Opinion Number. 326



Key Legislation



I have carefully perused the opinion of Mr Dobbie, Solicitor-General of the State of Tasmania, and considered the objections which he raises to the proposed joint proclamation and joint regulations.

Mr Dobbie's grounds of objection are, shortly:

  1. That the proposal is wrong in principle, because the spheres of activity, legislative and executive, of the Commonwealth and State Governments, are essentially separate and distinct from one another.
  2. That the State Electoral Act does not authorize the Governor to join with the Governor-General in issuing the proclamation and in making the regulations.
  3. That it is unnecessary, as the desired result could be equally well brought about by separate but identical proclamations and regulations.
  4. That separate action is therefore preferable, as no objection could then be taken on the sjcore of irregularity, and an undesirable innovation would be avoided.

I may say at the outset that I fully appreciate the weight of Mr Dobbie's reasoning, and that the points which he raises pressed themselves very forcibly on me when the drafts of the joint documents were first presented to me for settlement. Careful consideration, however, satisfied me that the difficulties were not insuperable; and that joint action was not only desirable but could be effected in a way which would not be open to objection. The drafts appear to have come before Mr Dobbie without a full statement of the steps proposed to be taken to give them full force and validity; and I venture to hope that if they are resubmitted to him with explanations on this point, and with certain modifications in form suggested to me by his criticisms, he will find that his objections to the principle of joint action have been met.

With this preface, I will now proceed to discuss Mr Dobbie's objections seriatim:

  1. It is admitted that the functions of the Governor-General of the Commonwealth and the Governor of the State are entirely separate and distinct; but that does not prevent their co-operation and joint action in cases where that course is properly authorized. Such joint action is not unprecedented; e.g. in pursuance of the authority of a Convention, the British and French High Commissioners for the New Hebrides have made 'Joint Regulations'-see Commonwealth Gazette, 25 January 1908, p. 54; and doubtless Imperial and colonial history would disclose many other instances.
  2. In this case, the Electoral Acts of the Commonwealth and the States have respectively authorized the Governor-General and the State Governor to arrange together for the preparation, alteration, and revision of the Rolls, 'in any manner con-sistent with the provisions of this Act', jointly by the Commonwealth and the State (Commonwealth Electoral Acts 1902-1906, section 30; Tas. Electoral Act 1907, sec-tion 20). It appears clear that these provisions, distinctly contemplating as they do joint action by the Commonwealth and the State, and co-operation by the Governor-General and the State Governor for that purpose, remove any difficulty about the pro-priety of the course proposed so far as the general principle is concerned. So long as the action taken is consistent with both the Commonwealth and the State Electoral Acts, and is confined to the matters relating to the preparation, alteration, and revision of the joint Rolls, it is distinctly authorized by the Parliaments of the Commonwealth and of Tasmania.

  3. It is admitted that so far as the proclamation and regulations are to have statutory effect as proclamation and regulations under the State Act, their execution must com-ply with all the formalities of State law; and similarly to have statutory effect under the Commonwealth Act, they must comply with all the formalities of Commonwealth law. The proclamation would derive its validity as a State proclamation from being made by the State Governor in Council and published in the State Gazette; its validity as a Commonwealth proclamation from being made by the Governor-General in Council and published in the Commonwealth Gazette. The fact that the Governor-General joined in the proclamation could not affect its validity as a proclamation by the Gover-nor of the State-particularly in view of the provisions of the State Electoral Act as to joint action.
  4. Similarly with the regulations. In order to have effect as regulations under the State Act and the Commonwealth Act respectively, they would have to be gazetted or notified as required by the law of the State and the Commonwealth respectively- although as part of the 'arrangement' they might, so far as is consistent with both Acts, have effect independently by virtue of the provisions above set out. But I think that, to meet Mr Dobbie's criticisms and to place their validity as regulations beyond doubt, it would be advisable to add to the prefatory enacting words so as to make it clear that the Governor-General has made them to have effect, in relation to Commonwealth Rolls, as regulations under the Commonwealth Act, and that the Governor of the State has made them to have effect, in relation to State Rolls, as regulations under the State Act.

  5. As to the necessity for joint documents, I admit that it would be possible to carry out the arrangement by separate documents; but I think such a course would be fraught with grave inconvenience and even danger. It is to be remembered that State Rolls and Commonwealth Rolls are to be one and the same, and are to be prepared, altered and revised by the same officers. So far as possible, the same official acts, the same forms, the same processes, are to have effect in relation to the Commonwealth and the State; and it appears to me to be of the utmost importance that the officers, exercising jurisdiction under both Commonwealth and State, should as far as possible have to refer to one set of regulations only-not to two, substantially or even entirely identical sets.
  6. In view of these considerations, it appears to me that the novelty of the course proposed, so far as it is novel, is not only justified but called for by the novelty of the situation; that there is no possibility of any objection being successfully maintained to the proceedings on the score of irregularity; and on the other hand that the probability of irregularity in administration will be greatly reduced by the simplification of the duties of the officers.

[Vol. 7, p. 42]

(1) This opinion was endorsed