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Standing Committee System - Senate Select Committee - First Report

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Brought itp and ordered to be printed, 9th April, 1930.

[Cost of Pape,r ;_.:_Preparation, not given; 000 copies ; approximate cost of printing and publishing, £85. J

Printed and Published fol' the GOVERNMENT of the COMMONWEALTH of Au 'fRALIA by H. J. GREEN, Government Printer, Canberra. . .

No. S.1.- F.42.- PRrcE 2s . 8D.

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STANDING COMMITTEE SYSTEM-SELECT CoMMITTEE.-Senator R. D. Elliott having, by leave, amended the motion standing in his name, moved-(1) That, wit h a view to _ improving the legislative work of this Chamber and increasing the participation .! of individual Senators in such work, a Select Committee of seven members be appointed to consider,

report and make recommendat ions upo1+ the advisibility or otherwise of establishing Standing Committees of the Senate upon-(a) Statutory Rules and Ordinances, (b) International Relations,

(c) Finance, (d) Private Members' Bills, and/ or such other subjects as may be deemed advisable. (2) That such Select Committee have leave to send for persons, papers, and records, and to move from

place to place. (3) That such Select Committee submit its report to t he Senat e on or before the 12th March, 1930. (4) That such Select Committee consist of Senators Sir Hal Colebat ch, Foll, H. Hays, Lawson, Lynch, Rae, and the Mover. Debate ensued.

The Vice-President of the Executive Council (Senator Daly) moved- That the debate be now adjourned. Question-put and negatived. Debate continued. The Assistant Minister (Senator Barnes) moved-That the debate be now adjourned.

Question-put. The. Senate divided-

Senator-,­ Barnes. Daly. Dooley. Hoare.

Ayes, 9.

Newlands, Sir John. O'Halloran.

And so it was negatived. Debate continued.

Senator~ Payne. Rae.


Senator Dunn.

Noes, 14.

Senator-Carroll. Chapman. Colebatch, Sir Hal. Cooper. Elliott, R. C. D. Glasgow, Sir William. Hayes, J.B. Johnston. Lynch.

Senator-McLachlan. Pearce, Sir George. Sampson. Thompson.


Senator Foll.

And Senator Elliott having, by leave 1 fu!'the:r amel!ded the motion by leaving out from line I the words" improving the legislative work of this Chamber and ", and by leaving out from line 2 the words " such work " and inserting in lieu thereof the words " the work of the Senate " -Question-That the motion be agreed to-put and passed.


SELECT COMMITTEE-STANDING COMMITTEE SYSTEM.-The Order of t he Day having been read for the bringing up of the Report-Senator R. D. Elliott moved-That the time for bringing up t he Report from t he Select Committe~ appointed to consider, report and make recommendations upon the advisability or otherwise of establishing Standing Committees of the Senate upon Statutory Rules and Ordinances, International Relations, Finance, and Private Members' Bills, be extended to this day week. Question-put and passed.


SELECT COMMITTEE-STANDING COMMITTEE SYSTEM.-Senator R. D. Elliott, by leave, moved-That the time for bringing up the Report from the Select Committee appoint ed to consider, report and make recommendations upon the advisability or otherwise of establishing Standing Committees of t he Senate upon Statutory Rules and Ordinances, International Relations, Finance, and Private Members' Bills, be extended to Wednesday, 26th March, 1930. Question-put and passed.


SELECT COMMITTEE-STANDING COMMITTEE SYSTEM.·-Order of t he Day read for bringing . up t he Report of the Committee.. . .

Ordered-That the time for bringing up the Report be extended to Wednesday next .




Senator Sir Hal Colebatch. Senator R. D. Elliott. Senator Lawson.


Senator Lynch. Senator Rae.

The entry in the Journals of the Senate of Thursday, 5th December, 1929, recording proceedings in connexion with the appointment of the Committee, was read by the Clerk.

On the motion of Senator Lawson, Senator R. D. Elliott was elected Chairman.

Committee deliberated.

Ordered-That the Committee meet in Melbourne on Thur.sday, 19th December, and following days.

Hours of Meeting.-Ordered-That the Committee meet during the following hours on days when the Senate does not sit :-10.30 a.m. to 12.45 p.m., and 2.15 p.m. to 4 p.m.

Witnesses.-Ordered-That the following persons be summoned to give evidence before the Committee in Melbourne :-The President of the Senate, Professor K. H. Bailey, Mr. F. W. Eggleston, Mr. Maurice M. Blackburn, M.L.A., Hon. D. L. McNamara, M.L.C., Sir Francis G. Clarke, and Professor E. Scott.

F inance.-Ordered-That the Chairman communicate with the President of the Senate, and ask him to obtain the Treasurer's approval of the provision of funds sufficient to cover the expenses of the Committee.

Ordered-That the Clerk communicate by Beam Wireless message with the Clerk of the House of Commons, London, and the Clerk of the Senate, Ottawa, requesting their views on the Standing Committee System in their Parliaments, and its success or otherwise. ·

Committee deliberated.

Committee adjourned till 10.30 a.m. on Thursday, 19th December, at Melbourne.



Senator Sir Hal Colebatch. Senator Foll. Senator H. Hays.


Senator R. D. Elliott, in the Chair.

Senator Lawson. Senator Lynch.

The Minutes of the previous meeting were read and confirmed.

Finance.-The Clerk stated that, in pursuance of the order of the Committee, the Op.airman had communicated with the President of the Senate on this subject. The President had agreed to approach the Treasurer, and, as~ result, the necessary funds had been made available.

Oorrespondence.-The Clerk read a copy of a Beam Wireless Message sent to the Clerk of the House of Commons, London, and the Clerk of the Senate, Ottawa, requesting their views on the Legislative Standing Committee System in their Parliaments, and its success or otherwise.

Senator Walter Kingsmill, President of the Senate, was called, sworn, and examined.

Witness withdrew. Frederick William Eggleston was called, sworn, and examined.

Witness withdrew.

Committee deliberated.

Committee adjourned till 10.30 a.m. to-morrow.





enator R. D. Elliott, in the Chair.

Senator Sir Hal olebatch. Senator Foll. Se~ator H. Hay. The Minutes of the previous meeting were read and confirmed.

enator Lawson. Senator Lynch.

Sir Francis Grenville Clarke, K.B.E., M.L.C., Pre ident of the Legislative Council of Victoria, was called, sworn, and examined. Witness withdrew. Ernest Scott, Professor of History, University of Melbourne, was called, sworn, and examined.

Witness withdrew. Committee deliberated. Ordered- That the next meeting of the Committee be held on Thursday, 30th January, 1930, at 2.15 p.m., and that the following witnesses be called on that and .the following day:-

Professor K. H. Bailey, The Hon. J. H. Keating, The Hon. D. L. McNamara, M.L.C., and Mr. Maurice M. Blackburn, M.L.A. Ordered-That the Committee meet in Sydney on Monday, 3rd February, at 2.15 p.m., and that the following witnesses be called on that and the following day:-

The Hon. Sir John B. Peden, M.L.C., Sir Robert R. Garran, The Hon. Sir Daniel Levy, M.L.A., Mr. G. H. ~fonahan, and The Hon. W. A. Holman. Robert Gordon Menzies, M.L.A., Barrister, was called, sworn, and examined. Witness withdrew. Committee deliberated. Committee adjourned till Thursday, 30th January, 1930, at 2.15 p.m.



Senator R. D. Elliott, in the Chair.

Senator Sir Hal Colebatch. Senator H. Hays. I

The Minutes of the previous meeting were read and confirmed.

Senator Lawson. Senator Lynch.

Kenneth Hamilton Bailey, Professor of Jurisprudence, and Dean of the Faculty of Law, University of Melbourne, was called, sworn, and examined. Witness wit4drew. Committee adjourned till 10.30 a.m. to-morrow.



Senator R. D. Elliott, · in the Chair.

Senator Sir Hal Colebatch. Senator H. Hays. I

'I1he Minutes of the previous meeting were read and confirmed.

Senator Lynch.

Maurice McCrae Blackburn, M.L.A., Victoria, Barrister and Solicitor, was called, sworn, and examined. Witness withdrew. Committee deliberated. Ordered-That (pending confirmation by a fuller meeting) the Committee continue. its meetings in Sydney after the taking of evidence, for the purpose of considering a draft report-such additional meetings to conclude on Saturday, 8th February.

The Chairman reported the receipt of letters from the Speaker. of the Senate of Canada, and the Clerk of the House of Commons, London, in reply to inquiries as to the Standing Committee System in their Houses, and the success or otherwise of same. Ordered-That such letters be added to the evidence in the form of appendices.

Daniel Lawrence McNamara, M.L.C., Victoria, Secretary of the Australian Labour Party, Melbourne, was called, sworn, and examined. Witness withdrew. The Hon. John Henry Keating, Bauister, was called, swom, and examined.

Witness withdrew. Kenneth Hamilton Bailey was recalled and further examined. Witness withdrew. Committee adjourned till 2.15 p.m. on Monday, 3rd February, at Sydney.

539 V




Senator R. D. Elliott, in the Chair.

· Senator Sir Hal Coleba.tch. I Senator Lynch.

Senator H. Hays. Senator Rae.

The Hon. Sir John Beverley P eden , K. C.M. G., K. C., M.L.C., President of the Legislative Council of New South Wales, Professor of Law, and Dean of the F aculty of Law at the University of Sydney, was called, sworn, and examined. Witness withdrew.

The Minutes of the previous meeting were read and confirmed. Committee deliberated. The provisional order of 31st January on the subject of ~dditional meetings in Sydney for the purpose of considering a draft report, was confirmed.

Committee adjourned till 10.30 a.m. to-morrow. ·



Sena tor R. D. Elliott, in the Ohair.

Senator Sir Hal Coleba.tch. Senator H. Hays. The Minutes of the previous meeting were read and confirmed.

Senator Lynch. . Senator Rae.

Sir Robert Randolph Carran, K. C.lVI.G ., ·Solicitor-General of the Commonwealth, was called, sworn, a.nd · examined.

Witness withdrew. George Henry Monahan,. C.M.G., Clerk of the Senate, was called, sworn, and examined. Witness withdrew. The Clerk read a letter from the Hon. W. A. Holman's secretary, stating certain difficultie s in the way of his appearing before the Committee on 5th F ebruary, and that the Quarter Sessions involved his absence from Sydney for the rest of the ·week.

Ordered-That the Hon. W. A. Holman be excused from attending as a witness before the Committee. Committee deliberated. Ordered-That Mr. Frank Burke, M.L.A., be summoned to give evidence at 10.30 a.m. to-morrow. The Hon. Sir Daniel Levy, K.B., l\lI.L.A. , Speaker of the Legislative Assembly of New South Wales, was called, sworn, and examined.

Witness withdrew. Committee delibernted. Committee adjourned till 10.30 a.m. to-morrow.


Senator Sir Hal Ooleba,tcb. Senator ]'oll. Senator H. Ha.ys.

Present :

Sena t or R. D. Elliott, in the Ohair. Senator Lynch. Senator Rae.

George Albert Watson , Deputy Crown Solicitor of t he Commomvealth for New South Wales, was called, sworn, and examined. Witness withdrew. The Minutes of the previous meeting were read and confirmed.

Committee deliberated. Henry Chester-Master Ga rling, Solicitor, was called, sworn, and examined . Witness withcb:ew. Ordci·ed-That Mr. Frank Buxke, M.L.A., be excused from attenda.nce as a witness before the Committee t }JJ s day.

Committee adjourned t ill 10.30 a.m. to-morrow.

Senator Sir Hal Colebatch. Senator Foll. Senator H. Hays. Committee deliberated.


THURSDAY, 6TH FEBRUARY, 1930. Present: Senator R. D. Elliott, in the Chair. Senator Lynch.

Senator Rae.

The Minutes of the previous meeting were read and confirmed. The Clerk read a letter from Mr. H. C.-M. Garling on the subject of cases of regulations being declared ultra vires by the High Court. Ordered-That the letter be received, and that Mr. Garling be thanked for the information supplied by him.

Committee deliberated. Committee adjourned till 11 a.m. to-morrow.

FRIDAY, 7TH FEBRUARY, 1930. Present: Senator R. D. Elliott, in the Chair.

Senator Sir Hal Colebatch. Senator Foll. Senator H. Hays. I

The Minutes of the previous meeting were read and confirmed. Committee deliberated. Committee adjourned till a date to be fixed by the Chairman.

Senator Lynch. Senator Rae.

PARLIAMENT HOUSE, CANBERRA . . THURSDAY, 13TH MARCH, 1930. Present: Senator R. D. Elliott, in the Chair.

Senator Sir Hal Colebatch. Senator Foll. Senator Herbert Hays. I

The Minutes of the previous meeting were read and confirmed. Committee deliberated. Committee adjourned till a date to be fixed by the Chairman.

Senator Lawson. Senator Lynch. Senator Rae.

THURSDAY, 27TH MARCH, 1930. Present:

Senator Sir Hal Colebatch. Senator Lawson.

Senator Foll. Senator Lynch.

Senator H. Hays. Senator Rae.

In the absence of the Chairman (Senator R. D. Elliott) it vyas resolved, on the motion of Senator Lawson-That Senator Sir Hal Colebatch take the Chair as Acting Chairman.

7 p.m.

The Minutes of the previous meeting were read and confirmed. The Acting Chairman submitted the Chairman's Draft Report, which was read by the Clerk. Committee deliberated. Committee proceeded to the consideration of the Draft Report. Paragraphs 1-8 read and agreed to.

Paragraphs 9 and 10 read, amended, and agreed to. Paragraph 11 read and agreed to. Paragraph 12 read, amended, and agreed to. Paragraphs 13 and 14 read and agreed to. Paragraphs 15 and 16 read, amended, and agreed to. Paragraph 17 read and negatived. Paragraph 18 read, amended and agreed to. Paragraphs 19-21 read and agreed to. Paragraphs 22-24 read, amended, and agreed to. Paragraphs 25 and 26 read and agreed to. Paragraphs 27-30 read, amended, and agreed to. Paragraphs 31 and 32 read and agreed to. ·

And the hour of meeting of the Senate this day having arrived, the sitting of the Committee was suspended till

Sitting resumed. -

New paragraphs Numbers 33 and 34 read and agreed to.. ·

Senator Lawson moved-That the Draft Report, as submitted and amended, be the Report of the· Committee. And.the motion, having been_ seconded by Senator Herbert Hays, was agreed to. . Resolved, on the motion of Senator Lawson-That a let~er be written to Senator R. D. Elliott expressing the appreciation of all th~ Member~ of ~is services to the Committee, an~ wishing him bon voyage.

Committee adJourned sine die. ·



The Select Committee of the Senate appointed' to - consider, report and make recommendations upon the advisability or otherwise of establishing Standing Committees of 'the Senate upon-( a) Statutory Rules and Ordinances,

(b) International Relations, (c) Finance, (d) Private Members' Bills, an:d/or such other subjects as may be deemed advisable, has the honour to report to the Senate as follows:- · .

1. Your Committee conducted its inquiries in Melbourne ~nd Syd~ey and heard -evidence from a num~er of witnesses selected either on account of their authoritative positions, their experience of political life, or their unquestioned knowledge c'oncerning the subjects of constitutional and parliamentary practice.

THE STANDING COMMITTEE SYSTEM. 2. The question referred to the Committee in effect was whether the Standing Committee System may be adapted to the procedure of the Senate not only in dealing with legislation, but in the consideration of other matters of public importance arising from time to time.

3. The Standing Committee System is in practical operation in many national Parliaments to-day and has become an inseparable part of legislative and, in some cases, '. administrative procedure in the leading countries of the· world. According to the report of the Select Committee on House of Commons (Procedure) 1914, Standing Committees are employed in th~ Parliaments of the following countries :-France, Austria, Italy, Germany, Belgium, Holland., Denmark, Hungary, Switzerland, and the United States of America. The system is also established in the Parliaments of Great Britain, Canada, and New Zealand.

4. The Committee System of the British House of Commons embraces five legislative Committees designated by letters, and the Scottish Committee. The former consist of not less than 30 nor more than 50 members nominated by the Committee of Selection who are, in their nomination, to have regard to the class of bills committed to such Committees, the composition

of the House and the qualifications of the members selected (see Appendix A); whilst the latter (Standing Committee on Scottish Bills) comprises all the Scottish members of the House. After the second reading stage is disposed of the bill is referred to a Stan.ding Committee unless a motion is moved ordering otherwise, and it is then in the province of the Speaker to decide which committee shall take the bill into consideration. The operations of these Standing Committees are confined to bills, although on one occasion in the session of 1919 the Estimates were referred to a Standing Committee. This practice has not been repeated. · ·

5. In the House of Lords provision is made for legislative Standing Committees, but owing to differences of opinion as to procedure, and an amendment made in the Standing Orders providing that bills may be referred to the Committee after consideration by the Committee , of the Whole, the system has fallen into disuse. ·

6. In the Canadian Senate there are three groups of Committees. The · first group comprises the usual Parliamentary Committees such as House, Library, Printing, Standing Orders, and so on; the second deals wjth Private Bills of a miscellaneous character; and the third deals with Public Bills relating to finance, agriculture, forestry, migration, labour, trade relations, civil service administration, public health and foods inspection, public buildings and grounds, and other matters. These committees ~re selected by a Committee of Selection at the beginning of each session. After the second reailing, it is the practice, by· motion, to refer a bill to the appropriate Committee, and the further procedure appears to be identical with that of the }louse of Commons.


7 . In New Zealand, both Hou · mploy t h Committee 8yst em. In t he Legislative Council, a House of 40 members, there are twelve Committees besides the usual Parliament ary Committees, and they vary in size from eight to fifteen members. Professor K. H. Bailey, . in his evidence dealing with t he New Zealand Legislative Council said that in t he session from June, 1928 to 9th October, 1928, 81 Acts were passed and about one half of these were referred

to Standing Committees. Thirty-six were referred to Standing Committees after t he first reading and before the second reading. The Committee concerned, he stated, would go through a bill clause by clause and make its recommendations for any amendment if necessary. The bill would then go to its second reading and to open debate in the Chamber. Somet imes, but not very often, it was remitted to a committee of the whole. (Professor K. H. Bailey, page 17, Minutes of Evidence.)

8. · In the Senate of the United States there are 33 Standing Committees appointed by ballot and varying in membership number. These Committees not only consider measures referred to them, but have the right to originate measures. (G. H. Monahan, page 39, Minutes of Evidence.) According to the Records of Proceedings in the. Senate, the first and second readings of a bill are passed without debate and it is then referred to the appropriate Committee. When the report of the Committee is presented the Senate resolves itself into a Committee of the

Whole for its consideration, and the bill may either be again remitted to the Standing Committee or be passed through its remaining stages.

·9, So far as your Committee vvas able to ascertain, the Standing Committee System operates s_ uccessfully in the. various Parliaments that have adopted it, though the system of the House of Lords must be regarded as an exception, for the reasons already given. The Legislative Council of New Zealand occasionally suspends the use of the system, but this only on account of the exigencies of that undesirable state of things termed "the end-of-the-session rush", when a number of bills are hurriedly passed by both Houses on the eve of recess.

10. The following extract from Legislative Procedure (by Robert Luce, a well-known authority on parliamentary practice) quoted in evidence before the Committee summarizes the advantages of the Standing Committee System :--Even the critics of the committee system admit it has various advantages. Under it far more measures can be handled. Worthless bills can be easily and quickly killed. The chance of hasty and ill- considered legislation is lessened. Work is more fairly divided. Every member get s an opportunity to have a share in law-making, where, with only debate on the proposals of a ministry, the great mass of members can do nothing but vote. In committees many men can apply facilities and capacities developed by their usual vocations, which the lack of ease in public speech keeps them from exercising on the floor of a House. Each committee acquaints a fe w men with some one ·field of goverm;nental activity. They become specialist s, wit h all the gains that modern development has proved

to spring from specializing and the subdivision of labour. Some of the members are almost sure to serve on the committee several years, thus carrying to the newcomers knowledge of the rout ine of business, t ogether with other benefits of experience. Particularly useful may be their acquaintance with the capacities and fa ilings, hobbies and prejudices, resources and limitations, of the administrative offici als whose recommendations are to be accepted or · rejected in whole or in part.

. Furthermore, committee hearings disclose in some degree the at titude of public opinion and the extent of public demand . . They give chance to hear both sides without the bias of partisanship and the prej udice of personality, better than is possible under the conditions of legislative debate. They permit the taking of test imony the preservation of . evidence in ·extenso. They facilitate the use of experts. They furnish an easy means of communication between the legislative and executive departments. . . . . . .

Committees, too, furnish better means for the scrutiny of administrative departments, study of their efficiency, investigation of their defects. If this is -to continue a province of the legislative department, the function of committees in connexion therewith should be elaborated rather than r eplaced.

11. Your Committee is well a,vare that the adoption by the Senate ofa Standing Committee System, either identical with or based upon any of the systems enumerated above1 would be an entirely new departure so far as Australian legislative procedure is concerned. Consequently it has approached the subject with the utmost caution, and with a fixed determination not to make any recommendations or proposals unless they are supported by an over whelming volume

' /1

of evidence given by highly qualified and experienced witnesses. "-

12. Your Committee proposes to deal with the whole subject of reference under the following headings :-( 1) Regulations and Ordinances, (2) International Relations, and

(3) Public Bills.

The heading " Public Bills" covers Finance, Private Members' Bills, and t o quote the terms of reference "such other_ subjects as may be deemed advisable " .

- C )

b _



13. Examination of the provisions of Commonwealth legislation discloses that in more than one half the number of Acts passed since the inception of Federation, power is given to the Governor-General to make regulations not inconsistent with the Act prescribing all matters, which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for giving effect to the Act, or for the conduct of any business relating to the administration of the Act , and, in the case of important Acts (e.g. The Bankruptcy Act- Section 223) the Acts go on to enumerate particular matters on which regulations may be made.

14. Under the provisions of the Acts Interpretation Act all such regulations must be laid before both Houses of Parliament within thirty days of the making thereof, or, if the Parliament is not then sitting, within thirty days after the next meeting of the Parliament. If either House of Parliament passes a resolution of which notice has been given at any time within fiftee n sitting days after such regulations have .been laid before such House disallowing any regulations, such regulations shall thereupon cease to have effect. The power to make regulations is necessarily-used very freely by Governments and as a result a very large number are submitted to Parliament every Ses sion. They are so numerous, technical and voluminous, that it is practically impos·sible for Senators to study them in detail and to become acquainted with their exact purport and effect. It is admitted that Senators receive copies of these regulations or Statutory rules, but the many calls upon their time render it almost impossible for them to make a detailed examination of every regulation.

· 15. Some idea of the volume of these regulations may be gathered from a statement made by ex-Senator the Hon. J. H. Keating in his evidence before the Committee. Mr. Keating said that on looking through the records he had found that the Commonwealth Acts of Parliament from 1901 to 1927 covered a total of no fewer than 3,708 pages. Ori going through the Commonwealth Statutory Rules for 'the same period, many of which are consolidations, he discovered that they ran into 11 ,263 pages. A very strong case has been made out by various witnesses before the Committee in favour of some systematic check, in the interests of the public, on the power of making statutory rules and ordinances. It was contended by several authorities, and in the opinion of the Committee with reason, that the Senate is the more appropriate Chamber for exercising this check, for the reason that it can have no influence upon the making or unmaking of Governments. For instance, see statement of Mr. Maurice M. Blackburn, M.L.A., Victoria, page 23, Minutes of Evidence.

16. Attention is also drawn to the evidence of the following witnesses :-Senator The Hon. Walter Kingsmill (Minutes of Evidence, page 1); Professor Ernest Scott (who has had practical parliamentary experience) (Minutes of Evidence, pages 11-12); l\fr. R. G. Menzies,M.L. A., Victoria (Minutes of Evidence, pages 12-14) ; Professor K. H. Bailey (Minutes of Evidence, pages 20-21); Sir J. B. Peden (Minutes of Evidence, pages 31, 33) ; Sir Daniel Levy~ Speaker of the Legislative Assembly of New South Wales (Minutes of Evidence, pages 41 et seq.) ; and also Mr. H. C.- M. Garling (Minutes of Evidence, page 46) . A number of witnesses referred to The New Despotism, a book recently published by the Lord Chief Justice of England, the Right Honorable Lord Hewart, in which he attacks the practice in Great Britain of legislating by means of regulation under a drag-net section of an Act. He considers that by means of this power the Public Service has become a powerful bureaucracy, and is usurping the prerogatives of Parliament, and even those of the courts.

17 . In 1903 the Commonwealth Parliament passed the Rules Publication Act, a measure which clo sely followed the Imperial Rules Publication Act 56 and 57,Victoria. This Act provided, inter alia, that a notice of intention to make a regulation had to be published sixty days before the making. The notice had to specify where copies of the draft regulation could be procured, and any interested person had the right to make representations in writing to the rule-making authority concerned. It thereupon became the duty of the rule-malring authorities to take those representations into consideration. There was thus a good opportunity provided for the people affected to become aware of the circumstances. It was also provided that in cases of emergency a regulation could be brought into immediate operation. A provisional regt1lation could be made pending regulations being made under the proper formalities of section 3. These provisions were repealed in 1916- dming the war- and they have not been re-enacted.

18. In England . the Sections referred to are still in force, although it has become the practice, where considered necessary, to exempt certain regulations from the pre-publication provisions. As an example, attention may be drawn to the Mining Industry Act 1926, in which the Regulations under Part IV., Section 18, were exempted from the pre-publication conditions. The fac t that the Commonwealth Parliament has entirely abolished these provisions sets up a strong argument for the substitution of some other method of protecting the public interest.


19. Evidence was given upon this subject before the Royal Commission on the Uonstitution, when attention was drawn to "the extent and importance of the subordinate legislation enacted under delegated powers". The matter is dealt with by the Royal Commission on page 85 of its report.

· 20. The attention of your Committee was directed to a number of bills passed by Parliament, the chief effect of which was to give a regulation-making power to the executive. The following list furnished by the Clerk of the Senate at the request of the Committee supplies a few typical instances:- ·


Name of Act.

Air Force Wirele::;s Telegraphy . . Transport Workers War Precauti ons

Seat of Government Acceptance Seat of Government Administration

No. and Year No. of Sectiona No. of Regulations.

of Act. in Act.

33 of 1923 8 of 1905 37 of 1928 10 of 1914

23 of 1909 25 of 1910


10 3


10 12

513 140 18*

65 in m&in group; many others


Under these Acts and later amend­ ing Acts about 125 Ordinances and many regulations have beeu made

• The r egulations under the Transport Workers Act were subsequently passed by Parliament in the form of an Act.

21. Witnesses referred to the difficulties likely to be experienced by persons seeking the judgment of the High Court on the validity of regulations. Your Committee was impressed by the probable usefulness of affording such persons 'an opportunity of submitting their criticisms of regulations to a Standing Committee, a submission which from the _ point of view of persons affected would be both more timely, and obviously cheaper than attacking the regulations in Court. Some notable examples of decisions of the High Court declaring regulations to be ultra vires of Acts may be quoted.

1. IN SEND.ALL v. FEDERAL COMMISSIONER OF LAND TAX (1910) (12 C.L.R. 653) Land Tax Regulation 51 as amended prescribing a certain method of calculation of tax was declared to be ultra vires. 2. IN CAMERON v. THE DEPUTY FEDERAL ·coMMISSIONER OF TAXATION (1923) (32 C.L.R. 68) Income Tax Regulation fixing different values of live stock in the several States was declared to be ultra vires as discriminating between States or parts of States.

3. IN CARBINES v. POWELL (1925) (36 C.L.R. 88) on summary proceedings being instituted in a Court of Petty Sessions in Victoria Wireless Telegraphy Regulation No. 92 providing that no person shall manufacture Wireless Equipment until he has been granted a dealer's licence was declared to be ultra vires on the ground that there was nothing in the Wireless Telegraphy Act agai~st the manufacture of such equipment.

4. IN JAMES v. THE COMMONWEALTH OF AusTRALIA (1928) (41 C.L.R. 443) Dried ·Fruits (Interstate) Regulations were declared to be ultra vires on the ground that they gave preference to ·one State over another, no "prescribed authority" being set forth for the States of Queensland and Tasmania.

In one case Regulations have been declared ultra vires on the grounds that they were repugnant to Imperial Legislation (36 C.L.R. 130). This was the case of the Union Steamship Coy. Ltd. v. The Commonwealth in regard to the Navigation (Master and Seamen) Regulations. Regulations relating to the engagement and discharge of seamen were held to be repugnant to . certain provisions of the Imperial Merchant Shipping Acts. ·

22. The Committee is convinced of the necessity for a proper and sufficient check being placed upon the power to make regulations and it considers that such a check could best be supplied by the establishment of a Standing Committ"ee of the Senate. The Committee recommends that such Committee shall be appointed at the commencement of each session on the recommendation o.£ a Selection Committee consisting of the President, the Leader of the Senate, and the of the Opposition, and shall consist of seven members; that all Regulations and Ordinances laid on the Table of the Senate shall be referred to it for consideration and report, and that this Committeee shall have power to send for persons, papers and records , and that four members shall form a quorum.

23. In the opinion of the Committee the work of . the proposed Standing Committee on Regulations and Ordinances would be both preventive and corrective. It would be charged with the responsibility of seeing that the clause of each bill conferring a regulation-making power does not confer a legislative power which ought to be exercised by Parliament itself. It would

be :required to scrutinize regulations to ascertain:-(a) that they are in accord with the Statute; (b) that they do not trespass unduly on personal rights and liberties;


(c) that they do not unduly make the rights and liberties of citizens dependent upon ·admjnistrative and not upon judicial decisions; (d) that they are concerned with administrative detail and do not amount to substantive legislation which should be a matter for parliamentary

enactment. - .

24. It is conceivable that occasions might arise in which it would be desirable for the Standing Committee to dfrect the attention of Parliament to the merits of a certain Regulation but, as a general rule, it should be recognized that the Standing Committee would lose prestige if it set itself up as a critic of governmental policy or departmental practice apart from the tests

outlined above. 25. In dealing with Ordinances which are necessarily of a legislative character the reasonableness or otherwise of their provision, should be carefully examined by the Standing Committee.


26. The Senate of the Commonwealth has not been entrusted with the powers delegated by the Constitution of the United States to the Senate of that country. It cannot interfere with Treaties, Agreements, or Pacts made between the Commonwealth Government and other Governments ; it has not. access to secret and confidential documents which pass between the Imperial Government, Foreign Governments, and th~ Government of the Commonwealth. The only opportunity given to the Senate for considering Imperial and International Affairs is when the Reports of the League of Nations Assembly and of Australian Delegates thereto, or reports of Australian Delegates to any International Conference under the auspices of the League of Nations are laid on the Table of the Senate. In these cases the Senate is given an opportunity for discussion by means of a Motion by the Leader of the Senate or other Minister "that the paper be printed ". Reports of the Administrators of the Mandated Territories are also available fo r discussion from time. to time. Beyond these matters, however, little opportunity occurs during the proceedings of the Senate for the consideration and the discussion of External Affairs.

27. This lack of opportunity to members of the Senate to discuss International Affairs was . referred to in very definite terms by a number of witnesses before the Committee, who had studied the subject and consequently were aware of its great importance. See statements of Mr. F. W; Eggleston, who was one of the Australian delegates to the Institute of Pacific Relations Conference at Kyoto, Japan (Minutes of Evidence, page 6); Professor Ernest Scott (Minutes of Evidence, page 11); Mr. R. G. Menzies, M.L.A., Victoria (Minutes of Evidence, page 13); Professor K. H. Bailey (Minutes of Evidence, page 22); Mr. Maurice M. Blackburn, M.L.A., Victoria (Minutes of Evidence, page 26); and Mr. G. H. Monahan- (Minutes. of Evidence, page 38).

28. The establishment of a Standing Committee for the purpose of considering and reporting upon International and Empire questions would, in the opinion of your Committee, materially assist in informing the minds of members of Parliament on subjects coming under the heading of External Affairs. Your Committee recommends :-

(a) That a Standing Committee of the Senate to be called the Standing Committee on External Affairs be established; (b) That such committee shall consider and from time to time report upon­

(1) Agenda for meetings of the League of Nations Assembly; (2) Reports of Australian delegates to the League of Nations Assembly; (3) Reports of Australian delegates to any International Conference unde the auspices of the League of Nations, or otherwise; (4) Reports of the Administrators of the Mandated Territories; (5) Any other matters of international or Empire concern. (c) That such Standing Committee shall also furnish an Annual Report to the Senate.

(d) That such Standing Committee shall be appointed at the commencement of each session on the recommendation of a Selection Committee consisting of the President, the Leader of the Senate, and the Leader of the Opposition, shall consist of seven members, and shall have power to send for persons, papers and recor,ds ; and that four members sha:11 form a quorum.


29. It was contended by several witnesses that the appointment of Select Committees from time t o time to consider paTticular bills as provided for in the Standing Orders of the Senate_


\\ a · preferable to the esta bli hmeut of 'tanding (;ommittee1:,. But it was pointed out t hat a motion for the appointment of a Select Committee was u ually regarded by Ministers in the Senate as ho tile and consequently it had little hope of success. One reason for this attitude of Ministers may be the form of Standing Order 194 :-

Amendments may be moved to such . Question by leaving out " now " and adding " This day six mont hs " , which, if carried, shall fi na lly dispose of t he Bill ; or by referrin g the Bill to a Select Committee ; or the Previous Quest ion may be moved. "

It will be seen that a motion fo r the appointment of a Select Committee on a bill is made by way of amendment to the motion for the second reading, and that the provision for moving that amendment is placed between two references to distinctly hostile motions. Your Committee · recommends that t he Standing Orders be amended in such a manner as to facilitat e the reference

of bills to a Select Committee. A motion for the reference of a bill to a Select Committee would then present a different aspect, and instead of being a rare exception, might become the rule during the consideration by the Senate of bills of a technical or intricate character. Upon the passing of such a motion the members of a Select Committee would be chosen by the Senate.

The order of reference would be the consideration of the bill only, and when its report was dealt with the committee would cease to exist. 30. Having carefully weighed the evidence, your Committee considers that the appointment of Standing Committees on Public Bills should be deferred until such time as the Senate shall have had experience of the Select Committee method of examining and reporting bills fo r consideration by the Senate in Committee of the Whole.

31. Your Committee is also of opinion that in amending the Standing Orders as already recommended, provision should be made for the ·appointment of such Standing Committees as the Senate may from time to time desire to establish. Under such a provision the Senate would be in a position to appoint a Standing Committee to deal with a certain class of bill at any time it saw fit to do so, or to appoint Standing Committees on various public questions should the

necessity arise . 32. Your Committee desires to express its warm appreciation of the assistance rendered by the witnesses, several of whom devoted many hours of research. and much expert knowledge to the compilation of their evidence. ,l.

33. The Committee also desires to place on record its recognition of the painstaking and efficient manner in which the duties of secretary were performed by Mr. R. A. Broinowski.


l. (a) That a Standing Committee of the Senate, to be called the Standing Committee on Regulations and Ordinances, be established. (b) That all Regulations and Ordinances laid on the Table of the Senate be referred to such committee for consideration and report. (c) That such Standing C~nnmittee shall be appointed at the commencement ,of each

session on the recommendation of a Selection Committee consisting of the President, the Leader of the Senate, and the Leader of the Opposition, shall consist of seven members, and shall have power to send for persons, papers, and records; and that four members shall form a quorum. (d) That such Standing Committee shall be charged with the responsibility of seeing

that the clause of each bill conferring a regulation-making power does not confer a legislative power of a character which ought to be exercised by Parliament itself; and that it shall also scrutinize regulations to ascertain-(!) that they are in accordance with the Statute,

(2) that they do not trespass unduly on personal rights and liberties,

(3) that they do not unduly make the rights and liberties of citizens dependent upon administrative and not upon judicial decisions , (4) that they are concerned with administrative detail and do not amount to substantive legislation which should be a matter for parliamentary


2. (a) That a Standing Committee of the Senate to be called the Standing Committee on External Affairs be established-(b) That such Committee shall consider and from time to time report upon~

(1) Agenda for meetings of the League of Nations Assembly. (2) Reports of Australian delegates to the League of Nations Assembly.


(3) Reports of Australian delegates to any International Conference under the auspices of the League of Nations, or otherwise . (4) Reports of the Administrators of the Mandated Territories. (5) Any other matters of International or Empire concern. (c) That such Standing Committee shall also furnish an annual report to the ienate.

(d) That such standing committee shall be appointed at the commencement of each session on the recommendation of a selection committee consisting of the President, the Leader of the Senate, and the Leader of the Opposition, shall consist of seven members, and shall have power to send for persons , papers, and records; and that four members shall form a quorum.

3. That the question of the procedure to be adopted in the Senate as a result of the establishment of the Standing Committees recom~ended be referred · by the Senate for the consideration of the Standing Orders Committee, with the following requests:-(a) That the Standing Orders be amended in such a manner as to faci litate ·the

reference of bills to a Select or Standing Committee. (b) That provision be made for the appointment of such further Standing Committees as the Senate may, from time to time, desire to establish.

Senate Committee Room. 31st March, 1930.

HAL COLEBATCH, .. Acting Chairman.

~- 7




Bailey, Professor Kenneth Hamilton Blackburn, Maurice McCrae, M.L.A. Clarke, The Honorable Sir Francis Grenville, K.B.E., M.L.C. Eggleston, Frederic William Garling, Henry Chester-Master .. Garran, Sir Robert Randolph, K.C.M.G. Keating, The Honorable John Henry Kingsmill, Senator the Honorable Walter Levy, The Honorable Sir Daniel, K.B., M.L.A. McNamara, The Honorable Daniel Lawrence, M.L.C. Menzies, Robert Gordon, M.L.A. Monahan, George Henry, C.M.G. Peden, The Honorable Sir John Beverly, K.C.M.G., K.C., M.L.C.

Scott, Professor Ernest Watson, George Albert




23 8


44 33 27 I


26 )

12 37 31 11




(Taken at Melbourne.) THURSDAY, 19nr DECEMBER, 1929.


Senator R. D. ELLIOTT, Chairman; Senator Co.lebatch I Senator Lawson Senator Foll Senator Lynch.

Senator Herbert Hays Walter Kin()'sm ill President of the Senate, sworn and 0 ' examined.

1. By the Chairman.-Y ou are no dou?t fully aware of the deb ate in the Senate on the question of .,the ap­ pointment of standing committees, and that this Com­ mittee has been constituted to investigate the matter? -I listened to every word of the debate. . P.r~vious to that I had formed opinions on the desirability of committees such as are indicated in the motion carried by the Senate. During an exper~ence of 25 years in the legislature of Western Australia, for some part of which I was a Minister in the House of Assembly, and subsequently Leader of the Legislative Council, I ~ound it. ·a great convenience in the consideration of bills­particulary those of a technical nature or those the subject-matter of which was not familiar to members­to enlist the se rvices of select committees to study them fully. I found that the investigations of such com­mittees increased the knowledge of members generally on the subject inquired into. When, as may be ex­pected if these committees are appointed, the kn~w­ledge possessed by individuals beco~es collective knowledge, the result is beneficial. Durrng. the seven years I have been in the Senate I do no~ thmk ~ have ever seen a bill referred to a select committee. Like all other systems the committee system has its disadvan­tages. Sometimes bills are referred to select c~m­mittees to obtain a tactical advantage. Such act10n is not always taken because members are friendly dis­posed towards a bill. There is, however, no rose with­out a thorn. In any case, it is the duty of those in charge of a bill to prevent reference to a select com­mittee merely to embarrass a government. Regula­tions framed under various Acts of Parliament are laid on the table in great profusion, but, generally, little notice is taken of them by ordinary members. While such r egulations may not be ultra vvr s, they ~ay develop legislation in a dir:c~ion which ~he majori!y of the members of the public do not consider to be. m the best interests of the country. Any system which would enable a systematic examination of regulations to be made should be extremely useful to the Senate. I think the creation of standing committees would be a step in the right direction. · 2. You are no doubt acquainted with the practice of providing in legislation the power for the Governor­General to make regulations rather than including such details in the measure itself ?-That is frequently done, and sometimes objection is taken later by members that the provisions of the r egulations were not embodied in the bill. Ther e is a tendency to overdo the making of skeleton bills and leaving too much to regulations. The most effective check of that practice is to examine the regulations strictly. A regulation has to lie on the table for a certain period during which time it may be objected to. Even if the regulation is not disallowed, the discussion forces an explanation, and if it. passes it is only after members are fully aware of its effect.

Such a discussion takes precedence over other business, although notice of motion for the disallowance of a regulation is sufficient to ensure that it shall not become law until the matter is dealt with. Difficulties would probably be encountered in connexion with some o! the heads under which examination by standing committees is proposed. No difficulty need be anticipated in con­ nexion with ( a)-stat1itory rules and ordinances. There is a wide field of opportunity for examination of these

things. In connexion with (b )-international r~la­ tions-I foresee difficulty. The Senates of the Umted States of America and France are vested with powers which the Australian Senate does not. possess. They

have power to deal with treaties, which this Senate has not. If by international relations an expression of opinion by the Senate is meant, there is little ground for obj ec tion to the appointment of a committee.

3. By the Chairman.-The idea is to obtain some continuity of · thought. in these matters. Would it not be beneficial to have a committee whose mission it was to deal with international affairs ?-Yes; the busi­ ness of the committee should be to make individual knowledge collective knowledge. With regard to (c )­

Finance-a committee should be able to do valuable work. It is like the Yankee's gun, which h~ did not want often, but when he did want it, he wanted it

badly. I have been interested in the matter of private members' bills for some years. I should welcome an inquiry into the system which exists in Great Britain, by which corporations or persons are given authority to carry out certain work. In Great Britain that. sys­ tem has resulted in great use being made of private enterprise in big public undertakings. The private bills system in England is a monument to the use of -constitutional powers in the best possible manner. It haa given rise to a new profession: legal men specialize in putting private measures through Parliament. In England . every such proposition is refer:red to a select committee, which calls evidence both for and against the proposal. By the time the committee has finished ith investigation, everything possible is known about the proposition. After that, it has to stand the ordeal of a debate i:u Parliament. The system is a great. credit to the Empire.

4. By Senator Lawson.-Does not our machinery provide for that now; is no.t a private member's bill au tom a tic ally ref erred to a select ·committee ?-Not according to our Senate Standing Orders, although in the State Parliaments I believe that is t,he case. . In Wes tern Australia the Standing Orders in connexion with private bills embody just enough to make a man wish for more. In my opinion, investigation by

a select committee fulfils a very useful purpose. 5. By S enator Foll.-Are these things done in Britain under the authority of Standing Orders?­ Yes; they have a well-established procedure dealing with such matters. In Western Australia we have standing orders r elating to private bills, but they do

not go much beyond the charging of fe es. 6. By the Chairman.-The proposal is to deal with private members' bills in such a way that. private mem­ bers will be encouraged to introduce legislation ?-I do not think there is anything to discourage them now.

7. So far as I remember, the only private member's bill to pass the Senate was one dealing with compulso-ry voting?-There have been others; but they are more frequent in the State legislatures. Not long after I entered Parliament I introduced a bill to deal with

dirnree, Gut it ,rn<.:t ed . Lat er, .L iutroduce

. Do you think it would be an ad·rnntage to have a com.mi ttee to inYestigate bills brought forward by pri­ Ya te members?-No; that "·ork could better be under­ taken by one of the standing committees.

9. By Senator Lawson.- I understand that the

Senate may refer any bill to a select committee?­ That is so, but very little use has been made of that pro·rision. More use should be made of it, especially in a House which is supposed to be a House of review.

The Senate is more a House of criticism than of crea­ tion. If its criticism is to be just and well-founded; it must be le s swayed by se nfonent than the House of Representatives. The Senate is not only a House of

review; i t is also a House to protect the interests of the States. It might be wise to add another heading­ Relations between the Commo1rn·ealth and State Par­ liaments. Such a committee ,voulcl, I think, be wel­

comed by the Senate and tho Government of the day. If anything could be done in that direct io11 I think it ·would se r ve a good purpose. 10. By the Chairrnan.-I understand that in Canada there are eighteen standing committees ?-Under the

Canadian Constitution, the Dominion Parliament has much more to do than the Commonwealth Parliament has. It took over all the powers, and then delegated certain powers to the States, ·whereas in our case the States retain all po-wers excepting those ·which they dele­

gated to the Oommomvealth. 11. Would you suggest that the committee to deal with the r elation s ·of the Commonwealth and the States should watch all legislation as it passes through Parliament ?-Yes, to some extent. Something which

would prevent encroachment by either the Common­ wealth or the States is necessary. 12. Would it be possible for such a committee to act as the representative of the States ?-No. It

would be the committee's duty to ge1 foto touch with the State r epresentatives in Parliament. I t could gain a lot of information about the constitutional significance of legislatiou, whereas under the present system each man forms his individual, and sometimes uninformed, opinion .

13. By Senator Lawson.-:-Has the standing com­ mittee system been tried in the House of Commons?­ I do not know. They have committees to which certain classes of bills are forwarded automatically. Two com­ mittees have been appointed to deal with finance and

agriculture, but I do not know why they were ap­ pointed for those specific purposes. 14. Do you suggest that we should have fiv e standing committees ?-I agree that a committee should be ap­ pointed to investigate statutory rules and ordinances, :finance, private members' bills, and relations betweer1

the Commonwealth and the States; and, to a limited extent, international relations also. I do not sug­

gest five separate standing committees, but that those five subjects are :fitting matters for inquiry by a com­ mittee or committees. I put forward no scheme for the allocation of work between various committees.

15. If a committee to deal with finance were ap­ pointed I take it that it would be empowered to obtain expert advice, and generally to take such action as would enable it to make a definite recommendation to

the Senate ?-Yes. The Insurance Bill is typical of the class of bills which should be referred to a select committee. 16. Under the Canadian system do measures auto­ matically go to a committee for investigation ?-There

would be a motion that it be referred to the appropriate committee.


17 . 1 that done i11 co1111exton with all important matter ?-Ye . When I wa leading the Legi lative

Council in Western Australia, I found such a com-mittee very useful. It shortened the debate in the

House materially. The debate, instead of taking

place in the House, takes place chiefly in the com­ mittee, and thus the time of Parliament is saved. l . Ha the committee system re tricted debate in

the Canadian Parliament ?-No; but it has shortened it. The debate in the House deals only with essen­ tials, and needless repetition is avoided. 19·. Do you advocate the appointment of an industrial co mm tttee to deal with industrial legislation ?-I do 11ot think there is any method known to science which

would stop the flow of eloquence on industrial matters. 30. Ha

would have been ai'rived at ?-The whole case put up Ly Senator Sir George Pearce was founded on inquiries made by the Public .. Accounts ommittee. 21 . By Senator Oolebatch.-Do you contemplate that

t.l1e Sta11Cling Order s should provide for the compulsory 1'efcrence of certain measures to committees before Lci11g dealt with by the Senate ?-The system would not be complete unless something of that kind was done.

22. Do you think that the Commonwealth Bank Bill \\;as one for in, .. ostigation by a committee?-Yes. The existence of a committee to deal with such bills would discourage the practice of introducing them at the end of a session with an intimation that unless they ·were passed dreadful things would happen.

23. \iV ould not the Senate, in any case, be master of itself and, if i t thought :fit, decide not to have an ·

inquiry ?-Yes. 24. Then we would still be where we are ?-That is so . I attach a great deal of importance to the neces­ sity for clo sely examining regulations and ordinances.

In my opinion, not enough use is made of the select committee system. The Bankruptcy Bill hung Eke a black cloud over the Senate for some years. If the bill had been referred to a select committee many of the troubles which have arisen would not have

occurred. 25 . By Senator Foll.-Has not any motion to refer a bill to a select committee been regarded more or less as a vote of no confidence ?--Yes; but that is · a wrong attitude. In connexion ·with technical measures any Government should gratefully accept the services of men willing to investigate such matters.

26. By Senator Lawson.-Cannot that be done by using tho pres~nt machinery of the Standing Orders if the House is so disposed ?-Yes. 27 . By Senator FoZZ.-Unless these proposals are

made compulsory 1ve might as well go on as we are, for we now have power to create committees when necessary. Could we make membership on the com­ mittees compulsory?-No.

28. By the Ohai1'1nan.-Are not all select committees honorary committees ?-Yes. ·

29 . Why have we not done more in the way of

appointing select committees ?-Because a motion to refer a bill to a select committee is regarded as a vote of 110-con:fideuce. The intention behind such a motion is easily understood. The Senate would know whether the object was to gain information or to delay matters.

30. By Senator JI erbert JI ays.-Is it not a fact that almost invariably governments regard such motions as hostile ?-That is not so in the State Parliaments. In Western Australia many bil1s are referred to select

ommittees. 31. By Senator Lawson.-Is not the Legislative Council there largely a non-party House ?-Yes.

32 If the Senate was a non-party House I take

it th~t an imparti al inves tigation ~y .a commi~~ee would be useful ?-That is so. 'l'he exrntrng standrng corn­ mi t tees do not as a rule, r eveal much party spirit.

:E requently th~ committees' decisions are unanimous,

although not necessar ily col~rless .. A good deal depends on the subj ect u nder cons1derat1011. 33. By th e Ohairman.- I s not the individual

ability of members availed of to · a greater extent ·when discussing matters r ound a table than ·when they are

34. By S enator Poll.- Would y~u ~uggest the ~p­ pointment of commi ttees at the beg~nmng of a sess1011 to act during the life of a Parliam_ent, or Jhat com­ mittees be appointed from time to time durmg a ses­ sion as required ?-Standing committees are committees

appointed fo r the duration of a Parliame3?-t. ~hat is the position in Canada. A select_ comm1tte~ 1s one appointe d to inquire into a particular ·subJ ect and then di sbands.

35. B y the Chair1nan.-Each committee ·would be r esponsible for examining measures with which it was appointed to deal ?- Y es . 36. At what stage do you suggest that bills be re­ ferred to committees ; just after the second-reading spee ch of the Minister ?- The neares t committee to tho se proposed is the P ublic Accoun ts Committee, which,

unlike the Public Works Committee, has not to wait for a matter to be r eferred to it by Parliament or the Govemmcn t. The Public Accounts Committee may inquire into any matter it likes . In fact many of its inquiries h ave been conducted on its own initiative, as

was the inquiry inro the Commonwealth Shipping Line. Other matters, as for instance the Pacific Mail services, are r eferred to it by the Government. Nearly all the major inquiries undertaken by that committee have been conducted on its own initiative .

37. B y Senator Foll.-What power would a standing committee on international affairs have to gain access to more or less secret do cuments ?-None whatever. Nearly all international affairs are not matters of legis­

lation. Such a committee would de al chiefly with League of Nations subj ects and could be very useful to the delegates to the League meetings by preparing briefs for t hem.

38. By Senator H er bert H ays.- To whom should the brief be submitted before being placed in the hands of the delegates ?-It need Dot necessar ily be submitted to any one, but perhaps i t would be wise to obtain

Parliamentary approval to i t . 39 . By the Chairman.- Would you suggest a com­ mittee to deal ,vit h empire matter s rather than inter­ national r elatio ns ?-I shoul

40. I understand that the Secr etary for Defence ha s advocated the appointment of a committee t o deal ·with defence matters. Would a committee be an advantage in that connexion ?- Judging by r ecent events, I should say yes .

41. By Senator F oll.- lf the Senate should be a House of r eview, do you suggest that no legislation should be initiated i n the Senate ?- Cer tainly not. That the Senate is a H ouse of revie,v an d a H ouse to protect

the States should no t render i t dumb or inactive in int roducing legislati on. The Con stitution provides that the Senate may introduce any measures excepting certain money bills.

42. B y Senator L ynch.-ls the practice of referring bills to select commi ttees availed of t o any extent by private members of the Wes tern Australian Parlia~ ment?- Y s. I have had sever al bills r eferred to

F.42.- 2



se lect committees, although I did not move the motions myself. The result of referring bills to a select com­ mit tee is undoubtedly beneficial. 43 . H ave fres h features bee n unearthed ?-Yes, particularly in technical bill . An inquiry by, say, £.ve men who have power to call skilled wi tnesses is apt to giYe better s than would be obtained by a general

discuss ion of the ·whole House. •

44. The practice has had the effect of focussing the searchlight on such matters ?-Yes . 45 . Has there been any growing desire to supplant select committees by standing committees ?-No; with

the exception of the Library, House and Standing Orders Commi ttees) there are no standing committees ill ,,T os tern Australia. 46. I s ther e not a tendency there to delegate powers to n1rious committees?-Yes.

47. Has the quality of the work of the Council been impr oved by the appointment of committees ?-Yes. 4S . Would you say that inquiry by a committee some­ times saves a GoYernment from itself?-Yes.

49. By S enator Sir H al Colebatch.-Have not 8 ttempts to establish standing committees in Western

l 'i..u stralia been rejected by the Legislative Council?­ Yes . In 1002 I introduced a bill for the appointment of a works committee but it was promptly thrown out. 00. Was that bec ause the principle was objected to? - The objection was based on the ground of economy.

Gl. By Sena/or Lynch.-I take it that you are defi­ nitely of the opiuion that the appointment of standing committees ·would improve the ·work. of the Senate?-! am certainly of that opinion.

52. Have you found that . on the Public Accounts Committee the party vie .. Npoint has not been em-phasized ?- Yes. ·

53. Is that not i11 the public interest ?-Undoubtedly it is. As members of committees, members of different poli tical parties do not feel it so necessary to emphasize certain aspects of a case, as they do in the House

wher e they know tha t their speeches will be reported. 54. Would you say that the public interest has been sened by the Public Accounts Committee ?-'-Un­ cl oubteclly it has been.

65. Do you think that the effect of the appointment of standing committees in the Senate would be the same ?- I thi11k so; but a great deal depends upon the personnel of a committee. The absence of party politics in the deliberations of the Public Accounts

Committee is noticeable. 56. Should these committees act in an advisory or au executive capacity ?-It would have to be in an adYisory capaci ty. Any report by a committee would he subj ec t to approval by Parliament.

57. D o you think that such committees ·would hamper t he work of governments ?-No. GS. Would their appointment ~e welcomed by govern­ ments ?-I t should be.

59. HaYe the r ec omi11 endations of the Public .Ac­ co u nts Committee bee n welcomed by governments?­ y es ; and frequently they have been adopted. 60. Would the appointment of a committee to deal with inte rnational r elations lead to collision with the departmental heads ?-I do · not think so. Heads of dep artments would, of course, be called upon to supply in for111atio11 to the committee.

61 . Supposing they withheld information ?-In some rases they ·would Le justified in withholding informa­ tion . I do 11 ot think any commi ttee could go far in

the mat ter of international r elations, and for that

r eason I suggest instead a committee to deal with rela­ tions between the Commonwealth and the States. 62. Has the Public Accounts Committee investigated any important and more or less confidential matters 1-

y cs . A great dea l of its evidence is treated as con­

fi dc11 tiul , and I do no t think it has ever gon e outside the committee .

63. ls there any i' eason why a committee of this

Senate should be lower t h an a committee of the Senate of the United States of America ?-No ; excepting that the Senate of the United S tates of America has certain pow:ers in connexion with foreign t r eaties that the Aus­ tralian Senate does not possess, and would never get.

64. Do you r ecommend the appointment of a com­ mittee with power to make r ecommendations in r elation to foreign affairs ?-Not without looking into the matter further.

65. What is the nature of the work of the Libr ar and House Committees ?-It is executive t o some extent, but those committees have no power of appointment or dismissal, such powers being vested in t he President

and Mr. Speaker. That has been the position since the Public Servic e Act was amended to include t he officers and employees of Parliament. For the pur pose of that legislation the President and Mr. Speaker t ake the

place of the Public Service Board. 66. Have those committees any powers in fi nanci al matters ?-Generally the Pres ident and Mr. Speaker approve of their recommendations. I am endeavouring

to get the House Commit tee regarded as a protection to the executive officers of Parliament, instead of a body to be ignored. 67. If those committees did not exist, who would do

their work ?-It would fall on the President and Mr . Speaker. They find the committees very useful. 68. Excepting for the substitution of a committee to deal with relations between the Commonwealth and the States. for one to deal with international r elations, you

agree to the appointment of these committees ?-Yes . I do not see how Australia can go on much longer

financing all her public works as has been done in t he past. I commend the study of the system in vogue in Great Britain in this connexion. 69. Is not that matter dealt with by the Public Works

Committee ?-No. - That committee acts on the assump­ tion· that works will be carried out by the Government with government funds. If Australia r eaches the state of affairs which I think is coming, we shall have t o look to private enterprise to do many things in the future. In that case, we shall want to have the work undertaken on an irreproachable basis, and for that reason I advocate a careful study of the British system, which is the fairest and cleanest in the world.

70. By Senator H erb ert H ays.-Is not the carrying out of public . works by private enterprise largely a matter of policy ?-There is no great differ ence bet ween Australia and England in that connexion.

71. I take it that you approve of the appointment of these committees generally ?-Yes . 72. Is that the result of your experience in Federal or State politics ?-Both. .

73. Is not the system you advocate likely to be more successful in a House elected on a restricted franchise ? -Yes. In such a House we get a class of man more conversant with business methods than is possible in a

House elected as the Senate is elected. 7 4. Would you say that the us ions of the existing committees have been a substantial guide to govern­ ments and to Parliament in the past ?-Yes. The

recommendation of the Public Accounts Committee in connexion with the Commonwealth Shipping Line was adopted by the Government. Once that r eport was tabled the sale of the Line became imperative. The committee elicited certain facts, although it was no1 • 1 nanimous in the interpretation of them.

75. Has there not invariably been both a majority and a minority report when matters involving party politics have been investigated?-Yes. 76. If, as you say, the party spirit is not in evidence in the existing committees, why does the personnel of


those committees change with a change of government. -Probably because there is a certain power of patron­ age. 77. Does not the fact that there is a majority of

Government members on such committees give their recommendations a political colour ?-Yes. But the poli­ tical differences of members are less evident on a com­ mittee than on the floor of the House.

78. Do you think that the practice of giving sup­ porters a majority of the seats on committees should be discouraged ?- Yes. I should like to see the committees appointed from the · best men available rather than that they should be selected because they come from a certain State or belong to a certain party.

79 . Can yo u suggest any better method of appointing such committees ?-Only by taking a ballot of the whole House. Unfortunately, men are sometimes appointed to committees because it is felt that they must be given something rather than that they are interested in the work to be done. Representation on committees should be on a proportionate basis. Even if a ballot were taken

ticket voting would give the . party with the greatest number in the House the greatest representation on the committee. 8.0. It would appear that the same result cannot follow the appointment of committees in the Senate as has followed the appointment of similar committees in the State Legislative Councils ?-Any matter is all the better for careful inquiry. The object of a committee is t o make the individual knowledge of members their collective knowledge.

81. Do yo u think that a government would use a committee as a means of avoiding its responsibilities?­ -N o. A government cannot be expected" to be en­ thusi as tic about t he appointment of standing commit­ tees, because they destroy its sense of autocracy.

82. Why do gove rnments nearly always oppose the reference of a bill to a select committee ?-Generally, the reason given is that the matter is urgent. 83 . Do you think that the question of State rights is

a suitable one for investigation by a standing com­ mit tee ?- Yes. It offers a wi de fie ld for investigation. 84J. What st atus could a committee have in dealing wi th such matters ?-I ts r eport, based on careful investi­ gation, might be sufficient to prevent a proposed action from being taken.

85 . I s it not rather a matter fo r trained minds to

say what constitutes the violation of State rights ?­ y es ; but trained minds are more accessible to a com­ mittee than to a whole H ouse. 86. Do you think that the information in the reports of the Public Accounts and Public Works Committees

are largely assimilated by members ?-Yes. The speeches of members of committees reveal a greater knowledge of the su bjects dealt with t han would other­ wise be the case. The appointment of committees serves two purposes-the obtaining of knowledge by their member s, and the educational influence on other mem­

bers. 87. I s it more desirable to have standing commit tees in the Senate than in t he H ouse of Representatives?­ Yes ; the Senate is more a House of review.

88 . Do you think that the report of the Constitution Royal Commission if read by members, would serve any good pur pose ?-I think so.

89 . B y the Chairman.-What do you consider are the strongest arguments against the introduction of a system of standing committees ?-The principal objec­ t ion to standing commit t ees is not so much an ob j ection

as a fear that the right men might not be appointed to them. 90. Would it be possible fo r the leaders of parties to nominate committees ?- No; that could not be done.

91. By Senator Lynch.-If committees were ap­ pointed would there be any danger of collision with the House of Representatives ?-The Senate is its own master.

92. Would there not be some duplication in the matter of private bills ?-That is possible. I think that in

E ngland private bills are r eferred to a joint committee of both Houses. I recommend the adoption in toto of the British system, which has stood the test -of time. The witness withdrew.


many independent men who would approach the measure from a well informed independent standpoint. But under the spirit of faction, such consideration is useless . It cannot be listened to because of the in­

tense pa r ty conflict . This leads to the idea that if a sys~em of special committees dealing with matters

Frederic William Eggleston, Solicitor, sworn examined.

which need some expert and detailed consideration were appoi~ted, it ,:7ould mitigate the present factional spirit and and give Parliament the benefit of considered data and opinion with which to discuss measures. It would also

interest particular members in these subjects. They would liave a common interest in the particular sub­ ject, and their point of view would have to be

reckoned with. It is also suggested that committees of this kind would be peculiarly appropriate to a non­ par ty House · like the Senate. Now it must be realized that when you have a partisan House you have the same difficulty in committee as you have in the House, In some respects faction is more difficult to counter in ·committee than in the House, because it does not come

to light. This is a difficulty which pervades the whole

93 . By the Chairman.-Are you acquainted with the nature of the inquiry being undertaken .by this committee ?-Yes. I have prepared some reasons, both for and against the committee system of managing public affairs. I gather that the Committee arises directly or indirectly from the feeling that Parliamen­

tary institutions are not as efficient as we would like them to be, and in particular that the Senate has not played as effective a part in Commonwealth politics as it might have been expected to do. One reason for

the inefficiency of Parliament is the excess of party spirit. A fierce partisanship is exhibited in . all Aus­ tralian Houses in which all the forms of the House, all the limits of debate, all possibilities of combination are exhausted to discredit the other side and defeat its measures. This extends to personally discrediting individual members, attacking their characters and even

to persistently interrupting specinc members and pre­ venting them from speaking. I am a strong believer in party government, but there are few Par­

liaments in the world where party government has not degenerated into partisanship and factions. In the British Parliament party feeling is strong. What r eally distinguishes the British Parliament is the system of inhibitions and amenities, courtesies ·and com­ promises which r estrain debate. There is also

some r espect for tradition and authority. The

, Speaker controls the House, and his authority

is r espected. Obstruction is never carried too

far. It is recognized that the country needs at­

tentio n, and that it is not right to prevent business from being done. Personalities are indulged in, but they have, as a rule, both point and wit. Interruptions are occasionally used, but they are pertinent, and not intended to put a man off his speech. Another cir­ cumitance ab out the British Houses which is an acci:.. dent to some extent, but which r educes these partisan characters, is their size. The House of Commons con­

tains over 600 members. This permits the presence of a large number of men of independent mind, who specialize in things in a detached way, and many of whom specialize in certain subjects. This is not pos­ sible in a small House. Every vote is so important

that it must not be allowed to stray too much from the narro w path of part,t. I seriously believe that

healthy party government cannot be carried on in a House of less than 150 to 200 members. The fact that the elec tors would not consent to increase the size of Parliament in Australia is due to their distrust of Par­ liament, but one reason for the action on which that

distrust is based is the smallness of the House. The difficulty in a House dominated by factions, is to secure any detailed consideration of measures at all. The Government party having decided that a bill is neces­ sary, brings it in. The other side determines, as a

matter of course, to oppose it. It does not matter

whether it. is goo d, bad or indifferent, unless, of course, it plays into their hands. The result is that measures go through without adequate consideration. If they do not do harm it is because the very expert public servants and draughtsmen who work on them, keep them fairly right. Amendments are moved mainly to put a factional point of view and, as a rule, do more harm than good. I n a larger House there would be

system, and until you get a more enlightened atmos­ phere, yo~ are not likely to change things by appoint­ rng com1;r11ttees . I doubt, however, whether yo u would make thrngs worse. Senates and Upper Houses exist as Houses of review, and it should assist such a func­

tion to ~reate machinery for the purpose of enabling such review to be made under the bes t possible condi­ tions. Quite apart from the considerations I have been mentioning, I am a great admirer of the Com­ mittee system. The essence of it is the informal

consideration of a difficult. question round a table, with the data brought forward in convenient form, and ex­ pert office r s to assist the committee with experience, because experts take an interest in the work for its

own sake. Members of a committee tend to support one another when subj ects are brought before the House. The group method of considering difficult problems is being increasingly taken up in bodies abr.oad, and it is possible that in the future most of the literatui·e in great problems of social affairs, economics

and politics will consist of the r eports of such com­ mittees. There are the Institute of Politics at Wil­ liamstown, United States of America which conducts a yearly series of round-table confe;ences; the Royal Institute of Internationa~ Affairs, London; the Harris­ Waite Foundation in Chicago, and the Institute of Pacific Relatio ns, whose conference I recently attended

at Kyoto, Japan. It is r ealized that the individual

mind only sees one point of view, and that if other points are given, the conclusion arrived at is better based. I have strong objections to the system of

elective ministries, but if the party system of cabinet Government is found . to be unworkable, it should be replaced by the committee system. One reason for the success of the committee or group system of considera­

tion is that some, at any rate, of the consideration is given in private, confidential sessions. Information is given, but th~ press does not take down the words of t~e member. This has a great eff ect in r educing the fact10nal character of the wor k of the committee. Most

of the abuse goes on in the House because the mem­ ber s get reported if they abuse anybody, but if they ar~ courteous, they get no publicity. I would like · to pornt out that most of the municipal work in Victoria is carried out under the committee system, including

the huge under taking of the Melbourne and Metro­ politan Board of Works, in my opinion one of the most efficient organizations in Victo ria. The committee system has not been fully adopted in Australia as it has been in America and the Continent of Europe. In neither case, of course, has the standing of the

various bodies reached the same level as that of Great Britain, which has the committee system. Britain has '

of cour e, a ystem of omm1ttmg all bill to com­

mi ttees con i ting of part only of the H ou e. This is

to ~Ye time, and p ermi~ of tw~, or more bills being

consider ed at the same t 1me. 1. hese comm i tees ar

grouped according to c)a s of ubject dealt with. The procedure with regard to private biJls and bills dealincr with :public u tilities i very elaborate, and we · should have 1t. W e are too apt to discard i t . W e have here

two committees TI'hich are au fait, and we should

be able to learn from them as to how the committee ystem works in Australia. One is the Public Works Committee and Raihrnys Standing Committee and the other is the Public Account Committe~. The

forrnel' ha undoubte dly been re ponsible for aving a great deal of usele s expe11 diture. It virtue is that i t

saYe the opportuni st politician from himself. He is apt to promise public ·works in order to get votes. But :wit.Ii the Public W ork s aud Railways Standing Corn­ mi ttec he can promise to support a motion for this to he referred to the committee, and t h e Government ca1Y

agrre to thjs, knowing that the committee will make a report. .At the same t ime, it is not altogether effective, for in Victoria, I think i t is correct to say that all the

lin es built during the last ten yea l' s are losing money, and the State has not built by any means all recom­ JP.ended. T here is an unfortunate tendency in the

committee .to recommend Jines, because they will give employment. In other words, they ·are willing to

saddle the community -1Vith loss for them, a loss that ,~'ill prevent employment to give employment for a few

months. N evcrtheless, it is easy to see in the ,vish of the Public Works Committee. the development of a sys­ tematiq way of considering public works problems, es pecially railways. -Evidence is called, statistics are

considered, and a very definite standard is laid dowu as to what railways or works are to be approved.

~l..s a matter of fact, in Victoria tl1e R ailways Standing

Commi ttee should be u sed for -w ater works, but this provision is ignored. The Public Accounts Committees have uot beeu so us efu1 as the Rail way Standing Com­ mittees. Many p u blic works have been m1dcrtaken ,,;ithout a proper investigation. Sometimes committees

are used for party purposes . In England the Public ;\ ccounts Comrnittc_ e is an integral part of the financial system of the country. In my opinion, an effective

Public Accounts Committee · is essential in Australia. The difficulty of knowing anything about public :finance in Australia is extraordinary. I entered Parliament without any knovvledge of public finance. It took

me four or five years to get a smattering of the sub­

j ect. It was only when I became a member of a

Cabinet sub-committee that I got a proper grip of

public financial questions. .A Public Accounts Com­ mittee which is prepared to make candid recomme11da­ tions is essential. The Railway Standing Committee rn Victoria has done a lo t of good work in restrictiJ1g

expenditur.e, and preventing the undertaking of public \\·orks ,- vhich could not be justified. The committee system of dealing with accounts is well established in various parts of the world. The Federal Parliament has shown very little interest in international affairs. In a number of instances the reports of delegates to the

League of Nations have uot Leen submitted until long after their r eturn, and then have bee n r eceived without debate. Australia's attitude towards the L eague of Natioris i 011e of gT at importance to the futur e· of

this country. The que t ion of our migration or fi scal policy might at any time br disc ussed by the L eague· of Nations, and our delegates should have a definite opinion to guide them. I doubt whether the optional clauses recently signed on behalf of Australia were dis­ cussed by the J\ ustralian P arliament before signing. A

matter of such importance should be brought before P arliament. ~ o I' arliament which is r es ponsible for its foreign p oli cy has less disc u ssion of foreign affairs

tha 11 ha tl1 ~l..u ' tralian Parliament. We are respo11-ibl · for OLH' foreign policy, b~1t we do well to l eave nego tiation with other countries to the British Go­ Hrnment. On t \r O occa ions important steps in

forejgn policy wer e taken by the 3?ritish G?vernment. on matter which affected ;'I, ustraha, but m connex10n \r i th wh ich bo di cnssion t ook place in the Australian P ar 1iame11t before the eveut. In connexion .with the Clrn.nak i11 cident in 1921 or 1922 the British Govern­ ment cablcJ the ,-a rious Dominion Goyernments to as­ ce r tain whether they would stand by the Mother Coun­ t ry j il the eyent of ,nu. Then there was the recent oc­ casjon i11 Egypt when a treaty was negotiated between

the Leader of the Egyptian Government and the British Foreign Minister before tho Dominions were consulterl. If we arc to be bound bv the decision of the British

Government in such matters, there should be a con­ ti1m ous excha11gc of infor mation that is not of a con­ fide11 tial nncl uature between committees of the Parliaments concerned. The alternative is the method

d1ich has been adopted by South Africa, and is likely also to be adopted by Canada-the carrying out of an enti r ely separate policy . Canada has appointed am­ bassadors to France, J apa11 and the United States of rica. Should Britain find it necessary in future to adopt a policy on behalf of the whole Empire, Canada conceivably might not follow h er example. Our rela­

tions with other countries are matters of vital import­ a·nce to Australia, and should be fully considered by Parliament. In most instances it would be possible to make available to expert ca.mmittees much of the information 110w regarded as confidential. A committee could also co1'!sidcr the effect of internal measures on (oreign relations. If an internal action was con­

trrn p]ated which might h ave the effect of embittering a foreign · nation, it would be advantageous to have a committee to study the effect of such contemplated action. For instance, a committee might consider how onr fis r: al policy has a ffect<:d trade. It might inquire . ,drnthcr the embargo on the importation of bananas has m c:::m .a greater loss than gain to Australia. Again a com­ mittee might consider the effect of tariff preferences. It

is possible that an alteration of policy might so und the death knell of the fruit -growing industry in Australia. Such matters are ,rnrthy of the fullest consideration. A separate committee to consider mandates would be advisable. .i:~ ustrali a has been ce11sured at Geneva,

because of th e way we have carried out our mandate. I understand that our representative at Geneva was ad­ versely cr iticized becau se of his lack of knowledge of the subject. These matters should be above party. A

co mmittee sho uld visi t the Mandated Territory and consider the ach:ni11istratoris reports before t hey are made pu bljc. Public opinion in Australia is not

snffi ciently well i11formed ~bout our mandate.

94. By 8encdor Lynch.- Did Australia get the

sever est condemnation of all the countries holding man­ dates ?-I have not r ead the reports, but I understand that our delegate wa s criticized because of his lack of kno,;v ledge of su ch matter s.

95. By the Chairman.-Do you think that with a co mmittee to deal with these matters there would be a greater continuity of thought ?-Yes.

96 . By Senator Lawson.-Do you suggest a joint corn rn i ttec of both Houses ?-Not necessarily. That is not so iu the United States of America. It would

be better to star t t l, c commi ttee system in the Senate because the Hou e of Representatives is a party house.

97. By lh e Chair-rna.n.-Do you consider that there should be a full discussion in Parliament of the work of the League of Nations ?-Yes. E ven talk has some v~lue. For so1;11e year s ver1 little. opportunity has been -given to Parliament to dJScuss nnportant matters of foreign policy.



u.·. -1 · tlw t due to lack of opportunity or lack of

i 11tcr est?-If members had wanted these matters dis­ cu ..,e d t.hey co uld have forced a discussion. They_ were given 110 encour agement by the Government to discuss r hem and the people generally were not interested.

diflic:ul t to uuderstand a :fi.na1wial statement. The average member of the Taxpayer ' A sociation know very little about public finance.

gr/ Do you think that a committee on international reln tions would have the eff ect of retaining, fo r the go od of the nation, the advice of our representatives 10 Genev a ?-It is

109. Then a fi nance committee would be an ad­ vantage ?-I think so. The party spirit is not so

evident in a committee as it is in the House. Where the party spirit is strongly in evidence the committee system will not remove it. 110. Are you acquainted with the Canadian com-mittee system ?- No. The Canadian £enate is a

100. What is your opinion of a committee to deal 1.;-ith sta tutory rules an d ordinances ?-I am not greatly

conce rned about t he number of r egulations and ordi­ n ances iss ued. Generally, there is nothing wrong with them. In Australia t here are few men of independent rnenns who are p r ep ared to bring these matters under r he 11o tice of the p ublic as there are in England. Legis­ l a t :on by r egulat io n is all right in 99 cases out of

100. I ob j ec t, hmvever, to a government interpreting nr altering an act or making it apply differently by rn ea1 is of r egulati on . So long as no attempt is made to al te r Jcgishitio n ther e is 110 danger of injustice being l1one by r egulati ons and ordinances. A committee ,rnuld no t be a satisfactory. instrument to correct wrongs done in this way; it ·would need a staff.

t1omiuee House.

111. By S enator Poll.-Do you think that a finance committee should sit all the year round ?-No. I

should say that if it sat once a week during the

sr sion that would be suffici ent. 112. Would it not have to watch administration as ,rnll as legislation ?-It would not take administra­ tion from the hands of the Government or the Public Service,but would act only in an advisory capacity. I t ·would need a staff. In England the Auditor-General

a tH.l his staff are regarded as the staff of the Public

.\.ccounts Committee. The committee comes in only after the event, and is not r esponsible in any way for tll8 legislation which is introduced. 113. A finance commiHee ~vou]d no t be able to let things slid e during a recess ?- I have not carried my ideas ver y far. In the United States of America all bills are r eferred to the appropriate committees.

101. Do yon think ther e is any danger in providing iu legislation p ower for the Governor-in-Council to make i- egulatiolls ?-The wording goes a bit too far; the ord inary power to issue r egulations is adequate.

10:3 . Tlrn Air ,.11-ct contains only one sheet of paper, but the r egula tio ns under that act comprise 172 pages? - The Corn mo11'N calth Parliament has gon e further thnu the State Parliaments in giving power to the Gov ernor-General to make r egulations. ·

103. By the Chairman.- You are probably mvare t!iat r egulations must lie on the table of Parliament for a certain defin ite period ?- Yes. The S enate has the r emedy in its owu hands. I do not think the com­

mittee syS1;em ·would be of much use in dealing with r egulations because the task is too big for · any com­ mittee. lt ·would nee d a staff to advise it. 104. What is your op inion of a committee to deal with matters of :finance ?-Something is necessary, but I have n ot been impresse d ·wi th the work of any public accoun ts commi ttee. They have not prevented error from being ma de.

105. Could they not study :fiuancial measmes

brought before Parliament ?- If there was any partisan feeling, I do not thiuk such committees i;vould be much ? Ood. I n Y ic toria, fi nance committees Jrnn' only ob­ t ained mater ial v,·ith which to attack governments. A :fi nance committee to be eff ec tive must be thoroughly

competent and independent. 106. B y Senator H erb ert H ays.- Do you suggest a non-political committee ?- A S en ate committee should be able to do the work effe ctively.

107. By Senator Sir Hal Oolebatch.-Would you say that the success of the committee system would depend on the Se11ato not being a p nrty house ?-That is my opinion . At 011e time I thought that the only salvation wa s to get a body outside P arliament to criticise

matters, but in view of what happens to the Auditor­ General's r eports, th at do es Hot appear to be the olu­ tion . 108. By Senator FoZZ.- l \1bli · accounts committees gen ernlly examin e p eci al jtems and not Government -fi nances geuer all y ?- That is o ; but finance is so in­

ti mately connec te d ,Y i th tho standing of government t ha t i t is very diffi cult t o get :fin:mcial matter con­ si dered iu a non-party pirit. The essential link in a sound system of public finan ce is a properly constituted finan ce committee. J .. budget is a difficult document

to understand. I t wa not unt il I became a Minister ~? nd a member of a abinet economy committee that

1 understoo d public fiD,anc e. Unless you have a con­ ! i ill1ou taternent covering a period of year it is

114. When would you suggest that a bill should be referred to a standing committee- after the Minister's secoucl -1;eading speech ?-I do not think Parliament would agree to that. No Australi an Parliament would agree to substitute a special committee fo r a committee of the ·whole House. In England and in Victoria,

t h e sel ect commit tee takes the whole committee stage of a bill. When a bill is referred to a select committee, that committee considers all amendments, and makes to the House the report that ordinarily the Chairman of Committees would make. The bill then goes to the third reading. Iu England they have grand com­ mittees comprising 4--0 or 60 members.

115. vVhat j g j,our opinion of a committee to deal ,vith r ela t ion s between the Commonwealth and the St.ates ?- I do not fayonr such a committee. It ·would he useful in gathering information, bu t such matter s shou1d be clrcicled by the Senate itself.

116. Do you favom the appointment of a committee to deal with defen ce matter s ?- Such a committee might be desirable. 117. By S enator Lynch.-Do you think the committee system would lessen the party spirit ?- I do. not think so .

118. What authority wo uld you give the committees; would th ey act in an advisory or a semi-executive ca pacity ?-If the Cabinet system of government were cl' scnrd ed I should favour the committee system rather than an elective system, but if the Cabi1wt system remains, Cabin rt must acc ept responsibility.

119. Do you think that committees would be used by Governmc11ts to . evad e r esponsibility?- That might be uO if everything were sectionized. Committees to deal with such matters as foreign affair·, mandates and financ e would be an right. The Auditor-General should

not be consulted about executive acts. That is the re­ sponsibility of the Government . It is the .A.uditor­ GPn eral's privilege to criticize uch acts. The Public . \. cc ouuts Committee hould assist the .Audit or-Genera 1. I ,vo u ld not go further than that with the committee . ystem in matters of fi nance . Parliament would not agree to thes e small committees having any legislative function . Forei gn affairs, mandates, &c., are questions wh ich, b,T tn1 clitio11 , Ul' e above nartv.

Wouli you give a foreign affair; committee a free band in connexion wi th confidential documents ?-No. The ter must accept r esponsibjJ ity, hu t he would

probably find that he could give to such a committee a lot of information generally regarded as secret. That is done in England, and it has been done in Australia to some extent. The Empire Parliamentary Association gets con:fiden tial information. A record of foreign

affairs is issued under its auspices. If that record con­ tains information r egarded as confidential, the source of that information must not be quoted. 121. For such a committee to be useful would it not have to be in possession of all the secrets ?-No; the Minister would have to use his discretion. The object

of such a committee would be mainly to get continuous thought on foreign matters. The Minister should be able to consult such a committee before introducing

certain legislation, and he would have to be certain that party use would not be made of information given to the committee. 122. Would you recommend one committee to deal with foreign affairs, mandates and defence ?-Probably

one committee could deal with all those subjects; but that is a matter for the Senate to decide. 123. Our representative left for the Na val Confer­ ence -without any directions from Parliament as to Australia's attitude towards the Singapore Nava] Base ?-That is an excellent example o-f a matter which needs thorough ventilation in Parliament. There is a . i;i:reat deal of misunderstanding regarding the Singapore

Na val Base. The considered opinion of many peoplE who know something about the matter is that the Singa­ pore base does ngt affect Australia's defence very much. Singapore is nearly 3,000 miles west of the main line between Japan and Australia·. I understand that the Singapore bas·e is regarded as a link in a big scheme of Empire defence: Captain Scott said that British diplomatic opinion in the East is against the construc­

tion of the base. Such a matter is a good argument

for the appointment of a special committee. 124. Would such a committee need to have certain powers conferred on it ?-I do not think it necessary to give such a,; committee legal powers. The committee's value would depend upon its fitness to do its work-its powers conferred on it ?-I do not think it necessary to give such a committee legal powers. The committee's

value would depend upon its fitness to do its work­ its freedom from party spirit, and its capacity to be trusted with secrets. 125. By Senator H erbert H ays.-Have you any sug­ gestion as to overcoming party bias in the Senate?­

The committee system might remove it to some extent, for in the committee room the party spirit is not so evident as . it is in the House. 126. By the Cha.irman.-Do you think that a finance committee would have prevented certain defects in the Bankruptcy Act ?-I do not think a committee ·would have found out those weaknesses beforehand.

127. In spite of the party system, would not the

appointment of committees assist the Government and bring about better informed discussions generally ?-A Government does not always want well-informed dis-cussion. ·

128. By Senator Lynch.-How are the committefis in the Metropolitan Board of Works appointed ?-The members of the board are elected by the various muni­ cipal councils. None of them are experts. After elec ­ tion the members of the board are divided into seven or eight committees to deal with various phases of tho work. The chairman is ex-officio chairman of each committee. The respective engineers are present at the meetings of the committees in control of their work. The reports and recommendations of the committees are then considered by the board as a whole. Generally, there is v~ry little controv:ersy in the full meetings of the board. The board, as a rule, confirms t h 0 recom­ mendations of the committees.


129. By Senator FoZZ.-Would not a standing com­ mittee on foreign relations have to be active throughout the year?-Yes. 130. Would not the same be necessary in the case of a defence committee ?-It would have to meet fre­ quently during a session.

131. How do you suggest that the personnel of a com­ mittee should be determined ?-By the Senate on a pro­ portional basis. 132. Does the standing committee on foreign affairs in the United. States of America sit continuously?-That committee is very powerful. In that country they have not responsible government. The American Houses of Parliament are conducted on the committee system.

Our conditions in Australia are entirely different, with our system of responsible government. 133. Would you suggest that all bills that come befor e the Senate should be referred to the appropriate com­ mittees ?-I do not think that any Australian Parlia­ ment would agree to that being done.

The witness witndrew.

( Taken at Melbourne.)



Senator R. D. ELLIOTT, Chairman; Senator Colebatch I Senator Lawson

Senator Foll · Senator Lynch.

Senator Herbert Hays · Francis Grenville · Clarke, K.B.E., Pr·esident of the Legislative Council, Victoria, sworn and examined. · 134!. By the Chairman.-Are you aware of the in­

quiry being undertaken by this committee ?-Yes; I have read the debate which took place in the Senate. 135. Would you be good enough to express your views

on the subject ?-It has occurred to me that if the whole of the proposals contained in the motion are not

accepted there are two alternatives. First, there is the method we have in the Legislative Council in Victoria· of appointing an unofficial leader. The success which has · attended this appointment in Victoria is largely due to the L egislative Council being a non-party

House; out of 34 members only six belong to the Labour party. The unoffici al leader is nominated at a privat0 meeting of all the members of the House who care to attend. The six Labour members do not attend the meeting, although they are invited to do so . . Some

years ago the Government made available a sum of £200 per annum to provide the unofficial leader with an assistant, who is usually a young barrister. He studies all bills and puts before the unofficial leader the result of his studies. He thus facilitates the work of the un­ official leader. The practice of the unofficial leader being supplied by the Minister with departmental notes has grown up. The unofficial leader follows the Minis­

ter on every occasion, and offers comment to the House upon every bill, advising members that they may safely accept it as it stands, or drawing attention to certaiu clauses which he considers contain principles to which objection might be taken or which, in his opinion, are dangerous. The system has worked extremely well in

Victoria, but I am not prepared to say that it would work equally well in a party House like the Senate. The other alternative is another informal practice which has been a marked success in the House of Commons.

Groups of members get together for the study of sub­ jects in which they are particularly interested. Thev are assisted by the E mpire Parliamentary Associatio~ which supplies them with information which it collect~ from various sources. In the ca_se of foreign relations, for example, the Empire Parliamentary Association

collects various reports, and the Foreign Office supplies such other reports as are considered no_t too con:fidential to be handed to the association. Altogether a mass of evidence is accumulated for these study groups. Any member of the House of Commons may ask to join the groups, which have no official standing. ~ understand

that there is an elementary form of election before a member may join a group. The system has produced excellent results, and from time to time the groups issue reports in pamphlet form. The system has enormously increased the debating power of the House of Commons in relation to the subjects dealt with. A great number · of Under-Secretaries of State who have made their mark commenced their successful career as members of these study groups. I do not advance these suggestions as being better than the proposals contained in the motion agreed to by the Senate, but as alternatives. In regard to the proposal to form standing committees, I think that it ought to be noted carefully that there i.s a wide difference between the lower chambers of the Empire and the upper chambers or houses of review.

Thei r functions are entirely different. I would not regard the success of standing committees in the House of Commons or in the House of Representatives in the United States of America as necessarily proving that similar standing committees in the Australian Senate would be equally successful. The following extract from the House of Lords P arliamentary Debates 1910, vol. 5, page 947, might be of interest:-

THE EARL OF CAMPERDOWN.-:J\1y Lords, I ask your Lordships to give your approval to the Report which has been presented by the Select Committee whom your Lordships ap.­ pointed to consider and report u pon the Standing Orders relating to Standing Committees. This Committee met; the noble Earl who leads the House and the noble Marquess the Leader of the Opposition, together with other members, were present; and we took into consideration the Standing Order cl, ultimately arriving at the decision to advise your Lordships--

" That it i8 not expedient, under present circumstances, to continue the Standing Committee and that Standing Orders Nos. XLV. to LIII. inclusive be repealed". The Standing Orders in question are those under which tlw Standing Committee was appointed, and under which it con­ ducts its procedure. I do not think that I need detain your

Lordships at any great length, and therefore 1 will very

Uriefly r ecapitulate the history of the Standing Committee and the circumstances in which . the Select Committee ask y01 r Lordships no longer to continue it. The Standing Committee took its origin in the year 1889. It was the late Lord Herschell who moved that the Standing Orders relating to these matt ers be consi dered, and he himself

took an active part in establishing the Standing Committee. He considered that it would be very advantageous that yonr Lordships, acting a s a court of revision, should go more

minutely into the details of all the Bills which are submitted to this House, and especially of t~1e less important Bills;

and he also considered that an additiona l stage i n the passing



Bills after they had been through Committee of the whole House. The Committee appointed to look into the matter reported in favour of that procedure, which was adopted, and the Standing Orders were passed in the form in which they now stand. But then it was found. t hat what Lord Salisbury ha d expected would happen did not happen, and from the year

1891, when the new Standing Orders came into force, the proceedings of the Standing Committee excited less and less interest, the attendances became very much smaller, and then the practice arose of moving that the Standing Committee be negatived. Those of your Lordships who have been members of the · House for the last few years know how much more

common that Motion has become, until, indeed, it is the

ordinary Motion to make. If a noble Lord who has a Bill

does not make that Motion the only result is that his Bill

is delayed for a week, or it may be a fortnight, and I do not

know that any commensurate public advantage is derived from that process; and with regard to Bills emanating from the Government and other important Bills, they would not be altered in Standing Committee unless it were a mere verbal alteration. Therefore from every point of view the Standing Committee, at all events in its present form, has ceased tu be of any practical use to legislation. . A majority of the noble Lords who take, or took at that

t ime, a very active part in the business of the House served upon it, and the result was, as the noble Earl has described, that when Bills came back to the House after being considere

Standing Orders of the House of Lords some years ago provided for the creation of standing committees on certain subjects, but later the House decided to get rid of all of them. Those who took part in the discussion seemed to agree that the r esult of appointing standing committees was that all members who were not on the committees felt under no obligation to study the bills at all. They, therefore, took no interest in them, but left it to the members of the standing committees. That was after the alteration that the bill should first go through the committee of the whole House and then be referred to the standing committee-an extraordinary procedure. Prior to that alteration members took little interest in the matter when the bill was discussed in

a committee of the whole House. 136. By Senato!' Lawson.-Have there been any more recent developments ?-My clerk, who made a hurried examination of later volumes, told me that he found no r e-institution of standing committees.

137. By Senator Foll.-Did the standing committees have power to make the amendments to a bill ?-They could report to the House that certain amendments ought to be made.

138. One witness told us that when a bill was referred to a standing committee, that committee practically usurped the functions of 'the House ?-Those committees comprised 80 members from all sections of the House on a proportionate basis-really a microcosm of the whole· House. I do not suggest the same for the SenatP, because a House of ·36 members is very different from one containing 600 members.

of a Bill through the House \\·as desirable as a means of

looking into its contents. That was approved, and the Stand­ ing Orders were passed in, I think, the month of February, 1889. But under the Standing Orders that wer e then passed the Standing Committee took priority over the Committee of the Whole House, and became much more important than, I think, Lord Herschell had originally contemplated. I myself

happen to have been a member of that Committee from the beainning. During the first two or three years it was very la;gely attended, and considerable deliberation took place on the Bills that were submitted to it. Amendments of import­ ance and of substance were introduced in the tanding Com­ mittee, and after that Committee ·had con sidered the Bills they returned to the whole House. The res ult was that

members of your Lord. hips' House who were not members of the Standing Committee took exception to thi procedure. They pointed out that when they wished to raise matters in Committee of the whole House the reply was not infrequently made that the matter had been con idered in the tandin~

Committee, and that already nn Amendment had been adopted or rejected with regard to the particular point in question.

139. By the Ohairman.-W as there only one com­ mittee to deal with all legislation that came before the House of Lords ?-I think so.

Owing to that and to ot her matters a nother Committee was appointed, I believe on the motion of Lord Cadogan, who was Lord Privy Seal at the time, to look into these tanding Order s, and the late Lord ali bury, in the debate that then

took place, said he thought that one means of meeting the difficulty which had arisen was to postpone the Standing Committee stage until after that of the Committee of the whole H ouse, and he expressed the opinion that the Standing Committee \\·ould not be too modest r unwilling to deal with

140. By Senator Lawson.-Have the voluntary com­ mittees functioned well ?-Yes. 141. That pre-supposes a willingness to study on the part of the members ?-Yes. About six months ago I

was in London and freqtently attended the House of Commons. I gathered from Sir Howard D'Egville that the practice was becoming part and parcel of parlia­ mentary life, and that any member who desired to make his mark naturally gravitated towards one of these study committees. The Senate of the United States of

America is vested with more powers than is the Aus­ tralian Senate: it has the power to veto any treaty negotiated by the President of the country. It will be remembered that the Senate of the United States of merica rejected President Wilson's proposal iri relation to the Versailles Treaty. The Foreign Rela­

tions Committee of the United States of America Senate works admirably at times, and at other times badly.

One of i t ,rnr t development is n te11de11cy to Ji ·ws~ and publicly criticize international e-vents rumored as ljkely to happen. There wa a notable example in the ~able a few days ago when Senator Borah, the chair­ man of the Foreign Relations Committee, made n. Yiolent attack upon certain aspects of the proposal to reduce naYal armament . In oth er words, some months before the Naval Confer ence takes place the chairman

of the committee deli-rnrs a verdict! That practice is capable of great abuse. In Australia care would no doubt be ta ken to ensure that 110 committee arrogated to itself such powers. I do not think that the Senate of

the United States of America r eally has power to do such things; it has simply done them. The committee usurps the £.unctions of the Minister for Foreign

Affairs. As it cannot n egotiate through the usnal dip­ lomatic channels, it attempts to n egotiate through the press. The Parliaments of . .:\ustralia do not differen­ tiate sufficiently between execu tive or administrative

functions and legislative function s. I11 every Austra-. lian P arliament a great deal of time is taken up by

Ministers answering complaints a bout small matter s of administration . In the United States of America the administrative or executive power is kept separate from the legislative power. In their executive function s the President and his Cabinet are almost independent. I11 1he Imperial Parliament the executive, in practice, is

nlmost immune from comment by the Legislature unless th e matter is of such geayc n' ational conce rn tliat it

is thought :fi t to move the adjournment of the Ho.n se to consider it. The Speaker of' the House of Commons has the power to say that any subject propounded fol' the adjournment of the House is, or is not, a matter of definite national importance. Various Speakers have been very strict in their ruling in that connexion; prob­

ably in three cases out of four they have r efused to

permit the motion to be submitted. The effect is th:1t the time of Parliament is not spent in dealing with m inor complaints to anything like the extent that it j:,; in Australia. A committee to deal with statutory rub,

and r egulations might do a great deal of good, but care would have to be taken that it did not interfere with the executive, or attempt to alter the detai ls of adminis­ tration in a way not approved by Parliament. Parlia­ ment should see t hat every act it passes contains just

provisions, and that the executi ve is given sufficient power to carry out the purposes of the act; but it ought to guard against the possibility of the executive

utilizing the power to make regulations to legislate still further. Unless care is taken, what shou1d be a h elpful institution might become a hipdrance. 142. By the Chair1nan.- T4e proposal is to appoint a commit te e to watch the regulations which are issued from time to time ?-Some good might come from the appointment of such a committee. I have merely given a note of waruing about the abuse of power. A com­ mittee appointed to deal with international relation s

would probably be able to obtain from the Empire P ar­ liamentary Associatio11, or the study groups iu the House of Commons, the do cuments and information which they th emsel,·es use . It would be a gr eat ad·­ vantage to Australia if a body of legislators made them­ se1ves thoroughly acquainted with matters of foreign policy. The difficulty would be that the Prime Minister co uld not con fid e to any committee the more secret docu­ ments. If a group were formea to study foreign affairs.

I personally, should like to join it. I am in fayour of

the appointment of a finance committee to deal ·with such matters as banking, public debt and the control of cu rrency, but not to deal with th e Governmenfs :financial proposals generally. 1 1- committee could, for ~'1.stance , give the public much valuable information as to the effect of an increase o:f the no te issu e. A :fi.11 ancr committee is p articularly suited to an upper H ou se of review where it could t ake wide vievvs on gen er ai pri.11-ciples and advise the public in r elation t o such matters.


There i ' an excellent opportunity for successful work to be done by a committee appointed to deal with pri­ Ya te members' bills, although I understand that not many private membe r s' bills come before the Federal Parliament.

143 . It was hoped that a committee to deal with

private bills ,vould encourage private member s to int r o­ duce legislation ?~It might be comparatively easy to get a private member's bill through the Legislative Council, whereas considerable difficulty would probably

he experienced in gettin g it th rough the other chamber. 144. Do you think that a committee to deal with

the relations between the Commonwealth and the States would be an advantage to the States?-Yes. That is the best suggestion I h ave heard. I think th e Senate sbould, to a greater extent, r ec ognize its duty to look

after the interests of the States. There is a great feel­ in g throughout Australia in favour of unification and consequently there is a tendency for tho Federal P ar­ liament to disregard State affairs .

145. Do you think that a committee of the Senate should pra~tic ally hold a bri ef for the States ?-Yes. It is because debates in the Senate seldom r eveal any great tendency to defe1Lcl the rights of the States that

the Senate do es not occupy an important place in the op in io n of the electors. 14!6. By S enator Foll.-Only occasionally does a measure before the Senate deal specifically with on e State ?-That is so; but often acts of the national Go­ vernment affect State rights . I think it would help if se nators would occnsiona11y deliver lectures in their own States on topical matters. I feel sure that they

would receive a good h earing and that the general public would, as a result, take more interest in tbn

doings of the Senate. 14'7. Are you acquainted ·wi th the committee system of the Canadian Senate ?-No. 148. By S enator Lynch.-Has the voluntar y system of appointing an unofficial leader of the Legislative

Council had good results iu Victoria ?-Yes. The eff ec t has been extraordinary. That is largely due to the r emarkable men vve have had as unofficia l leaders·. For the last twenty years the unofficial leader has bee n

the best man in the House. One unofficial leader, Mr. John Davis, was so eff ec tive that the Government, in self defence, made him the offi cial leader. The various occupants of the office have performed their duties wisely and -well. The unofficial leader · assiste d to r e­ strain the wilder spirits and .to facilitate business. 1\ good deal depends upon the mau occupying the position.

After the unofficial leader has drawn attention to thr1 provisions of Yarious clauses, attent,ion is foc ussed on those clauses, ,;vith beneficial r es ults. · 149. v-V ould you say that the system is workable only wher e the party spirit is not particularly evident?­ Y es .

150. Ho,r co uld th e system Le applied to a party

House like the Senate ?-I do not recommend it in a H ouse where party feeling runs high. 151. Do yon prefer the group study system ?-A_t this stage that is possibly the best system the Senate co uld adopt. These informal study groups, if successful, might lead to the establishment of more formal stand­ iu g committees.

152. Do you not think that the rise of the party spirit in thi s coun try is to be deplored ?-I do . Nevertheless, I fee l that senators particularly can afford to be i nde~ pendent. The Nationalist senators representing v""ic­ toria are so well known as men of standing that they eo uld tak e an independent course of action without

having their nomination questio1Jed later. I think that the electors ,\·oulcl support senators who tood for the t'ights of their State rather than for the inter ts of a



1.J0. J )o \'OU tltin k mi t tees ,rn{1 ld l csse11 not thjnk so.

tJrn t. the 8.)'Btem of sta11Ji 11g corn- ~L?e;c:,::;a ry i11 war-tiwe. 'l'Le publie \\'Oul

154!. By Senator H erb ert H ays.-How could standing committees be successful if the Labour member s of t he ' 0 nnte r efused to act on them ?- I assume that any

~tanding committee of, say, seYen members, would have four member s of one party und three of another, irre­ specfrrn of the nctual r epresentation of parties in the em1tc. In controYcr ial matter s there would probah1:y be a majority and n minority r epor t.

155. By Senator Foll.- 1lv ould not a committee to deal with :finance or foreign affairs h ave to sit fre­ quently to be of any use ?- Yes. The groups in the

House of Commons sit fo r a couple of hours at a time twice a ,rnek wh en the H ou se is in sess ion. During the rrcrss they do not m ee t so frequently . Tlu i,;i lness 1Pdhdre11' .

s~ow_ the ext~mt to which 'NC are governed, not by I arhament directly, but by regulati on. A good purpose would be served if the enate were to e tablish a ,com­ mitt~e to examine regulations and to bring before Parliament those it considers should not be allowed. I am a ware of the procedure adopted in conuexion ·with regul ations. I am also a,va r e that members

geuerally admit t hat they take ver y little notice of regulations. 137. By th e Chairman.-They have gone further in E 11gland in the matter of legislating by means of regu­ lations than we have in Australia; I understand t hat

there matters are tn ken even out of the hands of the courts of the land ?-That is Lord Hewart's complaint. 158. What is yo ur opinion of a committee to deal with international r elations ?-It is extremely diffi cult to interest the people of Australia in foreign affairs. We in Austraha are so occupied with our local interests,

Ernest Scott, Professor of Histo r y, U niver sity 1Ielbourne, s-wo rn and rxaminecl. of and so far from the storm centres of the world. that

even th e newspaper s ·which desir e to keep their r~aders informed on matters of foreign policy look askance at ar ticles upon the subject. That is unfortunate, for, af tcr all, the fundamental things in government have frequently been not domestic - matters, but matters of iuternational poli cy. Beneficent schemes have fre­ < 1nmJtly been wrecked in consequence of international strife mid warfal'e. We h:n·e no systematic way of informing the public on matters of foreign policy ,~'iticl1 might bear directly oh Australia's interes ts. At one

time ther e wa s not even a branch of the Prime :Min­ i.ster.'s Dcpa~·tment whose business it was to study

fore:~·n nffaus. Fortunately, that position has been r ectified. I have every confid ence in Dr. Henderson, :vho lo oks af ter that branch of t ho department; he is a profound student of the subject. If there were a co11;1-1r1ittee ?f the Senate to deal with matters of foreign p_ohcy and rnaugurate discussions upon them, the educa­ tional value to the public would be inestimable.

1,)6. T o ihe Cha' I have read carefully the debate in the Senate on the motion to appoint standing committees of the Senate. On two matters I desire to express an opinion-:first the modern practice of leg~slating by means of r egulation; and_ , secondly, the consideration of foreign affairs. Some twenty years ~~·o Sc:iaior James Stewart, of Quee usl and, took up with v1gou r the question of legislating by mea ns of r~gulatimi. J:!'e challenged the practice, and supported hrn argnments by r eferri11g to a number of r egulatio11 s u11d er acts passed by the F ederal Parliament. More reeently the pr actice has again been challenged by the Lord Chief J ustic e of England. th e Right Hon. Lord. H ew:ut, in his work, "The N ew D espotism". H e gnres a m1rn ber of cases from which it T,·ould appear that the practice of legislating by means of r egulation under a drag-])et section in an act is more availed

of in Great Britajn than in Australia. It does, how­ ever, prevail in Australia. Lord Hew::trt says that a number of peo ple consider that Parliament should be ahoE~h ecl and the country controlled by the Public

Service . Thr following extr act is rulled from hi s

book:-A n other aR pect of t h e rnn tter is il h1 strnkcl lw n wel1 -kn own ronversation . " ·!1icl1. took pl nee . not RO ma~:v year R ago, betw-ern a d1strn gurnhed 'J'r enc; ury offic ia l, if t h e epi t l1 et iR not ta PtoloQ"ous. a!l(l t he C'lrnn ce l1 or of the Bxch cq n er. Jt

happened that mattrrs lrnrl 110t gon e q11ite Rmoothlv in the . H_nusc of C'ornmon s that eycning . The departm~ntal s nec·wl u;t ,Yas not. for 011ce. ahle to sav to l1i s chief. aftr r

tltP ri siHg of t he H011 Re . with that nir ·which flR n rarlv n11-p _ roachf'R a tone of tri11111ph ilR official decorum nrrmi ts, " \Vell . s1.r , we lrnYr ;:rot our c1m1ses " . . \Vhat h e did Ray was t lin t

he wo11clPrecl " ·J10t l1 rr all this pal aY0 r " ·a s r eall....- necessa r y. .-\.fter :ill, " 'hat wa s t h e goocl of the Honse of Common~ 1

And llo\l· perfectly 11srlesR was t h e H onR c of Lords ! \\Thy

f'< houlct the work of the expert be ahrnv8 at t h e mercy ~f

t11 P ign on111t nr ? \Vh_v B l1 onlcl people he n 1l owed to tn i.o g·o,·ern themsch e;:; ,, ·Jwn it waR manifestl v so m nch bettr.r ;,ni; ~~1 0m 1

t~, be /l"o , ·e rne c~, by those wh~ kne": h o w t o goyrrn ? St0 11011s1y. he Hf'

lll)' )'Ollllg frie nd : nt the Cud of six lllOllths of i t . there \l " () llld not he enough lamp-po is in \Vhitclrnll to go round." Legisla tion is 110w o complex that it " ·ou1d be im­ pos ibl e, cw1i ~or the mo t kilful PnrJiarn entary drafts­

man, to prm-_iclc for eYery po ible contingency in ai1 ~~Ct of ra~'harn ent. The difficulty which exists iii J:., n~l:rnrl ex:st _ li er r also- tha t of having no y tern by

which r egulation . arc examined. Senator Stewart ,nrn ted Par liamcn t to ex a.mine r eo·ula tions system a ti­ < ·1 -dly to determine " ·het~er or not 0

thcy should be ap­

proYed. Tli e rno_s t 0 ·lanng exnmple of legislating hy rnem1 of r egub turn , orrurred iJ1 ronncction with thP "\\' ar Precaution Act. Action of that kind might b;

159. During the debate in the Senate ar()'uments ·were advanced against the appointment of a co~mittee to deal wi t h international r elations on the around that much of th e information is of a co nfidentiat' nature and ·would not be made available to a committee ?- It is

true t ha t some of the information is confidential but a good d~al of it that is generi:my placed in 'that

category is not really confid ential. ·when Mr.

~~s~y in the . Prime :Minister's Department, h e

i.m tiate_ d the :pra ctice of making summaries of the in­ format10n 1rh1ch came to the offic e aud of circulatino' l ' t:,

tnem amon~ newsp_aper ?£fices and unive rsities . They ,n,re ver :y rnter estrn~. I do not kuow why the news­ papers did. no_ t pubbsh them. One r eason · given was that the prrncipal n ewspapers did not like information ?£ thnt nnture to be given to country newspapers as 1t placed them on an equality with metropo1itan news­

papers. 160. Do you thi11k that a committee to deal with fo r eign affairs could function satisfactorily?-Y es . !hes~ matter s are not S?. confi dential as some p eople im~gme. I am now wntrng for Mr. C. E. W. Bean's senes of ~istoric_al volumes ?1 ~ Australia in t he war, a book _ dealing with the political, soc ial, and philan­ thr opic asp ec ts of the subjec t .. I have had to go through a great number of ential paper s some of which ·were ~anded to ~10 with considerable c~remony because·

of thou alleged importauce ; bu t if Mi ey ,.Y er e put into t]ie hands of any newsp ap r man in Australia he would i'.o t glm1 cc at them n _ sec ond time. There was perh~p~ good r eason for tr eat:ng them as secret at the moment

w_hen th ey wer e written, but that reason has lono· disappeared. b

161. I under sta nd that even Sec1·etari es of State dis­ u~s frankly matte.r s of fo r eign policy with the In­ stitute of Intern ational Affair ?-That is so . The

meeting of the In titute, a number of which I attended when in England, are very interesting. 162. Did you notice t h at most of the arguments

against the standing committee system revolved around international affairs ?- Yes; but I could not under­ stand the point of view expressed. 163. It was suggested that the committee might' deal

with inter-Empire affairs rather than international re­ lations ?-That is an entirely different matter. 164. By Senator Foll:-Has Australia a real voice in foreign affairs ?-Yes. The Liaison Officer in Lon­

don, Mr. Casey, visits the Foreign Office daily and sees all the confidential papers which are of interest to the Commonwealth, and is able to inform the Common­ wealth Government of their contents. After all, some one man or Cabinet has to determine a country's

poli cy. I have never been able to understand how the dominions can hope to participate in the actual con­ trol of foreign affairs. 165. But you agree that we should take an intelli­ gent inter est in them ~-Yes.

166. How would a committee on international affairs function; where would it get a start ?-I take it that the chairman would bring various matters before the committee. The Prime Minister's Department would probably make available to the committee certain information. If the committee desired other informa­

tion it would be its duty to endeavour to get it.

167. But confidential communications could not always be divulged to a committee ?-Possibly not; but a committee could get a great deal of information which now is known only to Dr. Henderson, and disseminate it.

168. Are there any other committees that you think would be useful ?-The matters I have mentioned are the only ones to which I have given much thought. 169. What is your opinion of a standing committee to deal with relations between the Commonwealth and States and to protect State rights ?-I have not thought

about that matter, but it is one for open politics rather than for a committee. 170. By S enator Lawson.-Would it not be better for Parliament, in the r egulation section of an act, to limit the power of the executive to the making of regu-1::itions to give effect to the purpose of the act rather than to empower i~ to do something of substance which is not dealt with in the act ?-That might do more

harm than good. The department which administers an act places its views before the draftsman. A depart­ ment, however careful, cannot think of every contin­ gency that might arise. In view of the complexity of modern life a good deal must be left to regulation.

The great point is to have the regulat ions overhauled, not to prevent them from being made. 171. Would you agree with the witness who said that regulations are 99 per cent. right ?-While I

would not contradict him, I would not say that he

is right, in view of the instances quoted by Lord

H ewart. 172. By Senator Lynch.-lt is not a tribute to the manner in which r egulations have been prepared that so few of them have been disallowed ?-That may be rather a tribu te to the carelessness of legislators in

not studying the regulations. 173. By Senator Lawson.-Many regulations are of a technical nature, dealing with subjects of which senators have no knowledge?-Such r egulations would probably be quite all right. I think Lord Hewart's

criti cism is too s~vere for Australia. We must have regulations, and it is our duty to see that they are care­ fully studied. 174. B y Senator Lynch.-Do you think that a com­ mittee to undertake that work would be advisable?­ Yes.

175. Have you found that the ministerial view of a measur e carries more weight than the view of private members ?-That is only natural.


176. Would not the committee system remedy thnt tate of a:ff airs to some extend-Yes. 177. Would not· a committee more easily detect faults in a bill than would the whole House ?-Yes.

178. By the Chairman?-One act on the Statute Book comprises only one sheet, whereas the regula­ ti ons under it occupy 172 pages ?-In a technical bill that would be quite all right; but, of course, a govern­ ment could put into those regulations something alto­ p;ether undesirable.

The witness withdrew.

Robert Gordon Menzies, Barrister, sworn and


179. By the Chairman.-Are you acquainted with the purposes for which this commit tee was appointed? -Yes. I am so mew hat concerned at the growing ten­ dency to legislate by regulation. There was a doubt

at one time whether the Commonwealth had power to legislate by regulation. The High Court ruled that the Commonwealth had that power. The decision w·as based on the ground that the Commonwealth Par­ liament does not exercise delegated power, but original

power. It may, however, delegate power to the execu­ tive. That decision was arrived at in the case of

Baxter v. Ah Way. Since that time there has been an enormous growth of regulation-making, particu­ larly during the war period. Regulations under the War Precautions Act were as little subject to par­

liamentary control as were the regulations in England under the Defence of the Realm Act. The making of regulations in England under that act was very

seriously criticized in the House of Lords, by Lord Shaw, on the ground that it was unconstitutional. No other judge agreed with his opinion. The genera]

professional · feeling is that it was wrong in law. It is felt that no limit can be placed upon the power of the British Parliament. The Commonwealth Par­ liament is, however, limited in its legislative powers. Under the War Precautions Act all sorts of regu]a­ tions were made. The professional feeling is that

the defence power was given an interpretation in war time that it would not be given in times of peace.

Ever since the making of regulations under the War Precautions Act assumed such proportions, regulation­ making has increased almost by geometrical progres­ sion. The popular form of legislation to-day is to

give an act a title, and then to confer on the Governor­ Gene·ral1 or the Governor, the power to make iegula­ tions, those regulations not being effectively controlled by Parliament. In moving his r esolution in the

Senate, Senator R. D. Elliott referred to the wireless telegraphy regulations. 1 regard them as an out­ standing example of legislation by means of. regula­ tion. There is every reason to doubt the coristitu· tional validity of any Commonwealth law relating to

·wireless broadcasting; but, in spite of that doubt, we had first the Wireless Telegraphy Act, followed by wireless telegraphy regulations, and, later, by a set of broadcasting regulation~ dealing with sealed sets, and, still latel' , b) regulations dealing with the pre­ se nt system- of wireless broadcasting. These regula­

tions provide for the imposition of financial burdens by means of licence fees, and also for the disposi­ tion of the money r eceived by way of those fees . They rrlso set out laboriously the rights and duties of broad­ easting · companies. There we have an elaborate set of legislative provisions dealing with a rapidly _ grow­

ing phase of modern life, and yet those regulatiom do not proceed, in a &trict sense, from Parliament a'c all. They are, it is true, made under the authority of Parliament; bu.t they do not represent the considered opinion of Parliament. Personally, I think that the regulation-making power is an extremely useful one

within its proper sphere. The Lord Chief Justice

of England has recently written on this subject. I

ham never been a strong believer in the separation of the three arms of government. I do not think that any English writer ever thought that there was a

separation of the three arms of governmen t until a French ob server said so. However, since the French observer said so, there has been a fairly wide belief that there is a separation between the three arms of Governme11t-the legislature, the executive, and the judiciary. The founders of the Commonwealth Con-



s ti tu ti on r ecognized that fact in the drafting of the . Constitution, when they put each department into a separate chapter. We have had a number of deci­ sions by the High Court based on the view that there is that separation, and that it is of great consequence. From a practical point of view, however, it is not of great moment. For effective working some overlap­ ping is necessary. Within limits, the judiciary must be a law-making authority. It has to make the rules of courts-a distinctly . legislative act-but one which

we wisely leave to the judiciary, because it is a matter with which it is most competent 1 o deal. Similarly, in the administration of a country, the executive must exercise some judicial functions. We must have disci­ pline in the Public Service, and, consequently, there must be tribunals to make judicial determinations. It is difficult to imagine how you could run a Public · Service if decisions had to be made by an ordinary

court. In existing circumstances, when legislation has reached such an enormous volume as compared with what it was a century ago, it would be impos­ sible for Parliament to deal with everything by legis­ lation. It is reasonable and practical that the execu­

tive should exercise some law-making authority of a minor character. All legislation by Parliament

ought to contain the principles that are intended to guide the administrators. Money ought no t to be raised except by a direct Act of Parliament. Parlia­ ment having made general provisions, the rest might well be left to the executive. That leads up to my

view r egarding the functions of a second chamber in relation to these matters. I suggest that matters

some ~mall committee, composed of men with special qualifications, to subject bills to critical examination would be extremely useful in any second chamber. I suggest something in the nature of an extended form

of the unofficial leadership which exists in Victoria. Regulations ought to be kept within their proper ambit. No legislative change should find expression in a regulation. Whatever the theory may be, in

practice, we find that while Parliament scrutinizes acts, it do es not scrutinize r egulations. A committee to deal with regulations would first have to decide whe ther the regulations dealt with matters of sub­ stance, or of details of administration. If they dealt with matters of substance, they 'Yould r equire more careful consideration than if they dealt only with matters of administration. Provided that. regula­

tions are confined to the details of administration, I think that the executive should be prepared to accept the responsibility for them. If in practice it is found that they result in hardship, I think it is usually the case that eventually Parliament becomes aware of it;

and if the case is serious enough, legislative alteration can always be made. In my opinion, legislation by Parliament should deal with principles and funda­ mental rules, and the details of administration should

be left to the executive. I have no great fear of

executive legislation provided those principles are ob­ .served. The modern tendency is not to dissever the ,ra rious branches of government, but to bring them all c]oser together. . I do not mean that I should welcome the breaking down of the rigid separation that now exi sts between the executive and the judiciary. We cannot have that separation too . complete; but, as between Parliament and its executive, it is inevitable, with the growing complexity of the social wants of the time, that there should be more and more the

passing 011 of the details to the executive and, to a

very great extent, to the permanent executive.

of substantive legislative policy will always be deter­ mined primarily in the Lower House. That is so in Victoria. My experience of a Lower House suggests that members of that House will always concentrate their attention on the point of substance, and are

impatient about points of form. Probably that arises from the fact that legislation making in the lower House is almost always done just before Christmas, when members have not the time to bother about qU(-'Stious of form. The Upper House occupies a com­ parntively minor position in relation to matters of .substance, and should, therefore, devote more atten­

tion to matters of form. Members of Upper Houses ought to concentrate their attention more particularly upon the extent to which the bills which come before them represent the principles debated in the Lower House. Consequently, i t has been found ne cessary in Victoria to delegate authority to an unofficial leader who is elected by members of the Legislative Council privately. The unofficial leader's speech on every bill follo ws that of the Minister who introduces it. The unofficial leader is provided with professional assist­ ance. Thus armed, he is able to offer valuable criti­ cisms of bills introduced . Fortunately, the unofficial leaders have had a reputation for impartial criticism. The Upper House in Victoria has usually contained . one or two lawyers who have felt i t to be their duty to

scrutinize measures closely from a professional point of vievY. Experience in the Victorian Legislative Council leads me to say that criticism of bills i

~l1iefl.y confined to the unoffici al leader and the pro­ fes sio nal trained men in the House . The careful

consideration these men give to measures prevents errors from creeping into legislation. I suggest that

· 180. By ihD Chairman.-What are your views re­ garding committees to deal with international rela­ tions, finance, private members' bills, and the preser­ vation of State rights ?-The outstanding feature of

our international relations, so far as Australia is con­ cerned, is our complete ignorance of them. The man in the street knows nothing about them; and he cares less. When a war comes he knows that Australia is involved in cBrtain international compacts, but other­ wise he does not worry about them. He knows that

there is a tariff which stands between him and other countries. He knows, too, that if he does exceedingly well in business he may travel abroad. That is about the extent of his interest in international affairs. In these matters we have to look almost ~ntirely to Par­ liament for the lead. It is my opini_ on that Parlia­ ment should lead the people, not merely follow them. There is no matter upon which the people need leader­ ship more than they do in connexion with inter­

o a tion al r elations. In the hurly-burly of the Lower House it is difficult to get a committee with the time or inclination to look into such matters, but it might be possible in an Upper House to get a committee to deal with them. I do not know how far the House

of Representatives would be prepared to admit the Senate into a share of financial power. Personally, I think that a finance committee ought to be a joint

commi ttee of both Houses, because, although the second chamber might not have any power of amend­ ment, it bas the power of r ejection. There should be committees to view :fi nancial proposals both prospec­

tively and retrospectiv ely. 181. Do you suggest that bills relating to financial matters should be referred to the Finance Standing Committee ?-They might be consider ed by the Public Accounts Committee.

182. A request by the Senate that the Insurance Bill should be referred to a committee _was refused?­ Legislative proposals of. a financial character ought to

iJl! l!XHrniuC'J b · a eom1u itt~c whL·re pn1elicc1 ble. Major fi11a11 iul propo al nre frequentl;y discu scd in a most haphazar d manner. It is seldom that one reads in

JI ansard a sound criticjsm of the principles underly­ ing a financial mea ure, such a Senator Colebatch

deli ,·e r ecl receutlv in the Senate. W e cannot afford to get a,rny from fundamental principles . Financial Ji cn ions are almost in-variably based on the effect

that they are likely to liaYc upon some localities, or group of iJ!CliYiduals, or some sectional interest.

Duriug the debate in the Se11ate it was contended that 36 members ha \'i11g an illChridual r esponsibility should not delegate that re p on ibility t o a committee of enn. It migJ1t be better to have seven persons

with a cle:finite obligation to unLlerstand a bill than 36 n1C'mhers ,,-ith 110 snch obliga tion. I prefer to see pri­ ·rntc rncmhers' bills r eferred to a select committee. That can be clone best by appointing a special com­

mittee for the purpose as occasi on r equires. 1- 3. By 1_1e11afor Ooleuafch.- Does the unofficial l eader in Yjctoria cha11 ge ·with every ch a nge of Go­ wrnme!1t ?-No. H e i s elected at a private meet­

ing of member at the begiuning of a session, and

hold s office for the session. 184. D o the member s of the L egislativ e Council

in Victoria attend party meetings ?-The six Labour members of the Council attend party meetings, but the N atiouah st member s do not. Co1rntry party mem­ ber sometimrs attend party meetings, but I do not

knO\\. 1;·hether th ey attend them as a r.ight. J s::; . Vlir ould the Victorian system ·work satisfac­ torily in a party Housc?-N ot so satisfactorily as it does in Victoria. That is why I suggested that it might he fom1d necessary to have a small committee in place

of an individual. In n party House, criticism of a

measure ought to proceed from an independent source. :For that r eason it might be v,·e ll to have each party

r epresented on the committee . 186. Haye the unofficial leaders treated m easures on their merits irrespective of their source?-That has beell our experience. The Victorian L egislative

Comicil is r egarded in some quarter s as the faithful seryant of the N at.ionalist party, but that is •not so in fact. It is a consel'\'atiYe House ; but I found that

measures introduced by a Nationalist Government were more acutely criti cized than 'were measures

brought down by a Labour Gornrnment. Free criti­ cism is n ot e11tirely possible in a House in which go­ Yel'llments arc mad e and unmade ; but in a second

chamber members should be free to express themselves as t hev think. 187~ By Senator Lynch.- Do you think there is any clanger of 1Yiiniste1·i al povi'er being carried too far in tb e m aking of regula tions ?-Regulations are made by departme11ts. That is all right ·when the details of

administration are being provided for. But if they go furthn anarliament is weakened. 188. Fault has been fouud with the Customs Act for that reason ?-Th e Cu stoms Act is au outstanding

example of t h e extent to ·which control can pass out of the h ands of Parliament. It is easier to prevent a

thing from being done than to alter it once it has been done. 189. W onld it not be a big job to watch all the regu­ lations that a r e issued ?-Yes. It might be desirable

to h aYe nrofessional assistance for th e nurpose. One qualifi ed \nall 011ght to be ab]e to do th~ j ob satisfac­ tori] y . Hi i1,-,;estiga tion ,rn111cl be of con iderable

assistance to a committee. 190. W ould you favour the appointment of a num­ ber of committees to deal with foreign r elations,

·:finance, regulations, and so 011 ?-I favour the appoint­ ment of so me committees in order to focus attention on the~e matter . The smaller the number· of com-


u1 iltel' · !Lu beLter. 1\rn committees woul

thau four. The greater thr number of com­

mittees the smaller the number of subjects which in­ dividual members will_ feel_ f:h:mselves called upon to st udy, and the more ·will cr1t1crnm and pov\'er pass into tlte ha11ds of a small group. If there were 36 com­

n1ittees ,vith oTie member on each of them, that mem­ lwr . rnjght become nn authority on his own subject but he ffoulcl probably 11ot be interested in the othe;. 35 subjects.

19 1. Are there ~ny committees in the Victorian

House of Assembly?-They have the usual system of appoi11 ting select committees, but for ordinary pur­ poses the ··work is arranged informally. It is the

practice of the Opposit ion fo appoint certain sub-com­ mittees to watch legislation. Those sub-committees scrutinize bills with which they are supposed to deal, and when they are before the House the members of those sub-committees take part in the debate. That system has worked well in both narties. The Leader of tb e Opposition in Vjctoria · .. wis able to deal effec­

ti,,ely with Government measures because the spade­ work had been done by others. The proposal now

before the committee is along similar lines, bnt it is rn ore formal. 192. Would a committee to deal with foreign rela­ tions be desirable ?-It would not have an enviable

task. Its duty vrnulcl be to collect and disseminate

facts . It would be advisory to the Senate but no t

to the Ministry. '

. 193. Do ;you think that the Senate has a greater

n ght to review the acts of a Government than has the House of R epresentatiYes ?-I tl1 ink that the Senate, except to the extent that it is r estricted on financial

matters, has, in theory, a p01ver at l equal to that of t~e House of Representatives in criticizing admi•nis­ trat10n and in reviewing l egislation. But I think

that theory has been somewhat dissipated in practice becaus~ of the great importance of money power. E-ver smce someone said that "Finance is government and goven:ment is. finance" the people have concen­ trated then· attent1011 on the House which controls financial policy. Criticism made by a House which has the power of the purse is more effective than any criticism in another House. A critic in the House

of R epresentat~ves is regarded as having some power to refuse supplies. A critic without that power is not tr eated so seriously. The passing of the Parliament Act in England in 1911 shows that. The House of

!,ord~ co~Jcl have r esist_ed that legislation for all time, lrnt. 1t did not. I t could not stand up in a contest

\¥.nn the House of Commons because the House of Comrnous had its hand on the country's purse.

The witness withdrew. The committee acljoitrned.

(Talcen at .:.v.lelbourne.) THFR.SDAY, 30TH JANUARY, 1930. P1·esent: Senator R. D. ELLIOTT, Chairman; Senator Oolebatch j Senator Lawson

S enator H erbert Hays Senator Lynch.

Kenll et h HurniltoD Bailey, Professor of J urisprndeuce aJJd D ean of the F::i culty of La·w, "Gnin>.rsit.y of Mel­ bourne, sworn a ud examinrcl. 19° 1. Ry tli c Chairman.-As you are familiar wit11 · the obje~ts of this Select Cornmtttee and have, I under­ stand,. given a good deal of thought to the subject, tb e committee would be glad if yo n will give it your news on the matter ?-In acldressillg myself to the considern­

tion of giving evidence on' th~ subject before this

1~ 5

Parliaments, i mueh the more lcisur-e d Hou e, all(l it members haye Yery much more time ,Yhich they

about second chambers is that, universally, those cham­ bers 110w get most of their legislative business sent up to them from the lower Houses at which I shall term a late stage of tb.c session. 1.fost of their legislativ e work is therefore do11e in a hurry at the end of the se sion. A very interesting debate on this point is recorded ill the hnperial H ansa.rd of the 1st }larch, 19.27, a debate which originated on the tanding committee system. It

<..:Olllrnittee I had suppo::;e

committees should be appointed in the Senate, his vote would be "aye " or "nay " , and that it ·wo uld then he bis duty to give reasons to justify that vote. At the

outset I may say that my vote would be '

fir st of all try to support my opinion on principle and then to support it on au thority, by reference to the prac­ tice of other legislatures. I shall proceed to consiedr what I believe to the the greatest obstacle in the way of the satisfactory working of the system that I advo­ cate, an

· developed into a "grievauce day" in the House of Lords, and members of the chamber gave a number of striking iustances of the manner in which they arc asked to cram much legislation into little time owing to the period of the session at ·which the bills come to them. I shall give an example of this "end of session rush" in the Canadian Houses. The -period to which

the :figures relate is from the 9th. December, 1926, to the 14th April, 1927, the latest about which I

could obtain information in Melbourne. That session resulted in the passing of 112 acts of parliament,

7 6 of which were public acts, and 36 local and

private acts. I except the enormous number of

divorce acts, 196 or thereabou ts. Of tho o 112 acts, 51 had alreadv been ass-anted to before the last fort­ night of the ;ession began. Of the remaining 61,

fourteen di

of the 42 bills dealt with in the last fortnight of the

s·cssion a good many were local and private bills which, in the Canadian Parliament, are invariably found-eel on petitions. As I understand the practice, petitions sen t to both Canadian Houses have already been r ead a11d repoi-ted upon by one of the standing commi ttees before the biil is read a :lirst time, so that the subject­ matter is familiar to a section of the Senate before the first reading comes 011. The Canadian figures leave one with an impression of a considerable "end of session rush." I now come to the New Zealand

figures, which are still more striking. The sessi o11 of which I speak is that from June, 1928, to 9th

October, 1928. In that period 81 acts of parlia­

ment were passed, three or four of which origi­

nated in the Legislative Council -early in the session. There w.ere also two supply bills, sent up from the Representatives in the :first week of the Parliament. So far as the Comtcil was conc·erned, legislative business did not really begin until towards the end of August. In September 22 bills were taken, and in October 46. So that more bills wer e dealt with iu th-a last nine clays, of which. only six were sitting da ys, than i11 the whole of the previous three months. The -4:6 bill dealt with in October had reached the fo·st-reading stage some

time previously. That indicates a very cousiclerable "end of session rush". May I draw the atte11tion of the com­ mittee to the form in which the N e1v Zealand journals are drawn up. For a per son worki11g on the kind of

work with ·which I have bee n dealing during the last fe,r weeks, they are the best parliameutary papers to J y , found. ~ \.. beautifully arrangccl schedule of legisla­ tion se ts out in great detail and with great precision

all that the inquirer nee ds. Our own jouruals, which are very carefully done, simply have an entry "Bills", and one may have to turn ove r O or 90 page to

eomplet 2 his 11 otes as to an i11Ji Yidual hill. Owing to that £act I r egret that I lrnYe no t a nything as coimplete in the way of a statement r egarding the Commonwealth Parliament as I have for the N ew Zealand Parliament. However, the following· comment is sig1iifica11t. I do not know how fully it can be accepted a::; an indication of "end of ses ion rush " , but I off r i t for what it is

worth. I took, :fir st of all, the last few weeks after

First, dealing with the principle of the ap­

poi11 tmeu t ' of standing committees, as sugges te?. Whether or not one supports the principle, 1t

has to be considered in relation to the functions of a sccon

I begin by drawing attention to two features which seem to be common to all second chambers-certainl;y comm011 to all that I have been able to ex­

amine. They are really central to · my own

view of t he practicability and desirability ,lf

a standing committee system in the Commo11-

wealth Senate. I shall state the fact as I see

them, i11 a preliminary way, and shall return later to their· significance for the purpose of the inquiry.

Those facts are, in the :first place, that in all countries where t here is responsible govemmen t, and I think also in the United States of America, the second

chamber sp ends less time in the actual business of debate th an does the Lower House. I asked my

friend Mr. Theobald Mathew to look out some figures for me i11 this respect, and I off er them for the

information of the committee. Th-2y relate to the year 1928 for the House of Lords and the House of Com­ mons, and to a portion of the year 1928 for the Com­ monwealth Parliament. They arc only approximate, as the indices and the r ecords do not -enable one to

make the comparison a precise one. In the period under r eYiew, there ,yerc tffo sessions in the Imperial Parliament, and the ratio of sitting days bebveen the House of Commons and the House of Lords wa three to two. In the third period of the fir t session of the

Commonwealth Parliament for 1926-27- 8-frorn May, 192 7, to September, 192, - the figures for

the House of Representatives and the Senate were almost exactly in the same ratio as those I have already gi-rnn, that is the Senate sat two-thirds as of ten as did the R eprese ntatives. Wh-e11 ouc examines the space

that th e record of the debates occupy, one find quite a different ratio. For thi period the debates for the

House of Lord cover 4,940 colu,mns, while those for the House of Common are printed in 33,4 3 colum11 s, a ratio of almo t one to s 'ven . In the Commonwealth Parliamen t the ratio was tvrn io :live. Presumably the inference is that the Senate spends a relafrrnly gr-eater

amount of time in tbe actual business of legislation than do es the Hou e of Lords. Very many of the

sittings of the latter body are brief, and exceedingly formal. The inference that I dra,v is a very easy one, that the econd chamber, a exemplified by tho e t,rn

the Yery last recess in the 1926-27-28 Parliament. The rece s was from June to August, 1928. Parliament met again on the 29th August and sat only three weeks to the 22nd September. During that time 21 acts of parliament 'iYere passed which previously had not been considered by th-a Senate. Sixteen came up from . the Representatives, and only one of those sixteen was passed without the suspension of the Standing Orders. In some cases only a slight suspension occurred at a late stage, but in other cases the Standing Orders were entirely suspended, while at times the sessional orders were also suspended. The figures for the whole Par­ liament from January, 1926, to 1928, disclosed that thr-ae out of every four measures that came to the Senate from the Representatives were passed with the aid of some suspension of the Standing Orders. There were a great numb-er of Senate bills in the same period

and it was necessary with one out of every three of them to suspend the Standing Orders. That suggests to me a very great "end of session rush" in the Com­ monwealth Parliament, comparable with that which I

have indicated in the New Zealand Parliament. On the strength of those :figures, it seems to b-e a fair state­ ment that an "end of session rush" is very noticeable in second chambers generally at the present time.

195 . By Senator Lynch.-Did you try to obtain any -evidence about the use of the suspension of Standing Orders in the House of Representatives to assist them to put through their bills ?-No, although I had hoped to do it.

196. Would it be safe to assume that the Representa­ tives made as much use of that m,ethod as did the

Senate ?-I think so. For the information of the com­ mittee I shall take out those figures and submit them as a statement. Those, then, are two of the outstand­ ing characteristics of 1-egislation in second chambers. It is in second chambers which do their work in such circumstances that this standing committee system has

to be considered. I take it. that it is common ground that the Senate is expected to be a States' House, and a House of

review. I think Sir Hal Oolebatch will agree that most of the witnesses whom he examined on this point when a member of the royal commission on the

Commonw-ealth Constitution, were of the opinion that the Senate had not operated satisfactorily, and that it was largely on the ground that it had not been what the witnesses considered to be a good States' House that they passed their unfavorable opinion . . I offer the opinion .to the committee that there seemed to have been a good deal of rather mireasoning opposition to the Senat-e on the part of witnesses before that com­ mission. I suppose the present democratic composition

of the Senate makes it difficult for it to be an ideal

States' House. That democratic character has resulted in ref:l:ecting the party divisions of electors, just as is the case in the low~r House. The greatest need of Australian politics at the mo;ment 'is formal machinery

for the effective co-operatio n of Commonwealth and State Governments. The State Governments appear to be out of touch with the Commonwealth Govern­ ments, and the Premiers' conferences that take place periodically do not remedy the evil. I offer the opinion frankly that if we want a really good States' House, we must try something like the German system-one

democratic House, with which is associated a body of direct r ep r esentatives of the State Government. 197. By .the Chairman.-We are hardly touching the point, which was exh austively covered by the Royal Commission on the Commonwealth Constitution.

198. By the Witness.-I ventured so far, Mr. Chair­ man, because it did seem to me important in this inquiry to have reached the conclusion that such defects as now exist in the Senate, from a States' House

point of view, are not curable by any system of stand­ committees. The matter goes direct to the Con-


stitution, which made the Senate truly democratic and made it inevitably (with perhaps notable exception ) r epresent p a,rty divisions in the electorates rather than State opinion. Only a constitutiion alteration can change that. In my own view, therefore, I am free to assume that one must primarily, from the point of view of this committee, direct oneself to the considera­ tion of the Senate as a House of review. It is a truism that modem legislation calls for expert knowledge.

Much of it is of an appalling technical character calling for specialized knm,vledge to a very high degree'. That is the great strength of the House of Lords as a legislative body, as it is composed of experts drawn from a great many walks of life. If one were to set out afresh to build a second chamber in a model legisla­

ture, one would probably direct oneself towards pro­ viding a chamber ·which would represent interests rather than lo calities ; a chamber that would be a body of legislative experts. That is the trend of constitu­ tional thought at the present time, and it is illustrated in the German Constitution, the. Irish Free State Con­ stitution, and in an increasing body of .o pinion

in the United States of America. We have in

Australia a constitution which is probably :fixe d for a long time, and the question is how can the Common­ wealth Senate most effectively make itself a legislative body of experts. I have _ very little hesitation in saying that our Senate, by adopting the standing committee system, could rapidly mould itself into a legisla­ tive body of experts. :May I also recall the

greater leisure of the Senate as compared with the lower House. I suppose no member of the committee would disagree with me when I say that it is a large part of the duty of the members of Parliament to lead,

as well as to represent, public opinion. Quite clearly, it is not the primary duty of a public leader to follow. Consequently, the more leisure that a body of legisla­ tors have, the greater is their responsibility for beiug in advance· of public opinion. These considerations have an important bearing on the establishment of standing committees, as I hope to explain later.

I suppose that, in the abstract, the standing committee system scarcely needs any defence. It seems to me to be the ordinary way of managing the business of any body in extra-parliamentary life. It certainly is not, as

I understand it, an evasion of individual responsibility. Rathe~ it is the provision of conditions under which individual responsibility can be most effectively realized. To have any matter opened up for consideration by the

whole body as the result of group processes is the most ordinary and effective means of carrying on business in ordinary deliberative bodies. There is thi~ further advantage. A system of smail committees utilizes to

their fullest the special aptitudes of the individual mem­ bers. I shall read a very ii'iteresting statement on the subject, made by Viscount Burnham, and reported at page 264, volume 66, of the debates of the House of

Lords for the year 1927. It is as follo ws :-There are many men, we know, who have not facility of cxpr:s~ion, and many more, as I have seen myself, who are unw11Irng to delay the passage of bills or to keep your

Lordships sitting after the accustomed hour. If these bills we:·e remitted else,:vhere, the nation and the Empire would garn the whole frmt of an unmatched experience, such as a great number of _tho se whom I am addressing have had in so many walks of life. That experience is quite lost here.

That last sentence is an exaggerated statement but with t:uth in it the force of which the committee ~ill appre­ ?iate. ~ want a~so to suggest that the committee system 1s .pec uliarly suitable for a party political body. One might take almost at random two bills coming before a House. Take firstly, a patents act, obviously a measure ab out which there would be no par ty feeling. It would

be introduced by a Minister, probably a very busy and overworked man, and maybe one who is not a technical expert on the subject. He would speak from an official memorandum and, in any case, he. would be an advo· cate for that bill. Almost any parliamentary draftsman

who has committed anything to writing about his job explains that some of the defects to which learned judges have drawn attention have been really

due to the fact that if he says a thing one

way the Minister will not get the b~ll th~ough, whe'reas, if it is said in another way, the bill will get th.rough. Consequently the Minister explaining the bill to the House must be in the nature of an advocate for it, and if he is a wise advocate he will not draw undue atten­ tion to the weaknesses of his case. Reviewing legisla­ tion introduced in that way is an exceedingly difficult task. It is work which, in the cas-e of a non­

party measure, 1s not likely to be undertaken

with any avidity unless a man has special

aptitude for the task. The ordinary procedure

of legislative bodies is apt to result in insuffi­

cient critical scrutiny of non-party ministerial

measures and, after all, most measures are now minis­ terial measures. ·Take secondly, a bill as to which

violent party feeling does arise, such as the Conciliation and Arbitration Bill which was recently before the Com­ monwealth Parliament. In that case the fate of the Government might be at stake, in the last resort, so that its followers stand more or less solidly behind it, while the opposing political party stand solidly against the measure. However, a committee would provide a useful method of review in the first instance,

while in t he second case it is just possible

that it might mitigate to some extent the worst

disadvantages of party division. It is a fair thing to say that it i s common experience that representatives of different parties, sitting round a table a number of times in private deliberation, could give much better revision to a measure than could Parliament, sitting in public in committee of the whole. That would be par­ ticularly so in the case of a chamber whose members had

relatively long tenures of office, as in our own Senate. I come now to the last point that I have to make under this heading, that the effects of the system would be cumulative. If the principles that I have advanced are sound, the effects of the system, though small at :first, would extend. So many bills nowadays amend

principal acts, and it is practically impossible to keep in mind the original principle and to co-ordinate the subsequeut amendment. Only a select expert body could hope to form an adequate picture of the whole. That is an argument in favour of standing committees.

199. By the Chairman.-Do you consider that the uumerous amending bills are found to be necessary because of the Jack of concentration by Parliameut on the original measures ?-Generally speaking, yes. The Bankruptcy Act is a case in point. The effect of mem­ bership of a standing committee scarcely needs to be emphasized . The mere fact that he was working along a particular line ,v_ould store the ~ind of ~he indi­

vidual concerned with much fuller mformat10n than he would otherwi e acquire. It would begin to influence his r eading, and in a short time he would become an expert on the subject to which he gave .concentrated

thought. It would be a matter of direct respOJ)­

sibility. That is 011e of the chief advantages of the

committee system. I now turn to argument froni authority, using

the analogy of the systems employed by other

legislatures . I shall ay a little about the

committee system as employed in the United States of America, although I believe the committee has had a considerable amount of evidence on the subject. The United States of America Congre s seems to have been

the parent of the committee ystem in legislature . I think it adopted the system in 1790, and it now seems . to have become a vital part of government in the

United States of America. I have taken out :figures dealing with a number of bills presented in the United States Congress. For the period 5th December,

1927, to the 31st May, 1928, 4,600 bills were

17 5bb

introduced in the Senate, and 14,143 bills in the Repre­ sentatives. An astonishingly large number of those measures became acts of Congr ss. The consideration of such a multitude of bills would have been impossible if dealt with only in committee of 'the whole.

200. By the Ohavrrnan.-I understand that a great many were divorce bills ?-There seems to be an enor­ mous number of separate p ension and other relief bills; but each was separately presented and referred. The controlling factor in the United States of America is

that the executive is not part of, or responsible to, the legislature. I therefore dismiss the United States of America Congress from consideration, feeling that what­ ever is done there is not at all conclusive by way of

analogy with our own Parliament, although our own Constitution is in some respects modelled on that of the United States of America. With Canada however analogies can be made. There appear to be three

groups of committees in the Canadian Senate. The :first group comprises that kind of committee which all legis­ latures have-house, library, printing, and so forth. The second group deals with private bills of a miscel­

laneous character, ( railways, telegraphs and harbours, banking and commerce &c.) while the third group deals with bills concerning public affairs: :finance, agri­ culture, forestry, migration, labour, trade . relations, civil service administration, public health and

foods inspection, public buildings and grounds,

and so on. Of the last two groups, only the

former seems really to be operative at the

present time. The authority upon which I make most of my statements on Canada is Mackay, who wrote The Unreformed Senate., so recently as 1926. 201. By the Chai1·man.-The committee has just received a communication from the Speaker at Ottawa, but it would be glad if you would summarize you.r conclusions ?-The private bills committees are very active. Of the 112 acts passed in the session to which I have early referred, about 72 were referred to and reported on by private bills committees in the Senate. The public affairs committees seem to have been nega­ tive in their results, primarily because of what I

imagine to be end-of-session rush. Those committees have performed important work which we usually have done by royal commissions on matters of public health and so forth. There is always one volume in the

journals of the Canadian House of Representatives devoted entirely to the exhaustive reports from com­ mittees. 202. The idea is to make it possible to give

that concentrated thought and consideration

that is so necessary to bills that are coming before the chamber ?-Yes. I come now to New Zealand.

The New Zealand Legislative Council and House of Representatives have a very thorough system

of committees. There are twelve committees in the Council-a House of 40 members-over and above the ordinary ones to which I have r eferred, and the size of the committees varies from eight to :fifteen members.

In the session from June, 1928, to 9th October, 1928, 81 acts were passed. About half of those were referred to standing committees. Thirty-six were referted to standing committees a£ ter the :first reading and before

the second reading. The committee concerned would go through a bill, clause by clause, and make its recom­ mendation for any amendment if necessary. The bill would then go to its second reading and to open debate in the chamber. Sometimes, but not very often, it was remitted to committee of the whole. In the Canadian Parliament the bill is remitted to the standing com­ mittee after the second reading, while in the U11ited States of America it is referred to the committee imme­ diately after introduction, sometimes with a limited

time for report. The committees always furnish their reports promptly, although I have noticed from the

~ e\r Zealaud l'ec:or

hay. o:netim.e occurred. That i unu ual, th period

ordmanly bemg from two to three day . I ubmit to the committee that there is Yery ample authority el e­ wh~re for the system. I have not really found any

leg1 lature out ide Australia iu which there is no sud1 ystem. The Hou e of Common make con iderab]e U"e of the method. I hall now cousi

committee ystem to the habit of legislatures,

and in particular to the encl-of-ses ion rush. I certainlv ~egan my inquirie feeliug that, if a system of stancl­ mg committees 1Yc1·e to be introduced ju the Oornmon­ wealth Senate, it ·would require sornethiug hke n legis­ lative revolution to make it effective. I thought that it co uld not operate cffoctiYely where there was such

a pronounced end-of-session rush. I wondered whether the commi ttee system would be found to Le most strongly entrenched in places where there is no end-of­ session rush. I discovered that end-o f-sess ion rush

is least noticable in the United States of America. I advance that generalization with some hesitation. The indexing is very difficult to follow. I found that :1

large proportion of the bills iutroduced during the first t\"rn weeks of Congress -were referred to committees almost immediately, and shortly afterwnrds reported. But the Canadian system seemed to throw some doubt on the vievir that you could not operate such a system

where there is a strong end-of-session rush. New Zealand also has a very heavy end-of-session rush. Yet the system appears to flourish in those two countries. Particularly in New Zealand, where the end-of-sessi o11 rush seems to be as bad as can be found · any,;vhere, the system appears to be working well. :Many New Zealand

bills went to consideration by committees in the last few clays of the session. During the session to which I havr referred, however, I found that on t he 25th September the following two resolutions were passed:-

1. That the Standing Orders shall, for the remainder of

the session, be so far s uspended as to a llow a ll ~oYernrncnt bills to pass through all three stages in: one day. L :2 . That the Standing Orders shall, for the remainder of

the session, be so far s us pended as to allow local bills, after

being reported on by the Local Bills Co 111111i ttec, to pa::, s

through their r emaining stH,ges in one clay.

On checking tlLe bills, I found that 110 governmen.t bill vrns thereafter referred to a standing committee. Nor was the second resolution adhered to . The fact was apparent that most of the local bills, after that

la st fortnight of that session. The only. information that I lrnYc is very formal, very exterHal, and very bookisl1. I offer it for what it is worth. 203. Ifow long has the system heeu in vogue

in New Zealand ?-I did not :find any i11forma­ tion as to its history. Apparently it has been estab­ lished for some years. It is also established j n the

lower House there; I do not know with what results. It seemed to me that, in any case in the House of

Representatives, very nearly all of the importa11t bills "·ere reported on by standing committees. The ques­ tion arises at this stage, at what point in a bi11.'s history should the reference to a standing committee take place. The House of Lords used to have standing committees to which bills were ref erred before the " committee of the whole" stage, and their Lordships began to complain that all the meat had been taken off the bill in the

standing committee; that the com~ittee of the whol e stage was not very satisfacto1·y. The Standing Ordet's were then altered .. and bills wern referred to stanJing committees after the committee of the whole stage,


\\"hich procedure killed the Btanding committee , Lecau '(' the meat had been taken off the bill in committee of the whole, and nothing was.left for the standing com­ mittees. With very great humility I offer the opinio11 that that discloses rather a narrow and conservntiY" view . It seems to me that their Lordships tried to make the best of both worlds. [£ you have n good

tancling committee system, you should be prepared to face any necessary changes in any legislative bu iness of the house. The purpose of the system is to make sure that bills receive full, and more or less expert, consideration at an early stage. If that make con­ . iderat1on by committee of the whole unnecessary, so

much the better. Their Lordships never seemed to haYe considered dispensing ,vith what was an mi­ necessary formality. The conclusion that I offer is that the ref e1ence to the committee should take placy

as early as possible, and that the task of the com­

mittee should be to prepare the bill for discussion by the House, and to make a report co,~ering its salie11t featmes and indicating desirable amendments. If a :Miuisterial statement is available, it should be in the

committee's hands. That should make the com­ mittee of the whole stage much shorter and more satis­ factory. I n many cases it would probably relieYe the House of the necessity of full consideration in com­ mittee of the whole. If the system is to work at all

satisfactorily, it ,voulcl require that the Senate should receive more consi

and Lord Darling had a very interesting commeu t 011 it. In effect he said, " Of course 1ve are toild that this bill must get through by Tuesday, at 4 o'clock. ,Ve do it. But why Tuesday, at 4 o'clock? Are we not

entitled to take the view that the House will adjourn when the work of the House is clone? If we are

uo t through our work when another place is :finis hed and wants to get away, that other place has the remedy in its mvn hands." l.'i._ strong and independent Upper House could adopt that ,attitude. The House of Lords

has certainly not clone so. Finally, I come to consider which committees ·would be appropriate for appoi11tment, 011

tlie assumption that a standing committe? system is desirable. A survey of the system 111 other

legislaiures suggest three things. In the :first place, that the stauding committee system is most active in respect of non-party measures. Secondly, that it has a rea] value when applied to party measures. Thirdly, tha t both in New Zealand and in Canada the most active

committees are those which deal with matters with which, in Australia, we would expect the State Parlia­ ments to deal. The New Zealand Parliament is of course the only legislature for New Zealand, and has to deal with general legislation much more than has the

Commonwe~lth Parliament. Presumably therefore one co uld not argue that, because a particular committre is needed in New Zealand or Canada, there shou lcl be a similar committee in Australia. In fact, so far

as this point is concerned, we get less help than

we might expect from the procedme of other legisla­ tures; it is advisable for us to pursue a more

lonely track and evolve a procedure to be followed b:y our own committees, visualizing its effect on the work of the Commonwealth Parliament. I therefore come to the four committees proposed in the motion. The :fii'st is one to consider statutory rules and regulations. It is

almost an impertinence for me to t ry to amplify tb e detailed statement made by your chairman when he spoke to the motion in the Senate ; but I shall add

one or two facts. I examined the Commonwealth Statutes from the inception of federation until the end of 1928. Using only approximate :figures, and excluding repealing, amending, and appropriation acts I found

that about 340 substantive acts had been passed during

that period. In just over half of them povver is cou­ ferred on the executive to make. r eg ulat ions. Then I turned with more care to an analysis of t he kind of act in which no such power was given. Mostly they were loan acts, acts validating agreements, State grants, and a large number of acts ·which a jurist ·would call priv-ilegia-acts dealing ·with particular persons, grant­ ing gratuities, and so forth. In other words, wher ever Parliament could r easonably hand over the ,rnrk of implementing an act, it was done. There is almost no exception to that rule. . The acts that are more

interesting from the point of view of lawyer s aud

citizens, acts that laid down duties and confen ed rights on the ordinary members of the community, were acts which left something to be done by regulation. Ther e in one striking and proper exception-the Crimes AcL

204. By Senator Lynch.-Has the tendency becu to make increasing use of that power, or otherwise '?-I think the practice has been fairly constant, although it is noticeable that the power is given iu wider terms in t he more recent acts, particularly since the war.

Now, as the actual bulk of the regulations. ·1\. co11-solidated edition of Commonwealth Regulations has been published. It is in three volumes, with a fourth volume containing prerogative orders and very valuable tables and indices. Those volumes embrace something like 3,600 pages, much more closely printed tha11 are

the ordinary Commonwealth statutes . Pretty well all of those statutory rules and r egulations impose r es tric­ ti ons on the rights of ordinary citizens. 205 . By Senafor L a.wson.-Are not a good many naval and military r egulations ?-Yes; but not such a big proportion as one might anticipate. Shipping regulations cover a tremendous bulk. Of course, the form is no v11 a very regular one, power to prescribe by regulation not inconsistent with the acts themselves, those things that are necessary or des irable to be pre­ sc ribed fo r the purpose of carrying the act into eff ect. Though the words are the same in each case what they mean is obviously very differen t in the Yarious acts concerned. Take a case like tho Inscribed Stock .. Act of 1911. There the r egulations do not cove r a very

·wide or important fi eld of delegated law making. I t is quite different when yo u come to the ordinance po\ver under the N orthern T enitory Administration Act of 1910, which has since been supplanted by the :N orthcr11

Australia Act of 1926 ; or when you come to the N avi­ gation Act of 1912, under ·which rule-making powers are given in a very l arge number of sections. Similarly with t he Air Navigation .Act of 1920, which was only a skeleton act ; the Dried Fruits Act of 1928, and

the Transport Worker s .. ,\. ct of the same year. The last-named was the mere bones of an act. The rather alarmed atmosphere prevalent in Great Britain at present ab~ut the extent of this application of htw­ making power to the executive does not find auy

counterpart, and in my opinion it ought not to, here. In .Australia neither the amount of delegation, nor the kind of powers delegated, is so striking. One should draw a clear distinction between a power to make rules,

aud a power given to Minister s to make quasi-judicial decisions. I have 11ot directed my miud closely to the latter point, upon which Lord Chief Justice Hewart concentrates in his book The ..,,,Y ew Despotism. The firs t part of. that book ho,,·ever deals with the pm,·er of implementing laws.

206. By Senator Lynch.- Are po,\·er s giYen from which there is no appeal ?-Yes, although their extent appears to be 1ery limited o far as the Commomvealth Constitution is conccmed. The judicial power of the

Commonwealth can be vest~d only in a court consti­ tuted within sections 71 and 72 of the Commonwealth Constitution, which include, among other thing , a pro­ Yision that the judges must haYc ft life tenm e an

F.42.- 3

5b7 19 in Cou11 cil 011 an address from both Houses of the Parliament, se tting forth certain grounds for removal. So that the kind of thing that is possible and commOll in England is not possible under our Constitution . However, I have come across some odd things in

one or two Commonwealth statutes aloug those lines. They have not yet come before the courts, and I do not express any opinion upon them. I shall direct

myself to the kind of rule-making power3 that have been given in the English and Commonwealth Aets r espectively. I draw attention to what Lord

Hewart claims to be the high-water mark of rule-making powers. There is nothing strictly comparable with it to be found in Commonwealth Statutes. In the early part of 1929, a new local go ve rnment bill was introduced in England which contained a clause in th<; following terms:-

Jf auy difficulty n rises in co11nexion ·with the applicatiou of this Act to any exceptiona l area or in Bringing into

operation any of the provisions of this Act the 11'Iini ster may, by order, remove the difficulty, or make any appointment, or do any other thing which appears to him necessary for

bringing the said provisions into operation, and any such order may modify the pro'visions- of this Act so far as may cippecir to the Minister necessary or expedient for ccirrying the orcler into eff ect. Ther e ·was a certain amou11t of protes t about it, a11d :Ministers promised that it would be amended and made satisfactory. It vvas amended, but was finally forced through the House of Lords and Commons ,vith this extraordinary provision r emaining unchanged in substance. .Although ther e is nothing quite like that in our Commonwealth legislation, there are one or two interesting powers. I direc t the committee's attention

to sub-sec tion 2 of section 4 of the amending N aviga­ tion Act of 1925, which reads-\Vhere the Goveruor-General is satisfied, as regards any ship or class of ships, that such circumstances exist . ~s

render co mpliance with any s pecified requirement of this Act impracticable, or make insistence upon compliance with that re<1uirernent umlesirablc in the ·public intere;,;t, h~ may, by order, direct t hat that ship or class of ships shall n ot be

r equired to co mply with that requirement.

Also, sub-section 1 of the same section r eads-,vltere the GoYernor-G eneral i s satisfied, as r egards any ship or class of ships-( a,) that any specifie d r equirement of this Act has bcfn

s ubstantially complied with; ( b ) that compliance with any specified r equirements of this Act is, in the circumstances of the case, un­

necessary; or ( c) that tl1e action taken or provision made as regards the subject-matter of the requirement is as effective as, or morc effective than, actn a l co mpliance wi t h

the requirement,

Jt e may by order direct that compliance on the part of that

s hip or that class .of !:ships with t hat requirement may be

dis pensed with. It is also provided that any dispensation or

The Go\'ernor -Gener a l may make r egul ations, which, not­ withstanding anything in ciny othe1· Act but s ubject to the Acts Interprntation 1lct 1901-18, and the A.cts Interpretation A.ct 1904-lG, shall haYe the force of law wit h respect to the cm ployment of transpor t workers, ancl i11 particular for

reg ulating the engagement, sen-ice, and discharge of transport 11·orkers, :111

aud fo r regulating or prohibitillg t h e employmeut of UH­

I icensed pers011s as transport " ·orkers, and for the protection of transpol't workers. The tendency is to incr ease the scope of the powers that are given for mle-m.aking. The theory is that Parlia­ ment is to indicate its intentjon in general terms but Parliament cannot provide in detail for everythino-. _ ,'i_ccordingly, detailed worbng out of the principles ha~ from time to time, to be put in the hands of thos~

responsible £or administering the Act itself. That kind of legislation has caused some constitutional difficulty in the Commonwealth, because of the provision that legislative power shall be vested in the two

Houses. Parliament's power to make such

regulations has been vindicated several times

by the High Court, but the ground taken

by the majority of the High Court emphasizes the point that I have just made, that it is for the executive in

making regulations to declare what Parliament itself would have laid down had its mind been directed to the precise circumstances. 207. By Senator LJ;nch.-Does that mean that if

Parliament delegates its power to the Governor­ General in Council, by virtue of that delegation alone what is done under that delegation is as valid as though done by Parliament ?-Not to all intents and purposes,

because a court will question whether what has been done is within the terms of the power given. An act may prescribe that a regulation may be made

implementing a certain section. The court would decide whether that regulation, when made, was really within the meaning of the section. Any

regulation made within the power given would

however have the same effect as an act

of Parliament. The vital element is the extent

to ·which one can be sure at any time that the rules laid down by the executive have genuine parliamentary authority. That depends upon the facilities for parlia­ mentary review of the regulations. Various methods

are adopted in different legislatures to . secure that Parliament really shall review this kind of legislation. One is the provision that rules shall have no effect until they shall have been affi.rmed by Parliament, either one

or both Houses, by resolution. That, obviously, means that Parliament must review the regulation just as if it were an act of Parliament. The disadvantage of that system is that it sacrifices promptitude, which is

one of the first necessities and great advantages of administrative legislation making. I have not found any case of that particular provision in the Common­ wealth statute-book, although there . may be one. A variation is the provision, of which I found only one example in Commonwealth legislation, that rules .shall have no effect until they have lain on the table of both House for so ma:r';.y days, and that - if a

resolution of disallowance is tabled and passed

during a certain period, the regulation shall not come into effe~t. There is only one case in the Common­ wealth legislation, section 13 of the Representation 41\_ct of 1905. That sacrifices promptitude, but clearly promp­ titude was not vitally necessary in this case. Much the most common method of giving opportunities for Par­

liamentary review is to provide that rules shall come into operation when notified, but shall be laid before both Houses within so many days or, if Parliament is not sitting at the time, ·within so many days after Parlia­

ment next meets, and that they shall cease to have effect if either House passes a resolution of disallowance. Especially in the early years of the Commonwealth, Acts were passed allowing only a very short period of

delay before rules had to be submitted to the House. Thus under the Customs Act of 1901 the regulations have to be laid before the Houses within seven days. That is also the time provided for in the Patents and Public Service Acts. The Defence Act prescribes a period of fourteen days, while there are one or two odd cases, such as the High Court Procedure Act of 1903,

under which rules of the court have to be laid before the Houses within 40 days, and under which they are liable to be annulled · only by the Governor-General in

Council, on receipt of an address from either House within 40 days. Ordinary cases are covered by

section 10 of the Acts Interpretation Act. of 1904. That section lays down that unless a contrary intention


appears, regulations shall be laid before the Houses within 30 days of making, or within 30 sitting

days of the next · meeting of Parliament ; and

thev may be disallowed by resolution of either

Ho;se, notice of which has been given within

fifteen days after the regulations are laid

before the Houses. I have . found only one

case where this section seems to be excluded, that is the Commomvealth Railways Act of 1917. The provisions are unique. By-laws are to be made by the Commis­ sioner. They are to have effect only when approved by the Governor-General in Council and published in the Gazette, and they are to be laid before Parliament within 30 days of making. There is no provision for disallowance. I presume that on the ordinary prin­ ciples of interpretation section 10 of the Acts Inter­ pretation Act is excluded by that very detailed set of prescriptions. The by-laws made by the Commissioner under the Commonwealth Railways Act can probably be overruled only by a1i Act of Parliament, and not by a resolution. It is a matter however on which I

express no dogmatic opinion. The general position, therefore, 1s that wide

powers of conditional law-making are conferred on government departments, and regulations will have the force of law unless, and until, one House of Parliament takes the initiative to destroy them. The onus is on the Houses themselves, and there is only a limited period within which that onus can be discharged. Otherwise an act of Parliament becomes necessary. I

place particular emphasis on this fact, because during the war what was regarded as a great safeguard for tho ordinary citizen was removed by the Commonwealth Parliament. The Rules Publication Act of 1903 laid

down that in the case of the rules to which sections 3 and 4 apply, a notice of intention to make a regulation had to be published 60 days before the making. That notice had to specify where copies of the draft regula~

tion could be procured, and any interested person had the right to make representations in writing to the rule-making authority concerned. It thereupon became the duty of the rule-making authorities to take those

representations into consideration. There was a good opportunity for the people affected to become aware of what was contemplated. That provision was subject to one exception, an emergency power in section 4; when

the rule-making authority waf, of the opinion that it was necessary, a provisional rule could be brought into immediate operation, pending rules being made

under the proper formalities of section 3.

Those two sections were repealed in 1916 by

the Rules Publication Act, and they have not been restored. I gather from the preface to the consolidated edition of the statutory rules that the practice of notifi­ cation and consultation has never been resumed. That safeguard for the interests of the ordinary citizen

having been removed, I put it to the committee that the onus on members is a heavier one, as it is upon

their diligence alone that the interests of the citizen rest. 208. By the Chairman.-Do you think that a com­ mittee to watch ov-er regulations would be an advan­ tage ?-Yes. The interests of the citizen require a

really effective parliamentary scrutiny of regulations. Those regulations are v-ery large in number, and they are closely printed. They relate to acts which a man endeavouring to check them does not usually or easily have clearly in his mind. Unless an unsatisfactory pro­ vision is really flagrant it is difficult to detect. Further, if a member is anxious to secure information about a particular regulation, he obtains an official explanation

which, in the absence of a hearing from the other side, is very convincing. So that it is quite easy for him

to be satisfi.ed. 209. By Senator Lawson.-How could we effect a satisfactory check on technical matters, such as the airworthiness of an aeroplane, or the granting of


. 21

215. That act was rushed through at a particular time, the intention being to clothe the statute later on. That was never done ?-To some extent it has been done. The regulations made in 1928 have b-een very largely embodied in the act of 1929, but the widest power of all is still retained in the Act of 1929.

As to the proposed committee on foreign

affairs. The title caused a good deal of diffi­

culty in the S.enate. I prefer the title that is very

familiar in our own Constitution, "external affairs". That is sufficiently wide to cover both empire and international relations: As to its functions, members of this co,mmittee are probably aware that, outside of the United Stat-es of America, there see~s to be no precedent for such a committee. There is . -a standing committee on foreign relations in both Houses of Con­ gress, and I think the fact 'that you look to Congress for a preced-en~ led to the suggestion that such a com­ mittee was useful only because of the peculiar relation of the United States of America Senate to foreign affairs-in regard to treaties, th€ making of diplomatic

appointments, and so forth. · As against that one

should regard the fact that the Foreign Relations Com­ mittee in the House of Representatives is a very activ,e and important body. That House has no special

relation with the executive. Matters usually befor-e it formally by way of a request from the

President for an appropriation to cover the expensee

wirrng licences for the installation of electric light. Surely W€ have to depend on the departmental expertP? -Yes, but these are not the points over which the

greatest difficulty arises. Most regulations are presented in a mass at the beginning of a session,

and a great bulk has to be considered in a

short time. I am aware that a distinguished

member of the Senate expressed ' the view

that these matters caused him no embarrassment; that he knew which r-egulations needed scrutiny, and that it was unnecessary to provide machinery for the review of regulations. With great respect, I suggest that it is

not such a simple matter for senators who have not had the unrivalled experience of Senator Sir George Pearce in administrative law making. Sir George has had so long an experience ,making regulations, as a Minister of the Crown, that _regulations that _ might satisfy him might not satisfy other honorable senators.

The records of motions for disallowance in the Senate are themselves significant. I checked the figures for tl1e years 1926-27-28. During that period there was on ly one motion for the disallowance of a regulation, and one for the disallowance of an ordinance-in con­ nexion with the Northern Territory. Both were

unsuccessful. When one reflects that in 1926 1,500 pages of new regulations were published, 1,100 mor11 in 1927, and presumably 1,000 in 1928, it is obviom that th-e scrutiny of those regulations was not as close as was the scrutiny of acts of parliament. of the participation of the United States of America

in some international activity, and the result would be gen-erally a motion by the committee in support of the appropriation. The rather more interesting question seemed to me, what material did that committee have before it? I examined two important matters,

the preparatory Disarmament Commission and the World Economic Conference, and found that the committee had a very carefully. selected mass of material placed before it. On the first subject it had the advantage of a fairly full explanation by President Coolidge as to the nature of the work to be done.

Ahd, since America's participation was quite consider­ able, it had a long apologia by the Secretary of State, Mr .. Kellogg, for the commission and for the participa-· tion of the United States of America in it, with an

extremely valuable survey of the whole European situation. Th-en there was a copy of the detailed

questionnaire submitted by the Council of the League to the Commission as a basis for its work and, :finally, a detailed exposition prepared by President Coolidge as to the mason that led him to call the Disarmament Conference at Geneva in 1927. These were in no sense secret or confidential papers. · They were, in

part, the very papers circulated to members of the Commonwealth legislature at that time, and to

them were added carefully prepared and de­

tailed official memoranda. Reading those reports, it seemed to me that the real value of the meet­

ings of the House of Representatives Committee was that a body of members inter€sted in international affairs had a formal opportunity, as well as an official duty, to meet and discuss a certain number of carefully

prepared documents relating to certain aspects of the work of the Preparatory Commission on Disarmament. There was no secret information. They did not have any executive. function. · Apart from the quite

technical matter of an appropriation, upon which they duly advised, what they did was to create

an informed body of opinion on the subject-unatters before them. I submit that all this is clearly applic­ able to our own Parliament. I refer to the very cl€ar and illuminating statement that your chairma~ made as to the way in which discussion had taken place on the reports of the Australian delegations to the League of Nations assemblies. I was much struck by the fact

that the debate on the motion to print the report of the delegates to the Seventh Assembly had not been

210. By Senator Herbert H,ays.-Did you make any analysis to show from which departments they

emanated . . ·Was the major portion connected with the Customs Depattment ?-I could not say off-hand. Th€re is a good deal of customs and navigation r egula­ tions, also a good deal affecting defence. The one which was challenged was a defence regulation, and it was Senator H. E. Elliott who moved for its disallowance. It provided very drastic powers to control private build­ ings in "defence areas". I refer members of the com­ mittee to the very illuminating debate that took place iu the Senaie on the 16th and 17th November, 1927. I seriously suggest the desirability of a committoo to scrutinize rules and regulations, a committee moreover that would not in any way be affected by "end of

sess10n rush." Its principal work, of course,

would be in the beginning of a session. A

committee which could, from year to year,

scrutinize regulations-especially those imposing duties and conferring rights and, in some cases, taking away rights from the citizen in matters affecting his liveli­ hood and so forth-could be of very great benefit, to the .... \ustralian community, and would certainly improve

the ordinary man's confidence in regulations. Both here and in England there is a good deal of feeling that the "Governor-G-eneral" is an a1most completely arbi­ irary person.

211. By Senator Lawson.-Do you consider that if there was a committee charged with . the duty of

scrutinizing these regulations, it would act as a check en the authority making them ?-Yes. 212. Have you, in your investigations, notic€d a tendency for the executive to increase the extent of these powers ?-Yes. As in the cases to which I have referred.

213. Could we effect any us-eful purpose by limiting this executive power strictly to giving effect to the ·ub tautiyc law indicated in the statute?-! think so. 214. The New Despotism cr:_ves examples of the executive reaching out for the power to make substan­ tive law. .Are we ;making our regulation clauses too wid,e ?-I think that the formula is very much the same a it was in the beginning, but the tendency is to extend it to relate to the act as a whole. The Transport

Workers ~\.ct is an extreme case in point.

finished when the motion for th-e printing of the report of the Eighth Assembly was laid before the House of Representatives. There had been an interval of just on a year. · .The leader of the delegation had spoken

to the mot10n that the report be printed. 011c

assistant delegate had also spoken, and there had been no further discussion on the matters contained in thos-e reports when the next lot came along.

The report of the Seventh Assembly was hurriedly cleared off,. and the debate ?egan on the report

of the Eighth Assembly. There is one very

bright exception to that kind of thing in the

records of our House of Representatives-in connexiou with the World Economic Conforence of 1927. That was the subject of a full-dress debate. Any one read­ ing the records of that debate must have wished that the documents referring to that conference had first

been carefully thrashed out by a body of interested persons sitting in private. There was an enormous amount of misunderstanding of th-e documents them­ selves . Members who had not had time to discuss them

found themselves debating them with, in some cases quite unfortunate effect . Expert consideration of th:: subject-matter of that conference would have been of great service and would have saved a lot of unpleasant­

n-ess. I almost forbear to refer to the debates in the Senate on the Preparatory Commission on Disarma­ ment and the World Economic Conference, but I invite members of this committee to take the heading

"League of Nations" for the years I have mentioned and look for the letter " S " in the index of debates.

It does not. occur ver1 often. Second chambers, being the more leisured bodies, have a very peculiar Juty and opportunity in these matters. I put it to the com-­

mittee that thei·e is a great opportunity for a Senate committee on -external affairs. I do not think the case for such a committee has been better put than it was by Senat?r Sir George Pearce, speaking on the report of

the Eighth Assembly of the Leagu-e of Nations on the 30th November, 1927. He said:-Unfortunately, in the stress of domestic politics, we

more into that maelstrom. We cannot avoid it, and for that reason it behoves us to give the matter some thought.

Du;ring the debate on the appointment of standing committees it was asked what materials such a com­ mittee would have. It might be useful for me to suggest some material that might be available for a standing committee on for-eign affairs. First there would be the

agenda papers and documents relating to League of Nations assemblies. These are commonly not confiden­ tial docTuments of such a nature that they ought not to be, and are not, ordinarily circulated among members. Similarly, with the agenda papers and documents relat­ ing to Imperial conferences, and a great many other important international conferences. I ask how much information members of the legislature had at the end . of last year, when a conference was discussing in

Paris the very important subject of the treatment of foreigners? Australia was represented at that con­ ference, and its delegates took a v-ery definite line in some respects. The appointment of a committee,

which would become expert in the subject, would be of very great advantage to the nation. Its functions would not necessarily be to make decisions as to the attitude Australia was to adopt on any point of inter­ national policy, but its discussions would ensure that our delegates would attend conferences with the legis­ lature behind them, with a pretty solid corps of private members familiar with the circumstances, and with a knowledge of what line the delegation ought to follow. It is possible for legislators to rely too much on the responsibility of Ministers. We send del-egates to League of _ .rr ations' Assemblies, International Labour

Organizations, and so forth, and their reports should


be discussed by a standing committee. Al 0

there would be th-e proceedings annually, and some­ times three ' to four times a year, of the Permanent Mandates .Commission, in the course of ·which our owu representatives are examined carefully. Then there would be the documents regarding the progress of the Disarmament Conferences, and so forth. I think it desirable that such a cornmitte-e should be asked to report at least annually to the H-ouse on international affairs that have had attention during the year. That would be an exceedingly valuabl~ document for the education of Australian public opinion.

The wdness w-ithdrew, and resumed his evidence at 3.40 p.m,. on Friday, 31st January, 1930.

216. By the Witness.-May I first answer the question put to me by Senator Lynch as to the figures for the House of Representatives corresponding to those quoted by me for the Senate, showing when it was necess ary to employ the suspension of the Standing Orders. I found that, for the years 1926-7-8, out of the seventeen

bills that came from the Senate, only four had to be passed with the aid of the suspension of the Standino­ Orders. That seems to indicate that the Senate wa~ passing on legislation to the House of R epresentatives

at a very satisfactory stage. On the other hand

the figures for bills that originated in the House

of Representatives were rather surprising to me. Ap­ proximately four out of every six were passed with the aid of the suspension of the Standing Orders. Nearly all of them were money bills. The figures are not

very satisfactory, because they do not make allowance for a number of money bills in which the suspension was the purely formal one of allowing the first reading to be taken immediately after the introduction of the

bill. Nor do the figures make allowance for quite a number of other bills which were pushed through all their stage~ in one day, by leave. The fi gures indicated to me that the House of R epresentatives vrns leaving its own business until very late in the session, au

opinion that was strengthened by an examination of a few of the bills. A great number of those pushed

through in one day in the House of R epresentatives reached the Senate only in time to have the same treat­ ment the1·e.

May I · also reply to some of the points raised yester­ day as to regulations. Defence regulations are easily the greatest in number. In 1927 they covered 900 pages, which is precisely a quarter of the total pagination­ .3,600. Navigation regulations covered 400 pages;

Post and Telegraphs, 163; and Customs, E xcise, Trade and Commerce, each about 120. Taxation covered 113, and Quarantine 60 odd pages. Regula­ tions concerning primary producers, which narrowly

touch the ordinary citizen, covered 145 pages. I wish to make very clear my own feeling as to this matter of regulation-making by government departments. I conceive that it would be idle in the extreme to deplore it or to seek to get away from it. It appears to have

become a neces-si ty of any sane, modern government. All one can hope for is an adequate parliamentary scrutiny. I yenture to think that Lord Hewart's book is a11 nu.fair one in that respect. I hope that it will

not be thought impertinent when I suggest that the committee should, in addition to reading Th e New De:ipotism, r ead one of tlie more sympathetic analyses of modern legislative tendencies ( e.g. Robson, Justice and Administrative La.iv, or Port, Adrnirllistmtive Law. I should like to see more than one com­

mittee engaged in revising these regulations. I suggest three committees, each taking two or three big acts and being responsible for them. That system is suggested to me by one in vogue in ~ ew Zealand. There 30 members out of a house of 40 comprise a Local Bills


Cornmiuee. Instead of si ttiug Ho 01Je co111111ittee uf 30, they sit as three committees of ten. By t~is means everal bills may be considered at the one time. As ,-re ll as saving time, the interest of virtually every member of the chamber is preserved. S enator Lawson yesterday directed attenti on to the fact that these

regulations are of widely differing character, some of them being purely machinery regulations. I direct attention to the regulations under the Dried Fruits Export Control Act of 1924, some of which are r ela­ J-ively unimportant and do not r equire such a close parliamentary scrut'.iny. The important r egulations needing scrutiny are those which impose subs'tantive law and prescribe the rights and duties of whole classes of citizens. I draw attention, under that category, to another block of regulations in the same section, those relating to licences. The rules provide that the Govern­ ment may, by proclamation, prohibit the export of dried fruits, except under licence. The conditions under which licences may be granted are very rigid find definite in the regulations. Here are one or two--

( Taken at M elhourne.)

FIUDA Y, 31sT JANUARY, 1930.

ti. A licence to ex.port dried fruits to co untries othe r t han the United Kingdom a.nd New Zeala nd shall be s ubject to t he conditions--

( o) that the exporter sha ll insure each shipment of dried fruits with s uch company or companies as the

Board determines ; ( rl ) that the exporter sl~all ship all dried fruits through such shipping companies as the Board determines ; ( e) that in the case of sales of dried fruits to Canada,

the Minister i s satisfied that t he fruit is sold

subject to such ter m:,; and conditi ons as are

approved by the Board, and · in such quantities as arc from time to time determined hy the


In other words, the Board is to prescribe for growers all contracts for the sale of dried frui ts to Canada. Unless those terms are accepted no licence will be given. Those regulations affec t intimately and in very great detail the livelihood of a class of citizens, and they call for special scrutiny. In flddition to the committees I have ~numerated, I sugges t the appointment of the follow­ mg :-

1. A committee to deal with legislation affecting the territories of the Commonwealth. 2. A committee on r elations betv;,een t he Oomrnon-- lYealth and the States. 3. A committee on trade and commer ce . 4. A committee to defll ·with industria·l legislation. 5. A committee on defollce legislation. 6. A miscellaneous committee on statute la w re­

vision-a sort of omniwn gafh ermn com­ mittee. That would be the nucleus of a fatrly thor ough com­ mittee system.

217. By Senator H erbert Hays.- Do you suggest that they should be joint commi ttees or only Se1wto committees ?-I am inclined to favour Senate com­ mittees. A small committee composed of men ha hitu­ t:lly sitting together is probably mos t useful.

21S. By Senator Lynch.- Do you suggest that the p r eYailing practice in regard to select committees should apply to the origination of the proposed stancLng corn­ rn i ttees ?-I am not very cJcar aN to the exact method of originating select committees. In Canada sta ndi11g committees were originally appointed uuder :1 Yery complicated system. I understand that in the rnited States of America they wer originally appointed by

the President; but now they are nominated by each party, . ciparatcly. The maj ority pwrty nominate::: hvelve, aud the minority party nine. 9.19 . \Vould ,you endow them with the same powrrs flS those possessed by a select committee~-Yes·.

The witness w-ithdrPw. 'J. he committee adjoumed.


Senator R. D. ELLIOTT, Chairman;

Senator Colebatch /

Senator H erbert Hays Sena tor Lynch.

Maurice McOrae Blackburn, M.L.A., Barrister and Solicitor, sworn and examined. 220. By the Chairman.-! think that you art

familiar with the objects of this committee. Knowing that you have taken a keen interest in the matter,

rather than give you a lead the committee will be glad to have your expression of opinion on the subject.­ My view is that the Senate is not well suited to the

committee system. It is a small house and one in

which, I should conceive, the party lines are very dis­ tin ctly drawn. In the House of Representatives, where a member r epresents a constituency containing a sub­ stantial majority of his own follo,vers and a substan­

tial mii10rity of his opponents, his personality and reputation -win him a personal following outside his own party. i\fy observation of the Senate is · that

candidates for that chambe,r have very little hope of attracting a substantial number of votes from their opponents. Take, for instance, the federal constituency of Batman with which I am familiar as a representa­

ti ve in the State House. There are there a considerable number of elec tors who vote for :Mr. Brennan who would, 111 another constituency, be ardent nationalists. Dut they r ealize that they have 110 chance of electi11g of!lier than a labour man, and also that they have a good representat ive in Mr. Brennan. The Senate seems

t o me to reflect more accurately and closely the

party complexion of the country. The work of

impartially revising measures by a standing committee could be carried on only with great difficulty in that chamber. I t is smaller by four members than the

Legislative Council of New Zealand, but the latter has sixteen committees of various natures, one of which has twenty members. Consequently, a great number of its represen ta ti ves serve on many committees. In New Zealand, the committee system is in operatio~1 in both houses, apparently with good .res ults. Technical and prirna f acie non-contentious measures are remitted to a standing committee as soon as they pass the second reading. As a rule contentious measures do not go to' a standing committee . I wish to comment on one por­

tion of the proposals before this committee, the con­ siderat~on of statuto1'y rules and ordinances. As your chairman pointed out in the Senate debate, the Com­ monwealth Parliament makes provision for the dis­ allowance of statutory regulations by the vote of either

house. I recollect a case in which a regulation under the War Prec autions Act was disallowed by the Senate - I think in 1917. The House of R epresentatives is not likely to do that work 'Nell or) in fact, to do it

at all. Upon its vote turns the fate of the ministry.

The _regu~ation is made by the ministry, and a proposal for its disallowance would ce r tainly be treated as a vo te of 1-vant of confidence, and would be tested on party lines . No ministry depends on the vote of the Senate, aud it is quite likely that in that chamber a

n'gulation would be consider ed on i ts merits. It is a rnr y dangerous thing that in Austr alia, as well as iu Engla n_d, so much_ of our ~egislation should be done by r~g_ulat10ns for ~ vluch Pa_rhament does not take responsi­ b1 l1ty, and Y h1ch are rn .a great degree inaccessible to the people. The sc r~1 tiny of those r egulations wo.uld be a very useful function for t he S enate to discharge one that could be done better by the Upper than b;

the Lower Hou e. ~ " n,ot her reason why the S enate fs

more :fitted to do that work is that it has but few

:llini ters, and their work is comparatively light, as is also that of the Leader of the Opposition. The work of the leaders in the House of Representatives is very heavy. I read several complaints by Mr. Holland, Leader of the Opposition in New Zealand, to the effect

that he could not do his committee work efficiently on account of the onerous duties attaching to his office as Leader of the Opposition. The experience of com­ mittees generally is that their members do not attend

them. · I consider that the Senate could not do much useful standing committee work except the considera­ tion of statutory rules and ordinances. Perhaps, too, measures affecting the relations between the Common­

wealth and the States could be referred with advan­ tage to a committee of the Senate for careful scrutiny. Take the Financial Agreement. I - am aware that it had very much more careful consideration in the Senate

than in the House of Representatives, but I believe that the Senate ought to have examined and considered· it apart from party lines, realizing that it had to

protect the interests of the States. It appears to me, as a State legislator, that both houses of the Federal Parliament are intent upon looking after what they consider national interes ts, without regard to State

interests. 221. By the Chairman.-Do you know that there are some members of the Senate definitely committed to act as though it were a non-party house ?-So I observed ~rom · th~ debate13, but I was not previously aware of it. I thmk that there may be a feeling amongst a f0w new senators that the Senate should look on what comes

before i.t through more m1biased eyes. 222. Do you not consider that the · fact of getting half-a-dozen or so men representing various parties round a table would lead towards a better understand­ ing and a wider outlook in the Senate ?-It might. If the Senate were content to be a chamber of review

the system would probably work well. I am inclined to think that there are very f.ew measures discussed b.efore the Commonwealth Parliament which are not treated as party in their nature.

-223. Senator Colebatch went to the election as a non-:~>arty man, and he and others refuse to attend party meetrngs ?-Western Australia is very different from the Eastern States. I t~ink t~at i~ would be very diffi­ cult for a man representing Victoria to adopt a similar attitude.

22~. Do you n?t consider that if the representatives of different p~rties met i~. a committee room, away from the spotlight of publicity, a. better feeling would be engendered amongst them ?-It would but I do not k:10w whether_ it would do anything bey~nd that. The disadvantage 1s that :he Senate is a very small house,

and t~e members anxious to do the work would be com­ parativ~ly limited in number. The same senators would be servu1;g on a number of committees, and on that account it wo1:1ld be fou:rid practically impossible to arrang~ commi_ttee _mee!rngs. We have experienced that ~1fficulty m Victoria. I was chairman of one committee and a member of other committees ·which used oc~asionall~ to meet on the same day, and I fou~d ?Teat drf~iculty rn carrying out my duties. For the information · of the committee I detail the select com­ mittee_s in o:reration in New Zealand, and the different

committees 111 the Victorian houses:-NEW ZEALAND. HOUSE OF REPRESE~T.A.TIVES: SELECT COMMITTEE.

.t\gricu_Itural '.1-nd Pastoral Industries and Stock. Cinemato­ graph Films B~Il , Defence, Education, Goldfields and Mines, J:{ Industries and Commerce, Joint on Bills, Joint on S~andmg Orders. on Prjv_ate . Bills, Labour Bills, Lands. Library, Local Bills, Mumcipal Corporations Amendment Bill;


Natfre -~ffairs, Petitions Classification, Public ~~ccounts, Pub­ lic Health, Public Petitions A to L, Public Petitions M to Z, Railways, Reporting Deba~e~ and Printing, .Selection, Stand­ in o- Orders Statutes Rev1s10n, Summer Time (Local Em po~,·ering)




Agricultural and Pastoral, Education, Goldfields ana Mines, House, Joint on Bills, Joint on Standing Orders 01, Private Bills, Labour Bills, Lands, Library, Local Bill ,

Native Affairs, Printing, Public Petitions, Selection, Stand­ ing Orders, Statutes Revision.


House Committee, Library Committee, Parliamentary Standing Committee on Railways, Statute Law Revision Com­ mittee. COUNCIL C OMMITTEES.

Elections and Qualifications Committee, Printing Commit­ tee, Standing Orders Committee.


Elections and Qualifications Committee, Printing Commit­ tee, Public Accounts Committee and Standing Orders Com­ mittee.

225. When do you consider a bill should be referred to a committee, before or after the second reading~­ Although it would mean a great change in our parlia­ mentary procedure, I consider that measures should be submitted to joint committees of the two houses before introduction, with the object of overcoming as many difficulties as possible. They should also be submitted

to interested outside bodies. There is too much secrecy about our legislation at present. When a bill is intro­ duced in the House it should be a much more matured product than it now is. Normally, the committee would not receive a bill until after it had passed the Repre-, sentatives, and then it would be difficult to obtain

a disinterested opinion upon it. One receives circu­ lars from both sides in connexion with every bill intro­ duced, and it may be safely said that 60 per cent of them are inaccurate and biased.

226. By Senat;r Colebatch.-I suppose that you do not take the view that you can divide the people into two or three parties and claim that you have covered the whole community ?.:_I do not.

227. Do you not think that there is an enormoUB vote in every State that is in no way pledged to any, particular . party?-I do. But that enormous · pivotal vote in each State does not follow individuals. It swings

one time to Labour, and the next time to anti-Labour. 228. Do you not think that that unattached vote would be inclined to follow an independent Senate can­ didate at an election ?-That might be so in compara­

tively small States such as Western Australia, but it was not the experience in South Australia, where men like Sir Josiah Symon stood without party endorse­ ment and were rejected.

229. Do you not think that that was due to the

method of election then in vogue ?-That might have had something to do with it. 230. Do you not consider that even the present

method is rather devised to prevent the public from exercising a free choice ?-Certainly. It is designed to induce the public to vote along party lines. ~31. I suggest that that is not a state of affairs that was ever contemplated when the Constitution of the Senate was formulated ?-The operation of our Con­ stitution is Yery different from what is intended. The maiu t~ings that have brought about the change are responsible governrr:ent, the fact that a government

hol~ s office by the will of the Honse of R epresentatives, which cannot be affected by the vote of the Senate, and the party system. That system in America has altered the method of election of the President of thr United States of America.

232. Is it not a fact that in the Legislative Council of Victoria a great many mem~ers ~o not a~te~d party meetings?-Yes. The content10n 1s that 1t 1s not a party house. :For that r eason they have appointed what is known as an unofficial leader, who is a sort of

advocatus diaboli. His duty is to consider measures that come up from the Assembly and to point out

defects, if any, irrespective of the pa:rty from which they emanate. When unofficial leader, Sir Walter Mani­ fold on many occasions improved measures that came up from the Assembly, even from the Labour point of view. I believe that every second chamber ought to have some such individual, or perhaps a group of in­ dividuals, who would be responsible for examining the measures that come up from the lower House. There is a great deal to be said for the institution of advocatus diaboli.

233. Is it your idea that the Senate is not effective as a House of review because it is elected by adult

suffrage, as is the House of Representatives ?-It is not effective largely because of its smallness, and partly because of the party basis on which it is elected. 234. By Senator Lynch.-You base your oppo·sition to the creation of the proposed Senate committees ou the two grounds that you have just mentioned. Sup­ posing that the Senate representation was doubled, would your opposition then be influenced ?-I am not opposing the proposal. I regard it as sound for cer­ tain matters. If the number of senators was doubled there would be twice the number of persons available for committee ,vo rk, aud my doubts on that score would

then be removed to some extent. 235. If you have a given quantity of work for a

given number of people, and you halve that number of people, still allotting them the same quantity of \.vork, would not a great deal more work fall upon the shoulders of the lesser number?-Yes, but in any case,

the man interested in statutory rules and ordinances vvould probably also be interested in international rela­ tions and finance. An active man does not confine his interests to one set of proposals, and he would want to be on all the committees that were of .any importance.

236. Would not the suggested system compel members to "stand up to the collar" better ?-I doubt it. The revision of statutory rules and regulations would pro­ vide plenty of work for the Senate . .

. 237. You do not think that the ~rgument as to the

t'otal number of members available has any bearing?­ I consider that if you doubled the number you would have more men available, but it is not easy to keep

legislative work in water-tight compartments. 238. Do yo u consider the party system is beneficial to the interests of the nation ?-If you mean the in­ to lerant spirit that says that no good can come from the proposals of opponents, it is a very bad thing,

against the interests of the nation. ·

239. Do you believe in discouraging that kind of party spirit ?-Yes . 240. That being so, do you not think that a com­ mittee system composed of men fr om different parties, who met round the table away from the public glare, would tone down the evils of the prevailing party spirit ?-If the system of election were altered, as sug­ gested by Senator Colebatch, your contention would have possibilities . But from my observation the

Senate, above all Houses, is very greatly influenced by the party spirit. A member of the House of Repre­ sentatives can build up a personal following in his electorate, but no senator can build up a personal

follo wing in the States that will be of suffici ent electoral value to him. 241. Assuming that party faction was at bubbling point in the Senate, do you not consider that it would be wise to seize any chance to lo wer the temperature?­ I am not opposed to the proposal to appoint these com-


mittees. It would be an excellent thing if such a system would diminish the existing party spirit. But measures would come up from the House of Representatives which had been voteq. upon there, along party lines, and perhaps forced through by the use of the closure. How would a Senate committee be able to consider them, even sitting behind closed doors, alienated from party spirit and interests?

242. You refer to purely class measures ?-No. The Government is apt t o treat as Government policy mat· ters that are not really of a party nature. There is a

tendency for governments to consider that a measure which is non-controversial in character is someth ing for which the party claims credit, and to insist upon putting it through in its original form.

243. Quite a number of proposals come before the Victorian Railways Standing Committee that are tinged with a party ·complexion. Do you consider that the party spirit is less in evidence in the deliberations of that committee than it is in the open House ?-Our

Railways Standing Committee does not consider legis­ l ative proposals, but merely proposals as to whether the building of this or that line shall be . authorized or not. The matter of party does not enter the debate, and the committee is free from the party spirit. For instance, the chairmanship, which carries an extra £50,

goes round, irrespective of the party of the person con­ ce rned. 244. You mentioned the Financial Agreement as an outstanding example of whether the Senate did not stand up to its work ?-That was not my contention. It may be perfectly right for the Senate to consider the subjec t from the nation's point of view, but in my

opinion that body regarded it in precisely the same way as did the House of Representatives. 245. I suppose that you remember that in the nego­ tiations preceding the debate on that agreement the six State Premiers met in conference and unanimously agreed to it ?-The Victorian Premier told us that he agreed to it because otherwise the State would lose its money altogether.

246. Can you point to any instance where any State right has been sacrificed as the resu1 t of the Senate failing· to do its work ?-I think that the Financial Agreement is the outstanding example. · The Senate was originated to protect the interests of the States .

247. If you blame the Senate for "selling" the

Financial Agreement, you must also blame the State Premiers ?-I do. 248 . From our information on the subject, Great Britain, Canada, and New Zealand, which have com­ mittee systems, are more steadfastly we dded to them than ever. That being the case, do you not consider any means whereby the committees could inform their

example ?-It must be remembered that the House of Commons is an enormous House. Its committee would be numerically stronger than our Senate. The Can­

adian House of Commons. is also a big House. Some years ago Mr. Theodore Fink told me that he con­ sideTed that the Australian Parliaments were much t?o ,small, and coul4 be very conveniently increased in size to enable them to work through committees.

249. Supposing that the committee system was established in the Federal Parliament, can you suggest any means whereby the committees could inform their minds on matters which would come before them for

discussion and report ?-They could call before them publi~ officers, representatives of the public, and could eve n rnterrogate members. ·

250. Would you give them the same powers as select committees have ?-Yes. 251. By Sena~oi· H. H ays.-Do you consider that the suggested committees could work more effectively in a lo,v~r than an upper House ?-Yes, because they would

receive the measure at the very beginnjng, before vested

! I




part.· i nte rc~t La

252 . Ha:ve you had any experience of whether that ha been done ?-No, but I have read where it has been done, in the n e-w countries of Europe; for instance, Czecho-Slovakia.

253. Do you think that there wo uld be a strong

obj ection from the Government to that procedure?­ .\.ny measures that the Government considered vital fro~1 a policy point .of view could be withheld from cliscussion by the committee.

254. Do you consider that the framers of the Con­ stitution contemplated that the Senate would be a party House ?-I do not think that they really con­ ~idered how much the system of responsible govern­

ment ·was going to affect the Commonwealth Consti­ tution . Tbey had in mind the United States of

America syste~, and were inspired and influenced by A.rnerican ideas. They thought the Australian

Senate Y ,ould .be a body ·which would be a sort of com­ bination of colonial legislative councils and the

.'...m erican Senate. A.t the first Victorian Senate elec­ (on the Age and Argits ran different tickets. The was a radical paper, and its nominees included se,·eral very conservative men, such as Sir Simon Fraser, Sir '\Villiam Zea l, and Sir Fredk:. Sargood, wh ile the Argits supported Mr. G. H. Wise, a very

radical candidate. The idea of both papers was to sup­ port a ticket that would represent the well-balanced thought of the State. 255. Do you consider that the proposals that we are

investigating are worthy of a trial ?-Yes, particularly as r egards statutory rules and ordinances. At the

worst, it would be an instructive experiment, while it m.ight possibly introduce a valuable change. 256. By the Chairrnan.-Do you consider that a committee to investigate external affairs v\7ould be of

advantage to Australia. Ip that I include Empire affairs ?-It might quite possibly be of advantage, but when you touch upon Empire affairs you are encroach­ ing upon party subjects_. It would be a good thing if it meant greater co nsideration by Australia of its external relations. I remember asking a very able

member of our own House, when he lost his seat, why he didn't go into the Federal Parliament, as his in­ terests vvere considerable on international matters. He had been a Minister. He replied that there was no chance of inducing the Federal Parliament to give serious consideration to international questions. If

that state of affairs can be improved by the appoint­ ment of a committee it would be a good thing. 257. By Senator H. Hays.-Do you share the views of rhat man ?-I do. I think that Australia shows a great indifference to its external relations. That is reflected in our legislatures .

258. What do you think is responsible for that?­ Distance, and the fact that we are too busy with our ovYn affairs.

259 . Do you consider that any proposal that has for it object the breaking down of the prevailing

party y tem should be encouraged ?-I think that the party system is a good thing. One of our troubles in .\.ustralia is that ,,rn have not definite enough party li ne'. B efore the war if the country wanted a definite policy to be carried out it voted for one party and

against the other. Now it knows that whichever party it votes for the resul't will i10t be much different.

Now it will Yotc for either party knowing that the proposal will be put into effect. However, I depre­ cate that type of party spirit that sees no O'OOd in

anything emanatiug from the opponents.

~GO. Do you consider that the pro1,>o sed system would "·ork moi:·e successfully if the period for which members are elected was extended ?-I have not considered that and would not express a view upon it. It would

ce rtainly have this advantage, that men who had ac­ quired certain valuable experience would not be so much coucerned about approaching elections. The witness withdrew.

Daniel Lawrence McNamara, M.L.O. , S ecretary, Aus­ tralian Labour party, Victoria, sworn and examined. 26f By the Chairma.n.-Do you know the objects of this Select Committee ?- Yes.

262 . I should be glad if you would give i t the benefit of your knowledge and experience on the subjects on which it is inquiring.-First, I wish to make it clear that any evidence that I tender to the committee is that of a citizen, and not that of an offici al of a party or member of a legislature. I have not h ad sufficient

time to give close consideration to the subject, and would be glad to have my statement.s supplemented from members of the committee. My own vi ews are in

favour of the unicameral system of government. I11 the circumstances, I have. not given much thought as to what should be the functions of the second chamber. My opinions are definitely against the appointments of committees for a second chamber. I base them on

the belief that the responsibility of government lies largely with the popular House, in which governme11ts are made and unmade, and from which ministries are largely taken. The Government, having r esponsibility for presenting measures, should also have the responsi­

bility to see that its bills run the gauntlet of its own

officers and members, rather than those of the se cond chamber. For the most part, second chambers are com­ posed numerically of about half the number of mem­ bers to be found in the popular House. If they are

to be regarded as chambers of review, every one of their members should be conversant with matters coming before him. The· danger that I apprehend from bills being referred to committees, such as are suggested, is

that it would become a habit to accept the r ecommenda­ tions of the committee, and members of the House would not give measures that amou\1t of scrutiny and cri ticism that is necessary. In the Victorian Legislative

Council, measures are criticized by the unofficial leader of the House, who is chosen by the party in an un­

official way, and whose duty it is to analyse bills

that are presented by the Government. If he believes that a bill can be improved he asks for an adjournment and closely examines the measure. His expression of opinion is to assist members generally of the second chamber. Of course, every member retains his right to

offer criticism of the bill. My fear is that, if measures were referred to . a committee they would not, unless . of a very contentious nature, receive the keen criticjsm that is so essential. If the proposed committees are

needed, their proper spher e is in the popular House. The Upper House is not one of initiation, and its num­ bers are limited. Further, it receives a bill only after it has run the gauntlet of critici sm by members in the Lower House. The system of committees for a second chamber is foreign to the well-recognized and accepted principle of responsible goyernment in British com­ munit.ies. The British system is differ en t from the

American system, which do es not provide r epresentatiYe government as we understand it, so that while com­ mittees might work well jn the United States of

L \_merica, they might not be as successful her e. I do not know that the terms of reference of the committee ass ist me much, as my remarks are in opposition to the pr incip1e generally. Whilst the Senate and most second chambers in British communities have very full right

27 575

fo r illiti.a ti11g lcgisla1·io11, i t has uot l>ecu the cust?m for them to initia te any great number o~ Usually bills come to th e second chamber after havmg run the O'a untlet of severe crit icism by members of the popular

~h amber. Any informa tion expected to be brought to ligh t by the proposed comII:itte~s should already have been unearthed by t h e Leg1slat1ve .. A .. ssembly.

:·mgge.s t tltat, but l l>di en ! tlwt if a cornlllittee is 11 ce

clrnmber. The measure should come up to the second chamber as perfect as it is possible to make it. I do

not even suggest that a committee is needed, as the

responsibilitly is upon the Government to bring about the necessary per£ ection.

263. B y the Chairman.- Do you know that the Com­ momYealth Sen ate h as the power to initiate electoral, defence, ballk rnptcy, copyright, insurance and wireless hills ?- I believe tlu~t very few second chambers exer­ cise their full righ ts to initiate legislation. Many of

the bills introduced by private members in the popular House could probably be initiated in the seconcl

chamber but as a rule th ey are not. Perhaps I have

introduc~d more p rivate m ember's bills in the Victorian Legislative Council than has any other member of either House, and I have been successful in seeing that some became law.

264. Do y ou knovv that the most important private member's bill initiated in the Commonwealth Senate · cl ('fl1t with compulsor y voting?-I thought that rather a rn a t ter of a private m ember "belling the cat". The

Governmrnt of the day pr°'' ided every facility for a private m ember t o introduce the measure. I do not

think ther e was anv need to refer it to a committee. 265. Are not quite a number of measures dealt with by committees of th e House of Commons ?-That may be partly accounted for by the size of the House.

N e w Zealand also has a system of committees, but in both cases they apply to the pop-C1lar chamber. 266. What is your opinion as to the number of statu­ tory rules and ordinances that a:re gazetted from time to time ?-I am a,vare that r egulations frequently out­ number the bills that they concern. That is due to an onr-d.elegation of power by the governments of the day to i ntroduce such regulations. I consider that,

g enerally speaking, Parliament should have a greater opportun i ty to scrutinize those regulations. It is the duty of every m ember to examine them just as much as h e does a bill. Even if a committee were appointed it might not h ave the wisdom of the . House. Any

critical discussion of such matter should take place on the fl oor of the House. 267. There is no sugges tion that these committees should take away from the House the opportunity of deba te. You are aware that if a reg11lation is un­ challenged, it becomes Jaw. Do you consider that ·a standing committee would assist to bring doubtful regu­ lations before th e House for discussion ?- That prac­

tice of allovi' ing r egulations to go "by default" has grown up gradually. Parliamen t should discuss r egula­ tions. They are machinery for the purpose of carrying out tho will of Parliament. It would precipitate a

general discussi on on t he subj ect if Parliament were ask ed to a.ppro-ve . r egu_ lations. That would be better than fi ve or six members of a committee criticizing the matter in camera.

268. Have you found from experience that e,ery­ onc's duty is n obody's duty ?-I r egard th a t as m er ely a n excuse. :Member s h.a ve their r es ponsibilities .

271. You made some r ef er ence to the need to ell­ courage 1111tia tion and individual effort in bot b

chambers. Do you 11ot con sider that a well-founded opinion from a committee on any subject would have a better chance of acceptance than one emanating from an individual ?-Probably it would, and that would tend to lead members to accept the recommendations of a committee with out giving the subject proper scrutiny.

It would lessen the interest of members, ,vho ,vould not have the advantage of hearing a debate on the measure. Also, the p eople should have the opportunity and advan­ tage of scanning the criticism of a bill.

272. You are aware that the bulk of the measures is hatched in Cabinet and in the parliamentary committee rooms. Later, the bills are submitted to Parliament. Do you not think it would be an advantage if an in­ dep endent body examined the measure, consulted specialists on the subject, and then submitted their ions on it. Would that not be a check on the

Government ?-I consider that it would lend itself to a good deal of lobby1ng, and would take away from Parliament the prestige to which it is entitled. Par­ liamentarians are expected to do their jobs, and they are supposed to have a comprehensive knowledge 011 various matters. Under the_ suggested system the se cond chamber might emasculate a measure after hear­ ing the multifarious views of interested people upon it. A. government has its responsibilities. If it cannot

. shoulder them it should g ive way to somebody who can. 273. Would not the considered opinion of a committee give a bill a better chance of going through than would otherwise be the case ?-Tuly opinion is that some time should e1apse after a bill is introduced in the popular chamber, so that the general public may voice its

opinion on the measure. I do not think that a com­

mittee would :fill the suggested purpose. 274. ·what is your opinion about the nature of the legislation that is passed hurriedly in the dying hours of a session ?-I am not sure that it receives adequate co11sid erati'on. The most dangerous legislation is that

passed when members are physically exhausted. But a system of committees would not alter that, nor ·would it be practicable. Of course, Parliament can always rectify mistakes when they are made.

275. Do you not consider that the committee system would give proper time for members to digest a

measure ~-My views on the subject are contained, to a large extent, in the report of the Royal Commission on the Constitution. I believe that a committee system would be a waste of time with mere ~achinery measures. Irnportan t measures could be satisfactorily dealt with by Parliament if sufficient time were allowed to lapse

between the introduction and the second reading, and br.tween the second and third readling.

The witness withdrew.

26 9. By Senator Oolebatch.-Do you consider that th e u n official lead er subjects bills to the same close scr u tiny il'l'especti,e of the .party from ·which they eman ate ?-His duty, although he may not agree with

th e measnre, is to place the f act before th e chamber. -~ committee ·would be a perfect nui ance to a parlia­ ment in the late h ourn of a ne i on, as i t ·would hold

measures up. Four-fifths of our legislation is passed i n t h e last few h om of a e ion.

J ohn H enry K eating, Barrister-at-law and ex-Senator, sworn and examined.

270. By Senator L y nch.-Would it _ be right for m e to conclude from your reasoning that the suggested comm ittee shon1d be dra,vn from the lower chamber in ord r to improve t h work of that body?-I

276. By_ the Ohai.rrr:r::,:i.-As you know the scope of the committee's activities I shall be glad if you will

elaborate your views on ~he matters being investigated? - I have read the debate as t.he result of which this

?or~.mittee was appointed, and was very much interested· rn 1t. ApaTt from a 11 other r easons, I was a member

, I




of the fir t enate of the Commonwealth Parlia­

ment and continuously until 1923, and I had since 1901 watched its functioning with the greatest

interest. Speaking generally, I quite agree with what the chairman of this committee said as to the Senate failing in modern times to fulfil the functions con­ templated by the framers of the Con titution. I

realize that this is a searching inquiry in more senses than one, and that it ha:s a wide field of survey. In

the course of the Senate debate reference was made to -the upper chambers of other countries, the Senate of the United States of America, and that of Canada. The former occupies a very important place in the constitution and government of the United States of

America-a more important position, relatively, than does the Senate of the Commonwealth. Your secretary inci_ dentally mentioned to me a . query, whether the Senate of the United States of America has the power

to deal with matters such as treaties as the result of a specific provision in the Constitution, or as the result of what may be termed a development of its constitu­ tional practice. On investigation I :find that the Senate

of the United States of America is stronger in that regard than is our own Senate. I shall read several paragraphs from Bryce's The American Commonwealth. The first is from the appendix, volume 1, under the

heading "Note to Chapter IV. What the Federal Constitution owes to the Constitutions of the several States." This is from an article written by Mr. Alex. Johnstone in the New Princeton Review for September, 1887, and is quoted by Lord Bryce-

It is probably inevitable that the upper or hereditary House in foreign legislative bodies shall disappear in time. . . .

The term "foreign" is used as applicable to anything outside the United States of America. The· article continues-. . . And it is not easy to hit on any available substitute;

and English writers for examples, judging from the difficulty of finding a substitute for the House of Lords, have rated

too high the political skill of the Convention in hitting upon so briliiant a success as the Senate.

That is the considered judgment in 1887 of a man of standing. He continues--But the success of the Co1wention was due to the ante­

cedent experience of the States. Excepting Pennsylvania and Vermont, which then gave all legislative powers to one House, and executive powers to a governor and council, all the States had bi-cameral systems in 1787.

Later in the same volume are quoted the Articles of Confederation and the Constitution of the United States of America. Under Article II., dealing with the Executive Power, and Section 2, dealing with the President, appears the following:- ·

He shall have pov-ver, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint

ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, w·hose appointments are not herein otherwise provided fo r, and which shall be established by law; but the Congress may by la,Y Yest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or

in the h.eads of departments.

So that the ·question that was submitted to me quite incidentally in conversation is adequately answered by those extracts. It will be seen that the treaty power of the Senate of the United States of America is not

one that is the result of the assertion of claims of that house as against the other. It has been the dire~t out­ come of the provisions of the Constitution as to the Executive's duties and responsibilities.

277. By Senator Lynch.-It does not arise from any traditional decisions ?-No. It seems to have been definitely provided in the Constitution, under which the powers have been exercised. Since the publication of the edition from which I have read something corre­ sponding to our Public Service Act has been passed

in the United State of America, and it probably

govern the appointment of civil servants, at any rate of the lower grades.

278 . By Senator Colebatch.-Is the provision that you have read in any way affected by the amendment made in the American Constitution since that edition was published-an amendment affecting the election of both the President and the Senate ?-I am not pre­

pared to say that; but I do not think so. The

authority of the Commonwealth Senate in such matters is not as strongly entrenched as was that of the Senate of the United States of America. 279. By Senator Lynch.-Are there any points on which the Australian Senate is stronger than that of the United States of America ?-For the moment I cannot think of any. I think that the United States of America Senate has on more than one occasion asserted powers in connexion with financial matters, which are not possessed by our Senate. There is one aspect of the Commonwealth's Constitution which I have, both in and out of Parliament, frequently stressed,

and I think that the position of the Senate depends somewhat on a realization of these facts. Too many people seem to be under the impression that, because we have federated, we have united. That is-t~at because the whole of Australia is a commonwealth under a con­ stitution the Commonwealth has all the attributes of a unitary system of government. I have always endea­ voured to stress that, what the union between the States · means, is just what partnership means between indi­ viduals. You may have six individuals each with his own

business-businesses to some extent, perhaps, partaking of similar characteristics; in other respects, perhaps, a little different. Those six men-A, B, 0, D, E and F­ go into partnership. They draw up articles of partner­ ship, and for all purposes of the partnership they are one. Outside the purposes of the partnership they are as distinct, separate individuals as they were before. No outsider would think of dealing with A or B on matters affecting the partnership when he is dealing with him in connexion with his own personal, private, individual capacity, responsibility and duties. With our bi-cameral system, the House of Representatives represents the partnership union of the people. It represents Australia as one for all those purposes that · are clearly set out in the Constitution; as one area,

one concept. The Senate represents the union, not of the people, but of the States, still preserving their sepa.rate several individualities and sovereignties. And so it has been called the "States' House." It

does not represent the union of the people, but the union of six States for defined, limited, definite pur­ poses. That is the reason why there is equality of re­ presentation. Whether the State be large or small, populous or otherwise, it is equally represented. So it ought to function differently from the other House, which represents the union of the people of those six States. That was the original intention of the framers of the Constitution. In the early days of the Common­ wealth Parliament-and I was in it from the first­ members of the Senate honestly and earnestly

endeavoured to ful:fil the function that they felt was assigned to them as rep.resentatives of their various States. Right through the first federal Senate my duties as whip were not simply the regimentation of supporters of the Government. The most onerous part of my task was to ascertain the individual feelings of members of the Senate on various bills, and to supply the Minister in charge with that information. . The individual prepossessions of members arising from State experience had to be answered by the

Minister on second-reading speeches, or he had to be prepared to meet them in committee. Another part of my duties was to have the member, no matter



on which side he sat, in the House at the appropriate moment so that the Mini ter who was already a, are ' ' h" of his opinions on the subject, could answer 1s ques-ti ons in the House or in committee. It was a most

interesting task. It is not correct to sa;y that th: ~rst Senate was a party house, aHhough 1t was drvided generally but not rigidly upon the question of fr~etr~de and protection, which had be~n made the dommatmg issue of the first federal election. The Labour party

uumbered nine. Of the remaining 27 members, there was a slight majority who would be termed "fre_e­ traders." The Labour party professed a cert am

amount of fiscal atheism. Some were freetraders; some were not. Although the majority might be slightly against the Government on the matter of free­

trade as an abstract principle, the Government was always able to carry on without any difficulty. But the Minister required to know every night when the House rose exactly how every member felt, not merely

about - the bills then before the Senate, but also about those coming on. The Labour party was the only one that met as a party. When the tariff came on in

the Senate, which was some considerable time afte_r the assembling of Parliament, the freetrade opposi­ tion made a point of meeting, and they decided

exactly how far they would allow the business to proceed each day. The first time that regimentation and organization of parties other than Labour began in earnest, so far as I can remember, was after

the establishment of the fusion party, after the

Fisher Government came in in 1908. I did not attend meetings of the party when they were called, because I had frequently, in the· House and outside, deprecated such a practice. It was not until some years after­

wards, when the Liberal party became fused into the Nationalist party, that I attended a11y meetings. l attended then, not as a matter of cour se, or even as a matter of routine. Occasionally, when a Prime

Minister was about to go away and desired to make an important statement to the party, or when he had returned from abroad and desired to inform the party on certain matters before they became public informa­ tion, I attended meetings. But I rigidly abstained from voting on any resolution as to how the party should act in either House. l~t the back of my mind was the fact that the full strength of the Senate was 36; that of the House of Representatives 75. Under normal conditions a gmrernment, to car ry on, must have 38 in the House of Representatives, includina Ministers.

Supposing the whol_e of the Senate were 0:1-e,. and they went into caucus W1th the g·overnment maJonty of the House of Representatives; the 38 or more members necessary, numerically, to keep the Government in power ?oul~ in a c~uc~s swamp t~e S~nate. _The Senate

is rushmg mto extinction every time 1t goes mto caucus, because even if unanimous, it goes into caucus in the minority, and would be simply preparing its own death warrant by opposing the Government in caucus. I never

could see why members of the Senate should attend these meetings. 280. By Senator Oolebatch.-We had it in evidence before the Royal Commission on the Oonstit1-1tion that it was not until 1916 that it became a general practice for senators to attend party meetings, and take part in the debates thereat ?-That evidence would be in­

correet. I speak subj8ct to the qualification that I used not to attend the party meetings. No doubt in 1916, after the Nationalist party was formed, the practice hardened, and perhaps the responsibility to

attend appealed more strongly to senators. I am per­ fectly certain that immediately the fusion Government was formed the Labour party's policy of holding raucuses was followed by that Government.

281. By Senator Lynch.-W as not 1:rnmunity from attendance at tho e meetings granted to senators in

regard to matter upon which there was strong State f eeling ?-I never heard so. 282. By the Chairman. -Your experience is not reflected in the Senate to-day. During the past few

years a member of the Goyernment has really had to support that Government, and he was not expected to express an opinion except in endorsement of a bill placed by the Government before Parliament. That

is one of the r easons that led up to this inquiry?­ That alleged loyalty to party has been a gradual growth, as also has r egimentation. In the early days of the Senate its members were less regimented, less ordered,

and less ·whipped into parties than they are now. If the Senate has lost its "punch", it is partly due to the fact that it has become a party House. I read what the chairman of this committee had to say with regard to the duti es that Senate committees might be required to undertake-amongst other matters the examination of

problems in connexion with the League of Nations and other outside matters. Senator O'Connor was Leader in the early days of the Senate, and he realized the weak~ ness of our Senate in comparison with the Senate of the

United Stat~s of America. He spoke to certain of the younger members and urged them to interest themselves in different matters, in an endeavour to see whether the Senate could not exe1·cise a big in:B.u ence, apart from the purely Australian party aspect, on public affairs and ad­

ministration. I think, in his absence, I can fairly say that the then Senator Staniforth Smith was moved to go into the consideration of the policy of Australia in relation to Br itish New Guinea, which was then under

the jurisdiction of Great Britain, by the suggestions of Senator O'Connor. The idea was to get senators

to make themselves more or less expert in these matters. Your chairman also referred to Canada and its

committees, mentioning that they dealt with rai_ l­ ,vays, telegraphs, harbours, and a number of other matters. It must be remembered that the Canadian railways are not to the same extent as they are here, controlled by the Government. One cannot be over­ emphatic as to the necessity for some supervision of the

regulations passed under various acts. That responsi­ bility do es not attach peculiarly to the Senate as dis­ tinct from the House of Representatives, but it belongs to somebody. Our courts of law find that they cannot cope with the mass of regulations, and they of course can give them consideration only when invoked to do so

by some aggrieved person. It is difficult to say precisely what percentage of those really aggrieved take advantage of our law courts to seek redress. I should imagine that the cases that come to light and are decided by the

cour ts as to the invalidity of r egulations are but a small per cP.·~tage of the total. Looking rather hurriedly through the records I notice that the Commonwealth acts of Parliament from 1901 to 1927-taking all the

arts as unconsolidated, and excluding the consoli-· dated acts at the end of the volumes for the years to which I referred-cover a total pagination of less than 3, 708. I speak errors and omissions excepted. I also went thr ough the Commonwealth Statutory Rules for

the same period, many of which are consolidations, and found that they nm into 11,263 pages. It is a very difficult matter for anybody to know the law. It

c-ertainly is difficult for the layman to know it. I do not know how lawyers themselves can be familiar with the reg·nlations or the acts unless they are constantly keeping up to date. The volume no less than the

Yariety of regulations is tremendous. That does not apply 011ly to the Commonwealth, but also to eyery one of our States and to Great Britain. Lord Chief Justice Hew art h as written The New

De:spctism on the subject, and in it he draws attention to the tendency of parliaments in modern times to delegate their authority to various bodies, empowering such bodies to pass regulations. Chapter 9 of

tl1at hook deals witl1 ~nnu• b1diug l':t ·e:, alld many in tau e of the mi~n e of d<'le()"ated po\\'~r are itc<.l .

I do not u o that term iu :rny ense of obloquy. The

authority to whom the power was delegated did not appreciate the extent of that po,ver, and formulated regulation to have the force of law. I consider

that the committee hould not finaliz e i ts r eport with­ out an cxhau ti-n r efrrencc to Lord Hewart's book. If a y tern of committees could effect R constm1t super­ vi ion of the c rcgulntim1 it ·would be of immense

benefit. It has been noticeable of r ecent yea r s that

there has been very l ittle or1ginatio11 of legislfition in the Senate. Through the courtesy of som e of the

officials to whom I wrote, I lun·e informa tjon ' df some of the act1Yity of the Scnatr i11 this regard in 'the eal'l;y days. F or the session of 1901-2 the Seuate originated eleven bill , while the House of R epresentatives origi­

t~ated 31. .. Amongst those emanating from tho Senate "'er e somo Yer-y important hills, includi11g the first Electoral Bill, th e first Fra11chi se Bill, tho first Post and T elegraph Bi11, the fir st l 'ost and T elegraph Rates

Bill, and tlie first S en ·ice u wl Executio11 of Process Bill. }'or the scssioll J 903, the total num.ber' of bills

originated in the Senate was nine; in the House of ~epresentatives eighteen. .Amongst those originated m the Senate were the Claims Against the Commo11-wealth Rill, the fir st Ext radition Bill, tb c first :F ederal Territory Bill, a High Court Procedure , \mendment Bill, the first N atnralization Bj11, a11d the first Parlia­ mentary .A.llowance Bill. In the 1904" sessio11, the Senn. re originated n111e, aud the House of Representa­

tives :fifteen bills. The Acts Interpretation Bill the Evidence Bill, the Trade Marks Bil( and the Merdhan­ dise Markets and Navigation Bills, emanated from the ~enate. ~n nll _tl:o se ear1j?r days an excellent propor­

t1?n of bills or_ 1gmated with the Senate as compared with those commg from the House of Representatives . Fo1: installce, in 1905 six originated in the S enate · and 24 m the Representatives; in J 906, seven i11 the S enate and 26 i1 1 the RepresentatiYes ; in 190S, thirteen in the Senate and 27 in the Representatives . In the final

year for which I haYe the· figures, the second session of ID08, eight bills origjnated in the S ena te and six

in the Represe11tati-ve s. _ 283. By th e Olz airman.-Supposing tha t the com­ mittee system was introduced into the S enate do vou suggest that bills should be referred to co~1mittees

before, or after t~e second r ea ding ?-I should say

after the first readmg and before the second reading. If. t~ey ·were re~erred after the second reading the M1rnster responsible for the measure would already h~n committed himself and it might be difficult £;-~ . him to reconcile something to which h e ,·:as committed with what h e really beii~ved to be a worth-·while

.amendmen t suggested by the committee. 284. By Senaf-or Lynch.-How many committees do you recommend ?-I am not prepared to make any speci:fic r ecommendation.

285. Are you agreeable to a proposal for the creation of committees ?-Generally ancl broadly, yes. 286. Vfhat powers would you give to them ?-I

do not think they could have anything more than r ec om­ m ending po,,·ers, unless something to th e co n tr ary were pro-vided by au act of Parliame11t. Tha·t ·would m oa 1i obtaining the ~sse11t of the House of R epr esentatives,

and I am afraid that that bod y would be Yery j ea lous as to the delegation of any power to the Senate

exclusively. · ·

287. Is n ot the Se11ate the master of its btisiness so far as matters of its own are concerned ?-It might choose to say how business should be regulated and dealt with. The Senate of the United States of

America ha done that. The House of R epresenta-

Ii\'(.' , would G e uaturally very jealow; uf allowing the iSenate to usurp any powers to be left solely t o the

ena te to control. 288 . What would you r ecommend as a means whercb.' 1hese committees when established could enlighten them­ selns on n subject so as to 11resent a well-informed

recommendation to the S enate ?-Their procedure would h11Ye to be goYerned entirely by tho ordinary procedure applicable to standi11g committee -unless you could persuade th e House of R epresentatives to concur in some art that would :rntborize the desired type of com­ mittee. Otherwise the most t h e Senato could do would be to appoint select committees such as this, which

\rould have ample powers for inquiry. 28D . It is clear from your evidence that party feeling hi=t s berorne inten sified si11ce th o early days of federa­

ti011 . Do you consider tlrn t the committee system

"·oulcl lessen that f eeling ?-Frankly, no. 290-1. Do you deplore or applaud the prevalence of party feeling in i.ustralia ?-It is a matter to Le

deplored so far as the Senate is concerned. That House was 11ot m em1 t to be diYi<1ed upon party lines. Thr. preva1e11ce of party .fe eling in the Senate has weakened thnt clrnmber in th e es timatio11 of the electors. Tho Senate te nds to bec ome more and more a r eflect ion or echo of the other House.

292. Yon kno,v that there -wer e two definite and

irreconcilable sec tions on the subject of protection to the Queensland sugar industry ?-No, hut I am aware that tho large proportion of people in the State that I

r epresented repeatedly objected that their interests were not considered because of tho party attitude i11 the

JTederal ParliameHt upon the sugar problem. 293. I am taking Quee nsland by itself. If you were an elector of Queensland wonld you contend. that the sugar industry of that State had been jeopardized

by rea son of the differences of two sections iu the

Senate ?-No. ' 294. ,Vas ther e any difference on the matter of the transcontinental railway to South Australia ?-So far as -v.,r es tern .A.ustralia was concerned, no.

295. What about the placing of the capital in New South Wales ?-There ·was a difference of opinion as to that.

296. i/\7 ou1d yon say that th e acceptance of the recent Financial Agreement ·with the States was a derelict io11 of duty on the part of the Senate ?-No. I think that

I induced a J1umber of senators to accept the agreement. 297. You are av,1are that the State Premiers m et and flgre ed to the Financial Agreement at the end of

1927-:38, and that the Se11ate is now blamed for accept­ ing it ?- The Premiers met in May, 1926. The original proposal of the Federal Government was to abolish the per cavit:a payments arid to substitute nothing for them.

but to give to th e States the right to enter the field

of direct taxation, so that something had to be done by the Premi er s. Another thing that has affected the statu s of the S enate in tho estimation of the public is this:

Until 1905, there had been no such thing as a Premiers' Confere1Jce attended by any r esponsible Minister of the Commonwealth. When Sir George Reid came into power ho called a Premiers' Conference at Hobart and

repeatedly then, and since State Premiers have put before those con£ erences, and through those conferences to Commonwealth Ministers attending them, matters that should have emanated from t he State's representa­ tiYes in the Senate.

29S. By Senator II erb erl II ays.-Do you think that th e work of examining statutory mles and ordinances could be done most effectively by a joint committee?­ I think that might prove more satisfactory to Parlia­ ment.

29p . Would you say t hat only bills that were

initiated i11 the S enate should be examined and reported upon to the Senate by a conunitee of that House?-



S 0 . If committees are to be appointed there should_ be no r e triction, even when matters of government policy coming from the loY,1er House are concerned. 300. Generally, do you cousider that the work could

be done more e±fecfrrnly by a joint committee or by a committee of the Senate ?-Providing the committees ,rere not too large, the ·work could be done at least as ,rcll, if uot better, by a joint committee.

The witness withdrew. The committee adjourned.

(Taken at Sydney.) :MONDj..Y, 3nv F:EBRUJ .. RY, 1930.


Seu a tor R. D. ELLIOTT, Chairman; Senator Colebatch Seuator Lyuch

Seuator Herbert Hays Senator Rae.

Sir John Beverly Peden, K.C.M.G., K.C., B.A., LL.B., Barrister-at-Law, Challis Professor of Law and Dean of the Faculty of Law, University of Sydney, sworn and examined. 301. By lhe Ghairnian.- The committee ·would be ·rnry glad, indeed, if you would assist it in any directi011

that you can, either for or against the suggest.eel

sys tem of committees for the Senate ?-I shall restrict my evidence to the d-esirability of standing committees to examine the statutory rules and ordinances. The system of legislating by statutory rules and ordinances goes too far in some directions, and, in the circum­ stances, the setting up of a standing committee to con­ sider those regulations would be a very satisfactory deYice. 1i t times matters affecting the rights of inc1i-viduals-matters of substantive law-are left

to departmental legislation. Without desiring

to criticize any government or party, either State or :Federal, I shall give one or two illustrations of a uum­ ber of such regula tio11s that have come nnder my

notice. Trouble occurred about the delivery of goods from ships ex slings. In practice the delivery vrns

really not ex slings, bi_1t e~c stacks. Th0 proposed

method to deal with the di:ffi.culty ,vas to allow the Harbour Trust to make regulatious as t.o the obliga­ tions of the ship-01rner and the co11signee under a bill of lading providing for the delivery ex slings. The

bill was r eferred tu a sele t committee, of --which I ,vas a member. JTor i.-arious reasons the measure ,vas dropped. That ,vas a Yery glariug instance of what should not be done by regulation. There the i11tcntion was to alter the law of contract. The pmver of alt -r­ jng substaufrre law dealing with personal liberty, the rights of property, and generally 'With the rights of :,he indiYidua1, should not be delegated to statutory bodies.

ao2. By Senator Lyucl1.-Wllicb departme11t was charged with the duty of frami11g that regulation ?-1 believe the Harbour Trust Commission. Such matters should be dealt with by Parliament. Another example

occurred recently. PrO'i·ision was made by act of

l~arliament to set up agreements between certain statutory bodies. In the pmver to make regulations was giYeH authorj ty to prescribe the procedure by which the obligatious could be enforced. That meaut

th::tt a government department could lay down the 1 :: rocedure for the courts. I do not believe that it wa intended that that shonld be done. When objection was taken it was explai11ed to the House that the pro­ Yision was merely to prescribe a nominal plaintiff or

def end ant. I believe the difficulty is sufficiently im­ portant to require some definite attempt being made to cope with it. Lord Hewart, in his book, The New Despotism, gives the impression that there is a definite

and deliberate pla11 on the part of a number of im­ portau t gowrnme11 t official to get a ~ much po,ver for l':-tch department and generally to goYern by regulation as much as possible. I am not competent to express an opinion on that, but from my experience in New South

Wales l doubt whether there is any deliberate plan to r.cquire this power. Lord Hewart deals 1vith regula­ tions and what the courts have to say about them.

There, I think, his book may be taken a putting the position accurately. l haYe had some experience in Yarious ways in co1rnexion with .State departments, a certain amount of drafting experience, and in late years I have been a Commissioner of Law Reform. In those capacit~ es I have wanted information from depart­ ments, and have ahvays had the greatest assistance and eourtesy extended to me. I should be loath to criticize

the departments, bnt it seems to me that there is a very natural tcmlency in any of them to facilitate its

administrative tasks. Any scheme that would do that is cal culated to r ecommend itself to a department. I r emember one barrister saying of an extraordinarily good Under-Secretary that his idea of an act of

Parliament was that it should consist of two sections, (1) the. title; aud (2) provision that the department might make regulations to give effect to the purposes of the act. .Although aD exaggeration, that contains a !2,Taiu of truth. Ministers in c:011ti11ental countries have ~xtraordinary powers to make regulations. I r ea d of ·

one example where a minister in Italy was to take measures to deal with dogs. The Commentator said that an English minister would not dare to ask Parliament for such a blank cheque, and that if he got it he would

not know what to do with it. 'The New Despoti"-sm appears to me to be a very valuable book, worthy of study by this committee. The only reservation · that l make with regard to it is that I am doubtful whether there is that planning aud deliberation about so me of

the officials iu England that Lord Hewart thinks does Pxist. I refer the committee to what Ilbert said in liis Legislatii:e N ethods and F'onns when dealing with this matter of subordinate legislation iu 1901. Ilbert was

a parliamentary draftsman, an extremely good man, and a comparison of his statements with those of Lord H ewart is valuable. Undoubtedly we have gone a long way in the 28 years since Ilbert wrote. I refer the com­ mittee to passages in Legislative l,f ethods and Forms at pages 36 to 42, and 217 to 218. Those passages are

quoted in the report of the Royal Commission

on the Commonwealth Constitution at pages

86 and 86, That report also refers to evidence

from a number of witnesses as to the nature

and extent of this system of government bv

regulation in the Commonwealth. Among a numbe~ of important points in Ilbert, I dra'w partjcular atten­ tion to two. He makes it evident that the difficnlty of getting leg islation through has made necessary \his system of regulatio11s; that as much as possible is cut out of the bill in order to avoid controversy and

amendment. Lord Thring, Parliamentary Draftsman in England, probably became cynical when he

reached old age, for this 1 s how he summed

up the position, "Bills are very much like

razors. Razors are made to sell; bills are made to

pass." He suggested that the :first consideration was to get the bill through, and with a minimum of trouble and eriticisrn . That has lead to the shorten i11g of bills and the cutting out of unnecessary verbiage, the old style of drafting dear to the heart of conveyancers. It has this advantage. It causes governments to put into

an act of Parliament the important principles and to concentrate the discussion on those principles, leaving the details to regulation. So long as those details are of a certain nature, no particular harm is done. The other observation of Ilbert to which I desire to draw atten­

tion is that while it is easy enough to lay down the

,' arious principles as to the type of matter that should

be le£ to departmental regulation, it is not easy to

apply tho e principle to particular cases. If you are a parliamentary draftsman, a departmental official, a mini ter, or an ordinary ·member of Parliament, y ou may draw the line between what is legitimate for regu­ lation and what i s not, at a differ ent point. There is

room for a considerable difference of opinion. But I should have thought Lord Hewart was quite souna when he objected strongly to leaving matters affecting the rights of individuals to regulation, and that he was abso­ lutely right when he said that it was a great mistake to give a department power t o make regulations which would be beyond the courts. The follo wing quotation from The New Despotism will be of interest to the com­ mittee:- ·

At present, it is tolerably safe to suppose, only a small

part of the electorate knows what has been and is being

done, while it is a still smaller part that has any r eal

appreciation of the m eaning and effect of the statutory pro­ visions which offer at once the occasion and the instrument of despotic power. Two methods at least may be adopted, eas ily and immediately, by those who desire to discourage the new

despotism. One is to form in each House of Parliament a

committee not too large, whose sole task it should be to

examine eYery bill, as it is introduced, for the purpose of

observing whether and in what respects its provisions may have the effect of increasing the power of bureaucracy and by what contrfrance that power is to be made irresponsible. Other committees, no doubt, and other individuals examine and consider every bill from various other special and par­

ticular points of view. But it seems to be at once highly

desirable and by no means impracticable that the members of each House should provide from their own ranks a

voluntary and unofficial commit tee who would ask themselves . with reference to every new measure: ( 1) Does it confer,

expressly or by implication, fresh powers upon the bureau­ cracy; ( 2) if so, how does it seek to attain that end; and ( 3)

is the method, or is the probable result , of such a kind that

the fresh powers may evade either the control of Parliament or the jurisdiction of the courts?

I take it that, by "unofficial " committee, Lord Hewart does not mean unofficial in the sense that it is riot

appointed by Parliament, but that it does not consist of ministers. I do not know what he deems to be a

small committee. Membei·s of the Australian Senate would be very much more competent to express an opinion as to what wou1d be a suitable committee. I have served on a number of select committees, and I am inclined to believe that ten, which was the average for each committee of our House, is too large. At

present our House consists of 93 members.

Possiblv a committee of from five to seven would be one fr;m which you would get the best results. If

you have more concentration of responsibility you obtain better results. We have in our House one

member who, since I have been there, · 1917, h as made it his business to see that the regulation clause is in order as regards .the regulations being laid before the House and being subject to disallowance

within fifteen days. If any bill comes before the House which has not the regulation clause, he rises, and the bill is amended on that point. I do not think

that the provision that a regulation should be laid on the table subject to disallowance within £.f teen sitting days is good enough. During my thirteen years' par li a­ men tary experience I have known of only one notice of motion to have a regulation disallowed in the N ew

South Wales Upper House. On that occasion the member interested persisted with his notice of motion until the government of the day undertook to meet him by substituting a fresh regulation. The moral to be drawn from that is that members do not, generally, study regulations, and that r egulations are criticized

only occasionally, when they pinch someone, who protests to his parliamentary r epresentative.~ In the absence of that pinch, regulations go through as a matter of course. In our House the Minister daily lays on th6 table quite a formidable list of regulations, and it is too great a task for members to scrutinize

them all carefully. It would be a heavy task even for


a committee. That task would be made lighter after the svstem became established and principles were form;lated by which to test the regulations. It would not be the job of a committee to worry about the

wisdo:ui of every detail in the regulation, but rather to see whether a dep artment was dealing in the regulation with matters that should be dealt with by Parliament ; whether, for instance, it was proposing a regulation

that would take the matter away from the cognizance of the court. If the Government knevv that regulations had to go to an unofficial committee it might be more ca r eful as to what it incorporated in them. The ex­ perience of the New South Wales Legislative Council indicates that an important bill may go through with very little discussion while an unimportant measure may

provoke a good deal of discussion. Frequently the amo~nt of discussion on a bill is determined oy the concentration or otherwjse of an individual member on the subject­ matter of the measure. If only the Minister has

worked on the bill, and he advances an explanation of it that commends itself to t he common sense of the House, members will accept it. The existence of an examining committee would have a deterrent effect upon

Ministers, as no Minister likes undue time t.o ?e

taken up on his bill. He would take greater care m its preparation. Probably every parliamentary draftsman has a very salutary influence on regulations being on ~he right side of the line. I do not see eye to eye with

Lord Hewart in his criticism of departmental heads as against that of· Ministers. rhe increased pow_er. o~ the Cabinet is one factor that has caused aadit10nal

government by regulation. Some years ago a Minister told me frankly that the power of the Cabinet had increased enormously in modern times, and that legis­ lation was rather the product of the Cabinet than of Parliament. ·

303. By the Chairman.-How would you suggest that the members of the committee should be selected?­ That depends very much on what might be termed the general outlook and t emperament of the Senate. The

New South Wales Legisl ative Council appoints its select committees . It also appoints a certain number of members to the Public Works Committee, the remain­ der being appointed by the Assembly. Probably the

best method would be for the Senate to select its com­ mittees. 304. Do you think that one committee could cope with the work of examining these regulations ?-It would be desirable to have only one committee, as that would bring about uniformity of method.

305. By Senator Cole.batch.-Lord Hewart refers to a preventive committee. Do you think he contem­ plates a committee to examine regulations after they are made ?-No.

306. The Transport Workers A.ct provides a penalty clause for certain offences. It provides for a fine or imprisonment "not exceeding". The regulations deal­ ing with that act provide for the cancellation of the worker's licence for a period of "not less than six

months nor more than twelve months". The offence may be a small one, but a minimum penalty of not less than six months is provided. Regulations also provide that where there is an appeal to the court it may do

certain things, but it must still observe the minimum penalty. Would that come within the class of regula­ tion to ·which you referred as taking away the power of the court ?-I should prefer to see a provision of that kind in an ac t of parliament, and not in a regulation. It is not uncommon for an act of parliament to specif;y a minimum penalty. If there is an appeal to the cou rt and the court has to go into all the facts, it is prefer­ able that the penalty provided shall be prescribed by the act and not by the regulation.

307. By Senator Rae.-If the court has power to vary, should it not be an unlimited power ?-Generally, I believe in the court having full power.

_ :33


30 . By the Ohairman.-Section 11 of the Common· wealth W or km.en's Compensation Act provides-The GoYernor -General may make regulations, not inconsi -tent with t hi Act , prescribing all matters which by thi

.let are required or permit ted to be prescribed or which are neces ary or convenient to be prescribed for giving effect to thi Act, and in particular for modifying, altering or repeal­ ing any of the provisions of the Second Schedule to this Act or adding any a dditional provisions to that Schedule.

309. What is your opinion on that ?-I believe that the important provisions should be placed in the body of the act. 310. By Senator H erbert H ays._:_Do you consider that the committee system should apply to bills

· generally ?-Directly you deal with party questions on party lines i t is difficult for a committee to do good .

work. If party is eliminated a committee will do excel­ lent work. That is why it would be particularly suit­ able for the examination of regulations, as the parties meet on more or less common ground. It would be an excellent innovation if a bill could be appToached by a committee on its merits, irrespective of the party intro­ ducing it. What I have said with regard to statutory rules and r egulations does not apply to ordinary party bills.

311. Our P ublic Accounts and Public Works Com­ mittees deal with all sorts of subjects ?-They investi­ gate questions of fact; whether a proposal is likely to be successful, its cost and the anticipated return from it.

312. It is not an unusual thing for the Common­ wealth Public Accounts and Public Works Committees to bring in majority and minority reports ?-If those reports refl ect party colour they are of little use.

313. By Senator Rae.-Should not better provision be made to make members familiar with the contents of regulations before they automatically become law. I suggest that it would be preferable that they should become law only on a motion of approval, or something of the kind ?-Lord Hewart favours prevention at the · beginning, by limiting the scope of the regulating power. He also suggests that all bills should be referred to a committee so that their provisions may be scrutinized and so that it may _ be determined whether the power~ to be g:anted are too ·wide or not: If, after scrutiny, regulations were found to deal with matters of detail and administrative machinery, it would not matter if

they automatically became law. _314. By Senator Lynch.-Do you propose the com­ mittee system as a. check upon the growing tendency to govern by r egulation ?-Yes, to ensure that the power conferr ed in a bill is not too wide. .

315. Wo~ld you say that the committee system would be an effective chec~ ?-It would help considerably, and would be a preventive method well worth trying. 316. H ow would you draw the line in giving power both to departments and to legally constituted bodies of a sub?rdinate nature ?-All I suggest is that you should not give any department any power to make regulations that affect the rights of individuals. I want to see all ma~ters of substantive law defining the rights and duties of persons under the control of Parliament and

the. courts. 317. Do you suggest that the two guiding principles for the proposed committees should be to see that no regulation contains anything that should be in a bill

and that the decisions of a subordinate body should not be removed from the possibility of examination by a court ?-Yes.

319. Do you think that there are a number of regu­ lations that are ultra vires, but which have not yet been brought to light ?-I should think that there are some. It is only natural to xpect that when big interests are involved doubtful r egulations would be tested. When

regulations have been in existence for a time they have either not been tested becau e they are believed to be right, or because the persons affected cannot afford the co t of the litigation necessary to test their validity.

320. What do you think of a case where regulations were introduced which are now entirely removed from the control of Parliament ?-It would be the duty of the committee to obviate that in future.

321. Do you not think that the quality of the work of the Senate would be much improved if a committee system were introduced ?-I am not prepared to -express an opinion as to bills generally. There I foresee diffi­ culties. A committee could ·do good work in regard to

any bill of a non-party character. 322. Do you consider that the party spirit or bias is more in evidence now in Australia than it was in earlier days ?-Yes.

323. Do you believe that to be a good thing in the public interest ?-No. 324. Do you consider that any innovation that would temper the effects of that spirit would be advantageous to the commup.ity ?-Yes. ·

325. Do you think that persoi1s of opposing parties could better discuss public questions around a table, away from the public glare, than they could in the lime­ light of the open House ?-I think discussion between, and contact with, members of different parties tends

to lessen the divergence of view. I do not think that as things now are, you could successfully work a com~ ~ittee system in regard to bills that excited party feel· mg .

. 326. You admit _that i_mportant bills sometimes pass without adequate chscussion. Do you not consider that if _ they ·were referred to committees having a .know­ ledge of the subject the Senate would be able to .come to a better informed opinion in the matter ?-I doubt

Lt. Yery largely the remedy is for individual senators

~o ·work. on tJ:ios e b~lls. Any man who puts good work mto a bill will be listened to and will achieve excellent results in having it properly discussed and the atten­ tion of the public drawn to it. Th; more senators

there are who make a serious study of the bills presented the better the result. . ·

327. Would not a well-informed opinion on a bill stand _a better chance of acceptance if backed up by a committee rather than by an individual ?-I am not cer~ain that _the report of the committee would be right. If it were ngh,t there would be a good deal to be said for th~ suggestion. Under the existing party system

there is no guarantee that the report of a committee would not be tinged with party interests which would possibly kill an unbiased individual opi~ion. The witness withdrew.

· The committee adjourned.

( Taken aJ, Sydney.) TUESDAY, 4TH FEBRUARY, 1930. Present: Senator R. D. ELLIOTT, Chairman; Senator Oolebatch / Senator Lynch

Senator Herbert Hays Senator Rae.

318. Do you not consider that there is work for a Sir

?ommitt~e to consider the proposals of a government rn relation t~ matters of foreign policy ?-I should prefer not to express an opinion on the other issues before the committee. They are matters of extreme difficulty and on which I have not clear and con:fidept opinions.

Robert Randolph Garran, K.C.M.G., Solicitor. General to the Commonwealth of Australia sworn and examined. '

328·329. By the Ohafr man.-The committee will be ~lad if you woul~ give your views on the qnestions that 1t has under review ?-The central idea of the matters being dealt with by the committee is that the detailed

con ideration of bills, instead of being normally done in committee of the whole, should be done in standing committees, of which several might be appointed to deal with particular classes of bills. It has always . eemed to .me that that is a very much better method

of carrying through committee work than discussion in committee of the whole. Generally speaking,

I have found in all matters that a small

committee is better than a large one. Especially

so is that when you have to deal with amend­

ments, which involve drafting. It is said

sometimes that a committee cannot paint a picture, that any work of construction must ultimately be the work of one man. That is illustrated by the fact

that bills are not drawn up by the House or by corn- . mittees of the House, but by a draftsman. While it is appropriate that the general discussion of the measure should take place in the full House, it seems to me that

its detailed consideration is better done by a select committee, comprised of those senators ·who are par­ ticularly interested in th-e subject-::_ _ _matter of the bill. That system has been in operation in England for some

time. I think that it was in 1907 that the House of

Commons :first ,resolved that, after the second reading, every bill should, unless the House resolved otherwise, be referred to a standing committee. Of course, the house has it in its power to refer the bill either

to committee of the whole or to a select com­

mittee. The House of Commons has now six standing committees, appointed by a selection committee. From our point of view, they are large committees, consisting normally of from 40 to 60 ~rsons, to which ten to

fifteen other members can be added for the considera­ tion of special bills. The allotment of bills to thesf' committees is made by the Speaker. When a bill has been read a second time, if no other motion is moved,

it is referred to a standing committee determined b;y the Speaker. The selection committee appoints these rnrious committees with a view to the qualifications of members as to the class of bills likely to be presented

before them. I am not aware in ·what way the group­ ing is done. I know th:at one of the standing com­ mittees is for Scottish bills . I have not seen in .J.Vlw11 or elsewhere any statements as to the particular grou1{­ ing which the selection committee adopts in its appoint­ ment of committees. The Scottish Committee con­ sists :first of all of all the Scottish members, and of

ten to :fifteen other members appointed by the Selection Committee. One other noteworthy . feature of the English system is that amendments may still be put on the notice-paper of the House ·when a bill is before the Standing Committee. Those amendments can be dealt with by the Standing Committee only if moved

by a member of the committee. Obviously any mem­ ber iuterested in the bill can approach a member of the Standing Committee, and if the amendment has merit, it wilJ probably be taken up. So that the House is able to take an active interest in bills. It has been said that while tending towards efficiency, the com·

mittee system has the corresponding disadvantage of diminishing the interest of the remainder of the mem­ bers of the House in a bill. . Personally, I do not think

that that is very likely to be the case. If a member has an active interest in any bill, he will wat_ ch its progress. The bill comes back from the Standing Committee, and though normally it is then treated as one that has been through committee, and the report of the committee is considered as a report of the whole1

the House has power to recommit it and deal with i1 in committee of the whole. So that members of the House, in general, los e no control over the bill. Tho conditions in the Commonwealth Parliament are very

different from those obtaining in the British Par· tiament. We have in the Representatives only 75 mem­ ber s, and 36 in the Senate, against the many hundreds

iu th e British Houses. But I should think tha t the •

membership of 36 in the Senate would permit of the appoi11tment of suitable committees for the considera­ tion of bill s: One thing could be done which would be helpful both to the committe~s and the drafting department. Whenever a commit tee liked, it could ask for tho attendance of a draftsman. He would be able to assist to frame auy verbiage or suggested amend­ meuts . Being familiar ·with the whole structure of the bill, he could help in its detailed consideration in a way that would be imposs ible in committee of the

whol e House. .330. By the Ohairrnan,.- Would it be possible t o have a draftsman as secretary to these committees i-That would liave to be considered in connexion with staffin g arraugemants. Perhaps the Senate might prefer tha t

the secretary should be an offic er of the House, under the direct control of the Senate. I believe that. the advantages are in favour of the system. I do not see a11y counteracting disadvantages. From the point of

view of the Government it is sometimes desirable to push bills through urgently and rapidly, and, from a ministerial point of view, it might be considered that the committee system would delay the progress of a measme. I do not thi11k that it would. At present

a motion to refer a bill to a select committee is generally regarded ·with some disfavour by Governments. No doubt such a motion is sometimes employed fo r the purpose of gaining time. Of course, it is at present competent for any bill to be r eferred to a select com­

mittee. The merit of the proposed system is that the normal course would be to r ef er the bill to the Standing Committee, and I do not see ,;\:hy con sideration by a standing committee should take a1-ry- longer than it does

under the existing system. It would be found that frequently the House would not need to recommi t the bill after it was reported on by the committee. The House of Lords had a somewhat similar system to

that employed in the House of Commons, except that after consideration by the Select Committee the bill was cousjdered by the Lords. However, the committee consideration was not lengthy; it was usually con­ ducted by men who had had considerable experience, and who knew the value of time.

331. By the Chafr man.- Do you think that the selec­ tion of the proposed committees should be left to the President of the Senate, the Leader of the Government and th'e Leader of the Opposition ?- That would be a rnry good plan. I think that in England the Selection Committee appoints practically all co mmittees, iuclud­

i11g the members of joint committees .

332. Should a bill be r eferred to a committee after the :fir st reading, so that the House would have the benefit of the committee' s report in the second-reading debate ?- I think that the bes t t ime would be after the sc co11cl r eadi11g. The report of the S tanding Com­ mittee could be dealt with as if it ,ve r e a r eport of a committee of the whole, in which case the H ouse wnuld

take the r eport into consideration and move that it be adopted, or that the bill be r ecommitted in com­ mittee of the whole, or sent back to the S tanding Com­ mittee as the case might be. Normally, t he r eport of the Standing Committee would be treated as equiva­

lent to the r eport of the committee of the whole. 333. vY ou ld you proYidc a limi t0d t for the co 11 -sideration of the bill by the committee ?-Generally, the Senate is against a limitation of time in debates .

ft should 11o t be necess ary to stipulate any t ime limits. 334. Do you knovv the Canadian and New Zealand systems ?- I do not know the N ew Zealand system, nor am I familiar with that of Canada . .

335. Do you know the sys tem s obtaining in So uth Africa ?- No.

336. 1 it a fac t that the Australian Parliament is

the only one that does not employ the committee

system ?-I do not know that . The committee system is used in many parliaments, in _on e form or another. It is cert ainly an established European practice. 337. Do you think that the proposed committee~

should make r ecommendations for alterations or amend­ ments to the Standing Orders ?- It ,,vould be better to leave that to the Standing Orders Committee. 338. By Senator Ooteba.tch.-Do the standing co_ m­ mittees of t he Rouse of Commons take any outside evidence ?--I have never heard of a standing committee

taking outside evidence, although I do not say that. it cannot be done. 339. D oes not the Rouse of Commons provide for the examination of witnesses by select committees, but makes 110 such proYision in connexion with standing commit tees ?-I think that a standing committee func­

tions in precisely the same way as does the committee of the whole. 340. T h at would be very different from our present practice of occasionally r eferring matters to a selec t committee ?-Exactly.

341. T he Government's objection to such a practice would be the delay incidental to it; but might not a standing committee expedite rather than delay ma Hers? ~ I t is simply a sectional committee which d~rnls with

bills j ust as the committee of the whole would. There need not be auy delay. Three or four committees could si t simultaneously and consider three or four bills at the same time, with more concentration and relevance

th an a committee of the whole. 342. I suppose that standing committees could not sit while the House was sitting '1-Tha t is a matter for the H ouse, but in the case of the Senate, whose num-1>ers are so few, practically they could not. I believe .

th at in the House of Commons they have full per­ mission t o sit while the House is sitting. 343. H ave you givcll any consideration to the fir s_ t r efer ence of this committee, the appointment of a stand­ ing committee to consider statutory rules and ordi­

nances ?- I cannot see any objection to that, but I

fewer still. ]Tor the most part r egulations

only one other act in connexion .. with which I can

remember the r egulations partaking of the nature of substantiYe law and that is the Wireless Telegraphy Act. If one examines the bulk of the regulations, i t will be fo und t hat most of them deal with routine

matte rs of administration. . 344. The sugges tio11 ha~ bce11 made that a _ committee may do very valuable work in guarding against regu­ lations int erfering ·with ubstanfrrn law ?- The ordinar:­ clause giving power to make r egulations declares tha t a reo·ulati on rimst be for the purpose of carrying the act into effec t, and must not be Jn consistent with the act. If the act itself lays down r egular prin cipl es,

.regulation cannot go ou ts ide them . 345. Does that apply to ordinances concerning the F ederal Capit al T erritory ?-No. The Governor­ Gener al is the r eal legislator of the Territory. The

Seat of Governmen t ( Administration) 11.ct gives the Go vernor-General power to make ordinances for the peace, order, and good government of the Territory. . 346. Under existing circumstances are those ordi­ nances subject to di allowance by Parliament i11 the same ,vay as are r c0 ·ulation ?-Y c . The same a pp h es

F.42.- 4



to ordinance , a:ffectiug the territories of North

and Central Australia. The legislation aff ecting t h e two t erritories is almost identical in character. ·

347. The sugges tio11 is that the volume of r egulatiorn, is so enormous that it simply appals irnlividual mem­ ber s, who cannot keep pace with it as a mall ~om­

mittee might ?- I think that even a small committee might :find difficulty in dealing with the whole of the regulations in detail. Practice would prob ably enable a committee, by glancing through regulations, to deter­ mine quickly whether there was anything import ant in · them.

348. ls th ere ally uuiformity in the sections of the different acts that give power to make regulations?­ The ordinary form of the act provides:.:_ TJ1e Go\·ernor-General may make regulations not incon­ ~ist ent with this act, prescribing all matters which by this act arc required or permitted to be prescribed or which are . necessary or co1wenicnt to be prescribed for giving effect to

this a ct.

"\Yith fe,v exceptions, the power to make regulations is for the purpose of carrying into effect principles laid dovvn in the act. 349. The Acts Interpretation Act seems to contem­

plate that iu some acts provision might be made which -would alter the usual stipulation as to -disallowance. Are there many instances in which it is "otherwise provided" ?-Very fe-w. That is a provision for . the

purpose of shortening an act. The standard method i3 the one usually adopted. 350. By Senator }] erbert H ays.-Do you consider that the power given to the Governor-General to make

regulations not inconsistent ·with the act is extending from year to year ?-I think the regulations are now more voluminous only because federal legislation has increased. During the 30 years that the Commomvealth has been in existence the system of legislation by regu­ lation has not. in my opinion, extended. There has not been an increasing tendency to omit principles from

the act and to leaye them to regulations. 351. Would it be au exaggeration to say that the

Government ·would pref er to resort to regulations in connexion with a contentious bill rather than run the cha11ce of haying it rejected in the House if it were set out in detail ?-I think that it would be. There may

have been certain instances where skeleton acts were passed. The Wireless Telegraphy Act was one, but i:he subject was a new one. Th-e science was progress­ ing daily, and it was impossible to lay down satis­

factorily a .detailed code of legis.l ation on the · subject. It was thought better to leave 1t to be developed by regulation as circumstances might dictate. That is .a good illustration of a case in which it was advantageous

to have a skeleton bill at the beginning. 352. Do you think that i t would have a tende11cy to rnake member s scrutinize r egulations more if the Min­ ister had to move a motion t hat the regulation be

approved, rather than t ab1e i t and thro,v the onus

of challenge ou any individual member ?-It might. But under the present practice, if any regulation were proved to pinch the foot of any elector, the member for the district would very soon hear of it and would bring the matter up.

353. Ther e is not much opportuni ty for the c1t1ze11 affec t ed to have his attention drawn t o the r egulation? -- If a regulation is enforced and prejudicially affects any indiYidual or class, I imagine that person or class

would not be slow to approach the f ederal r epresen ta­ tiY e to have the mat ter rectified. 354. My suggestion is. that the regulation should be intercepted before it comes into force ?-That might delay things a good deal From an administrative point of view it is ve ry convenient to be able to pass a r egulation that will com e into forc e immediat~Iy. Tliis i: egulati011-makir1g· po,rcr i ve ry convenien t to an


administration and is therefore. of great advantage to the public. Like any other power, it needs to be

watched. I thiuk that members of Parliament are quite sufficiently watchful of the interests of their constitu­ ent and of the public generally, to cause them to move a motion of disallowance when any regulation is detri-. mental to the community. If a Minister had to move

a motion .to obtain approval of a r egulation i t would involve a considerable amount of the time of Parlia­ ment, and I doubt whether the advantages of such a system would be suffi cient to warrant its adoption. The

motion by the Minister would either be treated as en- · tirely formal, and therefore be of no particular value, or it would occupy the time of the House in debate. 355 . By Senator Rae.--Have you consider ed how the

proposed committees should be cho sen ; whether it should be . by a selection committee of the House or by the party leader~ and the president ?-I am inclined to think that selection by the party leaders and the President would be preferable. It would be a matter of the

suitability of particular members for the ..consideration of different classes of bills. 356. I take it that if such a committee were elected by the House it would still be necessary t o have some provision by which each party would be proportionately represented 1-I think so.

357. Do you think that all bills should be compul­ sorily remitted to such a committee, or would you favour the Government having the right to treat any bill as an emergency measure, and hold it back from considera­ tion by the committee ?-It should be in the hands

of the House on every occasion; but bills should be referred to the standing committee unless the House otherwise ordered. 358, Is there not a danger of regulations which are

not formal being smuggled through from time to time; regulations that really amplify a bill and affect the rights of the public ?-I see no objection to · a com­ mittee of the House dealing with r egulations, if it

is thought that it would safeguard the interests of the public. 359. If regulation s violate the purposes of an act, would they be held to be ulfra vires ?-Yes.

360. While the letter of an act might not be departed from, is not the spirit of an act often amplified in a direction not anticipated by members when the bill went through ?-That might be so. A committee could scrutinize r egulations. But a good deal of its work

would be thankless, as it would not discover very much to :6.nd fault with. It would certainly be the least in­ teresting of the committees. 361. Would a committee lodge majority and minority reports where strong controversial matters were in­

volved in a bill ~-I should not think that there would be a minority report from a standing committee any more than there is from a committee of the whole. If the House differed from the majority decision of the

committee it could r everse it . The matter would be governed by majority rule. 362. I assume that it is not contemplated that the minority would be bound by the decision of the com­ mittee and gagged when the bill came before the House? -No. The Senate has full control of the whole thing.

The committees that I suggest would not deprive the Senate of any of the power that it now possesses. A member of the minority in the committee would have the same rights as any other member in the House and could move that the de cision of the committee be re­

ve r sed. 363. By the Ghairman.-The Air Force Bill was a mere skeleton. Is it not possible for the Ministry, by regulation, to make that force a sub-department of

the Defence Department so that the force would lose ::.? identity by amalgamation ?-I have not the act before me. That is another instance of a new and

rapidly changing science, where it is necessary to feel one's way. I think that, in effect, what you suggest could be done. ·

364. By Senato1· Lynch.-Are you in favour of a committee system for the purpose of considering bills generally ?-Yes . 365. Would yo:u apply the system outside the con­ sideration of bills ?-No. I have heard suggestions made

that there i:ihould be committees to deal with foreign affairs and interstate r elations. If those are matters for a committee, the committee should be a joint one, from both Houses. The American Senate is in a dif­ fer ent position from ours, as it has executive functions.

With the president, it has the appointment of msny high officials, and it has the right to effect treaties. Our Senate is purely a legislative body. It seems to me that if the Senate set up advisory committees from the Senate alone, to advise the executive, it could scarcely expect much support from the Government. It would appear that the Senate was claiming some sort of executive control.

366. Do you favour the appointment of a joint com­ mittee on foreign affairs ?-I have some doubt as to whether there is any necessity for it, although I can conceive occasions on which such a committee might be useful.

367. Would you favour the appointment of a com­ mittee that would have advisory, recommendatory and, say, audit powers similar to the Public Accounts Committee with regard to foreign affairs ?-The Pub­ lic _ Accounts Committee has its power conferred under

a statute. A Senate committee would not have the powers of investigation and to summon witnesses unless it was especially granted statutory powers. 368. Would not a careful investigation of foreign

affairs by a committee be of great value to the Par­ liament and to the community ?-I think that it is desirable .to keep executive and legislative functions distinct. The advantages of such a body would de·

pend entirely on its relations with the Government. I do not think that a Government would view with favour a committee of one House which claimed the right to investigate such matters. A joint committee with

statutory powers would be another -thing. The sug~ gested committee would engender friction rat~r than achieve the desired object. ·369. Do you think that there would be sufficient

authority under the designation "bills" to entitle com­ mittees to debate the budget and other financial

matters ?-That raises the matter of the supremacy of the House of Representatives on financial matters. J should hardly think that the Standing Con;i.mittee sys­ tem would apply very well to appropriation bills.

370. Was not the committee system resorted to freely when the Constitution was being drafted ?-There were committees for each chapter of the Constitution to frame the draft sections, which were later consolidated.

371. Do you think that the work of that convention . would have been carried through as effectively as it was had those committees not existed ?-Those com­ mittees functioned only in the preliminary stages.

They did very little after;wards. Perhaps the pre­ li minary stages would have taken a few days longel' had the committee system not been employed. 372. Would it be reasonable to draw an analogy

between the work of that Convention and the work of the Senate in so far as the application of the com­ mittee system is concerned ?-The two things are en­ tir-ely . different. The first was the framing of one

fundamental document, every line of which was of supreme importance. The other is the framing of legislation from day to day. 373 . Do you think that political party feeling is more rife to-rlay than it was, say, 30 years ago ?-I do not think No . I do not-remember the time when ther e

was not ver y strong party fe eling in matter of Minis­ terial legislatfre proposals. I think a good deal of the expressio n of party feeling would be mitig~ted in a & mall r ound- t able committee which was endeavouring to bring about the best solution of the problems under

review. The proceeding would not be open to the

press or to H an-sard, and th e unrestrained discussion would be of great value. 37 4. Do you believe that the true interests of this country are not served as well by the existence of tur­

bulent feeling as they would be if that feeling were less in evidence ?-An exaggerated party feeling has a bad influence, while party feeling generally tends to obscure the r eal interests of the country. It is a ver y diffi cult thing to avoid. I think that everybody's desire must be that member s, without sacrificing their

convictions, shall not be le

to do with neutralizing antagonisms which then

existed ?-As I have already said, the committees wer-e not extensively resorted to. Every clause of the draft Constitution was debated in committee of the whole. The isol ation of the States was greater then than it is now. With the exception of a f ew Premier s who had

attended the Premier s' con fe r en ces, very few of the repres entatives of the differ ent $tates had met . Mem­ bers of one S tate were foreign to rnembers of another. During the course of the sessions of the Convention

there were cross-currents and divisions of every kind. Sometimes the divisions would be between freetraders and protectionists, sometimes between conservatives and liberals ; sometimes large States against small States. Any two members might find themselves on e day in

agreement, and next day in opposition. They thus got t o know aud appreciate one another's point of view, and a f eder al spirit developed con tinuously. The system of sectional committees would not have suited the occasion.

376. Are you prepared to concede that committees assist to neutralize the harmful effects of a too intense party f eeling ?-Yes. 377. You recommend that bills should be ref erred to the proposed committees after the second r eading. Has not the principle of the measure then· been approved by the House ?- Not necess arily. The House is prepared to allow the bill to go in to committee. It preserves an open mind as to what will happen to it when it

comes out of committee . 378. I s it not generally conceded that when the

sec ond r eading is passed the principle of the measure has been approved. Would not the subsequent examina~ ti on by a committee be hampered ?-I do not think so. If the House is uncompromisingly opposed t o any par­

ticular legislation it will no doubt endeavour to knock th e bill out at the earliest stage. The passing of the

second reading indicates that the House is prepared fo r legislation on the subject, but not that it of any particular principle in the bill. Oases are fre­ quent in which a bill is so altered in committee as not to bear the slightest resemblance to the bill as intro­ duced. And if, after the committee stage, the House is not satisfied, it can r ej ec t. the bill on the t hir d reading._ Par liamentary practice with r egard to the passage of bills h as come down from an cient history, and is based

on wide experience. The only alter ation that I

suggest is that the discussions of questions of detail should be lef t to a sectio11al committee, after the second r eading, instead of to a committee of the whole. 379. Would you give the sa.!:!.le powers to these com­

mittees as you would t o select committees ?-No. I think that they should confine to the dis­ cussion of bills. If it became the practice for com­ mittees to call evidence, it might tend to delay legisla-tion.

The wdness withdrew.



George Henry Monahan, C.M.G., Clerk of the Senate, Commonwealth _ Parliament, sworn and examined: 3~m. By the Chairman.-Th(? committee knows that you have given some consideration to the matter that i t is investigating, and will be glad if you would

give it the benefit of your thoughts on the subjeot.-I have made such study of the subject as time will

permit, and have prepai•ed a -statement which I shall read to the commi ttee. The strict reading of the

terms of the reference might be held rather to limit t he scope of the inquiry to the ques tion of increasing the participation of senators in the work of the Senate. I think it can scarcely be contended that senators

could participate in the work of the Senate without having some effect upon that work, adverse or other­ wise. While some might be uncharitable enough to suggest that the greater that participation the less the benefit, my view is that the greater the participation, t h. e greater should be the benefit . My statement, there­ fore, covers rather more than the actual terms of

r ef erence. Dealing ·with the particular subject referred to the committee, that is-With a. viffw to increasing the participation of ip.q.ividual senators m the work of the Senate, a select committee be

appointed to consider, r eport and make recommendations upon th.e a dvisability or otherwise of establishing standing · com-nuttees of the Senate upon- ·

(a) St11tutory rules and ordinanoes. (b) International relations. ( o) Finance. ( d) Privat e member s' bills.-With rega1·d to (a) Statutory Rules and Ordinances. -These deal with the administration of some partjcu­ lar law passed by the Parliament, and provide the details which the department concerned considers peces­

sary for putting the law into effect. Having been

drawn up by the department and received the approval of the Governor-Gener~l they have the force of l;iw. These regulations in the form of statutory rules ar~ presented to Parliarnerit, ;:tr).d under certain conditions

the whole o~ so 1:3-e of them may be disallow~d by ~ mot~on carn~d 1~1 either branch of the leg1slatµre. N ot1ce of this disallo-wance has to be givBn within fifteen d_ ays of ta1:>ling. The regulations havipg been

presented to Parliament the stage would be rei;tched when a.committee 9f ~he Senate, having considere

upon any motion for disallowance the Senate would have the adv~ntage of hearing the r~sults of the inquiry of the committee. I do not think it will be denied that so1?-e very important provisions are included in regu­

lat101:1s. lndeed, some Acts of Parliament provide fo r little more than the authority to make regulations. Such being the case, it would in my opinion be an

J - ' C '

aa vantage to the members of the Senate that, some committee be appointed to study the regulations made from time to time under the various acts of the Par­ liament. If any conseq1.umt action were considered necessary it ?ould be taken when the regulations had been tabled m the Senate. The foregoing remarks apply equally in connexion with ordinances.

With r egar_d to (b )-International Belation.s.-It i s difficult to decide just how far a committee of the Senate might prove us.eful in this matter. I believe that. under. pr~sent .COJ?-dition s quitB a large part of t he clealmgs with rnternat10nal r elatio ns must be conducted

<;:o:1fidentially; at least in the fir st stages. It might

rairly be assumed that no Government even if inclined to do so, ~ould take th-e resp~nsibility of disclosing to any committee proposals submitted in confidence for the consider1:tion of such Goverm,nent. It is true that our Parliament has, by motion, been invited to approve of a treaty-that between the Allied and Associated

Power and Ger1uany, . igned iu 1910. Dut, a the

mo6on indicates, th -· treaty had already been signed, 'O that any study of its provisions or en-on any resolu­

tion of the Senate iu eonnexion therewith would avail nothing to rnrd. altcri ug the position. Ho,,·eyer, 1

especially as to how any proposed policy or l~gislatio11 in any foreign country might affect the interests of Australia. A study of such matters could be .made ill the light of such information as had been made public and such ful'th er details as the GoYeniment might be

in a position to mak2 avail:::tbln to the committee. Further, Australia sends representatives to the meet-­ ings of the League of Nations at Geneva. It ,rnuld

surely be an adYantage for any Government to be ill a position to call on the services of some member of . Parliame11t ,"110 had given study to problems urn.let consideration by the League. Equipped with informa­

tion, gained. through the meetings of the committee, a:3 to the vie,Ys of his fello,y members and other persons: he would be much more likely fittingly to represent /rnstralia. Any standiug committee appointed coulcl be given the power to report from time to time its

\'iffv,1s of any subject that it considered desirable

should be made knovvn to the Senate. There is i11

connexion with the United Kingdom Branch of the -Empire Parliamentary Association a system of Study Committees, and my recollection is that one of those committees is concerned with tho co11sidera tion of

international affairs. Such a committee would, of course, be quite independent of Parliament, a11d pre­ sumably without the power of reporting direct to Par­ liament. HowoYcr, jn any case whore the committee considered it desirable it could, presumably, submit

its views by report to a Minister of the Crown who, if so minded, could present the report to the House. My ovn1 Yiew is that any arra11gem-ent whereby certain members of the legislature met together to give con­

sideration to some specific subject of public concern should result in benefit to the Parliament as a whole, and, as the motion of reference indicates, increase the participat1on of senators iu the ,rork of tho Senate.

( c) Ji1,1:ncmce.- This is rather an all-embracillg title. For if it be true, as some contend, that "finance js

government" then a11y :finance committee might ,vell consider almost any subject co.rniug within the ambit of the Parliame11t. ,Ve haY-c already a Committee of Public Accounts, which considers various matters involving Governme11 t finance, and to thjs committe2

presumably the Government might refer auy questiou concerning the expenditure of public moneys likely tc 1 affect the public :finances . There are rnauy bills whiclJ could properly be classed as fiuance bills, e.g., bills cleali1w with taxation, surplus revenue, grants ( of

rnriou~ kinds), and a1ipropriations. Many of thes-e, such as appropriations and some form of grants, cover­ ing really part of the financial proposals of the Govern­ tnen t, might hardly be fitting subjects for consid~rati011

by a standiug committee. ~ 'ut other~, .such as Income and Land Tax Assessment Bills contamrng, as these do ; many provisions of a v-ery co1?plicat.od nature, and certain biils covering grants, rmght with advantage be

tho subject of con ideration by a co mmittee. The di:ffi­ mlty attending the reference of such subjects to a com­ mittC'e would perhaps be the consequent delay. ( d) Pr·ivate J![ embers1 Bills.-The number of these presented to our Parliament h . 0~s been so limited, and) as the probability is that such ,vill be the case in the immediate future, it appears hardly necessary for the appointment of a committee solely for their considera­

tion. Provision is included in our Standing Orders for the r eference of bills to select committees, and

1rhere any priYate mern ber's bill was thought to r qnirc


consideratiou by a committee it would be more suit a bl to refer it to a select committee. My r-ecollection is chat there has bee11 but one private member's bill intro­ clueod in the Senate and passed into law-the Com,1non­

U'ealf h Eledora.L (Co1np1dsory Yoting) Bill 1924. 'lhat was a short bill dealing only with the subject

indicated in the title, and it is doubtful whether

auy benefit would have accrued by sending it to

a spacial committee for consideration. On the

other hand, a bill j ntroduced some years earlier

bv Seuator Walker and entitled the Commonwealth Bcinking Companies Reserve Liabilities Bill 1910 wa · before the Sellate on many occasions, aud there was a great difference of opinion as to the rneaniug allC1

possible effect of its provisions. In that case considera­ tion by a sekct committee would have been a most suitable procedure.

Huch olhe1' 811,bjccts as 1nay be Dcerncd Adviw.ble.­ ,\mong the various other general subjects on which the Parliament :may legislate it is difficult, ,vith one excep­ ti011, to suggest · any title that might fairly coyer n

group of bills suitable for refere11ce to a standing com­ uiittee . There are, for instance, bills dealing with

1wYigation, patents and designs, copyright, bankruptcy, quarantiue, land acquisition, insurance, &c. The

exception I would mention is the class of bills dealing principally with the relationship between the Common­ wealth and the States. The Senate being a Sta.tes'

House, with equal representation of the several States, it would seem most fitting that matters involving

relationship between the several States and of the States with the Commonwealth should be considered by some t:ommi tt~ c of scna tors representing States. Such a committee might be composed of one senator from each

State, or, if thought desirable, two from each State. The preseiit practice is for the States' Premiers and Ministers to approach the Commonwealth Government direct, but it rn ight well be that provided the suggested

commit.tee functio11ed successfully it would, in the future, be fouud a desirable medium of approach, in that should auy propositiou put forward by a State meet with the approval of a committee representative of all tha S tates, its chance of acceptance would surely

be greatly enhanced. There is one other group of sub­ jects which might perhaps be consider-eel suitable for consideratiou by a standing com,mittee, and that is those relatiJJg to the postal and telegraphic services.

Included in the activities of the Postal Department 11ov,· are matters relating to wireless telegraphy and telephony, and radio services, including broadcasting. Here is a range of some kindred subjects which it

might well be of advantage to the Senate to have made subject to rcvie,v by some partil'.ular committee. Dealing more ge11erally with the subject of reference, Hrn position now js that both our Houses are almost

wholly diYided on strict party lines . This division .,,vas very much 1ess marked in the first few years of the Senate, a11d it ,may Wl\ll bo that for that reason measures coming before the Senate received more detailed con­ siclera tion in those days and were much more frequently

and extensively amended. This statement is not put for­ ward i11 any sense as a criticism but merely cited as an historical fact tbat seems to me to have a rather direct beari11g on the subject under consideration. For it do es appear to me that 110 leader of the Government i11 the Senate would favour the reference to a standii ._;

c:ommittee of aDy ·m-easure involving ;mainly party principles. 1i.nd, presuming that the leader led a

majority of the Senate, such reference could hardly be made against his wishes. I shall return to this

point later. There are quite a large number of

measures which could be considered as not corning within the category of "party m-easures," and any Government might well be favorable to their receiving tlctailcd co11sidoration by a committee. For example,

n uicasun· dealiug " ·itli 11a ,·iga ti 011. Th,;_• origi nu I

X aYigation Bill "\ms withdnrwu after introclucti011 to the Senate and the que tion referred for the considera­ tion of a royal commission. Other similar measurrs that might be mentioned are insurance, diYorce, qua ra ll­ tine, lighthouses, &e. As already tated, it is diffieu1t to class these under any particular headi11g, but the position might be m et as it i in the Honse of Commons, to which I shall rder later. The syst ...... rn of tanding or

grn11cl commi1tees i in operation ill other cou11tries, but ·with just what success it is not so easy to deterrninr; conditions --;-ary so greatly in tl1e several countricF<. Luce, a ·well-known ·writer ou the legis]a ti Ye branch of government, ill his work on L egislafrce Proceclw·e, con­ dudes his remarks on this subject RS follows :-

Enm the criti cs of the committeP sy tern adm it it l1a"

1 ·;1, riom; a

lutndl ed. Worthl ess hills can be eas ily and quickly killed.

The cJia,we of hasty and ill-considered legislation is lessened. Work is rnore fairly diYicled. E,·ery nH'rnber gets an oppor­ t1tn ity to liarn a share in lawmaking, where, with only debate on tile proposals of a Ministry, the great mass of members can do nothing but vote. Jn committees many men can apply

faciliti es ,rnd capacities deYeloped by their 11s 11a l Yocations, whi<'li the laC' k of Nlbe in pnbl ic speech keeps tliem from exer­ f'is in g oll the floor of a Honse. J.i;ach com mittee acqtrni JJts a fl'W Jll<'ll \l ·itlt some 011e :field of governmental activity. They become spPcia lists, with all tl,e gainR that modern develop,nent 1111:,; proYed to spri11g from specializi ng and the s ubdivis ion

of lauour. ~orne of the rneml>r.r s almost sure to serve

on tli e co111111itt2e se1·eral years, t l1 us rarrying to t l,e newcomers kno1declge of the r011tine of business, together 1\'ith other lwneiits of experience. Particularly u seful may be their

.ieqmu1 ta1H ·e ,, itl i tlie cap11.C'ities and failings, hobbies and prejml:ces, reso urces and limitations, of the administrative offic ial :,; w],ose recommendation;; ;ire to be nc·C"rpted o r n•jectccl i11 11·Jiol e or in part.

Furtherlllore, committee hearing;:; disclo:,;e in sorne degreP the atti tude of public opinion a11Cl the extent of public de111nnd TIH'Y giw chance to ltea r both sides without tlie hias of par· tisanshi p a nd tl ,e prejudice of per::;orndity , lietter than i :;

poss ible under t h e comlitions of legislativr. debate. TlieJ

permit the htking of testimony, foe pre enation of eYiclencr in e.x·ieuso. They fa c ilitate the use of expert,; . They furni sh an easy rneans of rornnrnnir.ation betw(•en the leQ·islative all(! executf,·e clepa rt1ne nb. '

Committees, too, f11rn .ish hetter llll'ans for the sn n,tiny of admini:.;trat i\'c departrne11fa, stud y of their efliciency.

innistigatio ll of tlicir defects . H tlii::; is to no ntinue a

pro1·in ce of t he lf•gi RJ.a ti1·p department, the fonction of <'0111 -mittees i11 connexion tl1newitli s h011lcl he l'hlhoratr

On page 23 1 of rhe report of the /::l -2lr.ct Oomrnjttcc of the House of (iornrnoJls on "Proeedure" ( 1914): there jg an intercsti11g 11 of the system of

stn nding committees ,,·ith :lrnt of scJed r-omrnittrr~. T wo factors which appear to me to ha,·r n 11 irnportrrnt bearing on the matter are-(1) The rmmber of members of the Houses. ::incl

(2) The number of mra urrs with ,rhieh , snrli

Houses have to deal,

aurl the following table may he of i11terest :--


United Kingdom .. United States of

America France ..

Canada .. .Australia

~o. of )fembers.

Upper H ouse.

740 96

314 96 36

Lown· Hou~e.

6lfi 4:3.1

61:2 76

:Ko. of Bills dralt with.

Exceeds 200 per year About l-t,000 per year

375 ..

324 "


* Average for tile past 10 yen rs.

Tu the case' of the [nitrtl States of .:'...rnerjC'a awl

Canada, a large nnmber of th e bills rousidered arn of relati,·ely minor pubhc importance. 1n Canada all dirnrrrs appear to r cqnire lr gis] a ti,•e sanction. Likr ­ \'. ise i11 the F ni.ted States of _\mcri cn very many

meastneR deal wjth matter of jmporta1iee 10 indiYid11:1L· and nor ,rith 1iarional questions.

587 39 ~l..s to (1) .-.From the point of -ri o,r of ae<.:0rnplishi1tg

tl1e work to be cloue it would appear reasonable to infer that the larger the number of members the more r ·a ason for referring mea ures to committees, as if all bills

were to be open for full discussion and consideration in committe-a of the whole House, the proceedings \\'ould extend to an inordinate length of time unlesB many members were to forego their rights of participat­ h1g fully. The presumption is that sta11ding committees

would be composed of members p-2cially qualified to deal with the subj ect referred. This condition is met iH some cases in other Parliaments by a provision that f'Xtra members mav be added to a committee for con­ sideration of a pa~·ticular measure.

.As to (2)-'J.'li e Nurnbu of 111easures.-This is per­ haps a more important factor, for where a large

11umber of measures ar-e brought fon,vard the tinw aYa ilablo for their consideration is necessarily more limited than where there are few . If such measures are to r·ccPi ve adequate consideration within the time tl\·ailable some system of committees would eem almost a 11 eressity.· Tbe practice in America is to appoint fl large 1mmber of committees, which are appointed by

ballot. T]iere arc so:me 33 ill thr Senate, a li st of

"'hj ch may be seen on refer-211 ce to t1ieir standing

o rd ers. 111 t h e 13ritish .Par1iame11t t1,ere is a maximum of fiy e, d esignated by letters, a11d it remains with the Speak0r of tl1r Hous-c to decide to which committer-' r111 y particular measure shall be rrfened. Those rom · mittces are appointed by n committee- of selection . A11

a-daprntio11 of th e British systrm ,'. 'Onld appear to me to be the i11orc suitable for the puq)ose of our Senate. ,\ lthough perhaps it would br more a matter for tlw Sta 11di11g Orders Committee of the SeHat-a than for tJi is corn rniHeC' to recommend liow ai,y new proposed stan

Sena tc a11d the system to be adopted, it may nof be

out of plaC'e just to mentiou one or t,ro points in thi::; counexion. For instance-( 1) The stage at which measures are r eferred to the committee ;

(2) ·whdher the ·consideration by c1 standing eorn­ mittee would be iu substitution of considera-1iou by a committee of the ·whole Senate.

As to 1.- 1;1 some parliaments standing committees nut Ci tily c01 1sider measures rderr-2d but have the right to originate mc-asur cs. This appears to be so in the 1Jnited States of ~i.rn er :cn. Our Standing Orders provide that ii- shall be nfter 1 ·hc srco1 1d reading that any bill may be l'<'fened to a srlrct committee. It could be provided that

~'. · bill might be r eferred to a standi11g committee either

after tbe first reading · or after the second r eading.

lt m tght be arguable that it would be an advantage to the S en a tr, before consumi llg time in discu sing tht:' meri ~8 of a ll,r partienlar measure, to liaYe th e vievi's of a conrnittee as to whet·her it would be a proper measure

for further consideration by the S enate ." If necessary, r.b e ,:- ornmittee could recommend certain ameudments.

Jf tli Senate ca1Tied the second rending such bill might I he n1 as 110"·, recei vr consideration in commi ttee of lii e whole. the comm i ttce acloptiug or r ejecting any amc;1dme11ts tha t lrnd bec11 r ecomme11lled by the stand­ i~1g- -·omrnittC'e. I n th e Britisb I>arliarne ut bills are

refened to taucli11g eommittees after the ·ecoud read-1 ng_. This procedmC' l1a at least the advantage that

i r. e1 ables t.lie whole House to hear the reasons for

:~ubirission of the measnre by the person who intro­

motion mo,·ed usu ally ::ift cr the econd r eadi11g; in

!h e Honse of Representatives it appear ·· bi}] , are often i 11 troduced and r eferred djrect to a committee, bnt refer-1,uc:C,"'- may also be made :it a later tage.

A. to 2.- Wher e bill are · r ef erred to a elect com­

mitbe the procedure generally is for such committee w r ecommend, by report to the Senate, any amendments the committee considers should be made, or r eport against the bill. The British practice in the case of

bills referred to standing committees appears to be that consideration by uch committees takes the :elace of consideration by a committee of the whole House. Their procedure also allows th e submission of amend­

ments a t the r ep ort tage, but with a restricted right

of debate thereon. Adverting to the point mentioned earlier as to the r eferen ce of bills to committees against the desire of the leader of the House-under the British practice bills

are referred to a standing committee unless a motion is moved, in accordance with Standing Order 46, ordering otherwise. So that a party leader with a majority

behind him could by carrying such motion prevent any reference to a standing committee. There are other interesting- aspects of the question, such as the method of appointment of standing com­

mittees, their size, appointment of chairman, whether the proceedings should be open to the public, repre­ tation of parties on the committee, and so on. I do

not propose . to deal with those points, but for the in­ formation of the committee suggest the following works of reference:-Luce-Legislative Procedure, page 87 et seq.

Campion-Introduction to the Procedure of the House of Commons, page 206 et seq. Dickinson-Sitmma1·y of the Constitution a,r1,d Procedure of Foreign Parliaments, page 348 et seq. and the Report of the Select Committee of the House of

Commons on " Procedure " ( 1914).

In conclusion, the motion of reference to this com­ mittee reads-With a Yiew to increasing the participation of inclivicluq,l senators in the work of the Senate.

Interpreting the "work of the Senate" in the wider sense as covering a study of how the government of other countries is being carried on as expressed in their laws and administration, how the government in our own country is carried on as expressed in the various

measures submitted to the Parliament, and the regu­ lations and the ordinances thereunder, and in the

administration generally of the public departments, my opinion is that standing committees appointed with a view to their giving special consideration to particu­ lar subjects would provide a mearis for " increasing

the participation of senators in such work." It is an old but true statement that "everybody's business is nobody's business ." It might well be that the members of standing committees, recognizing that the Senate in

appointing them was depending to a large extent on the rnsults of their special study of particular subjects, would be encouraged to give it. And the more

"specialists" that develop from such intensive study surely the greater the advantage, not only to the "work of the Senate " but also to that of the Parliament as a whole. It is perhaps fair to r emark that some of

the writers on this subject have pointed out that large committees have in some instances led to lack of jn­ terest~indeed that quorums were not always easy to obtain. My opinion is that, even if a system of stand­ ing committees were not favoured, it would be a great benefit to the Senate and enable senators generally to participate with better r esults in "the work of the

Senate" if one or more senators specially quali:fied so to do were appointed, either officially or unofficially., and made it his or their particular interest to submit

proposed legislation and other matters coming within the " work of the S enate " to careful scrutiny, and at

the proper time communicate to the S enate the r esult of their study. Finally, I would say that one impor tant question to be resolved here is whether the sense of mblic service as distiuct from party ser vice would be


sufficient to ensure that attendance at meeting and study of subj ects wi thout which no committee would be likely to prove successful in any work committed to it.

381. By the Chairmcin.-Are you familiar with the system that is in operation in South Africa ?-No. It is a comparatively new one. 382. Do you know of any parliaments other thn n

those in i.ustralia, in which the system is not in vogue? -No. I hall endeaYour to make a summary on the matter from various authorities and submit it later to the committee.

383. By Senator Lynch.-How many committees would you favour ?-One to deal with statutory rules and ordi11a11ces, and one with international relations. Finance is cover ed to a large extent by the Public

.1-cco unts Committee. I suggest that other :financial matters which I have previously mentioned, should be referred to a committee constituted somewhat along the lines of that in th e House of Commons. I also

suggest that a committee should be appointed to deal with the r elations between the Commonwealth and the States. 384. Would you give those committees the same

povv~rs as those possessed by select committees appointed under the standing orders ?-Very largely, yes. The work would more or less demand .such powers. F or example, if an insurance bill -were being considered it

,vould be n ecessary for the members of the committee to obtain expert advice. That could be done only fry hea.ring witnesses . 385 . What class of legislation would you exclud-e from the consideration of these committees ?-That referring

to matters of party principle. 386. D o you propose that all other classes of legis­ lation should go automatically to these committees?­ With the exception of money bills and customs and excise tariffs.

387. Do ··you think that the Government's majority would cause the finding of the committee to be merely an eclro of the Government's policy ?-That would depend on the consti tution of the committee. It would

be necessary to have party representation on the coma mittees but that should not necessarily be in propor­ tion to' the par ty representation in the House. Every­ thing would depend upon the system adopted for the

appointment of committees. 388. What process of selection do you recommend?­ The House of Commons has a selection committee for the purpos~, and a similar system would probably work well here. Otherwise there would seem no alternative hut to leaYe it to the government of the day to nominate member!-, . Our Standing Orders provide for the ap­ pointment of committees by ballot, if demanded, and that "ystem could be extellded to standing committees, hut probably the r esult would merely reflect party thought.

389. Do you think that the inauguration of this com­ mittee system would have the effect of neutralizing party feeling in tbe handling of public affairs ?-Yes, to some exten t. The less party element in the Senate the Letter, i11 my opinion, for the Senate.

390. By Senator Rae.-Would not the scheme be emascul::i.ted and leave little for the committee to do if bms of a strongly party complexion, :financial

measure and customs tariffs were excluded from exami­ nation by the committee ?-I think not. I have indi­ cntecl a great number of important subjects that are outsid e of party issues.

39J. What is your opinion as to the advisability of appoi11 ting a joint committee of both Houses to deal with oxtemal relations ?-A joint recommendation by a committee from th 0 two Houses would have more force and probably ~,,011ld be more favorabl y received

than one frbm a committee of a single House. How­ ever, the Senate is master only of its own Ho~se, and while it could appoint members of a committee to deal with external relations it could not require that

the other House should do likewise.



ome before the League. I nvestigations by such a committee would, I consi der, _ be of consider able ad­ yantage to members.

392. But this select committee could recommend the . appointment of a joint committee for the purpose?­ Yes.

401 . In view of the frequ ency with which State Premiers and members meet nowadays, do you still believe that it is desirable to have a committee to deal with the relations between the Commonwealth and the .States?-Yes. In my opinion it would facilitate the

work of the Senate. 393. Have not the relations of the Dominions to the Empire been modified compared with what they were prior to the war. Has it not now become more neces­ sary for Australi a to have some method of expressing its opinion on external relations ?-The last conference on this subj ect in Great Brit ain has affected the posi­ tion to some extent, and added powers have been given the Dominion Governments. At the same time it would appear the central Government of the Empire must take

the r es ponsibility for the direction of foreign affairs. 39 4. Is it likely that the suggested committee would be taken into the confidence of the Government of the day suffic iently to be familiar with what was taking

place between the Empire and the Dominion~; or would it be hampered because the official communications were of a confident ial nature ?-The Government would have to respect the confidential nature of the communica­

tions and might not be able to refei· them to a com­ mittee. But the committee could well study legisla­ tion dealing with .international affairs in order to be able to act in a sound advisory capacity to the Govern­ ment.

39 5. Although Government representatives on a com­ mittee might be antagonistic to certain details of a bill, might they not be prepared to give them greater considerati on in committee than they would in the

House, thereby stimulating discussion that would be valuable to the House generally ?-That is so . For in­ stance, with land and income tax assessment

bills, which a:re party measures, intricate points could b-e fully debated and investigated by a standing com­ mittee. In the House of Commons bills are referred to standing committees, whose decisions are frequently

accepted without debate by the Hous-e . That effects a great saving of time. 396. How do you· suggest bills should be segregated for submission to committe!;)S ?-The method adopted in the British House of Commons would seem suitable There bills go to a standing committee, named by the Speaker, unl-ess the House determines otherwise.

397. By Senator H erbert Hays.-Do you consider that there is a growing tendency towards governmen t by regulati on ?-Yes. I think the tendency has been more in that direction since the war period. It was largely influ enced by the exigen ci-as ·of the occasion

during the ·war. ·

398. Do you consider that the trend is for regula­ tions to touch u pon matters of principle rather than of administration ?-I have not studied the regulations carefully enough to giYe an opinion on that point that .

would be useful to the committee. I believe that it is desirable that r egulatio11s should be closely scrutinized by members. 399. Do you consider that it would be an advantage

to amplify the .system of joint committees, to cover such matters as foreign relations ?--Yes. The opinions ex­ pressed in the report of a joint committee would

naturally have greater ,veight than those elll.anating from a single House. Some of the suggested com­ mittees, of course, could not be joint committees. 400. Do_ you thii1k it desirable that the sub ject-mat­ ter of debates in connexion with the League of Nations should be submitted to a committee in order that it might report to the Honse ?-Yes. A standing cqm­ mittee could perhaps obtain documents that would give it an inside knowledge oi 1}1e problems likely to

402. Do you consider that it would be desirable that matters to be discussed at P remiers' confer ences

should be made known to t he Senate pr ior to their

consideration by the Commonwealth and State repre­ sentatives in confer ence ?-Such problems as those effecting .State grants could well be r eferred to a stand-ing committee for investigation and report . ·

403 . How long have you bee n connected with the · Commonwealth ?-Since its inception. · 404. Do you think that, as a r esult of F ederation, the States are now more in harmony than they were prior

to Federation ?-Yes. Their frequent conferences tend to bring about that state of affa irs, as do es also the

constant intercourse between r epresentatives of the several States. 405. By Senator Colebatch.-Can y ou furnish the committee with a list of acts, excluding war measures, and not necessarily an exhaustive one, that partake of the ch aracter to which you r eferred, of providrng for li t tle mor e than authority to rp. ake regulations?-Yes, I shall do so .

T h0 witness withdrew.

Sir Daniel Levy, K.B., B.A., LL.B., M.L.A., Speaker, Legislative Assembly, N.S.W., sworn and examined. 406. By the Ohairman.-The· committee would be glad to have your views on the subject that it is in­

vestigating.- I do n ot see why the matter of inter­

national relations and finance should be the subject of investigation by Senate standing committees. I am more concerned with the r ef er en ce to statutory rules and ordinances, and I believe t hat it would be advisable to have a body to examine them. I have taken a keen interest in this matter, and am strongly of the opinion that we ·have arr ived at a stage when the sovereignty of Parliament is very much a ff ected by the practice of issuing statutory rules and: ordinances, man;r of which are not really promulgated merely for the purpose of carrying an act into -e ff ect, and which deal

with matters which should be t he subject-

matter of su bstantive legislation. We are gradually reaching the stage when t he power to legis­

late is being taken away from P arliament, under · our very nose, and tr ansf err ed to public offi ce rs. That is no exagger ati on. Unfort unately, the tendency is ap-. parent all over the Br itish Empire. The Lord Chief

Justice of England, Lord Hew art, r ecently wrote a book entitled The New Despotism. I h ave not yet r ead it, but I haw'. studied reviews of th e book, and I r ef er the committee to a very inter esting ar ticle on the subject

by J . R. Marriott, which appear ed in the last number of the Edinburgh Review. I also r ead the r e.marks of your chairman when moving t he motion for the a p­ p ointment of this committee, and I was not surprised

at his reference to the small number of acts and the large number of r egulations that have been passed. A · imilar state of affairs exists in N ew S outh Wales . The objection is not r eally that the r egulations are so

numerous, bu·t that in so many cases they deal with matters that should be incor porated in an act of Par­ liament. I have no doubt th at public officials in many ca es know that the regulatio ns co uld not stand the

te t · of a legal inquiry into th eir validity. They

probably take the view " Who is going t o the t rouble

i:nd p.·p '11 e of fio·hti11g befon: a r·o ui ·t of la\\', \\'itlt tli c pos ibility of an appeal, the question as to whether this i, 1.1lfra vires or not"? · To indicate to what a pass this kind of thing has come I m ention that, long before this committe-2e wa appointed, I looked over the r egulations

of X ew South Wales for last year, and found that there was one i u ed by the Department of Agriculture which actually amended the Local Government Act in very many respects ! If that is not a red'l.lcfio ad absurclum I

clo ·not kno,v th·2 meaning of the term. It is abundantly clear to my mind that ,Ye need some body to look into these rules and ordinances. The question arises

"'·h ether that can best be done by a committee of th.e Senate. I cannot see the force of appointing a com­ mittee comprised only of members of the Senate to deal with the task. Surely, if there is to be a com­

mittee it should be froni both Houses . 40'7. By th e Chairman.-Under the Acts Interpreta­ tion Act regulations are laid on the table of either

Hou_se. The Senate has the right under that act to

.challenge them within so many days. If they are un­ ,..,hallenged they automatically become 1aw. The other

House can also challenge the regulations, but this com­ mittee is primarily i11terestecl in the S enate.- I under­ stand the procedure quite clearly, but it does not in

any way affect the point that I desire to make. If

t.l1Pre jg to be a body to examine rules and ordinances, i't' slioi1ld be a joint committee. The task is a huge one, a11C1 I am doubtful whether you could get a body of

-men- ,,,ho would be prepared to do the ·work thoroughly. Members of such a committee should be well acquainted with the subject-matter of the •

1::ttions wer e 1.iltm vires of the act or not. That is a quasi legal matter. I do not say that the task would

b~- beyo11d members of either House, but it virould be necessary for the committee to spend a considerable amount of time i11 the examination to do the business "t horoughly. I am not sure that members would be

prepared to cleYote the necessary tirne to the work. I11 the New South Wales Parliament the only men who attend committees are the very busy men. From that poi:qt of view I am doubtful whether the scheme would

be practicable. 408. By Senator Rae.-Oan you suggest any other n~ethod ?-Yes, but it would scarcely be within the sc ope o:f the motion before this committee. I might suggest the appointment of men who were paid to do

the work. · But I shall not elaborate that suggestion. If a · uumber of m embers cou ld be found who were pre­ pared to give a good deal of their valuable time to

this work some good purpose might .be achiev·2d. The House would have some report on the matter before the i11choate r egulations became absolute. In our House, l' egulations are laid on the table, and they are nobody'g

business . Nobody cares. Until quite recently there :,vas · Y~rtually. no po~sibility of a member discussing t hese matter s in that House. He would put his motion on the business paper and the Government Whip would

object to it going as R. formal motion until th-2 allotted time had expired. I suggested to the· Standing Orders Committ('e a standing order that . granted special i)recedence to motions for disallowance of regulations.

That giYes members who wish to object an opportunity to do so . It ,Yas in consequ ence of Mr. Lang's unfortu-11ate · e:xp-e r ieneC:' that I made t-liat suggestion. H e wanted to move for the disallowance of a regulation

tmder · the Local Government Act. His motion was objected to as formal by the Whip, until the time

allowed had expi1;ed. I had great sympathy with him in the matter. 'This is the new standing order that I

had· introduced-" otice of a motion to disallow any regulation, rule, nrdi­ n;rnce. l\y-1.a w, ~r instr~ment to which · objection may be t~ken ,nt hrn ·a time spec ified hall. when given, be forthwith


set dow11 tu lw eo 11 si tl eretl 11pou Lite lll'XL ·ittiug day upu11

which General Business ha precedence of GoYerument Bu i· ness.

" Such motion - ( i) shall have priority on such day in the

o'.·der ~n which. notice was g iven ; (ii) shall, except as pro­

n cl rd 111 Stanclmg Order 1ro. 108, take precedence over all otltPr bus iness on such day: (i ii ) if not mornd on that

da~· shall laps0.''

409 . By Scnalot Co lebalc/1.- Thc CommomYea1th pro,·isiou i s that if notice t o di allow a regulation is

g~ven ·within the allotted period, the matter may b2 ch cusse d at any time afterwards ?-.. :\.lthough I am doubtful as to ·whether a committee could handle these matter s, l should be glad to see the experiment tried. No doubt this committee is aware of the practice in the House of Commons and in Canada in regard to stand­ ing romrnittees. Tho Rouse of Oommons committees ronsist of rn en who take their ,rork very seriously and ·who give a larg-o amount of t heir time to it. Nearly

t•, 'n ry bill should go to a committee appointed acl ho c. or to a sta nding committee. Take a bill dealing with legal proeeclurc. There would h2 very few members eapu blc of discussing it in such a way as would throw a ny light 011 the rnatte l' , so that it \\· ould be a

The subjects wonlcl be so c011te11tions that it ,rnuld b e almost i mpossible to obtain agrec111 c11t on them. If tht' cF srnssion resulted in the prcs2ntatio11 of majority an

rnillorit.Y reports it would not be wortl1 the time speut 01 1 it.. I am not sure wheJ-hcr the referenee in t l1t:

r cso1utio11 to appoint th;s committee 1s to

a private bill or to an Ol'dinary bill intro­

duced l1y a . p ri,·ate member. l thiuk that there i ii

some confnsion between public bill s introduced by pri rate members and a private bill. A private member may introduce a publi c bill. I i11trodnc-ed the Registra­ tion of Firms Bill. If a private member's bill is a publi c bill, l clo 11ot see why it should be dealt with differ ently from an ord i nary bill introduce d by the Government. In New South vVa.le s pr:rn rc bills deal with

eJmrches, charitaLl-2 oranizations and similar in­ stitutions, u sually granting co 11r c::;sio1Js, and they nrnst nm the gauntlet of examination by a

select committee. :My views are principally crystallized on the subject of statutory rn'les a11d ordinances.

Although I am fl little doubtful ns to whether you co u1d get members to devote the necessar y time to examin e the huge mass of rul-es and regulati ons, I think that the experiment would be a salutary one. It might work out more su c>cessfull y than I antieipatc. Something

usrful would be achi eved if the Honse had sonw

guidance as to regulatio11 s after th ey arc laid on

tbc ta ble. This .rnattP.r has c11gaged the minds of

nrnny thinking me11 in tho United Kiugdom, and "'rh e11 a. person like the Lord Chief Justi ce of England thinhi

fit to make a pro11ouncement ou th-2 subject, we cannot bnt admire his courage and pay . attention to what he says.

+10 . 11 y /h e Chairrnan.- It has ber11 suggest ed tlrnt the Gonrnrnent in s tead of inserting in a bill details that might obstrnct tl1e ,passage of the measure, fra:me a skeleton bill for the consideration of the House?.:_ That is so. The question arises as to whether we sha1J

acquiesce in the delegation of the ~over eign power of Parliament to public servants. I do not wish to say any thing disrespectful as to public serYants, particularly th e sup~rior type, but people arr being governcrl b;v l' -egulations of which members of Parliament at the

tiJ~w they arc passed, know nothing.

-4:J l. Your n 1wark · ahuo:; t sugge ·t ther e ·l10uld U(':

say some official- au ambitious lawyer, or au ambition::: m~~1ber of the Attorney-General's D ep_artme~t-in the capacity of p ermanent secretary to examrne these matter ron ci entiou l;r and report upon them to Par·

lj1rn1en t ?-It " ·oul

from the ~ \ttorn e,Y-General, the :M1111 takes a n ~k rtllCl issues a regulation to deal ·with the difficulty.

Throughout my long association ,vith the New South "r ales P nrliament I know of only a coupl-2 of attempts ro rhallenge regulation s. Jt is scarcely . possible_ to do so, ns members do not know the regu1at.1011s until they i:ne laid on t11c table. 412. By Seualo·r Uol~batch.-:-ln the Sta~e Parlia­ment of ,v~"s teru ..c\ ustraha the dJSallo-wallce of a regula-1 i oll is not at a 11 unusual ?- Probably the lesser volurnr of rcgula tio11s dealt ,,·ith may account for that. .\t prrsent 1hr cjtizeu is called . upon to :figl~t n11 exp(' n. in• ra e in conrt, with the poss1-l,il it y of an appeal to the High __ Court or the Priy y Com1cil, in-order to t-2st the yabd1ty of a regu1a­ri on .' It sNJlll s to me a o har~l that h e s hon1d haH to do tha t. ..'.~ goocl deal of such litigation might be prPYP11tPd if a s:-1ret C'OmmiHee to examine these l\Jg1'.ln­tion s wc' rP nppointed, as thr GoYenm:cnt wo_nld ,rn1g_li 1 h e matt<' r rnor2 carefully before. takrng a nsk. It 1e our duty ac; ptib1ic men to make acts of Pa_rliarnent nlld regulations as Jittle liable to he rontested rn _court t> of law as possi bl e. 1 do not know exactly ,,,hnt 1s ron­tPrn p1nted by a stand ing co mmittee on ":finanre ". 413. By f li e 0h a·irman.--The ~:ommitt-2e has i11 vie:' 1"11 e c•xnm i11nt io11 of commercial bills ?- Broadly, thnt rn a class of bill tl~at should go to a select or stancfo1g committee, whose services on th e ubject ,rould be ya]nahlc. My expe-r ie11c e in Par1iarnrnt shows me that a comrni ttee ;f the whole House i s the wors t conceivable · bod v to deal with th e committee stages of a bill. It rna,· so nnd paracloxira l, hnt when it comes to clealing wi tl1 the details ·of a bill, especially 0110 co11cerni11g legal or eommercial matters, you n;e~l a :3maJ1 hod;y 0f men. 1 am a mrmber of the t mvers i ty Senatr. \Vh cn we haY-e a matter i1wolving c;ome little considera­tion wr r efer it to a cornrn itttee of four or five men. They do the work much better tlrnu a Senate. of. 30 r ould. I take it that there would be 110 duphcat1011 of disc11 ssion afterwards, in committee of th-2 ·whole, although member s " ·onhl hr afforded the opportnnjty of disrussion. 414. When do you consider a bill ~hould ?e referred to a committee ?- In our House, pnvate b1lls are re­f erred to sel ect committees, before the second reading, but · in the House of Commons the bill goes to t he Standing Committee after 1he scrond r eading. 43


4J ,. JJy Seualor Hae.- 18 it 11ot a fad that t11e

tremendous number of these statutory rules prevents most members examining them ?-Yes, and that makes it. all the more nece~sar.Y that so:mc body should be & ppoi n ted for th-e purpos~. . .

418. It has been said 111 evidence before this com

mittee that there are very few cases of regulatio11s being contes ted before the period allotted elappes ?- There ai:C' rnry few c:::tses of :fire in private houses, but that 1s no reason why general insurance should not be effected.

" re neYer know v:hen · we may be affected by these

regulations. .

419. Is it not a fact that, although regulat10ns do

not go beyond the letter of the act, they go .beyond

the spirit of the Jaw '?_:_Yes. :Many, although perhap~ not legally 1.tlfra vi·res , deal with matt-2rs that should be dealt with by nn act of Parliament or an amending

act. .. 420. Ca11 yon ·suggest auy way of overcoming the tr emendous amount of labour that would devolve upon the suggested committee ?-If a committee had to spend

a tremendous lot of time on this work, it would not

bt=> u m:casonable that it should be a paid rornmittec.

1 am not. anxious to sec that happen, but it would be onlv a fair thing to 1-x:rnunerate members for their wo{ '.k. 421. Does it not appear to you that the filtered statm of the Domini011s throws some responsibility on the Dorni u iou Parliaments · to take cognizance of matters

\\·hich were previously entirely outside their provinc·a i

- Yes but it is a matter of la ha1.tfe pohhqi1.e ; scarcely one fo'r a s1·a11ding committee. I can see no objection to the appointment of expert memoers who would proffer advice to P1ui'iament on the subject of inter­

national relations. 422. Ry Senafnr Lynch.-Has any legislat1on pa~sed lw Y01u· Parliament be-.J11 cleeJared to be unconstitu­ ti~n; 1 ?- That is not uncommon with regulations, but the only acts of Parliam-ent that can be declar_ed

unconstitutional are those which Yiolate or confhct with the :Federal Constitution or Federal .laws. 423. Do you consider that the necessity to invoke thr aid of the courts to test the vailidity of regulations

rould have been avoid-e el if greater care had been taken . origi11aI1y ?- That is not always due to \Vant o~ care. Sometimes a risk is taken bv the Government rn th e hope that it will not be fom{d out.

42.:Jc. Do you think that a committee sueh as sug­ gested would be an an ti dote ?-It all d-epencls whethel' jt ,ms prepared to go fully j11to the regulations; which would be a big task.

425. Must any regulation bad in law adversely affect some citizen ?--Yes, but in many cases citizens cannot afford to fight it through the various courts. 426. You do not contend that 1v ,2, can get along

without regulations ?-No, but Parliament conl

task entrusted to such a body ?-I nm inclined to sa.v that it woultt

415. R y Senator Lynch.-Does that apply t? all bills? --Practically all bills. There arc fiv~ o:· s1~ g_roups. \Vhe11 a bill comes before the House 1t 1s w1thm the province of t.he Speaker to r ef e·r it to t~c commit.tee

11 nder which it uaturally comes. _ There 1s an India.11

Committee, a Srottisb Committee and a Legal Com­ mittee to each of ·which are rPf erred the bill dealing with those ubject s. I think that a ~though t.h_e con­

ditions arc a little cliHerent, rrwfahs ?n1damdis. the system might he gi,·en a trial in thr Senate.

416. Do you suggest that the English method ot

selectincr committers be adopted ?--I have no great objectio~1 to that·. "'\Yith a House of 30 things might be so arrnnged thnt every m 2mbe1· ·would be on a .com­ mittee. The system 1rnu1d be of great educational


428. It has been asserted in evidence _that the present telldency is for a ca bin et to take an increased hold

of party matters, thereby making it more difficult than r,ver for individual members to voice their opinions 011 ::rny subject. What is your opinion ?-The tendency nowadays is for the 01:dinary members to have very little say. Bills are prepared by the parliamentary

draftsman, gone into cafefully by Cabinet; considered by party meetings, an<;l then they come before the

House. Theoretically, members can mo,·e amendments, but actually the power of a prfrate member is almost negligible in cnnnexion with a go,' ernment bill that ~omes before the House.

4Ll9. Do you con ider that the creation of the sug­ ge ted committee would give a better opportunity for the ventilation of opinions in regard to bills ?-I am afr~id t_hat the efforts of a committee dealing with party

~g1 lation w_ ould reach no finality. ·

430. Do you consider that party feeling would kilJ otherwi e valuable advice 1-It would be scarcely worth while trying the experiment in connexion with

obYiou ly party bill . But there is a class of bills,

pos ibly contentiou , but of a non-party nature, upon which a committee could throw a good deal of light and a sist the House generally. .

431. Imagrne that there ,vas a bill that needed thrash­ ing out by a composite committee. Do you consider that the inauguration of the committee vvould tend to lower party temperature ?-I do not think it would be any good.

432. Have you not the c~mmittee system in your Parliament ?-We have no standing committees to dea] with certain classes of bills as is the case in Great

Britain. It is always open to any member to move

that a bill shall be referred to a select committee. 433. Would you consider the possibility of giving up that practice ?-No. . · ·

434. So that it has some virtue ?-Yes.

435. Can you give the committee an · idea of what proportion of legislation is referred to select committees in New South Wales ?-The percentage is insignifi, cant; below one per cent. . .

436. Can you offer an opinion on the paradox that the mother of parliaments has had its system firmly entrenched for so:me time, and we have not yet adopted it ?-Its numbers are so great. Further, the cir­

cumstances have to be taken into consideration.

437. Has it not occurred to you that if a given

quantity of work has to be done by a dozen men, and that . number i s cut do'Nn to six, there is a greater

necessity to allocate the work to the smaller number of men ?--In the abstract, your proposition is unassail­ able, .but I do not see its application. With a smaller number in the House the necessity to divide the work cloes not arise. Whereas a committee of 36 or more men could examine a bill to advantage, a committee of the whole, .consisting of 700 men, ·would be unwieldy.

438. By Senator Colebatch.-Do you know if there is any difference betvrnen the sections in the Imperial Acts of Parliament governing the making of regula­ .ti<;ms, and the sections that we employ ?-I believe . that

they are pretty much the same.

43·9. Lord Hewart lays great stress on what he says is the first means of preventing these abuses, the care­ ful scrutiny of the bill itself. That causes me to wonder if there is a:p_y wide variation between the British

power to make regulations and our own ?-As a lawyer .. I have examined hundreds of English acts and I find that the povver embodied in them as regards regula­ tions is pretty mu ch the same as that in ours. But

occasionally 1--1 this country Parliamei\t slips and allows to go_ into an act some power to make regula­ tions that is of a most dangerous character. Some­ ti~es it is provided that the· GoYernment may, by pro­ clamation, suspend the operation of this or that por­ tion of .the act. I deem· that to be a · dangerous pro­ c~cdure.

· 440. Would you sugge t the pro.clamations be liable to ; d_isallowance ?-I think not. There is a provision in the Irrigation Act which says-The . Gover_ nment may · from time to time makl:l . regulation altering, amending or suspending the provisions of the .Local Go,;e·rnnient, Act · of 1919 for the purpose ·of its ~pplicat,ion

to any municipalit ies, shires, or pottions of .municjpalities: or , hires which may be within an irrigation area. ·


That is objectionable. Ii was never intended when the act was passed that regulations of the nature since passed should be made. That power has been used for the purpose of amending and supplementing the

act in particulars which cannot be said to be legiti­ mately within the scope of the act. Take this one, for instance:-vVhere bridges, drains, culverts, channels and other works are constructed for irrigation purposes .or are to be con·

structecl for those purposes over dedicated roads, the con· struction and maintenance of these works and the approaches thereto shall be a duty cast upon the Water Conservation and Inigation Commission; any disputes in regard to the proper carrying out of this duty shall be submitted to the Minister

in the manner provided in this act for other disputes arising between the Council and the \¥ ater Conservation and Irriga· tion Commission.

That purports to be made under the section I have

quoted. This, and many other provisions in the regu­ lations, should be the subj ect of an amending act. The witness withdrew. The committee adjourned.

(Taken at Sydney.) WEDNESDAY, 5TH FEBRUARY, 1930.


Senator R. D. ELLIOTT, Chairman; Senator Colebatch Senator Lynch

Senator Foll Senator Rae.

Senator Herbert Hays George Albert Watson, Deputy Crown Solicitor for the · Commonwealth, Sydney, sworn and examined. 441. By the Chairman.-The committee will be glad

if you would prepare for it a brief return showing

the cases in which the validity of regulations or ordi­ nances has been challenged by the High Court ?-I shall do that. One affected the incidence of income tax in Tasmania in connexion with live stock. Another dealt with telephone regulations, imposing on persons who

used a telephone without permission the liabiliti es of the former subscriber. The High Court held that that was valid, but that the Tasmanian case was invalid. I shall also prepare for the committee samples of sec­ tions of acts that confer executive powers to make regu-lations. ·

The witness withdrew.

Henry Chester-Master Garling, Solicitor and ex­ Senator, Sydney, sworn and examined. 442-3. By the Chair1na1i.-The committee would be glad if you will give it the benefit of your views for

or ag·ainst the objectives of the motion into which

it is inquiring?-I am here on invitation or command, otherwise I should not presume to present myself before the committee to air my views on the subject, as I

consider it purely one for the Senate to decide. Tbe need for some innovation such as is suggested by the motion is so self-evident that I wonder that it is neces­ sary to go outside the Senate to decide the question. J t seems to me that the Senate itself has afforded

the best possible argument in favour of the appoint­ ment of standing committees on the lines of Senator Elliott's motion by appointing this select committee

to deal with what one might term a domestic concern of the Senate. Otherwise, why submit to the con­

sideration of seven members what is the individual con­ ceni of the whole 3.6? Presumably, it is thought that even in a matter of domestic concern, it is more effec­ tive to submit it for the calm consideration of a few selected members sitting round a table than to leave

it to the unorganized effo rts of the whole body of the Seuate. 1£ that i o in a matter which might be aid

to be the personal concern of each member of the Senate, does not the same reasoning apply more strongly in the case of most of the matters covered by the motion to appoint the select committee? My brief connexion

with Parliament brought home to me the great dif­ ficul ty experienced in getting members as a whole to show sustained interest in the consideration of details in the discussion of measures brought before the Senate.

I shall give some instances later. I ;have not give11 great consideration as to whether or not in other par·­ li aments in the Empir e, or elsewhere, there exists any well defined practice as regards standing committees on the lines referred to in the motion to appoint this select

committee. But in the British House of Commons there would appear to be some provision made for the appoint­ ment of standing committees to deal with both public and private bills. I have here Halsbury's The Laws of

England, from which I shall quote a few passages to shOiv that there is precedent elsewhere for the · sugges­ tion. At page 710, the author says :-In the House of Commons, as soon as a public bill haR

been read a second time, it may be committed either to a

co mmittee of the whole House-which is the practice in the Senate-or to one of the standing committees, or to a select com­

mittee, or to a joint committee of the two Houses. Unless,

however, the House on motion to be decided without amend­ ment or debate, otherwisP, order, every public bill, except an appropriation bill, a bill to impose taxes, a consolidated fund bill, or a bill confirming a provisional order, stands

committed to one or other of the standing committees as

soon as it has been read a second time.

A member who is in charge of a bill may, if he thinks fit, move that some of its provisions be submitted to a standing committee and the remainder to a com· mittee of the whole House.

At page 711, he continues-Four standing committees for the consideration of public bills a re appointed every session, ·of which three consist of not less than 60 nor more than 80 members nominated by the committee of selection. "\iVhen nominating such members the committee of selection must have regard to the classes of bills referred to the committees, to the composition of thP

House and the qualifications of the members selected.

I quote this clause because it is clear that the present suggestion is not a novel one, and bec ause of the refer­ ence made to the qualifications of members. From my short experience of the work of legislation in the

Senate I am of opinion that standing committees should be formed to report and advise on bills, such as private bills and a certain class of public bills. I am aware that there are not many private bills, but they ' could be best considered by a small committee. All

public bills, excepting such as are of a formal nature, or such as might be classed as purely party measures, should be considered by a committee. I instance, as falling within my own experience, acts such as loan acts, appropriation acts, jury exemptions acts, and statutory declarations acts. And there are many

others. I think that the state at which bills should be committed to standing committees is after the second reading, that is to say, after there has · been discus­ sion as to their general principles . I find that ju the House of Lords the r emission to a standing committee is made immediately after the first reading. . I differ from the opinion that the best time is before the House has dealt with the bill. Some of my own experiences

might be of interest to the committee. The Lands

AGquisition Bill was brought before the Senate in 1922, I think shortly after I entered that chamber. Like the proverbial new broom, I wanted to sweep clean, and I made it my business to studv the bill in detail. An amending bill was brought fo~·ward which the Minister in charge claimed ·was only a matter of



machinery. Ou examination, I found that it was far­ reaching in its effects. For instance, in dealing with L"esumption of leaseholds it proposed to take into con-. sideration only the term of the lease. Supposing a

lease was for ten years, with an option for another five years; the option was not to have any considera­ tion. I gave an instance where a man had a lease of ·

a hotel for five · years, with an option of a further

ten years. After he had worked up the business of

the hotel that option was a valuable one. Senator

Pearce wa~ then leader of the Senate, and I could not make him r ealize that the effect of the hill was to

grant compensation only in respect of the unexpired term of the lease, without regard to the option. I got houd of Senators Keating, Benny, H. E. E lliott and Drake .Brockman; who were legal men, and men­ tioned this as well as other features of the bill which seemed to me to be unfair to the public who would be affected by it. . We formed ourselves into a sort

of committee and thoroughly examined the measure picking out features that needed amendment. The result of our united efforts was that the Minister had to hold up the bill, as we had the feeling of the Senate

with us. If a standing committee were formed its

duties would be to do that kind of thing. That was

not a party bill and it could very profitably have been set before a small committee for consideration. . I might mention another instance m connex1011

with this bill in which leaseholders wer e

called upon to produce their leases and title within a few days. H they failed to do that from any cause whatever, their leases were to be resumed on the basis of their being weekly tenants. I am afraid that that provision is in the act to-day. There again a committee

of well-balanced men would have been able to induce the Senate to realize that t hose features should be struck out of the bill. The Defence Retirement Act, also, was vague in many of its operations, ap.d the Minister in charge continually made reference to regu-­ lations under the act. The Senate never had a chance

to see what those r egulations were to be . I

found jt impossible to keep abreast with

regulations, and I consider that it is dangerous

to allow them to pass without being properly examined by persons qualified to give attention to them. An examination of our law court proceedings indicaies that over and over again regu]ations are declared to be ,ultra vires. The Income Tax Assessment Bill was

brought down to us almost on the eve of Parliament going into recess. It was badly digested by the Minister in charge of it. Senator Drake Brockman was prac­ tically briefed by the pastoralists to watch it, and he and I found many things that needed qualifying, and some that needed elimination. The Minister was very

poorly informed on the subject and had continually to ask his departmental adviser about it. Eventually he asked for an adjournment so that he could digest the provisions of the measure. There again a ~ommittee would have been valuable to the Senate. I was in the Senate when the Bankruptcy Bill ·was first introduced. Senator Pearce, a most painstaking man in preparing his brief, laid himself out to give a good explanation of the effect of the consolidation of the bankruptcy acts of the States. Only three of us bothered to listen to

him. . Finally, Senator ~foDonald, of Queensland, drew attent10n to the State of the House, and later on he was hauled over the coals for being so officious as to cause the quorum bells to be rung. It has since been shown that this particular bill was ill digested. It was my experience during my short term in Parliament that not more than one-third of the 36 members of the

Senate could be relied upon to perform their legislative duties conscientiously. This I say without reflec-tion on the .member of the Senate as regards their other duties.

+1-4:. 11.IJ ,_'e11ulor fl o'l1erl flays.- - \\ c \\'t'l'e led tu belie,e rhat the Bankruptcy Bill had been referred to the Chamber of ommerce and other imp.ortant or­ ganization . It was a complex subject for the layman

to deal w·ith ?-Undoubtedly, but there is ahrnys n lem·ening of legal talent in the Srnate, the pos e ors

of which could be formed into a committee to examine uch bill . The mistakr ill this ra·se ·were made in

the machinery [llld uot in th general principles of the bill. It i e,·ideut that 36 members. in committee of

the iYhole, cannot be l' xpectecl to handle uch a mea ure a exhaustiwly as could ::i perinl1y chosen small com­ mittee. -±45. By !li e Chair1nan.-Have you looked into the

matter of regulations ?-I consider th!lt since the opera­ tion of so many bill depends 011 their regulations, it

is essential that the r e should be a committee to deal

with r egulation s. One sees so frrque11tly cases in which the, are declared to be 1dtra 'Vi1'es when examined by a c;urt. The appointment of a body of zealous, earnest men to deal with these regulations ,vould obviate much of that trouble. l do not qnite see that a standing

committee could deal with international relations or :financial bills as a rnle-in the latter case because such bills arr so often framed 011 party considerations.

Commercial biils, of ronrse, would conw nncl er th0 heading "public bills". 446. Wonld it b e possible to supply the committee with a li st of r egulation s that haYe been declared to

be 11.llm vires?-I am su1·e that that could be obtained from t}10 appe11clix to th e law rrports. I am eonfide1Jt that actio11s pending have frrquently not been gone 011 ,rith because of rou11sel's advice that a regulation coul cl

11ot stand; that it \\ ·as 1llfra ,•·ires. Such actions, of

couse, ,Y ould 11ot be rcport0d.

447. By Senator Rae.-Do you think that there are many more regulations that have 11ot heen tested?­ Yes. 448. By Senator Co lebalch.-I take it that the need for somebody to look into these matters has been in­ tensified by the ameudrnent, in 1916, of the Rnles Pub­

lication Act of 1903. The original provision pre­

,· ented the making of any rules without giving notice. Now there is 110 obligation to giYe notice of a regula­ tion ?-I hrm~ 11ot followed that closely . 449 . Do you know if the provisions that were struck

out of that act in 1916 are still in the Imperial Act,

upon which ours was rnoulcled ?-I could not say. 450 . ..11. standing committee on regulations would not necessarily overcome the trouble of r egulations being 1dfra 1·ires?-Not necessarily, Lut it should mini-· mise the trouble.

451. I suppose the ontstanding example of regula­ tions being invalid was the Tasmanian taxation case. There the whole argument was 011 a constitutional point, on which a committee ,rnulcl not have felt itself confid ent to speak ?-It is frequently set out that the operation of a pill shall be gowrned by the regulations

Although it is possible to miss thei r invalidity, a stand­ ing comrni ttee might discoYer an injustice in the regu­ lations that was no t intended by Parliament when the bill was approYed.

452. By Senator Bae.- Do you think that there is a tendency 011 the pa r t of M:i11istrrs to do these thiwts more or le v deliberately ?-I do. It is easier to g~t

the pro,isions of a bill through in that way. F11-

doubter1 ly they arr e11couraged by departmental heads. 453. By 'enator Herbert H ays.-Is it your con­ sidered opinion that something along the lines sug­ gested should he done ?-Yes.

-4:5-!. Has your Society ever considered this 1n::it ter ?- :-; ot that T am awa r e of.


-1,jj _ Uo _yo n beliern that your Yiew are SUJJported by member of your organization ?-Yes, specifically as to act and regulations and the views of the court

upon them. .If you asked the Incorporated Law In­ stitute to help you in a matter of this nature you would probably have to ,rnit a long time before it would move Whe11 1 \\ ·as a enator I realized ,rhat an advantage it ,rouJd hr to Parliament to lrnYe many bills considered by the Law Institutes of the different States before they rame before the House. I thi11k that provision ,ms made for advance copies of the bills to be sent to

f hose institutes so that suggestions might be made.

However, the institutes were very slo"\\· to move. It appeared to be nobody's business. 4:56. Do you consider that statutes are becoming more romplex, and that their relation to regulations is more clifricult to follow?-Yes. It takes years sometimes before we can get the incorporated measures.

4(>7. · ·vv oulcl you care to express an opinion as to how many senator s should sit on these committees ?-I think fin is a good ·working number. 4 .)( . H::ffe you any :fixed ideas as to how the com­

mi ttec should be selected ?- Regard should be had to the eornpositio11 of the House and the qualifications of the rnembrrs. l f I could be assured as to whether the

Senate will colltinue to be a party or other­

"·ise, l could ans,ver to greater effect. A selection by the .Prrsident, the Loader of the Government and the Lrader of th0 Opposi tioll might o,'en•orne the difficulty. 459. B.IJ 8cnalo1· Lynch.-Do yon suggest that the Senate shonld be tho best judge as to the necessity for tbese romrnittecs ?----·Cr rt.ainly . l do not know why

the Senate did 11ot go right ahead with the matter

pre,·iously. -160. Are you of the opinion that the old haphazard Yoluntary system of examining bills needs to be super­ seded by a more effective system ?-Yes.

461. Would a " public bill " necessarily mean a bill introduced by the , Government on a public matter, or would th-c term be wide enough to embrace a bill

illtroduced by a private member, dealing with a public matter ?-There is a generally accepted definition for both public and prirnte b~lls . A public bill need not necessarily lw bronght forward by the Government of the clay.

!±62. Do you think that the matter of classification as :fixed in the House of Commons could be followed by the imggested scJ1c:me ?--No. I think that the House of Comrno11s has a very lirni ted range for the appoint­ m e nt of committees . The Senate should form its own ideas on the snbject and appoint its committees ac­ co rdi11gly .

463. Yon are aware that r egulations fall almost as chickly as _ snow flakes ?-Members know, when they enter .Parliarne11t, that there is a good deal of work

for a ,rilling' horse. 464. You admit that it is a big task to give adequate attention to these regulations?-1 do. 46.> . Do you favour the appoi11 tmen t of a com­

mittee carefully to scrutinize bills and also to give

attention to i·egulations ?- If the work was split up it would lwtter carry out the principle. It would be

de,;;irablc to appoint committees for each purpose. 466. You are emphatic both as to the necessity for committees to scrnti11ize legislation and to examine · regu1atioJ1S ?-Yes.

467. Do you favour the appointment of a com­

mittee to consider the external relations of the Com­ momrealth ?-No. 468. Fl'equently reports from our representatives at Merseas conferences are dealt with very perfunctorily.

W ou1d it not be advantageous to have a committee to cxn.mi ne those reports and to refer its opinion for the

information of the Hou -e generally .--Tho e r e.JJo rt are 11ot o much matter of detail a are bill. ancl regu­

lations. lt i not an irksome ta k for a member to

read the report of a delegation; rather it should afford him great in tere t aud edification. The appoint­

ment of too many committee would absor1? all of the 36 members of the Senate, and I do not thrnk that all of them would be ,rilling to 'deyote their time to the \\·ork.

469 . i..nd vou

11ecessary to "c onsider finan ce bills ?- Generally, they

a re purely party bills. Of cour e, in urance and similar commercial bills could be dealt with by a' suitable com-mittee . I except bill of a pt"irely party nature.

470. ·what is your opinion as to the existence of the party spirit. Do you think that it is good for the

interests of the country?-I think that it is the most ,·icions elemeut that ,re ha,·e i11 our public life. 4, 1. If you excluded party bills from the sc rutiuy of committees, would you not be failing to avail your· self of an e.xcellen t means to overcome the party spirit ?-I do 1wt thi11k so-judging present conditions as they are.

472 . Fl'Om \Yhat does the party spirit spring ?-Sus­ picion iu human nature is the cause of the extremes whi ch exist. 473 . Was the party spirit eyer less at fever heat

tha11 it is at present ?- I am sure that it. was. It has

grown tr emendously during the last twenty years, and is now te rrible to contemplate. 47 4. Do you favour seeming the advice of depart­ mental legal assistance for these committees, both in regard to regulations and bills ?-Yes. It would be of enormous advantage to the committee. I do not s~e why the committees should not be empowered to calJ upon chambers of commerce and other technical bodies fo r advice.

475. You practically favour a committee on all fours "·ith a select committee ?-Practically. 4 7 6. Can you suggest any other purposes for which a standing committee might be employed, such as rela­ tions between the States ?- No.

477 . By Senator· Rae.-Are you aware of the state of the political parties in this country some 30 to 35 years ago?-Yes. 4'78. ,Vas thcr-e uot just as much party animus then? --Only 011 fiscal matters. ·

47f Is it not a fact that then, according to your sup­ port of Parkes or Dibbs, you ·were considered either a foo l or a rogue ?- vVbeuever there are strong con victions, as there were on the subject of freetrade and

protec tion, strong personal feelings must necessarily exist. But the present bitter party feeling was then absent. 480 . Co uld it not be fairly said that it is a mis­

nomer to speak of party feeling; that it is rather class foeliug ?-Yes. The party issue ''"as originally justified by the necessity for organization. Now it is a matter of class-con sciousne s creating differences between di:ff ere 11 t socia 1 sections.

The w'itness wi-fJidrew. The co1nmiittee adjourned.

APPENDIX A. Honse of Common:;,


19th Decembl'.!r, 1929.

I have received your cable and will try to give :you the

information that you eek. A.t the present time there are six staudino- committeeH, ono of which consists of all the members for Sc 0

ottish constituen·

c: ies and i · appointed for the co nsiderat ion of bills relating



exclusi\·e l:r to , 'cotla11d. The other fhe tan

The committee of ' electiou has the power of adding not less thau ten uor 111ore than tl1irty-the members to each of the stan

committee duri1w the con,:idcratiou of ·uch bill. In the case of the committee on f':Jcottish bills the nomination of

~dditicmal 111e1nlJers i ~ obligatory, aud the num!Jcr to bt norniuatcd is 110t le:;:; thall te n nor more than fifteen, and

regard is to lit• had in such 11omi11ation to tl1e approximation of tlw haianc·e of partic l:' in the committee to that of the

\l l10Ie Ifo11i'ie. In ail bnt one of tlie sta1 1ding com mittees

gon"'rnrncnt bills haYe prcce de11 ce. Th0 011eratio 11 ,:; of standing cou11nittees haYe beeJL co1dined to lJill s except i11 ~ession ] HJ 9_ , ,Y]1en the :i:;;stimates were rl'fancd to a ::;tandi1 1:i co 111111ittee.

Tlte co111 111ittc e of .. selection also nominates a chairmen's pv nel, consi:;t in g of not less than eigl 1t, nor more than t \relYe 1ne1nuers, of ,\·horn three arc tl1e quorum; and the chairmen's panel a ppoint from among themselves the chairman of each stanclillg cornrnittee, aucl may change the chairman, so

appointed, from time to time. '1']1e chairman Yotes only \Yh eu the voiees are equal. Closure can Le applied in a staudiug cornmittee with the substitution of "twenty " for one hundred, as the number necessary to

render the majority effective for the closure. The chairman of a ,:;faucling committ<>e has the sawc power us the chairman of a committee of the 1Yhole House in respect of repetition or irreleYallcc and dilatory motio11s.

I th-ink that the system of standing committees " ·orks ·well. It relieYes the House of many bills, except bills for imposing -taxes a nd Consolidated Fund or ~ ~ppropriation Bills, and also, i n practice, ·of bills which are not likely to take up much time

in committee. 1' hc chief practical difficulty is to ecure a

quorum, which is fixed at twenty by standing order. To meet this cliftic11 lty the chainrn'n's panel decided in Session 1920 that. if a standing committee on two successive occasions fa il ed to secure a qnornm ou any particular bill ,Yithin twenty 1ninutcs of the meeting of' the committee, the bill should be rele!Ht tecl to the bottom of the list.

r· ·am afraid that this letter has exteucl ed to an undue

length. If t here are any voints which I have omitted perhaps I might r efer you to Chapter XVI. of J\Iay's Parlicirnentcwy Pmctice ( 13th edition) or to Mr. Oarnpion's book, An Intro­ cl nction to the Procedure of the House of Comrnons, pages 206-7 and 212-7.

1 am , Sir,

Your. ohcdiellt servant, T . LossDALE "\VEBSTER,

l::,ena tor R. D. Elliott, Th e Senate, Canberra.

Clerk, House of Commons.

APPENDIX B. Speaker's Chalubers, The Senate, Ottawa, 16th December, 1929. Senator R. D. Elliott,

The Senate, Ca.nbena, Australia.. Dear Sir-Iu ,111swer to your telegram addressed to the Clerk of

tl1e Senate, Ottawa, received on the 12th. instant, as the Clerk of the Sellate is absent on a holiday I am answering i t

n1yself. -

The telegram r eads : "Senate select committee OH subj ect wonlcl appreciate description your standing committee system and your de\\' ~ success or othenrise of same fir s t mail pos­ ;:;ib le."

The system adopted by the Senate of Canada is that at the lleginniug of each session the Gon~rnment Leader suggests the 11ames of a Committee of. Selection, which i s agreed to h~· a motion of the Senate, and this committee meets and

.;e lects standing committees. Prc\"ions to the 2nd April, HJOS, the Standing Committees :-tppointcd were as follows, the n11mber:; of members on s ucJ1 "Ommittee being as showu in brackets:-

Standing Orders ( !) ) , Railways, Telegraph' and Harboms ( 50), Banking and Commerce ( 32) , :..\Ii cellaneous Private Bills (25), Internal Economy and Conting·ent AcC'ounts (25) , Debates and Reporting ( 9) , L

Divorce ( 9) , Restaurant ( 7), and two committee which sat jointly with n, committee of the House of Commons named the Joint Committee on the Librarv of Parliament ( 17). and the Joint Committee 011 the I'1111tin;,. of Parliament (21).


On the 2nd April, 1908, an order of the Senate con tituted the following committees :­ A.griculture and Fore try ( 9), Immigration and Labour ( 9) ,

Commerce and Trade Relatious of Canada ( 9), Cidl Sen-ice Administration ( 9) , Public Health and Inspection of Foods ( 9), Public Buildings and Grounds ( 9) , but it was not until the 5th March, 1909, that the Committee of Selection made a r epor t nominating the.senators to serve f)n these committees. ·

At the second session of the Eleventh Parliament the

Committee on the Restaurant was appointed as a Joint Com­ mittee to act with a similar committee of the Hou e of

Con1mons in dealing with the restaurant, as a n arrangement was made to have one r estaurant for both H ou ses instead of a separ ate one for each House, as had been the case hereto­ fore, and by the rules of the Senate the representation must consist of the Sp~aker and six other members .

On the 22nd May, 1919, a Committee on Finance was added to the Standing Committees, a ncl i s composed of seventeen members . At the present time you will see that there are a number

of standing committees, some of which appear to overlap one another. The joint committees on the library of P arlia­ ment, printing of Parliament and the restaurant are, of

course, n ecessary for the working of ·b oth Houses during the session, and are better handled as standing committees than as select committees for the purposes of dealing with any particular question that may come up.

Of the committees on Standing Orders; Railways, Telegraphs and Harbours; Banking and Commerce; Miscellaneous Private Bills; Intern a l Economy and Contingent Accounts ; and Divorce; the Committee on Standing Orders, being a small one dealing more o'r less with routine ,vork, funct ions very well. as a standing committee. The same also applies to the Com­ mittee on Internal Economy and Contingent Accounts and to the Divorce Committee, but there is some objection to the size of the committees on Railways Telegraphs and Harbours, Banking and Commerce, and Miscellaneous Private Bills, a ~ we have no system which makes it compulsory for a member of a committee t o att end the sittings, and the custom i s that every session the first report ma de by these committees . is one recommen ding that their quorum be reduced considerably.

In the case of the Committee on Railways, Telegraphs - and Harbours their quorum is reduced to uine, that of Banking and Commerce to nine, Mi8cell aneous Private Bills to seven, Internal Economy and Contingent Accounts to seven , and Standing Orders to three.• The effect of this is that a minority of the committee can deal with any bill, and this of . course

leaYes it open to a decision being given ·wh ich might not

be the decision of a larger committee. The Senate itself, when dealing with the report of a committee can, of course, if they wish t o, refer the matter back to the committee for further consideration. On the other hand this m a.,y not be clone, and

had a larger number of the committee been present when

considering a bill a different decision might be given. In England, as you no doubt know, the standing committees deal with pubJic bills, and special committees are, I under­ stand, appointed for each private bill as it comes forward, and they have a co mmittee whose duty it is t o see that the

members appointed to serve as a special committee do so ·or give a valid excuse for not doing so, of which this committee is the judge. In this way I think the work done by a com­

mittee is much more satisfactory. It is only fair to th·e Senate of Canada to say that

the general public and the counsel who practice before the committees always speak very highly of their work and the careful consideration_ they receive. Of course, all the work coming before t he Senate, or a committee of the Senate, is done much more cleliber~tely than in the House of Commons, which enables the ::;enate to be ca reful and thorough.

•r rusting I ha,·e made the matter clear, Believe me, yours truly, HEWITT BOSTOCK, Speaker of the Senate.



1. Parliamentary methods iu Arnitralia are still primitive. Division of function and delegation of authority are largely unknown. The odginal idea of one large council dealing

successively with each public question still prevails. Th~s originally involved a comparatively small number of public questions and the rapi~ · de_spatch of each one. These

conditions probably prevalled 1:1 the days of th~ Planta~ene!s; but they disappeared at a slightly later period of English history and Parliament as an organization has worked with greater' and greater difficulty ever since.


2. enator Elliott' propo al cle erve the clo e t and most

sympathetic consideration . The handing of certain matters for a preliminary examination to standing committee3, before they are submitted to the final Yote of the Hou e.

would, in u1y opinion, be a nduable ad,·ance in the busine S organization of Parliament. Whil t I have had no personal experience of ,;·ork in a Parliament equipped with a group of standing committees ·uch as ~enator Elliott proposes ( an experience which I imagine few Australian witnesses have

had); the principle for which he contends has receiYed prac­ tical illustration-( 1) in the organization of mo t nrnnicipal c-ouncils, ( 2) that of the French Parliament,

(3) that of tlie Public Works Committee in the Parlia­ ment of X ew South ·wales. l. Mnnicipa,l Oo'Uncils.-The business arrangements of municipal councils vary from those of Parliament primarily

in the fact that thev lrnYe no ~linisters . · The executive

functions are Yestecl i;1 the l\fayor, \Yho is, I beli~ve, ex-officio a member of every committee. The preparation of policy is thus Yestecl in the various committees, who with the assistance of the l\Iayor and Ms permanent staff-both administrative and t echnical-bring fo r ward schemes for development and maintenance which are discussed and ultimately decided in

full council. The work of a body like the London County

Council, which is quite comparable in bulk to that of an

Australian ·Parliamen t is, I understand, wholly managed in this way, and with very considerable success. Similar

su ccess h as, I a m convinced, attended the work of analagous committees in the municipal and shire councils in the State of New South \ Vales. The work of such councils has some­ times broken clown, but very rarely for reasons associated with the organization of the committees. The work allotted to

them h as, on the whole, been ·well done, and the system under which they initiate pl ans has worked satisfactorily. I realize that the analogy between these bodies and

those now proposed cannot be pushed too far. The

standing committees proposed for the Senate are not to

initiate policy, but to criticize it. They are not .to perform

the functions of Ministers-which will remain unimpaired in their present hauds-but to a id legislators to perform their functions ( of criticism and suggestion) more thoroughly and effectively . Nevertheless, the con cl us ions to be arrived at from the consideration of the work of the municipal com­

m.ittees are, I submit, of great value. They establish this

proposition, that from a representative body whose members are not specialists, committees ca.n be formed to whom

specia list functions may be a llotted, and who can formulate proposals which a r e of the utmost value to the deciding body, i.e. , the full council. DifferenceR of o.pinion, pnrty divisions, conflicts of interest, all exist-though on a r educed scale no cloubt-but do not prevent very successful operation.

2. The French .Parliamentary System.-As I understand the working of this system, committees of the very kind whicl;i Senator Elliott proposes exist, and h aye been functioning actively for many years. There, as in our own Parliament,

initiation of policy is the business of the Ministry of the day. But to aid the parliamentar y consideration of policy, a

standing committee of the chamber is brought into existence, for each important department. The committee is non-party, i.e., it includes members from every party in the House.

( Parties in France, it sh ould lie pointed out in passing, are fa,i· more numerous than is t h e case with us.) The chairman of each committee is its "Reporter," charged with the duty of drawing up its conclusions a nd laying them upon the table.

A committee h olds a series o~ meetings in conference with the Minister at the head of the department, the Minister beinc, a idecl, of course, by his expert staff. 0

It may, I think, be taken for granted that in numerous

cases the Government, being backed by a majority, could obtain a reporter in sympathy with its views. But my limited familiarity with French procedure does not permit me to ·say what occurs in a case like that of the present moment in

Australia, where the Government is in a minority in one of the chambers. In such a case one must recognize the possi­ bility of the Ministry being confronted with hostile com­ mittees and reporters on each subject.

The possibility of sucl'.l a situa tion, however, in no way

condemns the system. It does not create or magnify the opposition which ministerial policy has to meet. It

merely clarifies it and brings it to a focus . In every com­

mittee ( i. e., whether the Ministry has a majority upon it or . not) the Minister has to defend his proposals in the teeth

of close criticism of members of the Opposition specially

appointed for the task and with special adYantages in the way of information, &c., which membership of the committee confers. The net result from the point of view of preliminary dis­ cussion is, I believe, wholly beneficial. The House is never taken by surprise. All the main difficulties and the more

startling consequences of the Government proposals have been probed by specially- qua lified members before the matter comes on for general debate. The report of the committee is available to all, and the House is thoroughly well informed as



to what the real issue are before its own discussion of the

ubject begin ·. Thi preliminary inquiry. ~rn~t, I should

imagine, haYe -very much the effect of plea~mgs m_ a common iaw act ion, which as member of the comrrnttee a i e doubtl~ss aware. are intended to hring into c!ea~ ·~ess the actual pomt or points in dis pute 1:>etw~en plamti~ and defen_cl~nt , by eliminatin(Y irreleYant side i sues, befo1 e tlrn mattei i s sub­

mitted to~ jury ( or in Victoria, to a Judge). 3. The Public Works Committee in New Sout.h Wale~.-I think opinion i unanimous in th~s State tl:at . tlus commi~tee has done extremely valuable ervice. f prw1,.,,,, ~11 the ~bJe~­ tions which can be adYancecl agamst Sena"or E l110tt s

proposals · co uld ha Ye been ,tnare~ against i~: ,i.t w~uld . be partisan, it would present maJonty and m m o1 ity 1 ep_o1 t s, what it did in committee would have to be done all over

again in Parliament, &c., &c. In fact, this i s not s?· The .

committee has no permanent staff of expert. officers, but it ca~ls the appropriate experts (generally ~ngmeers and finan.cial officers) before it in the .capacity of witnesses, and thus aided it arrives at conclusions which almost invariably command

respect and generally obtain t he s upport of Parlia1;11ent. The committee is so constituted as to represent all parties and, as far as possible, city and country interests. Apart a~toget?er from the savings in money which it has effected by its reJeC­

tion of unworkable schemes, the saving in parliamentar y tune which it secures is highly important. It shortens debates on proposed public works . by bringing the whole of the c~n­ siderations for or against them into small compass, reachly available to every member.

I turn now to the topics which it is suggested should be

referred to standiiw committees. It is clearly extremely

difficult for one ·w]10 has not the advantage of being a

member of the Senate to offer any opinion on the special

difficulties which confront it in its work. The f6llowing

observations upon this side of the question are, however,

proffered with all respect:-1. Statutory Regulations.-The necessity for some prov1s1on for close preliminary scrutiny of these is becoming more and more critical every year. The interesting illustrations given by Senator Elliott in his speech can hardly be improYed upon

for force and directness ( i.e., his reference to the ·wireless Telegraphy Act, and the Air Force Act, aud t he r egulationR thereunder) . But if the members of the committee have uot already been referred to it, I Yenture to call their attention

to a recent work published by the Lord Chief Justice of

England ( Lord He-wart), entitled The New Despotism, in which the extreme danger of legislation by regulation i s

emphasized. If s uch a committee i s a ppointed, I would be bold enough to suggest that it should be aided by t he ser vices of a permanent legal officer, whose duty should be to r ead carefully all regulations as laid upon the table, anu 8pecially direct the attention of the committee to those which affect

the liberty of the subject, the rights of trial, powers of

arbitrary decision on the part of minister s and official. ·,

powers of levying char ges and other allied topics. 2. The extreme value of a standing committee dealing with foreign rel ations, n eeds, I submit, no em phasizing. The

analagous committee of the United States Senate is to-day, quite possibly, the most important power in the world of foreign affairs. Without overleaping the difference in magni­ tude wh ich at present separates American affairs and our own, it may yet be said that foreign affairs in Australia

are dealt with spasmodically, superficially and inconsistently. Australia apparently has no foreign policy of her own (unle~" the maintenance of a White Au stralia can be called one) , and her Ministers only have one, so far as they are prepared to be

the echoes of certain sentiments thereon from Downing­ street. While no doubt the path of safety for Australia at

present is to faithfully repeat whatever is said by the British Government of the moment, this is ~m unsatisfactory second best. It may be doubt ed whether Australians ought to be

called upon .either to shoot Turks or t o embr ace Russi ans

( without in either instance knowing why), as a result of

some change in the domestic politics .of the Mother Country. Both of these things haYe occurred m ce the war. I would, ho,YeYer, submit that the ?ope of su ch . a co?1-111ittee's functions should be en lar ged to rnclude both impenal

relations and the relations of the Feder a l Government with the States. Close study of the latter subject is one peculiarly iucumbeut upon the Senate in view of its constitutio~al

position, and foreign affair are so intimately boun.d up with imperial affairs that the one could l~ardly be effectn7:ely dealt with witl1out the other. A committee charged with these uut ies and appr oaching them seriously, would rapidly become one of the most important politica l organs of the Common­

\'.·ealth. vVith re o-ard to the last two subjects (finance ~.n d priYate bill s ) I h;g to be excused from offering any observation. I

am not suffi ciently acquainted either with the nature or

impor tance of the Senate's general dealing with money bills, or of t h e private bills s ubmitted to it, to feel competent tq

discuss them. There is another aspect of the proposal which apparent ly e8caped observation during t he debate in the Senate: I refer to the ·training which membership of these committees would offer fo r the Ministers of the future. Speaking from a lengthy experien ce of the New South ·wales Parliament, I would say t h at the . young member, given a po1:tfolio for the first time,

has gener allv not the faintest idea of the r eal nature of

the tasks with which Ministers are confronted. The realities of office come upon him like a thunder-stroke. Similarly the Prime Minister of the day ( in the case of some parties), or tlte party caucus ( in the case of others) have very little to

guide them in the choice of new Ministers. In many cases the most popular member is elected as Whip, and t he Whip

succeeds a utomatically to the fir st Cabinet vacancy. This is quite a wrong principle. In Great Britain the Whip-ship · does not lea d to office,~ and certainly gr eat ability in that post is no indication whatever of fitness for the administra­ t i on of a pubHc department.

Under the committee system private members would be given an opportunity of making their marks as critics-and necessarily as constructive critics--'-of departmental affairs. Membership of such committees would be an education to all and a means of distinction to some. Future administra­

tions, formed under the system, would profit in both ways. The best man would be chosen in more inst ances than is

the case to-day, and these men would be better trained. J would venture upon this fin a l observation: ·whatever may be the prestige of the Senate a t the present moment­ a point on which I am not qualified to offer any op in ion­

it is nevertheless a fact of universal experience that every increa:,;e in effici ency of a parliamentary chamber increases its standing. The House of Lords, and the Legislative Council in Kew Sonth , ¥ales, each command a measure of respect

in no way dependent on any allegedly repl' esentative functions which they discharge. The majoritv of the members of both of these chamber s have probably only a slight hold upon the public regard, but the public of England believe of the House of Lords, as I t11ink tlie majority of the public of my own

State do of its Leg islative Coun cil, that they are a body

of men of maturer judgment and gr eater capacity for det ect­ ing t he weakness of measures than any simila r n umber in the Lower House. In spite of continuous threat s of aboli­ tion, both these cha mbers continue to flourish and apparently to ltolcl the affecti ons of the people. Speaking as an old

parlia mentarian. I venture to suggest that the Senate must gain substantially in genuine power by the adoption of a ny s uch scheme as ·that under consideration. Australia has ·a mind, though it is scattered in locality and a little broken

in expression. The mind of the country will rapidly d iscover t he fact-if it becomes a fact-that in the Upper Chamber certain problems are systematically examined and !llaturely considered, and will look more and more to it for guidance on perplexing questions.

Prmted and Published for the GOVERNMENT of the CO.l\C\IONWEALTH of .AUSTRALIA by H. J. GREEN, Government Printer, Canberra.