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Thursday, 15 December 1983
Page: 3860


Senator HARRADINE(12.32) —I move:

That the Electoral and Referendum Regulations (Amendment), as contained in Statutory Rules 1983 No. 274 and made under the Commonwealth Electoral Act 1918 and the Referendum (Constitution Alteration) Act 1906, be disallowed.

I seek leave to incorporate in Hansard a document which I have shown to honourable senators.

Leave granted.

The document read as follows-

DISALLOWANCE OF AN INVALID REGULATION

On 25 August 1983 Mr President was supplied with an undated opinion of the Attorney-General's Department (copy attached), which is to the effect that it is not possible for the Senate to pass a motion disallowing regulations which have been held to be invalid by the High Court. The Attorney-General subsequently took a point of order to this effect in the Senate, but no ruling was made in response to the point of order, and the notice of motion to disallow the regulations in question was withdrawn.

Neither the opinion nor the debate in the Senate adduced any authority to support the proposition that an invalid regulation may not be disallowed, except the argument that because such a regulation is a nullity, there is nothing for the Senate to disallow.

It is clear that a resolution of the Senate disallowing a regulation which has been held to be invalid would have no effect on the actual state of the law. A disallowance motion means that the disallowed regulation ceases to have effect from the time of disallowance (sub-section 48 (4) of the Acts Interpretation Act ), and a regulation held to be invalid is one which has had no effect at all. It may be argued, however, that an invalid regulation still has some residual existence, even though it has no force or effect, and that it is, so to speak, ' 'still on the statute book''. A resolution of disallowance passed by the Senate would, in this argument, have the effect of depriving the regulation of that residual existence and ''removing it from the statute book''. If this is so, it would be quite proper for the Senate to pass a resolution disallowing an invalid regulation.

There appears to be no precedent for either House of the Parliament disallowing a regulation which has been held to be invalid.

Sub-section 48 (6) of the Acts Interpretation Act provides that the disallowance of a regulation shall have the same effect as the repeal of the regulation. If it is possible to repeal an invalid regulation, such repeal having the effect of depriving the regulation of its residual existence, and ' removing it from the statute book', it follows that it is also possible to disallow an invalid regulation, the disallowance resolution having that same effect as the repeal.

Cases of regulations made under Commonwealth Acts of Parliament being held to be invalid are not numerous. It is particularly rare in recent years for regulations to be held invalid, partly because the vigilance of the Senate Regulations and Ordinances Committee ensures that care is taken to see that regulations are in accordance with the Act under which they are made, and partly because Commonwealth legislation of dubious validity is more likely to be contained in Acts of the Parliament than in regulations.

Moreover, where regulations are held to be invalid, remedial action other than repeal may be taken. For example, in 1971 the High Court found the Dried Fruits Export Control (Election of Board) Regulations to be invalid (Willcocks v Anderson, 45 ALJR). Subsequently the Act under which the regulations were made was repealed and a completely new legislative scheme substituted.

Nevertheless, there have been cases of regulations being found to be invalid and subsequently repealed, which indicates that the executive government regarded those regulations as having some continued existence, notwithstanding their invalidity, which existence was terminated by the act of repeal. For example, in 1951 the High Court found a regulation under the Excise act to be invalid, and that regulation was subsequently repealed (Morton v Union Steamship Company, 83 CLR; SR 1953 No. 86). Similarly, in 1953 the High Court found a regulation under the Patents Act to be invalid and that regulation was subsequently repealed (Martin v Commissioner of Patents, 80 CLR; SR 1954 No. 56) .

If the opinion were correct, it would not be possible to repeal regulations held to be invalid, because the regulations would have had no existence; they would, as it were, be blank spaces in the volume of regulations. It is clear, however, that the executive government has not taken this view in the past.

It should be noted that the view contained in the opinion has also not been adhered to in relation to Acts of the Parliament; Acts and parts of Acts held to be invalid have also been repealed. Thus in 1975 the High Court held Sections 3, 4, and 12 (a) of the Representation Act to be invalid, and those sections were subsequently repealed (A.G. ex rel McKinlay v Commonwealth, 135 CLR; Representation Amendment Act 1977).

It may therefore be concluded that, just as invalid regulations may be repealed , they may also be disallowed by a House of the Parliament, either of those actions, repeal or disallowance, having the effect of terminating the existence of the invalid regulations.

AUSTRALIA

ATTORNEY-GENERAL'S DEPARTMENT

CANBERRA

Motion for disallowance of World Heritage (Western Tasmania Wilderness) Regulations No. 31 of 1983

Attorney-General I understand that this matter is to come on this afternoon.

2. These regulations were made pursuant to s. 69 of the National Parks and Wildlife Conservation Act 1975. They were declared to be wholly invalid by a majority of the High Court in its decision of 31 July 1983. (Gibbs C. J., Wilson and Dawson JJ. found that s. 69 was not supported in relevant respects by the external affairs power and Deane J. found that the regulations, as amended by s. 19 (2) of the World Heritage Properties Conservation Act 1983, involved an acquisition of property without provision of just terms).

3. The situation is, therefore, that as the High Court has found that the Governor-General had no power to make the regulations they are of no effect. Therefore, there is nothing for Parliament to disallow. This means that the provisions of the Acts Interpretation Act 1901 ss. 48 (as amended by Act No. 26 of 1982), 49 and 50 concerning the effect of disallowance have no application. If the Senate were to purport to disallow the 'regulations' its own action would be without effect.

4. Although the motion for disallowance is therefore misconceived, other statutory instruments made pursuant to the World Heritage Properties Conservation Act 1983 are in force and subject to disallowance. Except for those instruments held to be invalid by the High Court, these instruments remain in force and are needed to ensure that construction of the Gordon-below-Franklin Dam remains illegal.

5. In case a general debate on this matter should ensue, I attach a copy of your second reading speech on the World Heritage Properties Conservation Bill 1983. I have marked some passages that might be relevant to a general debate. These passages concern the new Act and are not relevant to regulations made under the National Parks and Wildlife Conservation Act.

G. P. M. DABB Senior Assistant Secretary Constitutional and International Branch Advisings Division