I move: That Emergency Powers (No. 173) Order, 1942, made by the Government on the 1st day of May, 1942, be and is hereby annulled.
During my almost 20 years unbroken membership of this House, I do not think that I have had to bring before it a more important matter than is contained in the motion on the Order Paper. It may be remembered that, when this unfortunate war broke out, Parliament gave the Government very wide and, I might say, very necessary powers. It gave them practically unlimited powers to deal with production, liberty of the person, censorship and other matters. There was practically no limitation on the powers given to the Government, except the limitation regarding a declaration of war and the conscripting of citizens into the armed forces. One essential safeguard was retained by Parliament. That was that the Government had to proceed by order in the exercise of the powers they got and that any Order the Government made could be raised in this House by way of motion for annulment. It is that one remaining power which democracy possesses to-day that I am now exercising.
If Senators turn to the basic statute under which the whole series of orders we have had during the past three years have been issued, they will find that, under Section 2, the Government may, whenever and so often as they think fit, make by order—I am leaving out the words that are not essential — such provisions as are, in the opinion of the Government, necessary or expedient for securing the public safety or the preservation of the State or for the maintenance of public order, or for the provision and control of supplies and services essential to the life of the community. It goes on to set out, in a number of sub-paragraphs down to the letter (p), the various matters over which the Government is to have authority. I want Senators to note that these orders were confined to matters which the Government considered were necessary to secure the public safety or the preservation of the State or the maintenance of public order or the provision and control of supplies and services essential to the life of the community.
At this stage, it may well be asked "How can everything a Government propose to do under an order be embodied in the order?" Just as in the case of an Act of Parliament it is not possible to embody every act to be done under the Act in the Act, so it is with orders. The Government takes power, in the case of an Act, to proceed by regulation to amplify the powers it has taken, but these regulations have to be within the powers given by the primary Act. I am only a layman but, if I am right in my contention, these subsidiary powers of operation, as one might say, were taken in sub-section (3) of Section 2. It is a rather involved section. Reading between the lines it shows that the Parliamentary draftsman was probably worried as to how the intention should be expressed. If I may paraphrase the section, it is as follows:—Whenever the Government makes an emergency order, the Government may, in lieu of making provision for or doing any particular thing in or by such emergency order, authorise or empower a Minister or any other person acting on his behalf to do the said thing and for that purpose, subject to such conditions and consents as may be specified, to make, grant, or issue such instruments and give such directions as shall appear to him necessary for the said purpose.
Put into ordinary language, that means that the Order cannot set out all the things the Minister is to do but, if he wants to do a particular thing, he may do it by "instrument"—that is the actual word used. If Senators turn to the definition clause, they will find that "instrument" means an order, regulation, rule, bylaw, warrant, licence, certificate — mark these last words — or other like document. If I read that rightly, every instrument must mean a document in some form or other. The Minister operates the Order by documentary instruments. I think that that is a fair statement of the case.
The next step, following on that Act, is the main Order — Emergency Order No. 224 of 1939. If Senators refer to the dates, they will find that this Order was ready at the time the Act was passed. The Act was passed on September 23rd, 1939, and the very next day this Order appeared. Incidentally, it is rather interesting to note that, unlike a large number of subsequent Orders, this Order is only in one language. I do not make this point for the purpose of casting ridicule on our bilingual methods. There is a purpose, as Senators will shortly see, in these remarks. Ever since the war began, the Government has been acting under this Order of September 23rd, 1939, and this Order derives its authority from the Emergency Powers Act passed the day before. Now we come to Section 31 of this Order. Here I would like to read some significant words: "The Minister, so far as appears to him to be necessary in the interests of public safety or for the preservation of the State or for maintaining supplies or services essential to the life of the community, may, by Order, provide——" Then it goes on to mention a very wide category of activities which the Government can pursue.
We all know and we have all experience of that action under most of these headings. They have power to regulate production, movement of commodities, transport, distribution and sale of goods, and so on. Then in a later sub-section it reads:—
"Any incidental and supplementary matters for which such Minister thinks it expedient for the purposes of the Order to provide, including, in particular, the entry and inspection of premises to which the Order relates by persons authorised in that behalf by such Minister, with a view to securing compliance with the Order;"
and an Order under this Article may prohibit the doing of anything regulated by the Order except under the authority of a licence granted, by such authority or person as may be specified in the Order, and may be made so as to apply either to undertakings generally or to any particular undertaking or class of undertakings, and either to the whole or any part of any undertakings, and so as to have effect either throughout the State or any particular area therein.
No reasonably-minded person during the last three years has had any complaint about this. We all realise that there is a crisis and an emergency, and what very wide powers the Government is entitled to have. I suppose it is your experience, as it is mine, to receive from time to time a number of these Orders by post. It is only a natural temptation not to read them too carefully in many cases. Some are dealing with technical matters such as quotas, fuel production and every conceivable activity. I do my best to run over them to see if there is anything I consider specially important. I happened to read very carefully Order No. 173. It amends Article 31 of the main Order which I have just read, and I ask the House to note very carefully the vital difference between the powers taken in these two Orders. Order No. 173 reads:—
"Article 31 of the Emergency Powers Order, 1939, is hereby amended in the following respects, and shall be construed and have effect accordingly, that is to say: by the substitution of the following paragraphs for paragraph (1) that is to say:—"
And here is the vital paragraph:—
"A Minister may, by Order, or direction (which direction may be given either in writing or orally) provide...."
Then it goes on to provide practically the same wide range of activities as are provided in the previous Order. I ask you to note this, and I ask the Minister to enlighten us as to why it has been necessary to remove in this latest Order any reference to the interest of public safety, preservation of the State and the maintaining of the supplies and services essential to the life of the community. All these limitations for what they are worth are taken out, and the Minister need no longer justify any action he takes within these limits. He is now absolutely and completely without restriction of that kind. But that is not the really dangerous aspect of this Order. You will note that not only can he proceed by Order, but he can proceed by oral direction, if I read the Order aright. The Minister in his wisdom and discretion can proceed by Order, but if he thinks fit to do otherwise he has complete and omnipotent power simply by verbal direction. Nobody will know and Parliament will not be aware of it. His action cannot be challenged and the last vestige of control that Parliament possessed will be swept away. The Minister will be complete and absolute dictator and, moreover, the dictatorship will be made all the more dangerous by the powers of censorship which the Government now enjoy, so that if any action is taken by oral direction of the Minister and the Government do not think fit that any reference should be made to it, either in the Parliament or the public Press, then it will not be known. I consider that is a very serious state of affairs.
It makes it hardly worth while to bear the expense of having Parliament at all. Parliament might as well stay at home and the strain that the holding of Parliament imposes on the transport service could be saved. I ask the House to regard this as a very serious infringement of Parliament's control, in fact, as removing the last remaining vestige of Parliamentary control that exists. For example, the other day the Government took very wide powers in reference to our transport system. Practically a dictator was appointed. That was done by Order. We knew it was being done and the whole wisdom of that policy could have been raised in the House.
What can happen now unless I am mistaken is that the Minister or anybody authorised on his behalf can walk in to the board of a company and say: "I do not propose you should function any longer. I am sending down Mr. So-and-so to take over the whole company." I know the Minister will say that nothing of the kind is contemplated, but I submit that such action is possible under this Order. For that reason, I feel that this matter should be within the knowledge of the House, and that the House should consider seriously, unless the Government can give some undertaking to restore in some form control by Parliament, passing this motion to annul this Order.