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Wednesday, 13 September 1972
Page: 1313


Mr BROWN (Diamond Valley) - This Bill must be passed and the Leader of the Opposition (Mr Whitlam) in the course of bis remarks conceded that. The honourable member for the Australian Capital Territory (Mr Enderby) towards the end of his speech gave additional and more substantive reasons why it should be passed. That much should be beyond any doubt at all at this stage. As a result of the decision of the Australian Capital Territory Supreme Court a very serious state of affairs has arisen with respect to the operation of ordinances, regulations and other instruments in this Territory. All I want to do is to attempt to put the matter into perspective, in view, if 1 might say so, of some of the inflammatory remarks of the Leader of the Opposition on 2 occasions when he has spoken on this subject today. I want to put the matter into perspective just to see exactly what we will be dealing with when this Bill is passed to rectify this unfortunate situation which has arisen.

One way - and I do not pretend that it is necessarily of any vast substance - of putting this matter into perspective is to look at the number of arguments raised by the plaintiffs in the action in the Australian Capital Territory Supreme Court, other than the technical and formal arguments on which the case was eventually resolved. If honourable members read the judgment, as I hope they will, they will see that a number of arguments was raised by the plaintiffs. They will notice that first of all it was argued as a very basic proposition that section 12(1.) of the Seat of Government (Administration) Act was, to quote the words of Mr Justice Fox, 'so wide and general in its terms that it offends against a principle that it is for Parliament, and not the Executive, to legislate for the people of the Commonwealth'. That is a very basic and substantial argument which was raised by the plaintiffs but it was rejected by the court.

Then as a further submission it was argued that there was a provision of the Constitution that had been contravened, that section 52 (J .) of the Constitution contained a provision that the Parliament had exclusive power to make laws with respect to the Seat of Government and that that provision of the Constitution had not been complied with. That also was a very basic and substantive argument but it was also rejected. The third argument that was put on behalf of the plaintiffs was that because of the operation of section 12 of the Seat of Government (Administration) Act the ordinance was not in operation at all at the time. That again was a substantive argument, not a technical or formal argument, but it was rejected by the court. lt was further submitted that the ordinance did not apply to the land in question. One could not think of an argument of more substance than that in this case but it likewise was rejected. So too were rejected the other submissions that were raised by the plaintiffs, one submission being that the ordinance was invalid because it was unreasonable. After that was investigated the court likewise came to the same conclusion.

A further submission put on behalf of the defendants in the action was that the ordinance was not notified in the prescribed manner, that is, as prescribed under the Seat of Government (Administration) Act and therefore was not operative at the relevant time. It is here that we come to the gravamen of the issue that has been debated today. It is this argument that Mr Justice Fox rejected because in his view the notice that was originally contained in the Government Gazette stated with reasonable clarity that the ordinance had been made. So the issue was whether notification had been given that the ordinance in question had been made. The other 2 judges, of course, accepted the submission that was put on that particular argument. They decided that there was no proper notification as was required by the Seat of Government (Administration) Act.

It is on this matter, of course, that my friend and colleague, the honourable member for Moreton (Mr Killen), addressed some remarks. I want to refer to them because I think, with all respect to the honourable member, that he did not put enough emphasis on what, in fact, was contained in that original notification. It is true that the notification referred to what was described as the 'AGPS' which was described as being in Canberra, Melbourne, Perth and Sydney. But I do not think that honourable members should overlook the fact that the notification did also state that the ordinance could be obtained by post, as was indicated by the honourable member for Moreton, but, more particularly, by post from the Assistant Director, Sales and Distribution of the Australian Government Publishing Service. I would have thought that when one has that expression set out in full in the notice, it really detracts somewhat from the argument that was put by the honourable member for Moreton, namely, that when the initials of the organisation where the document can be purchased are given that is just a hollow and synthetic reference - a casual reference - to the place where the ordinance can be purchased. I just put that, as I said originally, to try to put some perspective on the matter; not to argue against the conclusion that was reached by the majority of judges in the case, but merely to put it into perspective.

The decision has been given and the court has held that this was not sufficient and adequate notice of the making of the ordinance or of the place where the copies could be obtained. It is important that it should be put into perspective. I say that both with respect to the notification and the indication that was given as to where a copy of the ordinance could be obtained. Let us remember again other things that were contained in the original unacceptable notification because the heading did state, after all - I quote from it:

Notification of the making of ordinances.

It did, after all, give the number of the ordinance; it did, after all, give the title of the ordinance and it did, after all, give the price of the ordinance. I would have thought that anyone just looking at it, from my own point of view, would, in fact, find his way to the Commonwealth Government Gazette. Anyone who, in fact, understood what the purpose of the general notice was in the Gazette could not have come to any conclusion, having read it, other than that this particular ordinance had been made, that it had this number, that it was priced at 10c and that it was available in the places which were referred to in the notice. But, as I say, I am not attempting to put it any higher than that because the court has held that this was not a notification which complied with the provisions of the Act and, of course, it was of no effect. But it is important to bear it in mind and to put it into perspective when one considers some of the things that have been said in the course of this debate so far.

Finally, and this is the only other thing that I want to say, I think it has been overlooked and deserves to be mentioned, and deserves to be emphasised, that this is a matter of formality and a matter of some technicality. It is true, beyond any doubt, that the operation of that technical objection was that the ordinance was not effective and was not in operation at the relevant time. But let us remember that it was a technical act to bring it into operation. Let us remember that, above all, when we hear comments such as some of those made by the honourable member for the Australian Capital Territory (Mr Enderby) about bringing laws into operation in the middle of the night in some sort of secret way. This is a technical matter that had to be complied with and it was not complied with on the original occasion. It should be remembered, above all, that this is as far as it goes. It certainly does not go - the court did not go as far as to say that anything went - -to the actual validity of the ordinance itself. So, I think it should be borne in mind, as 1 have said, that these are matters which should be put into perspective. It is as well to bear this in mind in view of the comments, some of which in my view were unfortunate, that have been made in the course of this debate.







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