CLAUSE 42.—(Power of Governor-General to promulgate ordinances during recess of Legislature.) (Hansard, 13 March 1935)

§ Sir R. CRADDOCK
I beg to move, in page 27, line 39, to leave out Sub-section (3).
The object of this Amendment is to obtain an elucidation of the effect of Subsection (3), that is to say, to ascertain how far it limits the validity of an ordinance, and whether it is certain that it covers all the ground that may have to be covered. It would be extremely unfortunate if the courts were asked to interpret an ordinance on the ground that it travelled outside the field of the competency of the Legislature. If I may give one example, it might be necessary to declare martial law in the case of a big communal disturbance. In that case, would this cover a declaration of martial law, or would that be said to be outside the competency of the Legislature, or is there any matter which requires the application of Sub-section (3) to limit the power of making an ordinance within the strict application of the powers of the Legislature? There are other Clauses in the Bill where a Governor's Act or ordinance is subject to this condition, namely, that it can be valid only when the ordinance would have been within the competency of the Legislature. It is only with the object of obtaining a reassurance on the point that I have moved the Amendment.

§ Sir S. HOARE
I am not quite sure whether my hon. Friend has appreciated the scope of this Clause, which deals with the ordinances dealt with by the Governor-General upon the advice of his ministers. Clause 43 deals with the ordinances made by the Governor-General in his own discretion. The first kind made by the Governor-General on the advice of his ministers are very much like the emergency orders made by the Government here in time of emergency under what is called the Emergency Powers Act, and which have to receive Parliamentary 455 sanction within a given time. The Governor-General's ordinances either within his own competence or his special responsibilities are made in Clause 43. The further question asked by my hon. Friend was in connection with the scope of the ordinances. The ordinances could not be made outside the scope of the Federal powers. I do not know whether I have made that point clear. The Governor-General could not make an ordinance over and above the powers given him within the Federation. There is, however, a Clause—Clause 102—that enables action to be taken in an emergency in the nature of D.O.R.A. legislation here. That gives him a wide field to extend his ordinance even outside the Federal field. The ordinances under Clauses 42 and 43 have to be within the powers given the Federal Legislature and the Federal Executive under this Bill. I do not know whether I have made the point clear to the hon. Member.

§ Sir R. CRADDOCK
What about Subsection (3) of Clause 44?

§ Sir S. HOARE
That is different.

§ Sir R. CRADDOCK
The same kind of condition applies to all these apparently, that they are not valid unless they could have been made by the Legislature.

§ Sir S. HOARE
Yes, that is so.

§ Mr. SPENS
This Sub-section and the two following Clauses which contain similar Sub-sections have caused me a very great deal of trouble for two reasons. First of all, with regard to the area in which they are to operate. As regards Clause 42 the scheme seems to be that when the Legislation is not sitting the Governor-General is to have certain powers of legislation within his discretion, and it appears to be quite right and proper that those powers should be confined to what the Federal Legislature itself should be able to do. Under similar Sub-sections which appear in the next two Clauses different considerations arise altogether. In the next two Clauses the Governor-General has to take certain action on his own responsibility or within his own individual judgment. If he exceeds something that the Legislature might do it may result in causing considerable trouble and raising constitutional questions, for the solution of which 456 at present there does not seem to be any remedy, as far as I can follow the Bill. If, in fact, the Governor-General's ordinance or Act under these Clauses is void, some sort of civil rights of the individual subject must have arisen, or must arise under them.
There are no means of bringing any suit against the Governor-General in respect of any void ordinances as the Bill stands at present. It is true that there are powers of sueing the Federal Legislature, but I am very doubtful whether, in respect of something being done under a Governor-General's void ordinance or Act, that right would arise at all. I only raise this question for consideration because difficult questions may arise under similar Sub-sections. Although so far as I can see there is no objection to the Sub-section in this Clause as it appears to be merely a question of the Governor-General's power of temporary legislation when the Federal Legislature is not sitting, similar Sub-sections give rise to questions which will require some further consideration before we pass them.

§ The ATTORNEY-GENERAL (Sir Thomas Inskip)
I am inclined to think that my hon. and learned Friend's apprehensions are unfounded. I can understand the criticism being addressed to the plan embodied in Clauses 42 and 43, but I do not quite understand my hon. and learned Friend's criticisms of the provisions which prevent the Governor-General from exceeding the powers which, if his powers were not brought into play, would be the powers of the Federal Legislature. I gather that my hon. and learned Friend does not object to the provision which is contained in Subsection (3) of Clause 42, but he does object to, or regards with some apprehension, a similar provision in Sub-section (4) of Clause 43. In both cases the ordinary provision exists that the Federal Courts will determine the extent of the powers of the Federal Legislature which will be the measure or the yard-stick of the powers of the Governor-General, his power of making an act or an ordinance, but my hon. and gallant Friend will, of course, be aware of the fact that this sort of question is very familiar to the Dominions. In Canada, as everybody knows, the development of the Dominion 457 has been accompanied by a growth of powers arising out of decisions by the Privy Council of precisely the same character in general as the question which would arise to be determined by a Federal Court in relation to the powers of the Federal Legislature and the corresponding competence of the Governor-General.