I have received your letter dated 18 November 1935 (No. 0.35/8629) in which you refer to advice given by my Department that certain draft Regulations submitted by your Department for revision were inconsistent with the Post and Telegraph Act, and consequently invalid.⁽¹⁾

I have given this advice very careful consideration and am unable to alter it in any way.

Paragraph (n) of section 97 of the Post and Telegraph Act provides that certain fees, rates and dues shall be prescribed. Section 3 defines ‘prescribed’ as meaning prescribed by the Act or the Regulations.

It is therefore the intention of the Act that any person who is contemplating subscribing to the telephone service, or who is a subscriber, may ascertain from the Act or Regulations the measure of his projected or actual obligations in respect of fees, rates or dues in respect of that service.

The intention of the Act is obviously defeated if the extent of the subscribers’ obligations is not measured by the Regulations but is to be determined by the Department or by some other authority.

The meaning of the word ‘prescribed’, as given by the Oxford English Dictionary, is ‘laid down, appointed, or fixed beforehand; ordained, set, defined’. A regulation in the terms for which you contend does not ‘lay down’, ‘appoint’, ‘fix beforehand’, ‘ordain’, ‘set’ or ‘define’. In fact, the very reason why the proposed regulation is framed in the manner to which objection has been taken is to avoid, for practical purposes, doing any of those things.

As far back as 1910, Sir Robert Garran advised your Department (Opinion Book 7, p. 356) as to the meaning of ‘prescribed’ (your file 09/6464G).⁽²⁾ Section 71 of the Post and Telegraph Act provides that the Master of certain vessels shall give not less than six hours notice of the intended time of departure and also provides that a shorter notice may be prescribed in certain cases. A draft regulation was submitted purporting to prescribe that the shorter notice should be such as was determined by the Deputy Postmaster-General of the State concerned. Sir Robert said,

I do not think the Act authorises a regulation in the form proposed. In order to be able to comply with section 71 the Master should know what notice he has to give, and I am unable to see how he could know unless the notice were expressly laid down by law.

Similar advice has frequently been given to other Departments, and in my ‘Directions for the guidance of officers engaged in the preparation of draft Statutory Rules’, circulated to all Departments on 25 October 1934, I said, in paragraph 3,

… if an Act provides that certain things are to be specified in regulations, this does not authorise the making of a regulation providing that they may be specified by the Minister or by any other authority.

The particular draft regulation which prompted your letter now under reply was one purporting to authorize, in certain cases, rebates of portion of the prescribed telephone charges to an extent determined by your Department. It was pointed out that the effect of the regulation would be–not to fix the charges for calls in respect of which rebates were to be allowed–but to authorize the Department to fix the charges. In this connexion I refer you to a case decided by the Court of Appeal in England in July last–Brown and others v. Monmouthshire County Cel (153 L.T. 9). The Act under consideration in that case provided that in certain cases of emergency doctors were to be called in and were to be paid for their services a sufficient fee with due allowance for mileage, according to a scale to be fixed by the Ministry of Health. A scale was duly fixed, but under one clause it was provided that no fee at all should be payable in certain specified cases. That clause was held to be ultra vires and invalid.

Romer L.J. in his judgment said (at p. 12),

In my opinion, the … Ministry of Health under that sub-section can only prescribe a scale which will apply generally to every medical practitioner who is called in pursuance of the liability imposed by the sub-section. In my opinion, the Ministry of Health has no power when prescribing a scale to discriminate between one medical practitioner and another. It would have no power for instance to say that a medical practitioner who bears the degree of Doctor of Medicine shall be paid at a higher rate than a medical practitioner who has taken a lower degree. Still less can the Ministry of Health say that a Doctor of Medicine shall receive less than those of lower degrees because his general run of patients are of a higher class than those of any other medical practitioner, and can afford to pay and do pay higher fees, so that the Doctor of Medicine can well afford to attend to those cases of emergency under the Act for a lesser fee. (The underlining is mine).

This case appears to be some authority for the view that the charges to be prescribed under paragraph (n) of section 97 must apply generally, and any system of rebates (particularly unspecified rebates) would be invalid.

Another objection to regulations in the form which you desire is this. When Parliament enacted that telephone charges were to be prescribed by regulation it must be presumed to have had in mind that if charges were prescribed to which it objected it could disallow the regulation prescribing those charges. Where the charges are fixed by the Department and not by the Regulations this power of disallowance cannot be exercised.

I also point out that under section 91 of the Act the power to resume possession of a telephone line for non-payment of charges exists only in respect of the prescribed charges.

Similarly, under section 93, the Postmaster-General may sue only for charges due under the regulations.

The legal position is as I have indicated, but I agree that from a practical point of view it may not permit that flexibility which is apparently essential in the conduct of the business of the Post Office. But considerations of practical convenience cannot alter the law, which can only be amended by Parliament.

The remedy appears to be an amendment of the Act to provide some means of fixing charges otherwise than by prescription by the regulations.

I have not thought it necessary to refer in detail to all the regulations relating to services for which the charges are not specified, but from a superficial examination they appear to be invalid. Neither have I thought it necessary to order an intensive search of our files to discover whether, as you suggest, those particular regulations were agreed to by my Department. If they were approved, I can only say that it was through an oversight. Although the law never sleeps it apparently may sometimes nod. I am not sure, however, that you are not asking me to encourage it to wink!

The current political tendency is to watch very closely the exercise of regulation-making power, and the Senate Committee on Regulations and Ordinances is quick to notice abuses of that power. As you probably noticed, the Senate recently disallowed a set of Regulations which it considered ultra vires, and section 10A of the Acts Interpretation Act 1901 precludes the making of similar regulations to take their place until six months have elapsed.

Apart from this aspect of the matter, however, I am sure that you will agree that it is of the utmost importance that proposed regulations submitted to the Governor-General in Council for approval should be within the power to make regulations conferred by Parliament.

[Vol. 28, p. 481]

(1) Opinion not found.

(2) Opinion [Vol.7, p. 356] not published.