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Wednesday, 1 December 1965

Mr HUGHES (Parkes) .- Mr. Chairman,I cannot bring myself to agree with my friend, the honorable member for Moreton (Mr. Killen), on the point that he has just advanced. His suggestion is that sub-clause (4.) of the clause now before us will in some way infringe some rule of law. He mentioned the well known fact that this provision has its counterpart in many Commonwealth statutes. He conceded that, but he seemed to suggest that some fundamental rule of common law will be infringed by a provision such as the one now being considered by the Committee. In truth, the principle expressed in the sub-clause is but a reflection of a common law principle of very great antiquity. In an article by Sir Owen Dixon entitled " De Facto Officer " - that is the subject with which the subclause deals - which is printed in volume I of " Res Judicatae ", at page 286, we find a reference to the matter in these terms - an independent principle which can be traced as far back as the Lancastrian period at least.

That is old enough for any keen common lawyer, I think -

Under that principle the acts of an officer de facto done in the apparently regular execution of his office have equal force and effect with those of an officer de jure when they concern the rights and duties of the subject.

That is the principle to which Sir Owen Dixon adverted in this learned publication. Therefore, I disagree with the suggestion of the honorable member for Moreton that some basic principle of the common law will be infringed. It would be more accurate to say that this sub-clause merely reflects and restates in statutory form an ancient common law principle. I see no objection to it.

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