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Wednesday, 25 August 1937


Senator BRENNAN (Victoria) (Assistant Minister) . - I move -

That the bill be now read a second time.

This measure is substantially the same as a bill bearing the same title that was introduced in the Senate on the 17th March, 1936. Several amendments of varying degrees of importance were made in that measure during its passage through Parliament, and as the bill as amended did not become law prior to the prorogation in May last, it lapsed. This bill embodies the majority of the amendments, but in preparing it for reintroduction opportunity was taken to provide for certain other alterations consequent' upon such amendments. As a similar measure was recently before the Senate, I do not propose to weary honorable senators with a lengthy explanation of the provisions of this bill. Further explanation can, if necessary, be made later. It will be sufficient to outline briefly the principal features of the bill.

The bill deals with five principal matters, namely -

(1)   The partial consolidation of laws relating to the interpretation of Commonwealth statutes. (2)he date of commencement of acts of Parliament.

(3)   The application of amendments made by various amending Acts Interpretation Act. (4)he retrospective operation of and the tabling and disallowance of regulations.

(5)   Several miscellaneous matters.

In regard to the partial consolidation of Acts Interpretation Act, I may say that at present the two main acts relating to the interpretation of Commonwealth acts and regulations', are the Acts Interpretation Acts of 1901 and 1904. Each of these acts has been amended on several occasions with the result that the task of interpretating statutes is more difficult than it need be. The bill, therefore, provides that the provisions of the act of 1904, as amended from time to time, shall, with one or two exceptions, such as the provision dealing with the commencing date of regulations, be incorporated in the act of 1901.

The present law in regard to the date of the commencement of Commonwealth acts is contained in section 5 of the act of 1901. This section provides that where the Royal assent is given to an act by the Governor-General on behalf of the King, the act shall come into operation on the day on which it receives the Royal assent unless the contrary intention appears in the act. In respect of acts which are reserved for the signification of the King's* pleasure, it is provided that they shall come into operation on the day on which His Majesty's pleasure is proclaimed in the Gazelle by the Governor-General. During the Cabinet meetings in Perth in 1935, representations were made to the Government that laws made by the Commonwealth Parliament were often in force before copies were available in the far-distant States. It was pointed out that the inconvenience resulting from the absence of copies of acts was particularly felt inWestern Australia. These representations have been favorably considered by the Government, and clause 6 of the bill is designed to give effect to them. Under this clause, it is proposed to amend section 5 so as to postpone, for 28 days, the operation of acts, other than acts to amend the Constitution, passed on and after the 1st January, 1938. In other words, acts which are assented to by the Governor-General will come into operation on the 28th day after the day on which such assent is given. The section will, of course, apply only where no contrary intention appears in the act itself. It is not proposed to alter the commencing date of acts reserved for His Majesty's pleasure, or acts amending the Constitution.When this clause is in operation, it should, as a general rule, be possible for copies of acts to be made available in all the States some time before the acts actually come into operation.

As has already been mentioned, there have been several amendments of Acts Interpretation Act. Doubts have arisen as to whether these amendments are to be applied in the interpretation of acts passed prior to the enactment of such amendments. In order to remove these doubts, clause 4 contains a new section providing for the application of the original act of 1901, as amended from time to time, to all acts irrespective of the date when they became law. I hope that honorable senators understand the position. The Acts Interpretation Act having been amended, the question has arisen : " Does that amendment apply when interpreting an act already on the statute-book, or does it apply only to acts passed after the amendmentof the act itself?" That point has been made clear by the provision that the Acts Interpretation Act shall apply to acts already on the statutebook as well as to future acts.

I come now to that portion of the bill which deals with the commencing date of regulations. Honorable senators will remember that the matter was referred to in the third report of the Standing Committee onRegulations and Ordinances.

The great bulk of the regulations made under Commonwealth acts are governed by section. 10 of the Acts Interpretation Act 1904-1934, which reads:-

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

(a)   be notified in the Gazette;

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

(c)   be laid before each House of the Parliament within fifteen sitting days of that House after the makingof the regulations.

But if either House of the Parliament passes a resolution of which notice has been given at any time within fifteen sitting days after such regulations have been laid before such House disallowing any regulation such regulation shall thereupon cease to have effect.

For many years it has been the practice in exceptional cases to make regulations which are to be deemed to have come into operation as from a date prior to the date of their notification in the Gazette. For the most part, those regulations have conferred benefits upon the persons affected ; for example, the granting of increments or allowances to various classes of officers, but not for the purpose of prejudicially affecting existing rights or of imposing liabilities as from some past time. Some time ago, however, a wireless regulation was made which purported to reduce, as from a past date, the payments due to certain broadcasting stations from the revenue received from licence-fees. This regulation was considered by the High Court in the Broadcasting case and a majority decided against its validity. The part of that regulation which was particularly challenged in the High Court read as follows: -

This regulation shall be deemed to have commenced on 1st November, 1927.

This date was long prior to the notification of the regulation in the Gazette. The Government considers that it is desirable that a limited power should be given to make retrospective regulations, and it is proposed to amend section 10 of the 1904 act in this direction. The proposed amendment expressly provides that this power to make retrospective regulations is not to be exercised if the regulations would prejudicially affect the rights of any person - other than the Commonwealth or an authority of the Commonwealth - or impose additional liabilities upon him. This amendment will be found in sub-section 2 of proposed new section 48. This is so very definite that I shall read it for the information of honorable senators - (2.) Regulations shall not he expressed to take effect from a date before 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 an authority of the Common wealth) existing at the date of notification, would be affected in a manner prejudicial 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.

In addition to the granting of this power to make retrospective regulations in certain circumstances in future, the Government has decided to validate such of the retrospective regulations as may be affected by the decision in the Broadcasting case, but which did not prejudicially affect rights. It is not intended, however, that this provision should affect the rights declared by the High Court in the Broadcasting case, and provision has been made accordingly in clause 14 of the bill.

Another aspect of the regulationmaking power is dealt with in the proposed new section 48, under sub-section 5 of which regulations will be deemed to have been automatically disallowed in the event of a resolution for their disallowance not being withdrawn or otherwise disposed of within fifteen sitting days after notice of a resolution has been given. That has very little reference, or is of very little interest, to this chamber, because, as a matter of fact, motions for the disallowance of a regulation are given precedence; in other words they have to be dealt with at once. But in the House of Representatives it often happens that notice of disallowance is given; but it remains on the notice-paper and nothing is done about it. This regulation automatically provides that if nothing be done within fifteen sitting days the regulation will be disallowed.

Finally, there are several minor and consequential amendments concerning which it does not appear to be necessary to give any explanation at this stage.

The Government has not been unmindful of the discussion which took place when this bill was previously before the Senate. An amendment was tabled by an honorable senator to provide for certain precautions, as it was thought, in connexion with the issue of regulations; or to put it loosely, requiring that a regulation, before being made, should be certified by some officer of the Attorney-General's Department. As a matter of fact, at the time when this matter was" under discussion the subject of a closer scrutiny of regulations by the Attorney-General's Department was receiving attention. The result is that now all regulations which are to be promulgated must be submitted to the AttorneyGeneral's Department. This work has been allotted among officers of the AttorneyGeneral's Department, and departments which make regulations must present them to the Attorney-General's Department, where they are examined by officials who have specialized in particular phases of this work.


Senator McLeay - A very wise precaution !


Senator BRENNAN - That is so; in this respect the Government has yielded to the wise representations made by the honorable senator.


Senator Marwick - Why not provide for that in the bill?


Senator BRENNAN - Because it is unnecessary. The validity of a measure is not advanced one iota by affirming that it has been examined by legal authorities. In the long run, the courts will determine whether or not a regulation is ultra vires; but I can assure the Senate that every precaution will be taken to see thatall regulations made are within the authority given by the act under which they purport to have been made. I hope that this assurance will satisfy those honorable senators who offered opposition to the bill last session, and that the practice instituted at the express request of the Prime Minister (Mr. Lyons) and the Attorney-General (Mr. Menzies) will allay their scruples. I have outlined the general purport of the bill which I commend to the Senate as a measure that will be of great assistance to every practising lawyer, to members of Parliament, and also to the general public.







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