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Wednesday, 10 June 1931

The. PRESIDENT. - I have to inform the Senate that I duly presented to His Excellency the Governor-General the address agreed to by the Senate on the 28th May, 1931, and that I have since received from His Excellency the following reply:-

Mr. Presidentand Gentlemen of the Senate,

With deep respect, I have to inform you that I find it impossible, conformably with my duty, as I understand it, to comply with the request contained in the petition you have made the subject of your address.

The dignity of the Senate and the importance of the question you have raised compelled careful, and . anxious . reconsideration of the conclusion I had previously formed and acted upon; but that conclusion has been confirmed.

It is due to you to state as succinctly as the subject will permit, but at any rate clearly, the reasons for my opinion. '

I do not understand from anything contained in the address that you question the legality of any regulation of the nature you have mentioned. At the same time I wish. to assure you that I have, to the best of my ability, carefully re-examined the matter from this standpoint also, in order that no plain illegality should arise. My consideration of the relevant legislation and judicial decisions has led me to the belief that the advice of my legal adviser, the honorable the AttorneyGeneral, is correct - that unless and until disallowed by either House of the Parliament such a regulation would be valid and have the force of law.

With respect to legality, therefore, it is obviously my duty to take the only course which would enable the proper tribunal for that purpose, the judiciary, to determine the question should it arise.

As to the constitutional propriety of my approval to such a regulation as is postulated by the address, it cannot be doubted that normally by constitutional practice, confirmed, and perhaps strengthened, by the pronouncement of the Imperial Conference of 1926, I am bound to act upon the advice of my Ministers.

My departure from that established principle in the present instance is urged upon me on two grounds. One is the difference between the respective constitutional powers of the legislature and the Executive. The other is the rule of practice observed by the two legislative chambers as described and illustrated, together with instances of departure from the rule, in May's Parliamentary Practice, 13th Edition, at pages 292 to 302.

As to the first ground, there is not, as I regard the position, a contest between the legislature on the one hand and the Executive on the other. If such were the case it could obviously be speedily ended by ordinary constitutional methods.

But with regard to the political desirability of certain regulations, there has arisen a serious difference of opinion between one branch of the legislature, namely, the House of Representatives, tacitly and constantly supporting the regulations as framed by the Executive, and the other branch of the legislature,' namely, the Senate, expressly and constantly disapproving of these regulations.

My plain duty in such circumstances, as it appears to me, acting, not as the representative of His Majesty the King as a constituent part of the Commonwealth Parliament, but as the designated executant of a statutory power created and conferred by the whole Parliament, is simply to adhere to the normal principle of responsible government by following the advice of the Ministers who are constitutionally assigned to me for the time being as my advisers, and who must take the responsibility of that advice. If, as you request me to do, I should reject their advice, supported as it is by the considered opinion of the House of Representatives, and should act upon the equally considered contrary opinion of the Senate, my conduct would, I fear, even on ordinary constitutional grounds, amount to an open personal preference of one House against the other - in other words, an act of partisanship.

The other ground of your request, namely, the practice of Parliament during the session as to re-consideration of proposals already dealt with, does not appear to me to be inherently applicable to executive action in making regulationsunder statutory authority.

It is said, and I believe correctly said, in the same edition of May as is above referred to, with reference to "administrative orders, rules, and regulations, which constitute what is sometimes called delegated or subordinate legislation " ( page 626 ) that, in order to ascertain " the mode in which Parliament exercises its control over them, resort must be had in each case to the statute under which they are made, as no general rule exists ". (Page 627). To that statement, I desire to invite special attention as affording the true guide in the present situation. I, therefore, turn to the Transport Workers Act 1928-1929 to find what is the legislative control there provided.

It cannot be too clearly remembered that the provisions of that statute, read by the light of the Acts Interpretation Acts, are the law of the Commonwealth, that is, the declared legislative will, as to the relevant power to make transport workers' regulations, as to their effect when made, and as to the legislative control with regard to them.

The power to make the regulations is contained in these words, " The Governor-General may make regulations not ' inconsistent with this act ". By force of the Acts Interpretation Act 1901-1930, sections 17 (f), 33 (1) and 33 (3) those words - there being nothing to the contrary appearing - are to be read in full as : - " The Governor-General, acting with the advice of the Executive Council may from time to time, as occasion requires, make regulations not inconsistent with this act, and rescind, revoke, amend or vary such regulations."

I am unable to see how I can justifiably introduce a limitation on the executive power which Parliament itself has not seen fit to insert, namely, a limitation of the nature of the rule of parliamentary practice referred to. Such a limitation, as it appears to me, would cut down the words agreed upon by the two Houses of Parliament, " from time to time, as occasion requires" (a matter for the political consideration of Ministers) by, in effect, inserting at the request of one of the Houses the words " but not during a session in which regulations, being the same in substance, have been disallowed by either House of Parliament ". No constitutional precedent of which I am aware would warrant me in taking such a step.

As to the effect which Parliament as a whole has enacted shall be given to the regulations when made, the statutory provision is, as now to be read, that they, " notwithstanding any other act, but subject to the Acts Interpretation Act 1901-1930, and the Acts Interpretation Act 1904-1930 shall have the force of law ".

In the result, the regulations take statutory effect from the date of their notification in the Government Gazette or from a later date specified in the regulations.

The regulations, thus, by the will of the Senate, as well as of the 'other branches of the Parliament, become law by force of the act itself, and wtihout any further confirmation by the legislature or any branch of it. (See the judgment of the Privy Council in the case of Powell v. The Apollo Candle Company in ten appeal cases at page 291. )

This is particularly to be borne in mind when approaching the third provision in section 3, namely, the control of the legislature over the regulations; that is, of course, apart from new legislation. The statute provides for itself what that control shall be, by incorporating section 10 of the Acts Interpretation Act 1904-1930, which enacts that the regulations shall be laid on the table of each House of Parliament within fifteen sitting days of that House "after the making thereof," and adds a proviso whereby the regulation, though in force, may he terminated by a resolution of either House disallowing the regulation, and in that case the regulation " shall thereupon cease to have any effect ".

It is consequently manifest that the only control of the regulation-making power provided by the two Houses when passing the act was control of the regulations " after the making thereof ".

The present case, it will be observed, differs from some of the precedents set out in May's Parliamentary Practice at pages 627 and 628 and Halsbury's Laws of England, volume 21 at page 617, by which legislative control, was reserved so as to operate prior to the regulations taking effect as law. In May at page 627, for instance, it is said : - " In the simplest cases there is only an obligation to lay the rules, &c, upon the table of each House, although in some of these cases there is in addition a prohibition against the authority taking any action upon the rule for a prescribed period of time. In other cases, where the Crown is empowered to act by order in council, the statute requires that the draft order in council shall be laid before both Houses of Parliament, and that the order in council shall not be made unless both Houses present addresses to the Crown, praying for the order to be made, or have agreed to resolutions approving the draft order ".

Those include classes of preventive control; the present form of control is the curative method contained in section 10 of the Acts Interpretation Act 1904-1930. Some illustrations of curative methods are found on page628 of May.

It is beyond my power, either legally to amend the legislation, directly or indirectly; or constitutionally, in existing circumstances, to do anything except to follow faithfully the path marked out in the statute itself, and according to the normal course of responsible government.

This reply, Mr. President and gentlemen, I have the honour to make to your address. (Signed) Isaac A. Isaacs,

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