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Thursday, 25 February 1971


Senator MURPHY (New South WalesLeader of the Opposition) - I move:

Page 3, after clause 8, insert the following clause: 8a. Section 28 of the Principal Act is amended -

(a)   by omitting from sub-section (1.) the words "shall be transmitted by the Chancellor for the approval of the Governor-General, and upon being so approved"; and

(b)   by inserting after sub-section (3.) the following sub-sections: - "(3a.) If a copy of a Statute is not laid before each House of the Parliament in accordance with the last preceding subsection, it is void and of no effect. "(3b.) Sub-sections (4.) to (6.), inclusive, of section forty-eight, and section fortynine, of the Acts Interpretation Act 1901- 1966 apply in relation to the Statute as if it were a regulation in relation to which section forty-eight of that Act applies. "(3c.) Where a Statute empowers an authority or officer to make by-laws, rules or orders -

(a)   a copy of every such by-law, rule or order shall be laid before each House of the Parliament within fifteen sitting days of that House after the making of the by-law, rule or order;

(b)   if a copy of such a by-law, rule or order is not laid before each House of the Parliament in accordance with the last preceding paragraph, it is void and of no effect; and

(c)   sub-sections (4.) to (6.) inclusive, of section forty-eight, and section fortynine, of the Acts Interpretation Act 1901-1966 apply in relation to such a by-law, rule or order as if it were a regulation in relation to which section forty-eight of that Act applies.".'.

Because of a drafting problem it became necessary to circulate the amendment I have moved in substitution for amendment No. 2 previously circulated. The purpose of the proposed amendment should be made very clear. I hope that it will be treated on its merits and will not be treated, as I apprehend from the words of the Minister for Works (Senator Wright), for the purpose of engaging in an attack upon those who put it forward. The purpose of the amendment is to carry into effect the principles which the Senate has regarded as proper, as I understand the position, in regard to delegated legislation; that is, that delegated legislation of any kind ought to be subject to the supervision of Parliament.

It is intended also in a constructive way to advance the autonomy of the Australian National University, subject to the first principle I have stated. The Australian National University has been given power to make statutes in the nature of regulations or ordinances as we are used to them for the conduct of the University. It is also empowered to make rules and by-laws on the same subject matters. Those subject matters are extremely important. Some of them were referred to by the Minister. They cover such aspects as the management, good government and discipline of the University, the matriculation of students, the resignation of members of the Council and various boards, and so forth. So that there will not be any misunderstanding I emphasise that the statutes are concerned with the law. These are matters of delegated legislation. We are speaking not about the administration of discipline but about the rules and the laws which are to apply in the University.


Senator Byrne - Could we use the term university statute' as against 'parliamentary statute'?


Senator MURPHY - I will endeavour to do that. University statutes are a kind of delegated legislation, so that there would be a university statute in the nature of a law, setting out matters with respect, for example, to the resignation of members of the Council. That is the kind of matter a university statute would deal with and the same is true of other species of delegated legislation. We are not concerned now with the administrative aspects of the university statutes which deal with discipline or who would administer them. We are not concerned with the carrying out of those laws, the administrative acts. What we are concerned with is law, not administration, and that should be kept well in mind.

We are concerned with the general rules, the laws which are to be made. At present the laws made by university statutes, when approved by the Council of the University, are transmitted for the approval of the Governor-General. Upon being approved by the Governor-General they are notified in the Commonwealth Gazette and thereupon have the force of law. Those university statutes are to be laid before each House within 15 sitting days after notification of the university statute in the Gazette'. This means that the University does not have the independence and autonomy that I believe it should have. It ought to have power to make rules on this subject, to make its statutes so that they become law, subject to the superintendence of the Houses of Parliament, as is done with other ordinances and regulations. However, I believe that the Australian National University should not have to obtain the approval of the Government before the university statutes become law. I would suggest with respect to the Minister


Senator Byrne - W'hy do you say 'the approval of the Governor'?


Senator MURPHY - Because they are transmitted-


Senator Byrne - Not to the GovernorGeneral in Council but the GovernorGeneral. It is not to the Governor-General in Council but to the Governor-General.


Senator MURPHY - The GovernorGeneral acts, as always, on the advice given to him. He acts on the advice of the appropriate Minister and does not act of his own accord in these matters. Neither is it a formality. He acts on the advice of the appropriate Minister. The appropriate Minister would be the Minister for the Interior or perhaps the Minister for Education and Science. Here it means that although the Council makes something in the nature of law, its university statute must first obtain the approval of the Government before it is to operate. I would suggest for the consideration of honourable senators that the autonomy of the university would be advanced if it did not have to obtain the approval of the Government for the university statutes which it made but rather that these would, as in the case of other ordinances, become law, would be tabled in the Houses and would continue to be law unless someone saw fit to move for and obtained the concurrence of a House in the disallowance of such a rule. This seems to be a proper provision more in line with what is done with other delegated legislation and I think it would avoid difficulties which have been run into.

One of the difficulties it seems to me which is occurring is that where there is a necessity to obtain such approval of the Government, and these things have the tendency to take a very long time, endeavours are made to avoid this. That is not altogether satisfactory. It does seem that there has been a tendency to reduce some of the university statutes almost to what might be called a one line or a few lines provision. For example, the university statutes no longer effectively cover matriculation. Instead of the university statute setting out for use in 1971 what the rules are in regard to matriculation - this is a matter of general public interest - we find that the matter is not really governed effectively by such a statute as the Act and this Bill clearly intended. The modus operandi in regard to this and other subjects has been to utilise the provision which said that the statutes may empower the Council to make rules or by-laws. Section 27 (2.) states:

The statutes may provide for empowering any authority (including the Council) or officer of the University to make by-laws, rules or orders (not inconsistent with this Act or with any Statute) for regulating, or providing for the regulation of, any specified matter (being a matter with respect to which Statutes may be made) or for carrying out or giving effect to the Statutes, and any such bylaw, rule or order shall have the same force and effect as a Statute.

The course seems to have been that on a number of subjects the statute said nothing other than that the Council can make a rule or by-law. The rule or by-law is made, but the view has been taken that one does not have to go through the procedure of tabling it. The net effect is that we do not have the clear public law that one would think the original Act intended. My information even suggests that it has become impossible for persons to know what, for example, are the rules as to admission of students. I have been informed by those who have contacted the University that they have been told: 'If you tell us what your case is or what your circumstances are youwill be told whether you can be admitted'. If the person asks what the rules are on the matter he cannot obtain them. This means there has been a retreat from what Parliament intended should be the area of the rule of law. Section 27 (1.) says:

The Council may from time to time make, alter and repeal Statutes with respect to all or any of the following matters:

(h)   The matriculation of students;

It was pretty clear that what Parliament intended was that the rules in regard to this could be made by the university statute and that they would at least be public. But we find, on my information, that they are not. I think the reason for this may be the inconvenient procedure whereby the university has to obtain the Government's approval of university statutes. This may be a slow and inconvenient process. I think it would be better if the Council were given full power. Let the Council make whatever laws it thinks are right and proper. Let them be published in the 'Gazette' and let that be the rule unless there is some intervention, which I would imagine would be an extremely rare thing. But the fact that such a provision was there would mean that the supremacy of Parliament would be preserved.


Senator Rae - Would it lead to an undesirable loss of flexibility?


Senator MURPHY - I would think not because the Council would be able to change its university statutes as it thought fit in the same way as can be done with the other ordinances we have seen. I put this forward as no more than a constructive way to meet the problem.


Senator Rae - What is the Council's attitude towards your amendment?


Senator MURPHY - I do not know what the Council's attitude is towards the amendment.


Senator Rae - Do you know the university administration's attitude?


Senator MURPHY - No, I do not know the university administration's attitude but, if you would allow me to continue, I was about to suggest that this is the kind of thing that may be appropriate for the Senate Standing Committeee on Regulations and Ordinances to examine because I think there are some problems here first of all in the slowness with which this Bill has proceeded - it was held up for a very long time. From my observations I think it would add to the independence of the University, its autonomy and its flexibility if this change were made. What are we doing after all? We are saying effectively that we will take out the necessity for approval. We will see to it that all these laws - it is important to recognise that I am not talking about the administrative acts but the laws - are in statutes.







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