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Thursday, 24 September 1936

Senator DUNCAN-HUGHES (South Australia) . - In view of the vote just recorded I shall not proceed with the other similar amendments of which I gave notice. I now move -

That in proposed section 48 the following now sub-section be inserted: - " (2a.) If any regulations are not laid before each House of the Parliament in accordance with the provisions of sub-section (1.) of this section, they shall be void and of no effect."

The law provides already that regulations have to be laid on the table of the House, but there is no penalty or sanction if it is not complied with. Nothing is done if a regulation is not tabled within the prescribed time, and that creates an undesirable position. When I spoke on this point on the second reading it was suggested that I was unduly alarmed because in point of fact regulations always were laid on the table of the House.

Aa a matter of fact, in this respect, the law is not always complied with. My amendment provides that if a regulation be not tabled within the prescribed period it shall have no effect. The third report of the Regulations and Ordinances Committee gives specific instances of regulations not having been tabled within the prescribed time, lt says -

The committee draws attention to the fact that cases have occurred in the past and are still occurring where regulations have not been laid before Parliament within the prescribed time. A notable instance of this is the case of the Motor Omnibus Regulations of the Territory for the Seat of Government. Under section 5 of the Interpretation Ordinance 1 914-1 930 of the Territory for the Seat of Government, regulations made under an ordinance must l>e laid before each House of the Parliament within fifteen sitting days of that House after the mating of the regulations. The regulations in question were made on Oth June, 1934, and were not laid on the table of the Senate until 2nd October, 1035 (38 sitting days afterwards).

Further details of omission to table regulations within the prescribed time are contained in the following memorandum from the Clerk of Committees to the Chairman of the Regulations and Ordinances Committee : -

It has been laid down that it is not part of the duty o£ parliamentary officers to see that regulations and ordinances are laid on the table of each House within the prescribed time. This is the responsibility of the department concerned.

However, some individual cases have come under notice. In March, 1930, it was discovered that the Bankruptcy Regulations had not been tabled. The following question was asked in the Senate on 27th March, 1930 (Hansard, volume 123, page 553): - " Is it a fact that a statutory omission has been made in not tabling in the Senate the Bankruptcy Act by-laws T If so, will a validating act be necessary in respect of business transacted under such by-laws f"

The Minister representing the AttorneyGeneral replied - " It is a fact that by a regrettable oversight, due to changes of staff in the Attorney-General's Department, the bankruptcy rules wore not tabled within the time specified in the act. They are now being tabled, and the Senate will have full power to deal with them. There is no reason to believe that the validity of the rules is affected in any way-

I invite the attention of the Senate to that remark -

Steps have been taken which will prevent the possibility of this happening again."

Also, in March, 1930, it was discovered that the Northern Territory Aboriginals Ordinance, No. 9 of 1918, had never been tabled. When attention was called to the omission, the Ordinance was at once tabled, and a few days later Senator Sir Hal Colebatch moved for its disallowance.

As I have said, the report of the Regulations and Ordinances Committee mentions a third instance of failure to comply with the law in respect of the tabling of ordinances. Apparently it is not legally certain whether a regulation which has not been tabled within the prescribed time is good law or not law at all. The Tasmanian Law Reports of 1916 contain the report of a case, Payne v. Thorpe, in which Mr. Justice Ewing held that the fact that regulations had not been tabled within the prescribed time made them absolutely invalid. The crux of the matter is whether such tabling of the regulations is a matter of form or of substance, and Mr. Justice Ewing held that, in the circumstances of that case, it was a matter of real substance, and that unless a regulation was tabled within the prescribed time it became void and of no effect. I could support my view by reading the very interesting judgment delivered by Mr. Justice Ewing, but I know that probably the committee would not wish me to do that, so I shall read only portion of it. Mr. Justice Ewing said -

Is the lading of regulations on the table of Parliament a matter of real substance? 1 think that it is; that this is one of thos: cases where Parliament has handed over the power to make laws, and create penalties for their non-observance to a public body, retaining control over such regulations when made, and that it is the real object of the provisions that they must be laid on the table of both Houses of Parliament.

In a more recent judgment, the High Court expressed the view that there appeared to be some doubt as to whether a regulation that had not been laid on the table of Parliament within the prescribed time was not good law - whether, in fact, a government could not refrain from laying a regulation on the table of either House, and at the same time operate under it.

Many honorable senators will, perhaps, remember an incident that occurred only a few years ago in connexion with a statutory rule, which had not been laid on the table of the Senate. In 1931 a lawcase, Dignan v. Australian Steamships Proprietary Limited, arose out of chat incident. That case did not, in so many words, override the decision of Mr. Justice Ewing. It was determined on another point, as these cases so often are. In his judgment, Mr. Justice Starke said -

The implication of this provision, we have been told, is that the regulation-making authority must lay a regulation before each Mouse of Parliament within fifteen sitting days of that House, or else the regulation is void. But no such sanction is to be found in the act itself, and the suggested implication is quite unnecessary if the purpose of the provision he to apprise the Houses of regulations, and not to prescribe a condition of their power to disallow them.

In this obiter dictum,Mr. Justice Starke gives emphasis to my point that in the act itself "no such sanction is to be found" that the act does not affirm that, unless this provision is complied with, a regulation shall be void. This lack of sanction I am seeking to remove from the act by the insertion of the amendment to provide that regulations shall be laid on the table of either House, failing which something shall happen. Mr. Justice Dixon, in the same case, put this view -

I can find no justification for the view that if the regulations are not laid before both Houses within the time provided by the statute, they cease to operate. The section does not say so, and it would be strange if such an omission, of which there could often be no public knowledge, operated to annul an existing law.

I direct particular attention to the words, " the section does not say so ". The intention of my amendment is to ensure that in future the section shall say so.

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