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Thursday, 28 May 1931

The PRESIDENT (Senator the Hon W Kingsmill - As to the claim by the Leader of the Senate that the substance of the address is out of order, there are two precedents which I can at once recall. The first is that of an address moved by Senator McGregor on the 17th of June, 1914, concerning, if I remember rightly, the question of a double dissolution, wherein advice was undoubtedly tendered to the then Governor-General. Again, a few days later, the same gentleman, in circumstances very much akin to those which at present exist between the two Houses of Parliament, offered advice to the then Governor-General concerning a referendum for six bills to amend the Constitution. "We may rest assured that, if any remarks in this address are improperly made, His Excellency the Governor-General will at once call attention to them and refuse to give an answer.

Senator Sir GEORGE PEARCE - I was about to point out that there was ample precedent for the course proposed to be taken, but as you, Mr. President, in your ruling have referred to them, I shall not again make mention of them. This address to His Excellency the GovernorGeneral does not mention the Transport Workers Act. It deals with what we on this side regard as a serious invasion of the rights of Parliament by the present Government, which is without precedent since the inauguration of the Commonwealth. On many occasions the Senate has disallowed regulations; but there is no instance of those regulations having again been submitted in the same form. On the 29th May, 1914, I moved to disallow a regulation made under the Defence Act. The motion was strongly fought by the Government of the day. The division list shows that sixteen senators voted for my motion and eleven against it. That Government did not again bring in the same regulation. On the 4th November, 1910, and again on the 11th of that month, Senator St. Ledger moved to disallow regulations under the Census Act. There were several divisions, the result being close in each instance, namely thirteen for and eleven against the disallowance of the first sub-section, and fourteen for and eleven against each of the three following sub-sections. Notwithstanding its defeat by so narrow a margin in each case, the Government of the day did not again bring in the regulation.

Senator Hoare - That does not prove anything.

Senator Sir GEORGE PEARCE - It proves that the present Government is the first to break the rule.

Senator Hoare - That does not necessarily mean that it is acting wrongly.

Senator Sir GEORGEPEARCE.On the 14th February, 1917, Senator Gardiner successfully moved to disallow a regulation under the War Precautions Act. His motion was agreed to by seventeen votes to sixteen, a majority of only one. The regulation thereby disallowed was again brought in, but not in its original form. It was amended to conform with the views expressed by the majority of senators who voted against its disallowance. In other words, the Government of the day, even when charged with the responsibility of carrying on a war, had regard to the will of the Senate, and amended the regulation to conform with its decision. The present Government claims the right to legislate by regulation in a manner in which it can not, or will not, legislate by means of an Act of Parliament. In other words it declares : " We think that Parliament will not pass an act, and we are going to abuse our regulationmaking power to do by regulation what we cannot do by act of Parliament;" although in its policy-speech Labour dis- tinctly promised the people that it would accomplish what it is now trying to accomplish by regulations, the repeal of the act.

I come now to the constitutional aspect of this question. I want to be brief, but there are one or two quotations that I wish to give from recognized authorities. The first from which I quote is Dicey's Law of the Constitution. Dicey defines Parliament as consisting of the King, the House of Lords, and the House of Commons, which, of course, in the Commonwealth, means the GovernorGeneral, the Senate, and the House of Representatives. He then proceeds to say -

Parliament thus denned, has under the English Constitution, the right to make or unmake any law whatsoever, and, further, that no person or body is recognized by the law of England as having a right to over-ride or set aside the legislation of Parliament.

It may be argued that Dicey is there referring to legislation by means of bills, but further on he says -

A law may for our present purpose be defined as any rule which will be enforced by the courts.

He has, therefore, in his mind not merely bills but also regulations. On page. 48, dealing with the powers of the various branches of the legislature, he says -

The absence of any competing legislative power. - The King, each House of Parliament, the constituencies, and the law courts, either have at one time claimed, or might appear to, claim, independent legislative power.

That is exactly what the Commonwealth Government is claiming to do - lt will be found, however, on examination that the claim can in none of these cases be -made good.

That applies exactly to what this Governmnent is claiming. Dicey says further -

The King. - Legislative authority originally resided in the King in Council, and even after "the commencement of parliamentary legislation "there existed side by side with it a system of royal legislation under the form of ordinances, -and (at a later period) of proclamations.

These had much the force of law, and in the year 1539 the Act 31, Henry VIII., c.8, formally empowered the Crown to legislate by means of proclamations. This statute is so -short and so noteworthy that it may well be quoted in extenso : " The King," it runs, " for the time being, with the advice of his Council, or the more part of them, may set forth proclamations under such penalties and pains as to him, and them shall seem necessary, which shall be observed as though they were made by act of Parliament -

Again, exactly what this Government is trying to do - but this shall not be prejudical to any person's inheritance, offices, liberties, goods, chattels, or life;, and whosoever shall willingly offend any article contained in the said proclamations, shall pay such forfeitures, or be so long imprisoned, as shall be expressed in the said proclamations; and if any offending will depart the realm, to the intent he will not answer his said offence,' he shall be adjudged a traitor."

This enactment marks the highest point of legal authority ever readied by the Crown, -

Until this year of grace, 1931 - and, probably because of its inconsistency with the whole tenor of English law, was repealed in the reign of Edward VI. It is curious to notice how revolutionary would have been the results of the statute had it remained in force. It must have been followed by two consequences. An English King would have become nearly as despotic as a French Monarch. The statute would further have established a distinction between " laws " properly so called as being made by the legislature and " ordinances " having the force of law, though not in strictness laws as being rather decrees of the Executive power than acts of the legislature.

Could anything be clearer? Could the attitude the Government has taken up, or the power that it is claiming for the Executive as against the legislature, be set out more clearly than Dicey has put it in this quotation?

I want now to read a few paragraphs from Anson's Law and Custom of the Constitution, Volume I. Parliament. On page 258, I find the following -

As the distinction between Statute and Ordinance became manifest the Crown came to assert definitely as a part of the prerogative the right to legislate independently of Parliament. The Royal Proclamations of the sixteenth and seventeenth centuries form the battleground of the old controversy which is fought under changed names, and the right of the Crown to tax or to legislate without Parliamentary sanction is asserted and disputed in one form or another from the Ordinance of the Staple to the Bill of Rights.

Again, on page 340, I find -

The Constitution of our Parliament, and its action in legislation, have now been described. It may be a matter of interest, though that interest is almost- entirely historical, to note the direct invasion of the rights of Parliament by the Crown in the sixteenth and seventeenth centuries; and the indirect, but none the less potent influence brought to bear upon the legislature by the Executive when the door of direct encroachment had been closed by statute.

The Crown, as being at once the Executive and a 'branch of the legislature, is also that branch of the legislature which

The Crown has (1) tried to legislate independently of Parliament; it has (2) tried to nullify legislation effected in the entire Parliament by dispensing with the operation of statutes in individual cases; or (3) by suspending their operation altogether.

The rest of this paragraph is not appropriate to the subject with which we are now dealing. On page 341 is the following:

Legislation by ordinance, which had been denounced at the end of the fourteenth century, disappeared during the fifteenth, but revived in the sixteenth in the form of legislation by Royal Proclamation.

In this part of his boole, Anson is dealing with the Bill of Rights, which was brought in to put an end to the controversy between Parliament and the Crown, and the final paragraph I wish to quote is as follows

The Bill of Rights accordingly made short work of the suspending power, enacting-

That is the power of the Executive to suspend laws - " that the pretended power of suspending of laws Or the execution Of laws, by regal authority, without consent Of Parliament, .is illegal."

It has remained for a Labour Government, which talks of democracy, to try to go back to that state of affairs, to try to revive in. Australia, under our Constitution, a defiance of parliamentary government by the Executive that was settled, as I said yesterday, hundreds of years ago.

Parliament has the undoubted right to address Hrs Excellency the GovernorGeneral. The paragraph which the Leader of the Government in the Senate quoted a little while ago referred to His Excellency the 'Governor-General as the head of the Executive, and as part of the Executive. But he is also part of Parliament. The Parliament of Australia consists !of the Governor-General, the Senate, and the House of Representatives.

Senator Rae - That is only a fiction.

Senator Sir GEORGE PEARCE - -It may be a fiction in both cases, but it is something that has a very real meaning in connexion with our system of parliamentary and responsible government. I suppose there is no one in the Senate who will challenge the statement that the authority of Parliament in the making of laws is not shared with the Executive, but is absolutely supreme. The Executive has no law-making powers, except such as are delegated to it by Parliament, and then Only to the extent that they are so delegated by a particular bill.

Senator Barnes - The Executive has the right to act under the power given to it by Parliament, and that is all it is doing in the present instance.

Senator Sir GEORGEPEARCE.Outside the limited power bestowed .by Parliament upon the Executive, the authority of Parliament is supreme. Parliament gives the Executive the right to make regulations 'consistent with an act, but reserves to itself the right to disallow those regulations. If the Executive wrongfully uses the power conferred upon it; if it goes outside its delegated and limited right, the Senate's only redress is to present an address to His Excellency the Governor-General, unless it takes the extreme step of refusing to grant Supply in order to bring the Government to .an end. Parliament's right to address the Crown has .always been recognized in British history, and has many times been used when it has been deemed that tlie Executive was transgressing the rights of Parliament or exceeding its own power in respect to any limited authority delegated to it by Parliament. From the Laws of England, fey the Earl of Halsbury, 21st volume, page 617, paragraph 1066, 1 quote the following : -

Even in cases whore it delegates 'to another authority, such as a public department, the power to make rules and regulations or to formulate schemes and draft orders, Parliament usually reserves to itself some measure of control over the exercise, of this .power by the authority in question.

There is a very significant foot-note, as follows: -

And, in cases where an Order in Council is required to carry out .a scheme formulated by an authority under powers conferred by statute, -the act which confers such powers sometimes provides that the scheme in question shall , not be carried into effect until a prescribed period of- time has elapsed, during which either House of Parliament, by agreeing to an address hostile to the proposed scheme, cun prevent the order being made (e.g., see Endowed Schools Act, 1873-36 and 37 Viet. C. 87-3. IS.)-

It is not dealing with an order that has been made; it is seeking to prevent that Executive from making an order - or until both Houses have agreed to an address to the Crown praying that the required order may be made (e.g., see Military Manoeuvres Act, 1897-60 and 61 Vict. C. 43 - s. (1) 3).

Here is another significant paragraph -

Where a form of objection is not prescribed by statute, the usual method by which either House of Parliament can object to any rule, &c, made by an authority is by means of an address to the Crown.

It seems to me that if our powers are the same as those of the English legislature - I think they -are - either chamber of the Commonwealth Parliament has the power to prevent the Government from making regulations, and that a proper means of doing so is by presenting an address to the Crown. The question then arises - is the Crown impotent? Is the Governor-General impotent? ls he bound to act on the advice of his advisers? If that be so, of what value i3 this privilege of an address to the Crown ?

Senator Rae - The Crown need not necessarily act on the advice of its advisers.

Senator Sir GEORGEPEARCE.If it did in every instance, this right of address would be useless, and the procedure that is outlined in the authorities which I have quoted, might, be regarded as mere camouflage. But surely it does mean something. In my judgment, the Governor-General is part of the Parliament, and under our Constitution, Parrliament has the right to make addresses to the Crown. This Senate, therefore, is within its rights and is acting in a strictly constitutional manner in directing the attention of His Excellency the Governor-General to the Government's flagrant defiance of the Senate in the lawful exercise of its power to disallow certain regulations. The Executive, in promulgating fresh regulations, the samiin substance as regulations already disallowed, is assuming a power superior to that of Parliament. On these grounds 1 ask the Senate to agree to the motion for the presentation of this address to His Excellency the Governor-General.

Senator Sir William Glasgow - I second the motion.

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