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Thursday, 24 September 1936


Senator BRENNAN (Victoria) (Assistant Minister) . - Senator DuncanHughes laid stress on the words " unless the contrary intention appears" in section 10 of the act of 1904. That section reads -

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

(a)   be notified in the Gazette; {b) take effect from the date of notification, or from a later date specified in the regulations ;

(c)   be laid before both Houses of Parliament within thirty days

That section was given prominence in the Broadcasting case. The High Court held that under that section, a regulation could not take effect from a date earlier than the date of notification. Itwould appear that Senator Duncan-Hughes has overlooked the opening words of the new section 11 -

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

(a)   shall be notified in the Gazette.


Senator Duncan-Hughes - I have no objection to the retention of those words. I remind the Assistant Minister that I did not draft the proposed new legislation.


Senator BRENNAN - The honorable senator said that he did not object to the words of the 1904 act being included in this bill, and I now draw his attention to the fact that they are in the bill. Let me give to the committee an illustration to show the need for some such power as the Government asks in this measure. Under the Financial Emergency Act, a certain method of calculation is employed in ascertaining the amount of reduction to be made in Public Service salaries. In the Parliamentary Service, owing to the fact that officers had been classified at a later date than in the Public Service, doubt arose as to whether the method adopted was legally correct. It was queried by the Auditor-General, and reported to the then Acting Treasurer (Mr. Casey), who arranged for two officers, one from the Treasury, and the other from the staff of the Public Service Board, to make inquiries. The report of those officers expressed the opinion that, whilst the method adopted was irregular, not to follow it would place parliamentary officers at a disadvantage compared with other officers of the Public Service. They recommended certain amendments to the Parliamentary Officers Regulations to remedy the position. Such amendments are contained in Statutory Rules 1935, No. 54. As it was necessary to correct the position back to the 1st July, 1931, Regulation 67a was so drawn as to operate from that date. That regulation was given a fairly extensive retrospective operation, because it was remedial. Subsection 2 of proposed new section 48 provides that regulations shall not be expressed to take effect from a date before the date of notification in any case in which, if the regulations so took effect, the rights of a person existing at the date of notification would be affected in a manner prejudicial to that person, or liabilities would be imposed on him in respect of anything done or omitted to be done before the date of notification. I again emphasize the further provision that where any regulation is made in contravention of that sub-section, such regulation shall be void and of no effect.


Senator Leckie - The Government is seeking greater powers than were given by the original act.


Senator BRENNAN - It is not seeking greater powers than every one thought were reposed in it until the decision of the High Court in the Broadcasting case. From 1904 until the decision in that case, governments acted in the belief that they had that power. There are probably hundreds of regulations which have been given retrospective operation for shorter or longer periods. Since the decision in the case referred to, theposition has had to be reviewed, and the Government is of the opinion that grave inconvenience would sometimes be caused if there were no power to make a regulation retrospective. That power is required to rectify wrongs. The position is safeguarded by the provision that any regulation which contravenes proposed sub-section 2 shall be void and of no effect. I ask the committee to reject the amendment.







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