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Wednesday, 4 December 1935

Senator Sir GEORGE PEARCE (Western Australia) (Minister for External Affairs) [10.7]. - When I asked for leave to continue my remarks on this motion, I promised to secure an opinion from the

Crown Law authorities because it is most important that the legal aspects of the committee's report should be clearly explained to honorable senators. I have now received that opinion which is as follows : -

The report of Standing Committee on Ordinances and Regulations deals, inter alia, with the following matters, namely: -

(   1 ) The making of retrospective regulations.

(2)   The making of regulations containing provisions in relation to the onus of proof in legal proceedings.

Retrospective regulations.- Most regulations made under Commonwealth acts are subject to section 10 of the Acts Interpretation Act 1904-1932, which provides inter alia that they shall take effect from the date of notification in the Gazette or from a later date specified in the regulations.

For many years it has been the practice in exceptional cases to provide that regulations shall be deemed to have come into operation as from a date prior to the date of notification in the Gazette. For the most part these regulations have conferred benefits upon the persons affected, e.g. the granting of increments or allowances to various classes of officers, and it has not been the practice to insert such a provision where the regulations prejudicially affect existing rights or impose liabilities.

Some time ago, however, a wireless regulation was made which purported to reduce, as from a past date, the payments due to certain broadcasting companies from the revenue received from licence fees. The validity of the regulation was challenged, and the matter was litigated in the High Court. In its judgment the majority of the court decided that the provisions of section 10 of the Acts Interpretation Act did not permit the making of retrospective regulations under acts in relation to which that section applied.

It has always been the policy of the AttorneyGeneral's Department to discourage the making of retrospective regulations. This is borne out by the fact that, in October. 1934, general instructions were issued by that department toall Commonwealth departments, in which the following statement appears: -

As a general rule, it is not advisable to attempt to make regulations having retrospective operation.

Prior to the circulation of the report of the Standing Committee on Ordinances and Regulations, the Attorney-General's Department issued general instructions to all departments to the effect that, in view of the decision in the broadcasting company's case, the practice of making retrospective regulations should be discontinued.

The provision which was declared void by the High Court in the broadcasting company's case read as follows: -

This regulation shall be deemed to have commenced on the 1st November, 1927 (a date prior to the notification of the regulation ) .

The principles of that decision apply only in cases where a statutory rule contains such a provision.

Some of the statutory rules specified in the committee's list contain such a provision. Others do not. The decision is not applicable to the latter class. It is quite clear that some of them are not retrospective.

Particular attention was drawn by the committee to Statutory Rules 1935, Nos. 54 and 58.

As the Statutory Rules, 1935, No. 54. it is clear that the decision in the broadcasting company's case does not apply to this Statutory Rule. There are two reasons for this -

(   1 ) The regulation does not contain a provision corresponding to that declared invalid in the broadcasting company's case, i.e. that it should be deemed to have come into operation on a date prior to notification in the Gazette; and

(2)   Section 10 of the Acts Interpretation Act does not apply to that statutory rule, because section 10 applies only where a contrary intention is not expressed in the particular act authorizing the making of regulations. Statutory Rules 1935, No. 54 was made under the Commonwealth Public Service Act, which contains an express provision relating to the date of commencement of regulations made under that act (see section 97 (2.)) and so indicates that Parliament did not intend section 10 of the Acts Interpretation Act to apply to such regulations.

The other statutory rule to which particular attention was drawn by the report was Statutory Rules 1935, No. 53. This statutory rule deals with proceedings instituted by the War Service Homes Commissioner for the recovery of a dwelling house in cases where a purchaser or borrower fails to comply with the terms and conditions contained in his contract or mortgage. The regulation provides that in such proceedings a. certificate by the War Service Homes Commissioner, or his delegate, or an authorized person, in respect of certain facts shall be prima facie evidence of those matters. The regulation is made to apply to proceedings whether commenced before or after making of the regulations.

Briefly, the facts to be certified are -

(a)   that the person purchased the dwelling house from the Commissioner, or received an advance, as the case may be;

(b)   that he subsequently entered into possession of the dwelling house;

(c)   that he failed to comply with the prescribed terms and conditions in the respect or respects specified in the certificate; and

(d)   that the war service homes Commissioner has determined the tenancy. The committee cited this regulation as one of the most conspicuously retrospective regulations. As a matter of fact, it is not retrospective. It applies only in proceedings which take place after the notification of the regulation in the Gazette. It applies in such proceedings, however, notwithstanding the fact that the action itself may have been commenced before the regulations were made. In this respect, however, the regulations are merely declaratory of the legal position which would have existed even if no express provision had been inserted in the regulation. The position is stated in Crates on Statute Law as follows: - "A statute cannot be said to have a retrospective operation because it applies a new mode of procedure to suits commenced before its passing." In other words, if a statute deals merely with the procedure in an action, and does not affect the rights of the parties, " It will be held to apply prima facie to all actions, pending as well as future."

The committee also stated that this regulation contained an undesirable provision authorizing a new form of evidence. This regulation does not authorize a new form of evidence. The following statement appears in Phipson on Evidence (seventh edition, page 324) as to this class of evidence: - " The certificates, letters or returns of public officers, intrusted by law with authority for the purpose, arc prima facie, but not generally conclusive, evidence of the facts authorized to be stated, but not of extraneous matters . . . The ground upon which such documents arc admitted is that where the law has appointed a person to act for a specific purpose it will trust him so far as he acts under his authority."

Many instances could be found of provisions in Commonwealth legislation authorizing the giving of evidence in this way. It should be sufficient, however, . to refer to section 6 of the Evidence Act 1905, which provides for the giving of a certificate by an officer as to the contents of books and documents in his custody, and to regulation 23 of the War Service Homes Regulations, which provides that a certificate by the War Service Homes Commissioner as to the rates, taxes, charges, assessments, or outgoing due on a property shall be prima facie evidence of the fact, stated in the certificate.

The position with regard to two regulations which are referred to in the report as "most conspicuously retrospective" is therefore that one of them is not covered by the decision in the broadcasting company's case and the other is not retrospective.

Another instance of a statutory rule contained . in the list in paragraph 2 of the report, which is not retrospective is Statutory Rules 1035 No. 0. This is an amendment of the Waterside Workers' Regulations, and it provides for the payment of a fee of £11s. per sitting to members of the Waterside Employment Committee, and authorizes payment of this fee to be mode in respect of meetings of the committee held after the 12th April, 1934. The regulation authorizes the payment of fees in respect of some meetings held prior to the making of the regulation, because the members of this committee had rendered valuable service in an honorary capacity, and the most difficult part of the committee's duties was performed by a series of meetings held during the mouths of April, June, July, and August. It was considered reasonable, therefore, that the members of the committee should receive payment for the services rendered by them at these meetings. The total amount payable in respect ofsuch fees wasless than £30.

The main point, however, is that this regulation was not a retrospective regulation in the true sense of the word. The position is stated inCraies Statutory Law, at page 324, as follows: - "A statute is to be deemed to be retrospective which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past." But a statute " is not properly called retrospective merely because a part of the requisites for its operation is drawn from a time antecedent to its passing."

It is quite clear that this regulation comes within the last sentence which I have quoted, namely - " A statute is not properly called retrospective merely because a part of the requisites for its operation is drawn from a time antecedent to its passing."

It is also quite clear that this regulation is not affected by the decision in the broadcasting company's case.

It was submitted in the committee's report that the Government should withdraw or disallow the statutory rules specified in the list in paragraph 2 of the report. The Government has considered this suggestion, but has decided that it is impracticable. Such a suggestion could not be carried out by regulation because the regulation itself would necessarily have retrospective operation, and would therefore be invalid. I have referred to some of the statutory rules contained in the list set out in the report to which the decision in the broadcasting company's case is not applicable, and 1 understand that there are others in the list which are not affected by it. It is true, however, that the principles of the decision are applicable to some of the statutory rules in the list, and that there are also other statutory rules, made over a long period of years, which might be affected by those principles.

I venture to say that it will be found upon examination that, whenever regulations have been made to operate retrospectively, there has been good reason for doing so. Asa rule, regulations have been made to operate retrospectively only in cases where they confer a benefit, and not in cases where they prejudicially affect existing rights. It must also be remembered that it is probable that in all oases where retrospective regulations have been made, the retrospective portion of the regulations has ceased to operate. It seems to the Government, therefore, that the cancellation of these provisions at this stage would lead only to chaos and injustice, and it is thought that the better course would be to pass a general validating measure, in which provision would, of course, be made to protect the rights declared by the High' Court in the broadcasting company's case. It was hoped that it would be possible to introduce an amendment of the Acts Interpretation Act before the end of this week, in order to deal with this matter; but, as it was found -that a number of other amendments of the act were desirable, it was decided to defer the introduction of such legislation until the Senate re-assembles after the Christmas vacation, and then to introduce a comprehensive bill incorporating in the main Acts Interpretation. Act the provisions of the supplementary Acts Interpretation Act 1904-1934, as well as the other necessary amendments. A full opportunity will be afforded to honorable senators to debate the validation of the statutory rules dealt with by the committee in its report.

In these circumstances I suggest to the Senate that further proceedings on this motion be deferred.

There is, however, one other matter in the report of the committee to which reference should be made. In paragraph 8 of its report the committee draws attention to Statutory Rules 1935, No. 93, and expresses the opinion that there is no authority in the act to make this regulation, which, it contends, trespasses unduly upon personal rights and liberties. This regulation relates to unauthorized connexions with the telephone system. The object of the regulation is to prevent the " tapping " of authorized telephone lines. Where the department finds unauthorized equipment for this purpose upon any premises, it is, of course, open to the occupier of the premises to allege that such equipment was placed there without his authority, and, in such a case, it would be difficult for the- department to prove the contrary. The matter is one which is particularly within the knowledge of the defendant, and it seems reasonable,, therefore, to place upon him the onus of satisfying the court that he did not authorize the interference with the telephone line upon his premises. It is quite a recognized principle of the law that a person should have thrown upon him the onus of proving facts within his own knowledge.

With reference to the statement made by the committee, that there is no authority under the act for the making of such a regulation, I am advised by the law officers that, in their opinion, the Post and Telegraph Act provides ample authority to do so.

Debate (on motion by Senator Foll) adjourned.

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