Opinion Number. 1504

Subject

defence regulations regulations under defence act: time when regulations come into effect: notification in gazette: ‘thereupon’: effect of provision that regulations come into operation ‘forthwith’: retrospectivity to date of making of regulations by governor-general: retrospectivity to some other date

Key Legislation

DEFENCE ACT 1903 s 124 : RULES PUBLICATION ACT 1903 ss 3(1), 4 : ACTS INTERPRETATION ACT 1901 s 10

Date
Client
The Secretary, Department of Defence

The Secretary, Department of Defence, has forwarded to me for advice the following communication:

With reference to your Opinion No. 159 of 1930, of the 18th September, 1930(1), on the above subject, and to the opinion of the Commonwealth Crown Solicitor forwarded therewith, I desire to forward for your information and for favor of advice a copy of a memorandum received from the Judge Advocate General of the Military Branch of this Department, in which he expresses certain views as to the procedure that should be adopted in making regulations under the Defence Act 1903–1927. As the proposals suggested therein apply equally to regulations made under other Commonwealth Acts of Parliament, including the Rules Publication Act 1903–16, the question is referred as to whether, in the opinion of your Department, the existing procedure for the making of regulations under the Defence Act 1903–1927 should be departed from. In forwarding your reply, it would be appreciated if the procedure that, in the opinion of your Department, should be followed, could be outlined.

It will also be noted that the Judge Advocate General expresses the opinion that regulations should have effect from the date of gazettal only. As this view is contrary to that expressed in the opinion of Commonwealth Crown Solicitor dated 18/9/1930, (above referred to) action is being taken in this Department to give effect to regulations from the date of approval thereto by the Governor-General in Council.

The memorandum of the Judge Advocate General reads as follows:

  • Formerly, the Rules Publication Act, 1903, (No. 18 of 1903) required that, at least sixty days before the making of regulations, notice of the proposal to make the regulations, and of the place where copies of the draft regulations might be obtained should be published in the Gazette, Sec.3(1); but provided that, where the Governor-General certified that, on account of the urgency or any special reason, any regulations should come into immediate operation, he might make the regulations ‘to come into operation forthwith’ as provisional regulations.
  • Reading section 3 and 4 of the Rules Publication Act 1903, with section 124(2) of the Defence Act, it is clear, I think, that when, before the repeal in 1916 of section 3 and 4 of the Rules Publication Act 1903, regulations under the Defence Act were made to ‘come into operation forthwith’ they came into operation on notification in the Gazette.

    Since the repeal of section 3 and 4 of the Rules Publication Act, 1903, the use of the words ‘to come into operation forthwith’ has been unnecessary and inadvisable, as tending to create doubts as to their effect, but the use of the words has not been discontinued. Regulations must necessarily come into operation on notification in the Gazette, D.A 124(2).

  1. I therefore make the following recommendations, viz:
    1. That in making regulations under the Defence Act, 1903–1927, no time at which they are to come into operation be expressed; and
    2. That if it be considered necessary to give any such regulation a retrospective operation, the intention be expressed in the body of the regulations, and not in the introductory enacting part.

    A retrospective provision should, of course, be framed to suit the circumstances of the case, but the following would often suffice.

    ‘This regulation shall operate as if it had been notified in the Gazette on the … day of … 19 …’.

  2. I also recommend that, in announcing regulations in Australian Army Orders, the word ‘Dated’ be substituted for the word ‘Approved’.
  3. Mere approval of a regulation has no effect, it is signature by the Governor-General, plus notification in the Gazette, that is effective. The date is evidence of the day on which the signature was affixed.

Section 10 of the Acts Interpretation Act 1901–1930 is as follows:

10. Where an Act confers power to make Regulations, all Regulations made accordingly shall, unless the contrary intention appears–

  1. be notified in the Gazette;
  2. take effect from the date of notification, or from a later date specified in the Regulations;
  3. be laid before each House of the Parliament within fifteen sitting days of that House after the making of the Regulations.

But if either House of the Parliament passes a resolution of which notice has been given at any time within fifteen sitting days after such regulations have been laid before such House disallowing any regulation such regulation shall thereupon cease to have effect.

Section 124 of the Defence Act 1903–1927 provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for securing the discipline and good government of the Defence Force, or for carrying out or giving effect to the Act. Sub-sections (2), (3) and (4) of section 124 read as follows:

(2) All regulations shall be notified in the Gazette and shall thereupon have the force of law.

(3) All regulations shall be laid before both Houses of the Parliament within fourteen days after the making thereof if the Parliament be then sitting, and if not then within fourteen days after the next meeting of the Parliament.

(4) If either House of the Parliament passes a resolution, at any time within fifteen sitting days after any regulation is laid before it, disallowing any such regulation, that regulation shall thereupon cease to have effect.

In my view, regulations made under the Defence Act are to be made in accordance with section 124 of that Act and section 10 of the Acts Interpretation Act 1901–1930 would not be applicable to such regulations. The regulations, when made, are to be notified in the Gazette and thereupon they have the force of law.

According to the Oxford English Dictionary ‘thereupon’ means ‘upon that (in time or order); on that being done or said; (directly) after that’. In Strouds’ Judicial Dictionary it is stated that it is as nearly accurate as possible to say that, in its primary sense, ‘thereupon’ is the equivalent of ‘immediately’ (Vol. III p. 2047).

In my opinion, therefore, the regulations made under the Defence Act do not have any effect until notified in the Gazette. If, however, the Statutory Rule provides that the regulations made thereby are ‘to come into operation forthwith’, I think that the regulations would have retrospective operation to the date when the Governor-General made such regulations, and that they would take effect from such date.

I think that the regulations made in accordance with the provisions of section 124 of the Defence Act are effective from the date of notification in the Gazette, except where such regulations are expressly stated to come into operation forthwith or to come into operation from a certain date. If it is not desired that regulations should operate as from the date when made by the Governor-General, the words ‘to come into operation forthwith’ should be omitted from the Statutory Rule by which they are made. If, on the other hand, it is considered advisable to give to regulations retrospective operation by providing that they are to operate as from a certain date in the past, I see no reason for departing from the present practice of making provision for such in the enacting words of the statutory rule.

[Vol. 25, p. 524]

(1) Opinion not found.