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Wednesday, 2 April 1941

The PRESIDENT - Is the motion supported?

Four honorable senators having risen in- support of the motion.

Senator CAMERON - As honorable senators are aware Standing Order 36a provides that all regulations and ordinances laid on the table of the Senate shall be referred to the Regulations and Ordinances Committee for consideration, and, if necessary, report thereon. Prior to the war, the committee was able to keep a general check on all items of delegated legislation issued by the Executive, but with the advent of war, and the passing of the National Security Act, which resulted in the issue of a vast volume of delegated war legislation, the committee has found itself burdened with increased work. I suggest, therefore, that the following questions arise: -

(a)   Whether the Senate desires that the committee should examine the war legislation thoroughly as it seems it must if the standing order remains unaltered; or

(b)   Whether the Senate desires that, as the powers given to the Executive under the National Security Act to enable a maximum war effort to be made are so wide that the Government's war legislation should not be subject to scrutiny by the committee.

It is for the purpose of obtaining an expression of opinion by the Senate on these questions that I have moved this motion. In considering these questions I direct honorable senators to the following extracts from Dicey's Introduction to the Study of the Law of Constitution, pages 407 and 408 : -

Under the complex conditions of modern life no government can in times of disorder, or of war, keep the peace at home, or perform its duties towards foreign powers, without occasional use of arbitrary authority

The English executive needs therefore the right to exercise discretionary powers, but the Courts must prevent, and will prevent at any rate where personal liberty is concerned, the exercise by the government of any sort of discretionary power.

After considering the words of this great English jurist, it is not illogical to suggest that there should be some parliamentary check to sec that the Government does not go beyond the bounds set by emergency legislation. The extract which I have read is also proof of the soundness of one of the principles on which the committee has worked in examining regulations, namely, " To see whether they trespass unduly on personal rights and liberties ". A check on the Executive's actions should not have any retarding effect on the war effort. After all, Cabinet Ministers have very onerous duties to perform, and often may not have the time to give adequate and statesman like consideration to items of delegated legislation submitted to them by public officials for approval, and may not therefore visualize all the repercussions which may occur, but which might be discovered by a committee charged with the duty of examining the regulations in a systematic manner. Any abuse so discovered and brought to the attention of the Government would probably result in the withdrawal of the offending regulations. If it is the desire of the . Senate that the committee should examine this legislation, then I consider that provision should be made for funds for the following purpose: -

(a)   For the purpose of obtaining skilled legal assistance from outside the Public Service.

There is evidence of the desirability and also of the need for legal assistance being made available to the committee even before the war, in support of which I quote certain opinions. The late Mr. W. A. Holman, K.O., in a memorandum which he forwarded to a committee of the Senate on the Standing Committee System, said. -

If such a committee is appointed, I would lit! bold enough to suggest that it should be aided by the services of a permanent legal officer, whose duty should be to read carefully all regulations as laid upon thu table and specially direct the attention of the committee to those which affect the liberty of the subject, the rights of trial, powers of arbitrary decision on the part of ministers and officials, powers of levying charges and other allied topics.

Giving evidence before the committee, the Prime Minister (Mr. Menzies), in reply to a question as to whether it would not be a big job to watch all the regulations issued, said -

Yes, it might be desirable to have pro fessional assistance {ov the purpose. One qualified man ought to bc able to do the job satisfactorily. His investigation would be of considerable assistance, to a committee.

I presume that the reference to a qualified man means a properly-qualified legal man. During the debate on the motion for the adoption of the committee's third report on the 14th May, 1936, Hansard, page 1715, Senator Abbott said -

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 a legal officer could devote his whole time to the task. The work which the committee is called upon to curry out is much heavier than honorable senators ever imagined it would be.

Senator Abbottwas then a member of the Regulations and Ordinances Committee. During the same debate, Hansard, page 1723, ex-Senator Duncan-Hughes said -

If the Government thinks that we are illequipped legally for our work, why does it not take stops to ensure that proper legal advice is available to us? If that were done, it would take a great deal of work off our shoulders.

To that suggestion the then Leader of the Senate, Sir George Pearce, replied -

If the committee will make that recommendation, I am prepared to agree to it.

Ex-Senator Duncan-Hughes was, at that time, chairman of the Regulations and Ordinances Committee. Then, as recently as the 22nd August last, Senator A. J.

McLachlan, who was then chairman of the Regulations and Ordinances Committee, after the committee had reviewed the position, made the following statement on behalf of the committee : -

The volume and the complexity of regulations referred to the committee are such that, under the principles outlined, it is impossible, without further skilled assistance, to give adequate consideration to the regulations. The committee has communicated with the Leader of the Senate (Senator MeLeay), with a view to some move being adopted which will facilitate the work of the committee, and he has indicated that he will have to have a Cabinet decision in regard to the proposal submitted by the committee. Meanwhile, the committee thought it desirable that the Senate should be apprised of the position.

The following paragraph appeared in the Sydney Morning Herald of the 2nd February of this year: -

More frequent meetings of the Commonwealth Parliament to control the possibility of abuses under the National Security Act - due to the great powers necessarily conferred upon individuals by regulations, were urged by the Minister for' the Army (Mr. Spender) yesterday. ... As matters now stand, Mr. Spender said, a Minister by merely signing a document, conferred on public servants powers which directly affected every individual throughout the Commonwealth. With the many duties which Ministers had 110\V to perform, it was absolutely impossible for any Minister closely to scrutinize every draft, regulation placed before him for signature. Hence it was possible and very probable that too great powers were given to some individuals, or that the regulations were not administered as was intended. Abuses under the regulations could best bc obviated by constructive criticism.

To prevent abuses of National Security Regulations by executives, Mr. Spender went on, it was essential that the Commonwealth Parliament should meet more frequently than it did. The British Parliament met frequently even in the midst of air raids. The meeting of Parliament would give the representatives of the people the right to criticize the huge issue of regulations that was proceeding from week to week and from month to month.

I bring this subject before the Senate in the hope that something will be done in the direction which I have mentioned, and which has been indicated by the Minister for the Army (Mr. Spender). The question, therefore, is not whether legal assistance should or should not be provided but rather whether that assistance should come from inside or outside the Public Service. The Government considers that assistance from inside the Public Service will suffice, and it has' recently offered the services of an officer of the AttorneyGeneral's Department for this purpose. That, I consider, is an entirely unsatisfactory solution of the problem because an officer employed in the Commonwealth Public Service is not as free to express opinions and to criticize the actions of the Government in the matter of delegated legislation as is a person from outside the Service and independent of the Government. Should a person inside the Service do so he would place himself in an invidious position. One might visualize what would happen if, instead of the Auditor-General scrutinizing and criticizing public accounts, an officer of the Commonwealth Treasury were charged with this responsibility. Such a position would become intolerable for the officer concerned. A similar position would arise if the offer of the Government to provide legal assistance for the committee from inside the Service were adopted.

The second suggestion is that provision should be made for funds to meet the travelling expenses of members of the committee. Although members are empowered to meet together as a committee during the parliamentary recess, to do so would mean that they would have to make long -journeys at their own expense. No doubt this is one reason why meetings of the committee have so far been confined to parliamentary sessions. Provision is already made on the Estimates for similar expenses to members of select committees. If the Senate desires that the committee should peruse the regulations to which I have referred in my motion, then the committee should be supplied with the proper facilities to enable it to perform its task thoroughly. As there is no similar committee appointed by the House of Representatives the responsibility rests on the Senate to see that the people of Australia are provided with efficient instruments whereby a systematic check can be made on the delegated legislation of the Commonwealth Executive. At the last meeting of the committee, which was held on the 13th March, the situation which I have described was again discussed. I stated on behalf of my colleagues and myself that unless the committee was prepared to submit the whole matter to the Senate for its consideration, we would do it ourselves. The committee was not prepared to submit the question to the Senate, which was the opposite of the attitude adopted when Senator A. J. McLachlan was chairman of the committee. At the meeting held on the 33th March, no fewer than 543 items of delegated war legislation and 60 statutory rules made under miscellaneous acts of Parliament were passed en Hoc by the committee. Not one of those items or rules was read or discussed, and in its collective capacity the committee did not consider any of them.

Senator Cooper - The honorable senator had plenty of time to examine the regulations and statutory rules.

Senator CAMERON - The committee did not have the time. Prior to the meeting and ever since Senator A. J. McLachlan presented the report to the Senate on the 22nd August last, I have repeatedly directed the attention of the committee to the matter and to the impossibility of giving adequate attention to the regulations. Finally, the committee decided to take no further notice of my protest. It took the matter into its own hands and passed the 543 items of delegated war legislation and 60 statutory rules en bloc. I objected to all those items being passed, and I asked that my objection to the motion approving of the items should be recorded.

Senator Cooper - The honorable senator did not look at the regulations.

Senator CAMERON - How could the honorable senator know whether I did or did not examine the regulations. I receive all regulations as they are issued. It does not matter for the purposes of this motion whether I peruse the regulations as an individual senator. I do peruse them. The committee is not doing the job it was appointed to carry out and which its members consented to do when they accepted appointment. The members of the committee have acted, as Senator Abbott said to-day when discussing another matter, as a convenient rubber stamp for the Government. I must say in fairness to Senator Spicer that he stated at the committee meeting held on the 13th March that he had examined the regulations and he had not found anything objectionable in them. However, he did not confer with the other members of the committee but simply stated that there was nothing objectionable in the regulations. Then one of the members of the committee moved that they be approved en bloc and the motion was agreed to. In fairness to the members of the committee I must make it clear that it is a physical impossibility for them to carry out the work of that body. When Senator Wilson was chairman and before the National Security Act was passed, the committee was able to some degree to keep abreast of the regulations as they were issued. It has been impossible to do so since the National Security Act was passed. There is another . aspect of the question that, should be considered. People outside Parliament are becoming increasingly apprehensive of the number of regulations that, are being issued and they are viewing the matter with a considerable amount of suspicion because immediately there has been a public outcry concerning a regulation promulgated the Government has withdrawn the regulation and issued a new regulation. That has occurred in several cases. The people want to know where Parliament enters into this matter. I have been frequently challenged on the question at public meetings and I have stated in reply that a committee of the Senate has been appointed to examine all regulations but the volume of work to be done is too heavy for the committee. Further, I have advocated that the committee should meet during the parliamentary recess and examine thoroughly all regulations issued. It is true that some regulations can be classed as being of minor importance as compared with others but that does not justify the committee approving of regulations without discussion All the regulations should be examined and discussed by members of the committee with the aid of the explanatory notes furnished by the departments. That course has not been adopted. I have stated my case dispassionately and with no desire to reflect on the other members of the committee. I have directed attention to the circumstances that have arisen and which are beyond the control of the committee.

Senator JAMES McLACHLAN (SOUTH AUSTRALIA) - Is the honorable senator voicing the views of the members of the committee or his own views?

Senator CAMERON - I have stated the position as I see it as a member of the committee and as I understand it is viewed by the committee. I consider that the committee should be provided with the assistance of a fully qualified lawyer outside the public service whose duty it would be to examine carefully all delegated legislation of the Commonwealth Parliament and then report to the committee. Adoption of that course would save the time of Parliament to a large degree because if the committee considered that a regulation were not in conformity with the act of Parliament under which it was framed it could be submitted to the Senate. The opinion has been expressed by the committee that the regulations issued under the National Security Act are regulations over which the committee has no jurisdiction or on which it has no right of comment.

Senator Spicer - Who has expressed that view?

Senator CAMERON - I am not in the witness box for the honorable senator's convenience. The statement has been made that the committee has no jurisdiction over regulations issued under the National Security Act because the act gives to the Government complete powers. When the matter was discussed at a meeting of the committee it was admitted, I think by Senator Spicer, that in special circumstances the committee could direct the attention of the Senate to a regulation which the committee considered was not in conformity with the act under which it was made. If the committee has no jurisdiction over regulations made under the National Security Act they should not be referred to it and the committee should not be asked to accept any responsibility for them. The only regulations the committee should be asked to examine are those over which it has jurisdiction in accordance with the Acts Interpretation Act. I hope that an improvement of the situation will result from this discussion.

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