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Thursday, 28 May 1931

Your Excellency,

The Senate of the Commonwealth in Parliament assembled presents its humble duty to Your Excellency and begs to present the following petition: -

That Your Excellency will be pleased to refuse to approve, during the present session of Parliament, of any regulations presented to the Executive Council being the same in substance as regulations which the Senate, in the lawful exercise of its powers as defined by Parliament in the Acts Interpretation Act 1904-1930, has, in this session, already disallowed.

We would respectfully point out to Your Excellency that, under the Constitution of the Commonwealth, the function of legislation is a function of the Parliament and not of the Executive, and that Parliament has delegated to the Executive a limited power of legislation, namely, the power to make regulations under an act of the Parliament provided such regula tions are consistent with the act, but that Parliament has expressly reserved to either House the power to disallow such regulations.

We would further point out that in regard to the power of legislation by the Parliament it is the practice of Parliament, as set out in May's Parliamentary Practice, Thirteenth Edition, pages 292 to 302, that- " It is a rule in both Houses, which is essential to the due performance of their duties, that no question or bill shall be offered that is substantially the same as one on which their judgment has already been expressed in the current session."

If, therefore, a bill has been rejected by the Senate, the same bill cannot be introduced again in the same session except in accordance with the provisions of the Constitution and of the Standing Orders.

We submit that it is not consistent with the practice and privileges of Parliament, as thus expressed in respect to the original power of legislation, that the Executive - in the exercise of the delegated power of legislation, namely the making of regulations - should be free from a restriction that is imposed on the legislature.

We submit, further, that it is inconsistent with the spirit and intention of the Constitution that the Executive should again present, for Your Excellency's assent and approval regulations the same in substance as those which the Senate has already disallowed in this session.

We therefore humbly pray that Your Excellency, having regard to the respective powers of the legislature and of the Executive as conferred by the Commonwealth Constitution, will refuse to sanction further regulations, during this session, being the same in substance as those already disallowed.

Senator Barnes - I rise to a point of order. I submit that the motion is out of order, for the reason that it is a violation of the Constitution, being an invasion by the legislature of the functions of the Executive to advise the Crown. A motion violating the Constitution cannot be in order. The Transport Workers Act empowers the Governor-General - and by the Acts Interpretation Act 1901, section 17f, that means the GovernorGeneral in Council - to make regulations under the act. The making of the regulations is, therefore, an executive act. By section 61 of the Constitution the executive power of the Commonwealth is vested in the King, and is exercisable by the Governor-General as His Majesty's representative. Section 62 creates a Federal Executive Council, to advise the Governor-General in the government of the Commonwealth. It is unconstitutional for a branch of the legislature to assume the right to offer advice to His

Excellency as to the exercise of his executive functions. An invasion by the legislature of the functions of the Executive is as much a violation of the Constitution as is an invasion by the legislature, or the Execlutive, of the functions of the judiciary. If this motion is carried, there will be precedent for the Senate to set up a right to advise the GovernorGeneral on. any or all matters of administration. Should it be urged that the interference of the Senate in this case is justified on the ground that it concerns regulations, which in one aspect may be regarded as a form of legislation, the answer is clear - such interference would not be justified even in a case of direct legislation. An address by the Senate to His Excellency, praying him to disallow a bill passed by the Parliament, clearly would be unconstitutional.

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