STATUTORY RULES EFFECT OF PASSING EXECUTIVE COUNCIL MINUTES FOR MAKING : ABSENCE OF GOVERNOR-GENERAL : PRACTICE IN REGARD TO DATING
The Secretary to the Department of Defence has forwarded the following memor-andum to me for advice:
I should be glad to be favoured with an opinion relative to the accompanying copies of Order in Council and Statutory Rule, from which it will be noted that the former was ap-proved by the Executive Council on 17 July 1912 'to come into operation forthwith' and the latter also making the regulation 'to come into operation forthwith' was signed by His Excellency the Governor-General on 18 July 1912.
Many similar cases now arise and I shall be glad to be advised as to whether the prac-tice followed by this Department, viz. to date the Statutory Rule to correspond with that on which the Order in Council was passed by the Executive Council, is legally unobjectionable.
Where, under an Act, the Governor-General is the rule-making authority, a Statu-tory Rule under that Act has to be made by him. In the making of a Statutory Rule the Governor-General acts on the advice of the Executive Council, but it is the Governor-General, and not the Executive Council who makes the Statutory Rule.
The document referred to in the memorandum as an Order in Council is not really an Order in Council, but is an Executive Minute or record of a resolution or decision of the Executive Council.
The passing of an Executive Minute for the making of a Statutory Rule would not in itself have the effect of making the Statutory Rule, more particularly in cases where the Governor-General was not present at the meeting of the Executive Council at which the Minute was passed. Some further action has to be taken and, in accordance with the usual practice, that action is the signing by the Governor-General, of the form of enacting words set out at the head of the Statutory Rule. Therefore the date on which the Governor-General signs that form is the date which ought to be inserted in the Statutory Rule as the date thereof.
I am of opinion therefore that the practice followed by the Defence Department, viz. to date the Statutory Rule to correspond with the date on which the Executive Minute was passed, is not legally unobjectionable.
[Vol. 10, p. 333]