MINISTERIAL APPROVAL WHETHER TERMS OF CONTRACTS MAY BE APPROVED GENERALLY : ONUS OF PROOF : MODE OF PROOF
CONTRACT IMMIGRANTS ACT 1905, s. 5
The following memorandum has been referred by the Secretary to the Department of External Affairs to me for advice:
Attention is invited to the enclosed letter from the Premier Manufacturing Company, and the newspaper cutting attached thereto.
2.The present practice in dealing with applications for approval of contracts proposed to be made with a number of persons abroad for service in the Commonwealth is as follows:
A draft copy of the agreement proposed to be entered into with, say, 12 cabinet-makers, is submitted to the Minister, and if he considers its terms satisfactory he grants his approval in the matter. A letter is then written by me to the employer intimating that the Minister 'has granted the necessary approval in this matter', and asking that a copy of the completed contracts to be entered into shall be forwarded as soon as possible.
Where the terms and conditions of the agreements entered into are exactly the same, only one copy of one individual agreement is obtained to meet the requirements of the Contract Immigrants Act, and an intimation is generally made by the employer that the agreements entered into with the other employees are the same.
3.It will be observed that in the case which has now come under notice the magistrate would not accept the letter from this Department as the necessary approval under the Contract Immigrants Act, thus indicating that the agreement in question was void.
4.I shall be glad to be favoured with advice as to whether it is necessary for a copy of each individual agreement to be furnished, e.g. in the case of 500 labourers introduced for the sugar industry, where the terms of engagement are the same in each instance; also whether it is necessary to have the Minister's approval endorsed on each original agreement.
Under the Contract Immigrants Act 1905 it is not necessary for the Minister to ex-press his approval of the terms of a contract in any particular form. Thus he could, if he chose, express his approval by word of mouth only.
The Act does not require the Minister to approve of each contract separately. What he has to approve of is the terms of each contract. Therefore when a number of con-tracts contain the same terms, one approval of the terms would be sufficient for all, pro-vided that all the contracts can be connected with the approval.
Thus when it is desired to introduce a number of immigrants under precisely the same form of agreement, it would be sufficient if a form of the intended contract were filed with the Minister and he were to approve of the terms of it, but the number of im-migrants which the approval is intended to cover should be definitely fixed at the time.
I am of opinion therefore that it is not necessary for each individual agreement to be furnished, e.g. in the case of 500 labourers introduced for the sugar industry, where the terms of engagement are the same in each instance, and that it is not necessary to have the Minister's approval endorsed on each original agreement.
There appears to be ground for doubting the correctness of the magistrate's de-cision in the case mentioned. A higher Court would probably hold that, under the cir-cumstances of the case, it was not incumbent on the prosecutor to prove affirmatively that the Minister's approval had been given, but that it lay on the defendant if he desired to set up want of approval, to prove it.
As the Act makes no provision for proving whether or not a contract has received approval, cases might arise in which it would be necessary to put the Minister in the witness box to prove the point. This is undesirable and I would suggest for consider-ation that it might be desirable to amend the Act by making a certificate of the Sec-retary to the Department evidence of the fact of approval or want of approval.
[Vol. 10, p. 170]
(1)Date in Opinion Book incomplete.