I move amendment No. 4.—To delete the section. To understand the intellectual iniquity of this section, it is necessary to refer shortly to the framework of the Bill. By the Bill, schemes which have originally been drawn up by the local bodies are submitted to the Minister. The Minister may disapprove of them altogether, approve of them altogether or make such alterations or amendments as he thinks fit and approve of the scheme as so altered or amended by him. The result is that, when the scheme goes back to the local bodies, it is in words which have been either adopted or originated by the Minister. He has had full opportunity of altering the scheme in any way he likes and he must be deemed to have approved of the scheme as one which expresses with clarity and precision and in suitable language the intentions which he has formed. That is the effect of Section 2 (3). Having made himself responsible, and adopted the wording, he then very properly takes care that this scheme, which has been carefully considered, is brought to the attention of those people who are intended to benefit by it. By sub-section (5), it is made mandatory upon the local body to publish such scheme in such manner as appears to them to be best calculated to bring the provisions thereof to the notice of the persons intended to be benefited thereby. That means that he takes pains to call to the attention of those persons whose children are intended to be benefited by the scheme the provisions of the scheme. They are told what benefits are provided for them, subject to what conditions and in what manner. They are entitled to put on the wording of the scheme whatever be its correct intention. A promise is made to them and they, presumably, so arrange their actions in regard to their children as to take advantage of the scheme in the way in which it has been formulated. It is an impossible thing to hope that even, as was suggested by the Minister, with the aid of senior counsel or with the aid of several senior counsel, any scheme can ever be drafted in a way in which there can be no possible doubt as to what it means. Acts are drafted with the greatest possible care, and we all know that instances arise—on occasion in this House—in which it is very difficult to say what they mean. However, in 99 cases out of 100 one can say what the proper legal interpretation is. The whole object of having a scheme considered by the Minister is to secure such clarity and precision as will remove any doubt from the minds of the people who read it and who organise the lives and form plans for their children accordingly.
Turn to Section 9—the section which I seek to delete. What does it say? It says:—
"Every question or dispute which shall arise in relation to the interpretation or construction of a scheme under this Act shall be determined by the Minister whose decision thereon shall be final and conclusive."
That assumes, and assumes, I think, correctly, that questions and disputes will, probably, arise in relation to the interpretation and construction of these complicated schemes and the person who is given the task of saying what the scheme means is the very person who has drafted it and made himself responsible for it. In other words, having failed so to draft a scheme so as to avoid ambiguity and subjects of dispute, he is then given the task, when such an ambiguity has clearly arisen, of saying what it means. The very fact that an ambiguity or dispute has arisen shows that he must have failed in his duty to draft it so clearly and precisely as to avoid such a dispute. It is, of course, inevitable that he will give a construction to it which represents what he meant to do and not what he has represented to those who were intended to be benefited by it. It is a maxim that the person who has drafted any instrument is the person least capable of construing it. No lawyer will ever construe his own draft. Although occasionally, a judge has to construe an Act with which he may have had something to do as Attorney-General, it is proverbial that the decisions of a judge who is trying to interpret his own work are exceedingly untrustworthy and have usually to be corrected by a higher tribunal. The reason for that is obvious. I am not suggesting, and never will suggest, that it is a matter of any kind of dishonesty or mala fides, but the very brain which, perhaps, through some small blind spot or through some mental kink, has failed to convey itself in a way which is perfectly clear and obvious and which has raised this question of difficulty and ambiguity, when it comes to interpret it is bound to interpret it, not in the correct way but in a way to represent what its personal intentions were—not the intentions as expressed in the wording and as conveyed by advertisement to those people intended to benefit by it.
I am well aware that whereas we can see the mental defects and the curious mental combinations of those around us, every person, including Ministers, imagines that he is free from any such human frailty. Every mind has its defects, and these defects are only shown up when they are subjected to analysis by outside persons. If a person who has drafted a thing and drafted it erroneously attempts to construe it he will merely repeat the mistakes he has already made. In this measure we must pay attention not merely to the transmitting end of the communication but to the receiving end. We must not in our anxiety spare Ministers from the analysis in the courts of law of their mistakes, or forget that those to whom their words have been conveyed in the provisions of the Act have got a right to see whether the interpretation that they have put on them is not the correct one. They have their rights also and the effect of this section is to prevent a person who has given a correct interpretation of the language from having that declared in his favour by the court, and from having given to him those rights which it was declared he had, and on which he based his plans.
It must be remembered the person responsible for the wording is the Minister. If there is any ambiguity the person responsible is the person who should suffer. If the Minister has failed to convey his meaning clearly, and the words which he has written convey something other than he intended, it is not the person who has read them, and read them correctly, should suffer, but the Minister who is responsible for drafting them erroneously. The least recipients or intended recipients of the benefit can expect is that they should, if necessary, be entitled to resort to an entirely independent tribunal which will analyse these words upon the well-known principles of language, and the canons of law, and that they should not be subjected to a second mistake at the hands of the person who made the first one.
This is a matter of importance. I know the House will probably feel, as was indeed suggested yesterday, that this might involve time or expense. I do not think it will involve either. In many cases where a question arises and is referred to the Minister—and that can be done if this section is struck out—the Minister would give his interpretation which would not necessarily be wrong, and it would be accepted by both sides. I think that in at least 75 per cent. of the cases if the Minister intimated that the intention of the scheme was such and such a thing, it would be accepted by both sides. What I object to in this section is that even where the Minister has gone palpably wrong, though not consciously wrong, there is no power that the people to whom the promise has been made, and to whom the offer has been given—and which they accepted by modifying their plans—should be allowed to go to the courts and say: "The scheme clearly means so and so; it was offered in such a way and accepted as such. Now we are told by the Minister that he is going to put a different construction on it, and there is no power for us to go to that tribunal to which, by the Constitution, the power of interpreting legal matters is entrusted." That is the sum total of my objection. I do not want you to consider this is a lawyer's objection. It is a real objection. It will apply now to this Bill and to other Bills. I ask you to accept so much from me as a lawyer—that the man who has drafted a thing is the person least capable of construing it.
There is one other matter which I would like to refer to by way of illustration. It may be suggested that no unreasonable claim would be put forward by the Minister or the Department. I did refer shortly yesterday to two cases. I chose merely cases in which I was personally concerned in the last two years. I selected only those which are published in the Official Reports, so that anything I say can be checked. Of course, they represent a mere fraction of the extravagant claims which are made by the Department, because I imagine not more than one-tenth of the people who have extravagant claims made against them have either the energy, the interest, the money or the facilities to resist the claims of the Department. I gave these two claims as being representative examples of the kind of thing that is happening every day. I give them a little bit more fully than I did yesterday. If any Senator is anxious to know the exact references, in the Official Reports, I will give it now or subsequently. The first case was a tillage Order. It was provided that a certain proportion of each person's land should be cultivated in a certain year, and the tillage Order went on to say that the word "cultivated" as used in this Order shall mean "till". Now that is a fairly clear provision. A farmer anxious to take up his crop of meadow determined that he would cultivate or till in September in order to prepare the ground for winter wheat. I should say that the word "cultivate" was defined as "till and put in seed". He intended, having taken the crop of meadow, to break up the land and put in winter wheat. In the month of August he was prosecuted because he had not cultivated the requisite proportion of land in the year 1940. He replied: "There are still four months of the year 1940 to go, and I have the fullest intention of cultivating my land, tilling it and putting in seed." Despite that perfectly reasonable answer, based on the wording of the Order, he was prosecuted under the Emergency Powers Acts. Pressure was brought to bear. When I say pressure was brought I mean the case was put forward that he should be fined some incredible amount of money. It was necessary to take the case to the High Court. It was pointed out, in the words of the judge, that this Order was either framed by a lawyer who knew nothing about agriculture or a farmer who knew nothing about the law. It was pointed out that if the framers of the Order chose to use words which did not represent their intention or were ambiguous, it was not the people who read these Orders and gave them their proper meaning who should be penalised, but the people who failed, either through negligence or incapacity, to convey their meaning in plain English.
The second case was the case of a Fuel Order. It laid down that the retail price of turf was to be so much a ton, and proportionately for smaller quantities. All the turf was sold by Fuel Importers Limited. The fuel merchants were not in a position to get turf except from Fuel Importers Limited, which I think I may describe as a quasi-Government company if that term will not be misunderstood. It was one of those companies which the Government has properly thought fit to promote in dealing with the emergency. Fuel Importers Limited said to the merchants of Greystones: "We will charge you 5/- more for the delivery of turf at Greystones than we do at Dublin." The result of that was that if the fuel merchants of Greystones were to sell and deliver the turf at the price laid down in the Order they would lose a matter of 1/- or something more for each ton. What the Order provided was this, merely that the retail price of turf was to be so much a ton. Accordingly the fuel merchants of Greystones sold their turf at that price or actually a little below it, exyard, for anybody who would go and get it, and if the customer required them to undertake carriage they charged a matter of 4d. per bag with a little variation I think for distance. Again the Department came in and said: "You were to charge so much per ton. We did not mean that as price at all. We meant that to be the price plus the cost of delivery. You must not only sell but deliver, and deliver at any distance turf at the price which we have laid down as being the price of turf." There again it was necessary to bring the case to the High Court and, of course, the High Court said: "The Department may have intended that, though it seems unreasonable that they should have intended that, but they did not say it, and when a Department says the price retail of turf is so much per ton it is bound by what it says, and the price of turf does not mean the price of turf plus the cost of delivery." I give these two examples of the way in which Government Orders are interpreted by Government Departments.
What is going to happen in this case? Are we going to assume that the Department of Education will be entirely free from any of those little blemishes which can occasionally be discerned in other Departments? If the Minister has approved of a scheme which clearly means one thing, when doubt or difficulty subsequently arises, and when it is obvious that it is either ambiguous or properly bears a construction other than that intended, are we to assume that he will not, either from natural inclination of men's minds or pressure of business, give to it a construction which is most in harmony with his desires? Let him do it, but give some power to the people to appeal against any such unconscious mental obliquity. I ask you to take this section out as a whole because it is an intellectual iniquity that a person who has drafted or adopted the drafting of a section which turns out to be ambiguous, should then be allowed to declare that it has an interpretation which he desires it to have.
