Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Thursday, 14 May 1931

REPORT of Select Committee.

Senator SirHAL COLEBATCH (Western Australia) [8.1]. - I move -

That the second report from tlie select committee on the standing committee system, presented to the Senate on the 10th July, 1930, bo adopted.

This matter has been on the businesspaper for a considerable time. It was originally raised on tho motion moved by Senator R. D. Elliott for the appointment of a select committee. After the committee had been appointed, had deliberated, and had submitted a report, Senator R. D. Elliott went on a visit to England, and I somewhat reluctantly assumed the office of acting chairman of the committee. In that capacity, I am now moving the adoption of the second report of the committee; but I shall leave it to Senator R. D. Elliott to deal with the subject more fully. The first report contained recommendations for the appointment of three standing committees, but an amendment was moved by Senator Daly, who was then Vice-President of the Executive Council, providing that the matter should be referred back to the committee with the idea of dispensing with two of the committees. In this report, effect has been given to Senator Daly's suggestion, and the report contemplates the appointment of a standing committee of the Senate, to be called " The Standing Committee on Regulations and Ordinances." It is unnecessary for me to say very much in order to commend this recommendation to the Senate, but there is one point to which I should like to draw attention, chiefly for the purpose of illustrating the extraordinary danger there is in our habit of eleventh-hour legislation. We pass bills through Parliament with practically no consideration, and almost in a moment, in what is usually termed the end of the session rush. Of course, many ofus who have been in this Parliament for some years do not know what it is to end a session. It is a happy experience to which we look forward. We hope that we may be spared long enough to see one. But the fact that there is no end of the session does not seem to obviate what some of us have been accustomed to in State Parliaments, and that is the end of the session rush. The only difference between having no end of the session and ending one is that, in the latter case, there is only one end of the session rush, whereas in the former, under the system of having periods of a session and no end to a session, there is an end of the session rush at the end of every period. The danger of passing hasty and illconsidered legislation is, therefore, multiplied. On the 8th August, probably in the night-time between the 7th and8th August, the Senate passed through all its stages, with practically no debate from its first reading down to its third reading, a bill to amend the Acts Interpretation Act, and I venture to say that there are not many honorable senators who know what we did on that occasion. What we did was to agree to alter the law which required that the Government, after making a regulation, should place a copy of it on the table of both Houses of Parliament within 30 days of the making of the regulation, or, if Parliament was not sitting, within 30 days of the meeting of Parliament, and to replace it by a provision which enables the Government to place the regulation on the table of each House within fifteen sitting days of the meeting of that House.


Senator Daly - The honorable senator does not suggest that that bill was not debated.


Senator Sir HAL COLEBATCH - I am making no suggestion. I shall tell the honorable senator what happened. Under the provision as altered, the Government need not lay a regulation before the Senate until the lapse of fifteen sitting days after the regulation has been made. Even if we are working full steam and continuously, which very seldom happens, that may mean at least six weeks, but, in some circumstances, it may means two or three months. I venture to say that honorable senators on this side, at any rate, did not realize what we were doing; otherwise we should not have agreed to the alteration. In moving the second reading Senator Daly said -

There is some doubt as to the meaning of the expression, " If the Parliament is not then sitting," and, consequently, as to the period provided within which regulations may be tabled. It frequently happens that, although Parliament is sitting on the date when regulations are made, it is adjourned shortly after that date, and it is not possible to comply with the section. Clause 3 provides that, in future, all regulations are to be tabled within fifteen sitting days from the date on which they are made.

That point was never again referred to in the course of the debate. Senator Rae made some reference to the consolidation of the two acts, and that completed the second-reading debate. In committee, Senator McLachlan spoke of the date on which the proclamation should be issued, and also asked whether the fifteen days referred to each individual chamber. I am not suggesting any ulterior motive on the part of Ministers, but I venture to suggest that the amendment was made with the idea of simplifying the procedure and facilitating the tabling of regulations as quickly as possible.


Senator Daly - As a matter of fact, the bill was prepared before the present Government came into office.


Senator Sir HAL COLEBATCH -I believe that it was drafted by a previous administration ; I am not concerned about that point, but I have not the slightest hesitation in saying that all governments invariably take the view that the less restraint Parliament exercises upon them, the better it is for them. That sentiment, I am sure, is not endorsed by this Senate. But the fact remains that, without the slightest conception of how this alteration was to be used, the Senate did detract considerably from its power in regard to regulations. It thought that the bill meant getting over a legal technicality and would facilitate the placing of regulations before Parliament at the earliest possible moment. "We find now that it is actually being used to delay the time within which regulations may be submitted. Happily, our error or inadvertence has been corrected by the High Court. That tribunal has, in fact, determined that the power of Parliament is supreme, and that once a regulation has been gazetted there is no need for this chamber to await the convenience of the Government to lay it on the table. Once a regulation is gazetted it is within the power of the .Senate to disallow it. The High Court has thus rescued us from the consequences of our inadvertence, and restored us to a better position than we occupied previously. I trust that honorable senators will take the earliest possible opportunity to read in full the whole of the judgment of the High Court on the Transport Waterside Workers Regulation, because it strikes at the very root of the power of Parliament, and the delegated power of the Government, making it clear that Parliament parts only with such legislative powers as it specifically delegates to the Government.

In view of the interpretation of the High Court, it seems to me that it is more important than it was previously that we should have in this chamber a recognized statutory body charged with the duty of inquiring into and considering regulations directly they are gazetted. Otherwise, goodness knows how long it may be before we know whether they are in operation or not or what is the effect of their operation. About a month ago, Sir Arthur Robinson, a very distinguished lawyer, who has given a good deal of his time and ability in the service of the country, and who is a man of very wide political experience, read a paper before the Law Institute of Victoria in the course of which he made a remark which is extremely pertinent to the matter we are now considering. He said -

But to-day we have two Parliaments - one in Melbourne, and the other in an otherwise uninhabited corner of Now South Wales. The latter turns out statutes not unduly lengthy, but to the accompaniment of oratory unusually vituperative. But just as the oyster secretes a pearl, so docs something precious to us exude from Canberra. A constant stream of regulations of a range, breadth, and length surely unequalled in any other country pours out with never failing regularity.

Au irresponsible and anonymous expert states that quite 66 per cent, of these regulations are ultra vires, and a goodly proportion of the remainder are unworkable without continuous legal advice.

Sir ArthurRobinson made that statement to the fellow members of his profession as a reason for satisfaction on their part and for hoping that, even in these dull times, there would be a good deal of business flowing to the legal profession.


Senator Daly - The statement made by Sir Arthur Robinson was an absolute contempt of Parliament.

Senator Sir HALCOLEBATCH.Then I trust that the honorable senator will take steps to have the contempt punished.


Senator Daly - It was a reflection on the Opposition in the Senate.


Senator Sir HAL COLEBATCH - Sir Arthur Robinson was talking about governments, and not about the Opposition in the Senate. He was quite correct in saying that this stream of regulations is without parallel in any other country in the world.







Suggest corrections