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Thursday, 28 May 1931


Senator MCLACHLAN (South Australia) . - I am amazed at the line of reasoning followed by the Leader of the Senate (Senator Barnes) in this matter, which he dismissed with an airy wave of the hand, suggesting that His Excellency the Governor-General, when the address was presented to him, would inquire whether it was intended as a joke. I can assure the honorable gentleman that it will not be regarded as a joke by His Excellency, nor is it so regarded by the Senate, or those who have studied the practice and procedure of constitutional government in the Commonwealth and the Motherland. Earlier in the day, the Leader of the Senate admitted the soft impeachment as to the advice which the Executive would tender to the GovernorGeneral. When taking a point of order on the motion submitted by the Leader of the Opposition (Senator Pearce), for. the disallowance of the latest regulations issued under the Transport Workers Act, he admitted that the regulations in question were, in substance, the same as the regulations previously disallowed. That is the point which is emphasized in the address. The Leader of the Opposition has, I think, demonstrated beyond all doubt the supremacy of Parliament over the Executive, and that only in so far as Parliament has parted with that power, has it lost control. Parliament has delegated to the Executive power to make regulations having the force of law, subject to certain conditions. Once a regulation has been disallowed, it cannot be re-enacted except under the conditions indicated by the Earl of Halsbury, whose views were cited- by the right honorable the Leader of the Opposition a few moments ago. The Executive Government of this country makes a regulation to-day ; it is disallowed to-morrow; and it immediately makes another, which, in the language of the Leader of the Government, is substantially the same. I put it, that apart altogether from the practice of Parlia- ment, apart from the requirements of the Standing Orders, such a rejection having been made it renders any subsequent regulation utterly inoperative. I put the matter in that way for several reasons; but before embarking upon their recital, may I say that the case put up by the Minister is not a parallel one. This is government by executive act, which is entirely different from government by legislative act. The power of the Government is limited not only by the provisions of the Acts Interpretation Act, but also by the right of this and the other branch of the legislature to address His Excellency in regard to the exercise of that power. Is it to be assumed that, having granted this power to an executive government, that Government is thereby made a despot ? That is what was claimed in the days to which Senator Pearce has referred. The Minister has argued that no piece of legislation is involved. This matter is outside the scope of such considerations. What is called in question is the limitation that is imposed upon the powers of the Executive Government. Oan it be said that this Parliament, having given this power, has stripped itself for ever of any control over the exercise of it? According to the judgment of Mr. Justice Starke, that would be the effect of the Executive bringing into force regulations similar to those that had been disallowed. If the Executive is right in what it is doing, it can absolutely transgress not only the principles of that legislation which limits its powers, but also the transcendent power of Parliament. The whole of its power to make regulations is derived from Parliament, and it can. function only within the four corners of the limitations that are imposed upon it by the Acts Interpretation Act. It is impossible for any executive government to defend such action. The power which it derives from its masters, the Parliament, can be exercised only in conformity with the terms of the statute under which it has been granted. It would be a travesty on constitutional government, as well as on the rights and privileges of Parliament, were the Government to be enabled, simply by resorting to the trick that has been practised in this case, to avoid the direct limitation that has been placed upon the power of the Executive.

Let us conjure up the position as it would exist under such circumstances. To-day a regulation would be made by the Executive Government; to-morrow or on the following day it would be disallowed by the Senate; and on the next day it would be brought up again and passed through the Executive Council. Is that the spirit which guided this Parliament when it passed the Acts Interpretation Act? The Government is establishing a position which, if persisted in, will strip the Executive of every vestige of its power. Parliament is not going to be deprived of its right to control regulations. By resorting to the device to which reference has been made, the Government could keep constantly in force a regulation that had been disallowed by one branch of the legislature. I do not think that, altogether apart from the more drastic remedy to which Senator Pearce has referred, Parliament has stripped itself of any controlling right; and it still possesses the right to address His Excellency in regard to such questions, and thus cause a return to the spirit of the law as any reasonable human being would interpret it.

I draw the attention of the Senate to the following observations of Mr. Justice Starke : -

But then it is said that a regulation can only be disallowed if a resolution be passed to that effect after notice of it has been given at any time within fifteen sitting days after the regulation had been laid before the Houses. The purpose of the provision, however, is to fix a period of time beyond which disallowance should not take place, not to impose it as a condition on the power of disallowance. The opposite view would enable the regulation-making authority to delay the presentation of any regulation to Parliament, and thus keep it in force for fifteen days at least, and, if disallowed, then re-enact it and delay presenting it to Parliament for another fifteen days. By this method a regulation might be kept in perpetual operation, and, in fact, it seems to have been adopted in the present ease. On the 20th March, 1931, the Senate disallowed the regulations, 1930 Nos. 158 and 159, and on the same date the present regulation, 1931 No. 34 was made, having, as I think, substantially the same effect. This procedure was entirely subversive of the control of Parliament over regulations, which is the main object of section 10 of the Acts Interpretation Act 1904-30 to preserve.

Surely those observations, by themselves, furnish sufficient justification for this Senate presenting an address to His

Excellency, as the head of the Executive Government, to ascertain whether our views on the matter are right.


Senator Hoare -What did the Chief Justice say ?


Senator McLACHLAN - Unfortunately, he did not say anything. Surely, if the Government were not blinded by party prejudice, it would not seek to force this position upon Parliament ! It is fundamentally wrong. It is an attempt to take out of the hands of Parliament control over what, in ordinary circumstances, had Parliament not been so minded as to give to the Executive Government a certain limited amount of power, would require legislation. All this talk about bills and the proceedings in relation to bills has nothing whatever to do with this point, which is a constitutional point, and which concerns the rights and privileges of Parliament. It is not a question of procedure or of practice. The power of Parlialiament is well established. For centuries there have been efforts to subvert it, but those efforts have failed, to the undoing of their originators ; yet now, at the instigation of the present Government, a further attempt is being made to give to the Executive that power for which so many have reached in vain in the past - that control which Parliament alone possesses, control over the lawmaking machinery of this country. Certain power having been delegated, that delegated power can be exercised only so long as such exercise is strictly in accordance with the terms of the delegation as well as of the wishes of Parliament.


Senator Kneebone - The Senate has exercised its power by disallowing the regulations.


Senator McLACHLAN - Does the honorable senator suggest that it is proper for the Executive Government immediately to submit substantially the same regulations? Such a contention is too ludicrous to be considered for a moment.

I assure the Minister that I am confident that His Excellency will not regard this as a joking matter. I do not know whether the Government so regards it. It is no joke to those who study the principles of constitutional government.

I venture to think that, unless the Senate wants government to be brought to the level of a kindergarten, the only proper, dignified, and legal course open to it is to address His Excellency in the terms referred to in the motion moved by Senator Pearce. Only one question is involved, and that is the supremacy of Parliament.

SenatorRAE (New South Wales) [4.34] . - It appears to me to be plain that the Opposition is raising more problems than it can settle by this proposalto petition the GovernorGeneral. It has been stated by the President that petitions were presented under somewhat similar circumstances to the Governor-General in 1914. I point out, however, that the status of the GovernorGeneral has been changed considerably since that date. His Excellency, like His Majesty, now acts more definitely on the advice of his Ministers than he did in 1914. It is not my purpose to discuss at length a question that is one for a legal man and not a layman to dogmatize upon; but it seems to me that the Opposition is attempting to create an extraordinary position. The Governor-General, we are told, is supposed to follow the advice of his Ministers. If the GovernorGeneral can disregard the advice of his Ministers and act entirely upon his own initiative, then he can do what honorable senators opposite desire, without any notice from this chamber. If he cannot act on his own initiative it appears to me that he can act only on the advice of those who have the right to constitute themselves his advisers. Although the Executive is appointed and given certain powers under the Constitution, we are told that the Governor-General must disregard its advice and follow the direction of a set of self-elected political partisans.


Senator DUNCAN (NEW SOUTH WALES) - Self-elected ?

SenatorRAE. - Self-elected in the sense that they have elected to undertake this duty.


Senator DUNCAN (NEW SOUTH WALES) - If action were taken in the direction proposed it would be in accordance with the wish of the majority of the Senate.

SenatorRAE. - The Senate is only one branch of the legislature.


Senator DUNCAN (NEW SOUTH WALES) - The legislature possesses greater powers than the Executive.







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