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Thursday, 21 May 1936

Senator BRENNAN (Victoria) (Acting Attorney-General) . - I move -

That the bill be now read a second time.

This bill deals with four main subjects -

(1)   The incorporation of the provisions of the act of 1904 into the original act;

(2)   The commencement date of acts of Parliament;

(3)   The application of amendments of the Acts Interpretation Act itself and what effect that has; and

(4)   The commencement date of regulations.

There are other minor matters which will be dealt with as we reach them in committee. The object of an Acts Interpretation Act is to lay down certain principles for the interpretation of words and phrases which frequently occur in statutes. It gives a uniformity to defini tion and does something to prevent mistakes. The present law as to the interpretation of statutes is contained in two main acts - the act of 1901 and the act of 1904. Each of them has been amended on many occasions. The act of 1901 and the amendments thereto is now known as the act of 1901-1932, whilst the body of the law produced by the amendments to the act of 1904 act is known as the act of 1904-1934. I shall refer to the act of 1901 as the principal act and to the other as the act of 1904. The first of the four main purposes of the bill is the incorporation of the provisions of the act of 1904 into the act of 1901. The effect of that will be that whereas at present we have to look to at least eight or nine acts, although they are very short ones, in order to find what the Acts Interpretation Act really is, we shall, when the present bill becomes law, be able to find in the one act all of the provisions relating to the interpretation of acts. Under the present system of drafting, by which a codification of laws passed is kept up to date, it is unusual to find Commonwealth legislation relating to one particular subject, contained in more than one act. But prior to 1905 there was no such consolidating machinery as exists to-day, and the acts were more scattered than they have been since that date. The result is that, as both the act of 1901 and the act of 1904 were passed before the year 1905, each has, to a great extent, preserved its individuality. The relations between the act of 1901 and the act of 1904 have been not so much those of mother and daughter, so to speak, as those of sisters. The act of 1901 itself requires amendment, and the Government has taken advantage of the opportunity to effect the incorporation which is now before honorable senators for their consideration. Although they are going into the one act it does not mean that the provisions of the act of 1904 will become non-existent; on the contrary, with the exception of an amendment as to retrospective regulations and some minor drafting amendments making for greater clarity, the existing provisions of the act of 1904 will still remain the law of the Commonwealth. There fore, to a very large extent, the Senate is being merely asked, so far as that incorporation of the provisions of the act of 1904 into one act is concerned, to assist in the process of codification, but not to pass new laws.

The second main provision is the date of the commencement of acts of Parliament. The present law is contained in section 5 of the act of 1901 -

(   1 ) Every act to which the royal assent is given by the Governor-General for and on behalf of the King shall come into operation on the day on which such act receives the royal assent unless the contrary intention appears insuch act.

(2)   Every act reserved for the signification of the King's pleasure thereon shall come into operation on the day on which His Majesty's assent is proclaimed in the Gazette by the Governor-General unless the contrary intention appears in such act.

When the Federal Cabinet was in Perth last June, representations were made to it by members of the legal profession of that State that many times they were obliged to deal with cases in which persons were charged with offences against the laws, of the existence of which they had no knowledge. It is a well known principle that ignorance of the law does not excuse; but that does not cover the complaint of the legal practitioners in Western Australia. Their objection lay in the fact that copies of the laws did not have time to reach them before they were actually in operation. The Federal Cabinet recognized the force of those representations and the following provision is contained in clause 5 of this bill - "(1a.) Every act to which the Royal Assent is given by the Governor-General for and on behalf of the King on or after the first day of January, One thousand nine hundred and thirty-seven, shall come into operation on the twenty-eighth day after the day on which that act receives theRoyal Assent, unless the contrary intention appears in the act.".

The effect of this provision will be to postpone the operation of acts passed on and after the 1st January, 1937, for28 days; that is to say, during that period such acts will be dormant. As the result of this provision legal practitioners in distant States will have an opportunity to obtain copies of new acts, and thus acquaint themselves with their provisions before they have the effect of law. As it may be necessary sometimes to bring an act into operation rather more speedily than the period of 28 days, provision is made for this contingency in the words "unless the contrary intention appears in the act ". The ordinary practice, however, will be that acts, which are assented to by the Governor-General, will come into operation on the 28th day after the date on which such assent is given.

The third main heading is the application of the Acts Interpretation Act itself. The present law is contained in section 2 of the act of 1901 -

This act shall apply to all acts of the Parliament, including this act, and shall be binding on the Crown.

For many years it was considered that when the Acts Interpretation Act was amended,such amendment applied; not merely to future acts, but to all Commonwealth acts, whether passed before or after the commencement of the amendment. That may excite criticism from some honorable senators asbeing an instance of retrospective operation; but it has always been held in English law that so long as retrospective operation merely extends to procedure and matters of machinery, it does not offend against the spirit of English law. Therefore, the Acta Interpretation Acts were considered to apply , to the acts in existence, as well as to future acts. But in a recent case before the High Court, Mr. Justice Dixon suggested that amendments of the Acts Interpretation Act would apply only with respect to acts passed after the date of the amendment. Therefore, it is proposed to make it clear that such amendments apply to past, as well as to future acts. Sections 15a and 19a of the principal act, which were, inserted in 1930, and section 9b of the act of 1904, which was inserted in 1932, are expressly made to apply to acts whether passed before or after the commencement of those sections. Those two provisions can now be deleted, if clause 4 of this bill becomes law. Clause 4 states -

The Acts Interpretation Act 1901, and that act as amended from time to time, shall, unless the contrary intention appears, apply, and be deemed to have applied, to all acts of the Parliament including this act.

The next important matter is the power to make retrospective regulations. This principle is of interest to honorable senators. It was referred to recently in the third report of the Standing Committee on Regulations and Ordinances, and was discussed in this chamber only last week. Almost all of the regulations, which are passed under the authority of an act of Parliament, are governed by section 10 of the 1904 act-

Where an act confers power to make regulations, all regulations made accordingly shall, unless the contrary intention appears -

(b   ) take effect from the date of notifi cation, or from a later date specified in the regulations;

(c)   be laid before both Houses of the 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.

But that provision has been altered by the act of 1932, under which regulations must be tabled in each House within fifteen sitting days after the making of the regulations, and may be disallowed by resolution of either House if notice of motion to disallowis given within fifteen days of the tabling of the regulations. Honorable senators may offer some criticism to the measure, but I believe that I shall have no difficulty in committee in satisfying them that whatever powers to make retrospective regulations are proposed in this bill are absolutely necessary in these days when the scope of acts of Parliament is so wide. Honorable senators will remember also that the matter of retrospective operation of regulations was dealt with in a High Court case. A wireless regulation had been made which purported to reduce, as from a past date, the payments due to certain broadcasting stations from the revenue received from licence-fees. The validity of the regulation was challenged, and the matter was litigated in the High Court. In its judgment the majority of the court decided that the relevant section of the Acts Interpretation Act did not permit of the making of retrospective regulations under acts in relation to which that section applied. The regulation, which was declared invalid by the High Court, was deemed to have commenced on the 1st November, 1927, a date much prior to the notification of the regulation in the Gazette. Several regulations have retrospective operation; but in respect of most of them, the time during which they were deemed to be operative has expired. I mentioned only last week a regulation relating to some payments made in London under the DriedFruits Export Control Act. The making of that regulation, I should add, was the only way in which justice could be done to the men affected by it. Later it was disallowed, but in the meantime, the obligation to the men concerned having been discharged, the regulation had no further force.

Senator McLeay - What is the explanation for the long delay in settling that matter?

Senator BRENNAN - The validity of payments made under that regulation was first challenged by an officer of the Auditor-General's staff in London, and steps were at once taken to put the matter right.

Senator McLeay - It took the AuditorGeneral nine years to discover the invalidity.

Senator BRENNAN -I understand that many years elapsed before it was discovered. The Government cannot, without giving rise to grave legal difficulties, make a clean sweep of all regulations having retrospective effect. They have been examined in some detail, and it has been discovered that most of them were designed originally, not to restrict the rights of citizens, but to confer benefits, and action is being taken to see that everything shall be in order in future. The bill, therefore, seeks authority, in certain circumstances, to make regulations with retrospectiveoperation if necessary. Clause 11 inserts after section 40 of the principal act, a number of headings and sections, dealing with offences and penalties, instruments and resolutions, and regulations. Proposed new section 48 reads - (1.) Where an act confers power to make regulations, then, unless the contrary intention appears, all regulations made accordingly

(b)   shall, subject to this section, take effect from the date of notification, or, where another date is specified in the regulations, from the date specified ; and

(c)   shall be laid before each House of the Parliament within fifteen sitting days of that House after the making of the regulations. (2.) Regulations shall not be expressed to take effect from a datebefore the date of notification in any case where, if the regulations so took effect -

(a)   the rights of a person (other than the Commonwealth or anauthority of the Commonwealth) existing at the date of notification, would be affected in a manner prejudical to that person; and

(b)   liabilities would be imposed on any person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of notification, and where, in any regulations, any provision is made in contravention of this sub-section, that provision shall be void and of no effect.

This is in conformity with the statutory provision that, as laws must have the approval of both Houses of the Parliament, regulations which are disallowed by one branch of the legislature shall not be valid.

Senator Duncan-Hughes - There is a definite qualification of that principle in sub-clause 2 of clause 12.

Senator BRENNAN - That was designed to cover the position that arose in connexion with the dried-fruits regulations; but as six months has elapsed since these regulations were disallowed, the provision to which the honorable senator has referred will be eliminated from the bill. There are other minor amendments, with which I shall deal when the bill is in committee. In clause 10, there is a provision to be contained in a new sub-section of section 30 that, where an act or omission is an offence under an act of a State, or an act and an ordinance of a territory of the Commonwealth, and where the offender has been punished under any or either of those acts or ordinances, he shall not be punished twice for the same offence.

I hope I have satisfied honorable senators that there is nothing very drastic in the new provisions of the bill. It is' essential that some power to enact retrospective legislation should vest in the executive. Some rather extravagant fears have been expressed with reference to a number of regulations having retrospective effect, but I doubt that we could have had a better illustration of the need for such authority than was furnished to us in the regulations made underthe Dried Fruits Export Control Act. It is desired to have this limited power with such additional safeguards as may be deemed to be necessary. There is nothing in this bill to restrict the power of the Senate or of the House of Representatives to disallow regulations made under any act.

Debate (on motion by Senator Collings) adjourned.

Sitting suspended from 6.13 to 8 p.m.

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