, it was necessary, but I do not think it is necessary to use a steam hammer to crush a walnut, a3 the Government attempted to do by means of this ordinance.

Senator Brennan - In what way does the ordinance reveal excessive use of power ?

Senator DUNCAN-HUGHES - First of all the ordinance defines the proclaimed places and these include any place so specified by a regulation. Thus, by regulation, this ordinance can be applied to the whole of the Federal Capital Territory.

Senator Brennan - But that provision has been withdrawn.

Senator DUNCAN-HUGHES - But why? Because such a. provision involved an excessive use of power by the Executive and was not abrogated until the Government realized that it was hopelessly excessive and contrary to public opinion.

Senator Brennan - I rise to a point of order, Mr. Deputy President. The honorable senator is referring to an ordinance which deals with the Federal Capital Territory and. which, I submit, has nothing to do with the bill under consideration.

The DEPUTY PRESIDENT (Senator Sampson). - Senator Duncan-Hughes may continue.

Senator DUNCAN-HUGHES - Is it necessary for me, Mr. Deputy President, to speak to the point of order?


Senator DUNCAN-HUGHES - The ordinance then refers to unlawful assemblies - 3. - (1) It shall not be lawful for any number of persons exceeding 20 to meet or be assembled in the open air in any part of the proclaimed place for any unlawful purpose, and any person, (not being an officer of the Commonwealth acting iS the discharge of the duties of his office) who is present at any such meeting or assembly shall be guilty of an offence.

Penalty: One hundred pounds or imprisonment for twelve months.

(2)   For. the purposes of the last preceding sub-section, persons shall be deemed to have met, or to be assembled, for an unlawful purpose, if they, or any of them, while assembled, do anything unlawful, or make known their grievances, or discuss public affairs or matters of public interest, or consi- der, prepare or present any petition . . .

To me that seems to be a very harmless thing to do. "Daily honorable senators have an opportunity in this Chamber to present a petition, although I do not remember any senator taking advantage of that privilege. Such action is regarded as harmless. Nevertheless, under this ordinance persons are prevented from presenting - . . any petition, memorial, complaint, remonstrance, declaration, or other address to His Majesty, or to the Governor-General, or to both Houses or either House of the Parliament, or to any Minister or officer of the Commonwealth, for the repeal or enactment of any law, 'or for the alteration of matters of State.

In the light of this prohibition I am justified in asking what we are here for if we are not to be petitioned and to be approached either as Members of Parliament, or as officers of Parliament, or' as Ministers? What are we here for if it is not to have matters of public interest brought to our notice? The ordinance proclaims that if anybody does any of these things an officer of the police force may arrest him without warrant, and again the penalty is a fine of £100 or imprisonment for six months. The ordinance further empowers the AttorneyGeneral to make regulations not inconsistent with the ordinance. The whole of this matter, I submit, is linked up with the wider subject of the framing of regulations. Here is a definite instance of grossly excessive use of executive power to promulgate a' drastic ordinance, which the Government was eventually required to whittle away to nothing. In this instance the Executive was able to put the ordinance as first drafted into force, when in fact nothing so drastic and far reaching was justified.

I do not wish to labour this matter. I quite understand and quite approve of the necessity for the Executive taking firm action on occasions. At certain times in the past I consider it could have acted more firmly than it did, but this is a definite instance of grossly excessive power being taken by executive action. The power was not exercised, but actually any police officer would have been quite within his authority if he had acted under this ordinance. In this instance, the Executive asserted excessive power in order to prevent people from meeting. Do honorable senators realize that if instead of a party holding its meeting inside this building, its members, either on account of the warmth indoors or the pleasantness of conditions outside, met on the lawns outside, and any of them spoke on any matter of public interest, they would all be guilty of participating in an unlawful assembly?

Senator Herbert Hays - It was suggested that a similar position might arise at the ceremony of the opening of Parliament.

Senator DUNCAN-HUGHES - Yes, and that the Governor-General might be deemed guilty of an offence. My final point is this: We have to* remember that the people of Canberra have no vote, and, therefore, it is not unnatural that they should be anxious to express their views and criticize what is done by the Government, more than are the people resident in other parts of Australia. In the past I have done what I could, to secure the franchise for the people of Canberra, and it was ray suggestion that a person coming to live in Canberra should remain on the electoral roll for the district from which he came unless and until he got on the roll here. While the people of Canberra have no vote, it is more important that they should retain the right to express their views on public questions. I point to this ordinance to illustrate why there should be some supervision of the way in which the powers of the Executive are used. I agree with Senator Marwick's interjection that if it is the intention of the Government to have every regulation perused by officers of the Crown Law Department, that should be specifically laid down in the bill. That is all that I ask. The present Ministers may go out of office and the heads of the department may change, and if there is no specific rule that the officers of the department are obliged to endorse ali regulations as I suggest, the safeguard which the Minister has indicated will disappear. In committee, I propose to move i the re-insertion of the amendment which the Senate accepted in the previous bill to the effect that before regulations are promulgated they shall be certified by the Solicitor-General or some other authorized officer as being not in excess of the powers conferred by the act under which they purport to have been made. On a previous occasion the Leader of the Seriate said that this was a dangerous proposal, and that both the AttorneyGeneral and the Solicitor-General concurred in that opinion. There is no danger whatsoever in it; on the contrary, there is a safeguarding of the interests of the general public. However, the matter at issue is whether the Executive is to have its way in this matter, or whether the Senate will stand firmly for its rights.

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