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Thursday, 14 September 1972
Page: 850


Senator BYRNE (Queensland) - I think that it is important in relation to a matter of such consequence that the attitude of the component parties in the Senate should be disclosed as early as possible so that the Senate will know the disposition of members of the parties in their approach to this very important matter. I am, and I think the Senate is, indebted to Senator Durack for his scholarly analyses of the whole situation which is involved in the invalidation of the particular ordinance and the consequence that flows on to other ordinances in the Australian Capital Territory and for his historical references to similar situations that have arisen elsewhere. Senator Murphy said that it is strange that great questions are often decided on small matters and sometimes involve inconspicuous people. That is very true. It is also extraordinary how history has a habit of repeating tself. On this occasion we face a situation in which an ordinance which was subject to disallowance in this place was not disallowed and was promulgated. It turns out to have been incorrectly promulgated and therefore has been invalidated by the courts.

I do not agree with that judicial deci sion. On the contrary, I feel that it is not improbable that had the matter gone to a higher court the decision might have been overruled. But we face the situation as it is and the Government must move with all speed to correct the consequences of such a decision involving as it does the life, property and welfare of people innocently involved in what has been an administrative mistake. This situation recalled to me a similar situation that arose many years ago when I was in the Senate on the last occasion. I have taken the trouble to go back and look at the parliamentary records of that incident because it has an uncanny parallel to the present situation. Senator Wright who is sitting at the table will recall this incident because he was involved in it as a member - a most valuable and effective one - of the Regulations and Ordinances Committee-


Senator Mulvihill - Was he a rebel in those days?


Senator BYRNE - Senator Wright has always been an intellectual rebel and sometimes - not always - a political rebel. Senator Wright, on recollection and reference. will probably recall the incident. It involved regulations purporting to be made under the Air Force Act 1923-1956 and statutory rules governing the operation of Air Force canteens. I will read what happened from the parliamentary Hansard of that time when it was found necessary to introduce a Bill because of the situation that had arisen. Senator O'sullivan of Queensland who was the then AttorneyGeneral had this to say in his speech on the Air Force (Canteens) Bill 1957:

The purpose of this bill is to validate the Air Force (Canteens) Regulations, which became void on 10th October, 1957, because they had not been tabled in the Parliament.

The Regulations, being Statutory Rules 1957, No. 48, were made by the Governor-General on 31st August, 1957, and came into operation on the following day, 1st September, 1957. Section 48 (1.) of the Acts Interpretation Act requires, amongst other things, that regulations should be laid before each House of Parliament within fifteen sitting days of that House after the making of the regulations, and sub-section (3.) provides that if any regulations are not laid before each House in accordance with sub-section (1.), they shall be void and of no effect. The Air Force (Canteens) Regulations, through a departmental oversight, were not tabled within the time prescribed by law, and consequently they ceased to exist as valid law from and including 11th October, 1957. I mention here that, owing to the frequent occasions on which regulations had previously been omitted to be tabled, my department undertook, some ten years ago, the responsibility for tabling statutory rules. This is the first time since then that an omission has occurred. The administrative procedure for tabling has been further strengthened, and it is highly unlikely that a similar omission will occur in the future.

The regulations under consideration replaced a previous set of regulations, . . .

The Attorney-General then continued-


Senator Mulvihill - Who was he?


Senator BYRNE - He was Senator O'sullivan. He continued:

The omission to table was only recently noticed, but the Royal Australian Air Force Canteens Service Board, as constituted under the lapsed regulations, has been carrying on its activities under the statutory authority that the regulations purport to provide. It is essential, therefore, that remedial action be taken to replace the statutory authority that has lapsed. 'Retrospective legislation is necessary and I am advised by my department, and concur in the advice, that the proper method of approaching the problem is by act of Parliament and not by a fresh set of regulations which, through the necessity for retrospective operation, could not be made consistently with section 48 of the Acts Interpretation Act. The regulations were avoided by act of Parliament, and as the law at present stands they must be restored by the same means

Firstly, there are some lessons to be learnt from that. When the Attorney-General (Senator Greenwood) and his Department is charged, and charged in a particularly violent manner, with gross administrative incompetence, it is interesting to recall that these situations in the mass of administrative detail can occur. The one referred to there was a serious one. But it was pointed out that it was the first time that anything of that nature had occurred in many years. Whether there was any departmental failure on this occasion is quite another matter because, as has been pointed out, the decision of their Honours was on a highly technical point. I strongly doubt whether anybody would charge administrative incompetence against the Department where the basis of the matter rested finally on the judicial attitude to a highly technical departure from a requirement in a statute or in an ordinance under a statute. Therefore, I think that firstly it is salutary to make this comment, based upon what I read of the history of the other matter: This is something that is likely to occur and that has occurred in the past. Of course, the second point is that the Air Force Canteens Regulations which were the ones in question and which became involved were regulations which imposed certain duties and created certain rights in relation to the conduct of canteens. A Board was created and the power was conferred on that Board to maintain and operate the canteens service and to do these things:

(a)   purchase, lease, hire, or otherwise acquire property;

(b)   sell goods and merchandise, and supply and provide services, entertainment and other amenities;

(c)   accept gifts and donations of money, and other property;

(d)   open, conduct and close canteens, airmen's clubs, cinemas, and other institutions and facilities;

(e)   dispose of land, buildings, stock, plant, equipment and other property acquired by, or vested in, the Board;

(f)   invest money in securities of, or guaranteed by, the Government of the Commonwealth or of a State;

(g)   act as the agent, in the establishment and operation of a canteen, service . . .

(h)   make contributions in the form of gifts or advances of cash or in any other convenient form to persons or committees, . .

(k)   do anything which is incidental to any of its powers.

In other words, that statutory rule gave an opportunity for the creation of a multitude of legal relationships and legal situations. Of course, the moment that this statutory rule was found not to have been tabled and so ipso facto inoperative and invalid, those legal relationships aggregating over the years, acted upon, affecting the lives of people who had committed their future, money and talents, came under grave doubt. It was therefore necessary for the Government to move quickly to validate the ordinances and to put those people in the position in which they would have been had the ordinance originally been tabled in the Parliament as it should have been to comply with the statute. In the first place I think it must be made clear - the Attorney-General and Senator Durack have attemped to make this clear but apparently there is still a misconception - what is the difference between retrospective legislation and the retrospective validation of legislation.

While this misapprehension occurs there will be considerable concern as to the effect of this Act in its retrospective application. After all, if I make up my mind on 1st January to create a legal situation and if I discover on 1st July that due to some technical defect I have not done so, I then set out to establish the position as it was intended to be on 1st January and as those who thought that it had been established had acted in pursuance of it in the intervening time. That is a validation procedure. But if I do not make up my mind until 1st July to create a legal situation, and having done that I then purport to make it operate as from 1st January of that year, that is a retrospective enactment. These things are altogether different. Obviously in this case this is purely a validation of an intention manifest at the time which by an operative misprocedure was not validly executed. When the statute caveat was brought into this place to validate these regulations relating to the Air Force canteens which, as I say, due to tabling were found to be invalid, the Act went on in these terms:

An Act relating to the Air Force (Canteens) Regulations.

Honourable senators will remember that the regulations purported to operate originally under the statutory rule as from 31st August of that year. Section 3 of the Act states:

The Air Force (Canteens) Regulations (being Statutory Rules 1957, No. 148) are declared to be, and at all times on and after the first day of September, One thousand nine hundred and fiftyseven, to have been, of full force and effect, notwithstanding that they have not been laid before each House of Parliament in accordance with sub-section (1.) of section forty-eight of the Acts Interpretation Act 1901-1950.

This is precisely the position in which we find ourselves today. In 1957, an ordinance having been declared to be invalid for a reason other than the reason now before us, the Parliament for good and sufficient reasons found it necessary to introduce a validating Act and specified that it should operate as if the original ordinance had been validly presented and was validly operating.

An interesting debate occurred in the course of the presentation of that Bill. I had the pleasure of participating in it. After some minor research I discovered in a book by the late Mr Herbert Morrison - I think he became Lord Morrison - or the late Lord Attlee that a similar position had arisen in the House of Commons during the war, when it was decided to consolidate the fire-fighting regulations of the British Isles and particularly Scotland. It was a period of the war when Britain was virtually on her knees and large areas were in flames. It was decided to bring in a short 'Bill and then to have more extensive and more detailed regulations. By an oversight the regulations were not tabled in the House. As Lord Morrison said, this was not noticed by members of the House. It was not noticed by any peer. He then went on to say - and this is perhaps not altogether expected - that it was not noticed by the Press. Of course as a result of that oversight the regulations were invalid and it was necessary to introduce a Bill to validate them. The term is not used that it was an ex post facto validation. In Lord Morrison's book he refers to indemnity. It was necessary to bring in an indemnity, which was virtually the same thing. In other words, one indemnifies against the consequences of validating, which removes the undesirable consequence of the original invalidation.

We have 2 examples here. One is from the House of Commons which considered that this was the most proper procedure. Even though this was done in the most dire days of Britain it had to be done in democratic form. The Minister profusely and even obsequiously apologised to the House of Commons but action was taken by validating in a retrospective manner, precisely as this Act purports to do and as the Air Force (Canteens) Act did in 1957 as I pointed out earlier. The Air Force (Canteens) Regulations of 1957 purported to create rights, liabilities and responsibilities as do the ordinances which we are now trying to resurrect into legal, viable form. When that Bill came before this place it was not opposed by the Opposition. It was not opposed by Senator McKenna who was perhaps one of the most distinguished lawyers who has sat in this place. He was then Leader of the Australian Labor Party Opposition. He saw the point of the measure. He supported it. He asked for some qualifications about the actual content of the regulation but there was no dispute about the process of validation. Obviously that was accepted throughout the chamber as desirable, necessary, prudent and the only effective process. Therefore I am at some loss to understand the concern which is manifest in this case.

Today we are inclined to look at the rights of small groups in the community which seek to challenge in one way or another the ordinary processes of the community. Equally we are inclined to overlook trespass to the rights of the great numbers of people who are affected by such actions. What has been presented by the Opposition on this occasion is only another manifestation of this type of thing. I could imagine circumstances in which, if this Bill were not presented quickly, actions would lie against otherwise innocent people who in all good faith had gone about their duties and now could find themselves subject to action at law for wrongful arrest, false imprisonment or something else. I could imagine an impediment to plaintiffs in civil actions. For example, if there happened to be an ordinance in the Australian Capital Territory relating to the protection of machinery, and in a master and servant action a plaintiff alleged that a piece of machinery was not protected and therefore the master was in violation of an ordinance, such a claim would not now be available to him if the ordinance in question had been declared inoperative or invalid. In other words, the availability of statutory negligence would not be a cause of action which would be normally available to him and it would now be denied. As I see it, a whole series of consequences could flow from the action contemplated and the point of view propounded by members of the Australian Labor Party.

For those reasons the Australian Democratic Labor Party, as it did on the procedural motions, supports the rapid presentation of this Bill. We support the validation of that great inchoate body of ordinances not altogether known and certainly not known in detail. It would take a tremendous amount of time to dissect and establish the ordinances if that were the procedure to be relied upon. This is a blanket validation which will give the proclamation of all ordinances which may have been proclaimed in a now legally insufficient form. This Bill will give those ordinances that sufficiency of proclamation to comply with the requirements of the statute. The members of my Party think that this is a prudent, wise and just step. For those reasons we will oppose the amendment which will be moved during the Committee stage and which has been propounded by the Opposition. We support the Bill.







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