Watson v Lee
Case
•
[1979] HCA 53
•23 October 1979
No judgment structure available for this case.
HIGH COURT OF AUSTRALIA
Barwick C.J., Gibbs, Stephen, Mason and Aickin JJ.
WATSON v. LEE
(1979) 144 CLR 374
23 October 1979
By-laws and Regulations—Constitutional Law (Cth)
By-laws and Regulations—Operation—Requirement to notify in Gazette—Availability for purchase—Effect on validity of non-compliance—Acts Interpretation Act 1901 (Cth), s. 48 (1)—Rules Publication Act 1903 (Cth), s. 5 (3)—Ordinances and Regulations (Notification) Act 1972 (Cth), s. 4 (1)—Banking Act 1974 (Cth), s. 4 (1)—Banking (Foreign Exchange) Regulations, regs 6, 42. Constitutional Law (Cth)—Powers of Commonwealth Parliament—Currency—Law prohibiting taking Australian currency or foreign currency out of Australia—The Constitution (63 &64 Vict. c. 12), s. 51 (xii.)—Banking Act 1974 (Cth), ss. 3, 4.
Decisions
October 23.
The following written judgments were delivered: -
BARWICK C.J. This case, stated for the opinion of the Court in an action removed into the Court pursuant to s. 40 of the Judiciary Act, 1903 (Cth), as amended, asks a number of questions:
1. Having regard to the provisions of the Rules Publication Act 1903 (Cth) as amended, and the facts herein set forth, particularly in pars 19 to 22 inclusive, and the information in the Schedule hereto, were regs 6 and 42 of the Banking (Foreign Exchange) Regulations operative at times relevant to the charges against Roger William Watson and Donald Gordon McLellan mentioned in par. 1 hereof?
2. Are ss. 3 and 4 of the Banking Act 1974 (Cth) valid laws of the Commonwealth?
3. Are regs 6 and 42 of the Banking (Foreign Exchange) Regulations in excess of the powers conferred by s. 3 of the Banking Act 1974?
4. If question 3 is answered affirmatively, are such regulations or either of them validated by the operation of the Banking Act 1974?
5. If question 3 is answered in the negative, is the validity of such regulations otherwise dependent upon the validity of any or all of the other regulations made under the Banking Act 1974? (at p378)
2. The first and the fourth questions in substance raise two questions as to the enforceability of two regulations initially made under the Banking Act 1945 (Cth) but purported to have been kept on foot by the Banking (Transitional Provisions) Act 1959, and the Banking Act 1974: in the case of the former, by means of a regulation authorized to be made continuing them; in the case of the latter Act, by a section of the Act itself. (at p378)
3. The plaintiffs in the action seek answers to questions 1 and 4 which would deny the availability of reg. 6 (1) of the Banking (Foreign Exchange) Regulations as a means of creating an offence within reg. 42 (1) of those regulations because the plaintiffs say that the regulations of which those two regulations form part were not duly notified as required by s. 48 (1) of the Acts Interpretation Act 1901 (Cth) as amended, or as allowed by s. 5 (3) of the Rules Publication Act 1903-1964, and consequently never became operative. (at p378)
4. There was a submission made that, unless duly notified, the regulations were not made. But, in my opinion, this submission is manifestly erroneous. A regulation is made by the Governor-General when, as is usual, it is signed by him. But though then made, it is not then operative, the Acts Interpretation Act in s. 48 (1) requiring the notification of the regulation before it becomes operative. The Rules Publication Act, by s. 5 (3), provides another means of notification, which being observed will satisfy the Acts Interpretation Act, but it is founded on the same concept that a regulation may not be operative until it is notified. For the better understanding of these reasons, it is as well that I set out s. 48 (1) of the Acts Interpretation Act:
"Where an Act confers power to make regulations, then, unless the contrary intention appears, all regulations made accordingly - (a) shall be notified in the Gazette, (b) shall, subject to this section, take effect from the date of notification, or, where another date is specified in the regulations, from the date specified; and (c) shall be laid before each House of the Parliament within fifteen sitting days of that House after the making of the regulations."and s. 5 (3) of the Rules Publication Act: "Where any statutory rules are required by any Act to be published or notified in the Gazette, a notice in the Gazette of the rules having been made, and of the place where copies of them can be purchased, shall be sufficient compliance with that requirement." (at p379)
5. A question of the interpretation of s. 48 (1) (b) of the Acts Interpretation Act was agitated during the hearing. That subsection provides that the regulations shall take effect from the date of their notification "or where another date is specified in the regulations, from the date specified". It was argued that this date could be a date anterior to the notification of the regulation including, of course, its prescription of that date. In my opinion, this date, unless the Parliament has expressly and intractably directed otherwise, must necessarily be a date subsequent to the date of notification. To bind the citizen by a law, the terms of which he has no means of knowing, would be a mark of tyranny. Parliament, in s. 48 (1), has recognized that justice requires that it be notified publicly before it becomes operative. I am quite unable to construe s. 48 (1) as a Parliamentary mode of expression of intention that the law should operate before it is notified. That would be so fundamentally unjust that it is an intention I could not attribute to the Parliament unless compelled by intractable language to do so. In my opinion, no semantic quirks of the draftsman would lead me to that conclusion - a conclusion which would attribute to the Parliament an intention to act tyrannically. In my opinion, what the section means is that the regulation will operate on or from the day it is notified or from such other day, being a subsequent day, as the regulation may specify. Such a construction is both reasonable, textually available and just. (at p379)
6. The primary means of notifying the terms of a regulation which has been made is by its publication in full in the Gazette. What is required by s. 48 (1) is notification of the regulation, not of the fact of its making or of the date of its making. In my opinion, the notification of a regulation involves the bringing to notice of its actual terms. Thus, in my opinion, s. 48 (1) of the Acts Interpretation Act really requires the terms of the regulation to be published in the Gazette. It must be accepted that such publication places the citizen in the position of being able to inform himself of the terms of the law by which he is to be bound. (at p379)
7. But the legislature has adopted an alternative method of notification which is specified in s. 5 (3) of the Rules Publication Act. The regulation-making authority is to notify the place or places where copies of the regulation which has been made are available for purchase. In my opinion, this provision means that copies of the regulation must be available at the place nominated in the Gazette on the date of the publication of the notice in the Gazette. If a subsequent date for the operation of the regulation is specified, it may well be sufficient that copies are available at the nominated place on or before that date. But, however that may be, it seems to me a most unjust construction to say that s. 5 (3) means that the notification of the regulation will be complete and s. 48 (1) satisfied if the regulation-making authority notifies a place where, though copies of the regulation are said to be available, in fact they are not. (at p380)
8. Section 5 (3), in my opinion, provides a means whereby the obligations of s. 48 (1) may be satisfied. It is not intended, in my opinion, to provide any lesser obligation in regard to notification of the regulation. The change is to allow notification of a place where a copy of the regulation may be had in lieu of the publication of the text of the regulation in the Gazette. Just as the latter is a means of affording the citizen the means of knowing the terms of the law by which he is to be bound, so the former is to provide a like opportunity. So it seems to me, in order to satisfy what I have called the alternate method of notification, copies of the regulation must be procurable at the designated place when it is notified. This means in substance that a stock of copies of the regulation available for sale must be in hand. Just how large that stock should be will no doubt be a matter of judgment bearing in mind the subject matter of the regulation and the numerical size of the section of the community which its terms are designed to affect. (at p380)
9. From statements made to the Court from time to time, on occasions by representatives of the Crown, it is apparent that there has been neglect on the part of government in providing adequate copies of regulations for purchase by the public. It should be borne in mind that not only should they be capable of purchase at the time they are notified or by the time they are said to operate but they ought to be available to the citizen subsequently if an occasion arises for him to know with precision what exactly they provide. Too often, one hears the statement that the regulations are "out of stock". This, in my opinion, is an unbearable and a completely unacceptable situation. There can be no impediment whatever to government ensuring that stocks are maintained of all regulations available to be procured by the citizen on demand. It may be a manifestation of the laxity that does enter into the making of law by regulation: it seems to me, therefore, that it is essential that officialdom ensure that copies of regulations are available at the place nominated in the Gazette, and that thereafter an appropriate stock of them is maintained. Of course, if available at the earlier time, subsequent failure to maintain stocks will not affect the operation of the regulation. (at p381)
10. There should be no difficulty, having regard to the resources of government, in having copies of the regulations available at the notified place or places at the time of notification in the Gazette or at any subsequent date on which they are to become operative. The date of notification can be withheld until it is known that copies will certainly be available at the places notified at the time the regulation is notified to come into effect. In a case of emergency the regulation can be notified in the Gazette itself even if a special issue of the Gazette has to be published. I regard the availability of the terms of the law to the citizen of paramount importance. No inconvenience in government administration can, in my opinion, be allowed to displace adherence to the principle that a citizen should not be bound by a law the terms of which he has no means of knowing. Thus, in my opinion, if it is proved that copies of the regulations were not available for purchase at the place specified, the regulations would not have commenced to operate. It would be quite insufficient, in my opinion, if at some subsequent date they were so available. If that were acceptable as publication, it would mean that in the interim between the date the regulation was said to commence in operation and the date of subsequent availability of copies, a citizen would be a subject to a law the terms of which he did not have any means of knowing. As I have indicated, that situation, in my opinion, is defective in the sense of fairness and justice on which the common law is based. (at p381)
11. There remains the question of proof of the availability of the copies of the regulations. It is quite possible to take the view that the availability of the copies of the regulations is an indispensable part of the proof of their operation and therefore on the Crown if it is seeking to enforce the regulations. That ought not to place a very great burden on the Crown because presumably proper records are kept of the delivery of copies of the regulations by the Government Printer to the various Sub-Treasuries or other places where it is said they will be available for purchase. But, in my opinion, at least prima facie, the presumption of regularity will satisfy any such onus. If availability for purchase at the place notified is challenged, it seems to me that, having regard to the presumption of regularity, the onus of establishing that they were not is upon the person raising the question. In this case, the plaintiffs accepted the task of establishing that on the date of notification copies of the relevant regulations were not available at the place specified. In my opinion, they have failed to do so. The highest point to which proof rose was that it was not known whether or not they were so available. That, it seems to me, left the presumption to work and satisfy the obligation of the Crown to establish the availability of the regulations. I would therefore not be prepared to hold that the regulations in this case never became operative. On the contrary, accepting the presumption of regularity, I would hold that they became operative on the date of their notification. (at p382)
12. This conclusion makes it unnecessary for me to consider whether, if the regulations did not become operative when notified, they became operative by virtue of either of the later provisions to which I have referred. To decide that question various considerations, to which I need not presently advert, would need to be explored. (at p382)
13. The plaintiffs sought to attack ss. 3 and 4 of the Banking Act, 1974, as in excess of the legislative power given by s. 51 (xii.) of the Constitution. The argument was that "currency" in the Constitution provision is limited to Australian currency. I can see no reason whatever for so limiting the width and generality of the word. There is, in my opinion, no substance in the submission. (at p382)
14. The plaintiffs' attack upon the regulations, the subject of question 3, was in reality dependent on the same arguments as were led to attack ss. 3 and 4 of the Banking Act. They should, in my opinion, suffer the same fate. (at p382)
15. Accordingly, I would answer the questions asked as follows: 1. Yes. 2. Yes. 3. No. 4. Does not arise. 5. No. (at p382)
GIBBS J. I have had the benefit of reading the judgments respectively prepared by my brother Stephen and my brother Mason and can in consequence proceed immediately to the only question of difficulty in the case. (at p382)
2. It is clear from the terms of s. 48 of the Acts Interpretation Act 1901, as amended, that notification in the Gazette, in accordance with the requirements of s. 48 (1) (a), is not a condition of the valid making of a regulation. In other words, a regulation made in accordance with the power conferred by an Act is validly made, even if not notified. However, the combined effect of s. 48 (1) (b) and s. 48 (2) is that a regulation cannot take effect before the date of notification in any case where, if the regulations so took effect -
"(a) the rights of a person (other than the Commonwealth or an authority of the Commonwealth) existing at the date of notification, would be affected in a manner prejudicial to that person; or
(b) liabilities would be imposed on any person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of notification." Regulations 6 and 42 of the Banking (Foreign Exchange) Regulations ("the regulations") in combination would, if they took effect before the date of notification, impose liabilities in respect of things done before that date, and in consequence could not take effect before that date. Until notified they would be valid but inoperative. (at p383)
3. The word "notify", according to the Oxford English Dictionary, means "to make known, publish, proclaim; to intimate, give notice of, announce". In my respectful opinion, a formal announcement in the Gazette that a regulation has been made, stating the number of the statutory rule, and the name of the regulation comprised in it, is a notification of the regulation in the ordinary sense of the word. Moreover, one would not expect a statutory requirement that a regulation be notified in the Gazette to mean that the provisions of the regulation should be set out in full in the Gazette; had that been the intention of Parliament, it would have been easy to express it. If s. 48 had stood alone I should have thought that an announcement in the Gazette in the terms mentioned above would have been a sufficient notification for the purpose of that section. (at p383)
4. The difficulty that rises is caused by the fact that the Rules Publication Act 1903, as amended, (as the Statutory Rules Publication Act 1903 was called at the relevant time) provides, by s. 5 (3), as follows:
"Where any statutory rules are required by any Act to be published or notified in the Gazette, a notice in the Gazette of the rules having been made, and of the place where copies of them can be purchased, shall be sufficient compliance with that requirement."Although s. 5(3) in terms states that a notice of the kind to which it refers is sufficient, its words appear to carry the necessary implication that a notice which states only one of the two matters mentioned in the sub-section is insufficient. In other words, a notice will not be sufficient compliance with s. 48 (1) (a) of the Acts Interpretation Act if it states that regulations have been made but does not state the place where copies of them can be purchased. Moreover, the Parliament in my opinion intended that the notice should be a genuine one. Although there is no express requirement that copies of the regulations should in fact be available at the place stated in the notice, it cannot be thought that the Parliament was insisting on an empty formality; on the contrary, the object of the section is to provide useful information, so that persons who wish to procure copies of the regulations may know where they can obtain them. (at p384)
5. The question then is whether the provisions of s. 48 (1) (a) of the Acts Interpretation Act, as affected by those of s. 5 (3) of the Rules Publication Act, were at the relevant time merely directory. If so, it was not necessary, in order to render a regulation operative, that those provisions should have been obeyed or fulfilled exactly; it was sufficient if they were obeyed or fulfilled substantially: see Dignan v. Australian Steamships Pty. Ltd. (1931) 45 CLR 188, at pp 207-208 , citing Woodward v. Sarsons (1875) LR 10 CP 733, at pp 746-747 ; and see also Scurr v. Brisbane City Council (1973) 133 CLR 242, at p 256 . This question has been set at rest for the future by sub-sections (3A), (3B) and (3C) of s. 5 of the Statutory Rules Publication Act, which were inserted in that Act by the Statutory Rules Publication Amendment Act 1978. There is no general rule as to whether enactments should be considered as obligatory or directory; the question is one of construction, the aim being to discover "the real intention of the legislature": Dignan v. Australian Steamships Pty. Ltd. (1931) 45 CLR, at p 208 . The question is whether the Parliament intended that regulations of the kind described in s. 48 (2) could never take effect unless there had been a strict compliance with s. 48 (1) (a) understood in the light of s. 5 (3), or whether a substantial compliance with the provisions of those sections was intended to be enough. The regulations, once they took effect, would have the force of law and might affect many members of the public. It could hardly have been thought desirable that the question whether regulations had taken effect should depend on whether there had been a delay - perhaps a very slight delay - in delivering the copies of the regulations to the place named in the notice in the Gazette. If strict compliance with the statutory provisions were essential, the consequence would be that if copies of the regulations were delivered one day late, the notice in the Gazette would be insufficient and a fresh notification would be required before the regulations could take effect. However, it might never become known to anyone in a position of authority, or it might only be discovered after a long period, that the delay in delivery had occurred, so that there might be no opportunity promptly to correct the irregularity. Grave inconvenience might result. The object of the statutory provisions was to bring the existence of the regulations to the notice of the public, and to inform interested persons where copies of the regulations could be obtained. This object would be substantially achieved if copies were available at the named place, even though they were not available on the very day when the Gazette was published. In my opinion it was not intended that a regulation should not take effect unless there were a notification which literally satisfied s. 5 (3) of the Rules Publication Act. I consider that if the notice stated the place where copies of the regulations could be purchased, and copies could in fact be purchased at that place, although not until some time after the Gazette was published, there will have been a substantial compliance, and the regulations will have taken effect, at least from the date when the copies became available for purchase at that place. (at p385)
6. The question which I have been discussing was of importance in the present case only in relation to one amendment made to the regulations (by Statutory Rule No. 265 of 1974), because all the regulations which were made before the Banking Act 1974 took effect were validated by s. 4 (1) (a) of that Act. For the reasons which I have given, I consider that although copies of that amending regulation were not available for purchase until about ten days after the notice was published in the Gazette, there was, at least when the copies became available, a substantial compliance with the requirements of s. 48 (1) (a) of the Acts Interpretation Act and s. 5 (3) of the Rules Publication Act. (at p385)
7. On the other questions that arise I agree with the conclusions reached by my brother Stephen and my brother Mason. (at p385)
8. I would answer the questions in the manner proposed by my brother Mason. (at p385)
STEPHEN J. The plaintiffs, being charged with numerous offences involving the sending of currency out of Australia in breach of the Banking (Foreign Exchange) Regulations, sought declaratory relief in the Supreme Court of New South Wales. The proceedings were removed into this Court, a statement of facts was agreed upon and five questions were then stated for the opinion of the Court. (at p386)
2. To answer these questions requires the resolution of two distinct issues. The first is whether the Commonwealth legislation which authorizes the making of these regulations is within the constitutional grant of legislative power. The second is whether irregularities said to have affected the gazettal of the regulations result in their being void and of no effect. It was with the second of these issues that argument on this appeal was principally concerned and it is with it that I first deal. (at p386)
3. The attack made upon the Banking (Foreign Exchange) Regulations takes the following form. Both the original 1946 regulations and the many subsequent amending regulations necessarily had to be gazetted and laid before each House of the Parliament, s. 48 of the Acts Interpretation Act 1901 so requires. Its requirement as to gazettal is that regulations, once made, "shall be notified in the Gazette". Whatever "notified" may mean, of which more anon, s. 5 (3) of the Rules Publication Act 1903 intervenes to state what will be sufficient compliance with such a requirement: it reads -
"Where any statutory rules are required by any Act to be published or notified in the Gazette, a notice in the Gazette of the rules having been made, and of the place where copies of them can be purchased, shall be sufficient compliance with that requirement."Thus, when the Acts Interpretation Act calls for notification of a regulation in the Gazette, it will clearly be enough to do what this section requires: that is, to publish a notice of the making of the regulation and of the place where copies can be purchased. (at p386)
4. On the face of it, this is what was in fact done, the notice in the Gazette in each case referred to the making of the regulations or amending regulations and stated where copies might be purchased. Unfortunately, in the case of the original Regulations, Statutory Rules 1946, No. 191, and of all twenty subsequent amending regulations, with one lone exception, it is now an agreed fact that at the date of gazettal copies were not then available for purchase. In many early cases it is not known how long afterwards it was before copies became available, but where this is unknown it is at least agreed that copies were not available on the date of gazettal. In those cases in which the facts are fully known delays ranging from one day to almost a fortnight occurred between date of gazettal and the date when copies first became available for purchase. (at p386)
5. For reasons which I shall come to later, I believe that what this reveals, i.e., repeated instances of subordinate legislators failing to observe the terms of those laws which control and govern their own power to legislate, would ordinarily prevent their purported legislation from ever taking lawful effect. (at p387)
6. What has avoided that consequence in relation to most of the relevant regulations is the enactment in 1972 of s. 3 (1) of the Ordinances and Regulations (Notification) Act 1972. It reads:
"The publication in the Gazette, before the commencement of this Act, of any form of words being, purporting to be, or apparently intended to be - (a) a notice or notification of the making of, with respect to the making of, or referring to the making of - (i) an Ordinance under a law of the Commonwealth; or (ii) any regulations, rules, by-laws or other instrument under a law of the Commonwealth or of a Territory of the Commonwealth; or (b) a notice or notification of any such Ordinance, regulations, rules, by-laws or instrument having been made, shall be taken to be, and to have always been, a sufficient compliance with a requirement of any law of the Commonwealth or of a Territory of the Commonwealth that the Ordinance, regulations, rules, by-laws or other instrument be published or notified in the Gazette, and the date of the publication in the Gazette of that form of words shall be deemed, for the purposes of that law, to have been the date on which the Ordinance, regulations, rules, by-laws or instrument was or were published or notified in the Gazette."Its effect is twofold. First, any form of words published in the Gazette and answering the descriptions in pars. (a) or (b) of s. 3 (1) are to be taken to be and to have always been a sufficient compliance with the gazettal requirements of, inter alia, s. 48 (1) (a) of the Acts Interpretation Act. Secondly, the date of their publication is to be deemed to be the date of notification in the Gazette. (at p387)
7. Section 3 (1) of the Act of 1972 is of far-reaching effect. It operates upon all past purported gazettals of regulations, etc., no matter how defective or how long ago effected, so long as what did appear in the Gazette answers one or other of the descriptions in pars. (a) or (b). It deems them to have duly complied with the statutory requirements of publication or notification. The Act thus makes good all such past defects in gazettal and repairs their consequences. (at p387)
8. Its operation is in some respects selective. It does not aid the case of a regulation no mention of which or of the making of which has appeared in the Gazette. Nor can it, in my view, ever result in deemed compliance with s. 5 (3) of the Rules Publication Act but only in deemed compliance with such a provision as s. 48 (1) (a) of the Acts Interpretation Act; and this because only the latter is a law which requires "that the . . . regulations . . . be published or notified in the Gazette". However this limited operation is enough for present purposes. I conclude that since 14th September 1972 all the defects in gazettal occurring before the coming into operation of the Act of 1972 are made good and can no longer be relied upon by the plaintiffs in answer to the charges brought against them. (at p388)
9. For the plaintiffs it was submitted that the Ordinances and Regulations (Notification) Act 1972 was passed in response to the challenge to the validity of Ordinances of the Australian Capital Territory which was made in Golden-Brown v. Hunt (1972) 19 FLR 438 and should be confined to making good the particular defects which that case revealed. It may well be that that case was the cause of the enactment of the Act, but this piece of legislative history cannot control the effect of the terms in which s. 3 of the Act is cast. Then it was submitted that s. 3 did nothing to cure the failure to have copies of regulations available on the dates of gazettal at the places designated in the gazettal. Neither it does, but this is of no account, and that for two reasons. As I hope to show hereafter, the non-compliance with s. 5 (3) of the Rules Publication Act is not, on proper analysis, because of the physical failure timeously to have copies of the regulations available at particular places but rather because of the failure to name places where copies can be obtained. Secondly, and more importantly, s. 3 is not, in any event, concerned to make good any defects in attempted compliance with legislation such as the Rules Publication Act. It ignores altogether such legislation. Instead it goes straight to the primary gazettal obligation contained, inter alia, in s. 48 of the Acts Interpretation Act and deems defective gazettals to be effective for its purpose. (at p388)
10. So far I have not distinguished between the original regulations of 1946 and any of the many amending regulations here in question. It now becomes necessary to do so because, as I have said, it is only past purported gazettals that the Act of 1972 validates. Two of the amending regulations relevant to the present charges were made and gazetted after the Act of 1972, those in Statutory Rule No. 197 of 1973 in October 1973 and those in Statutory Rule No. 265 of 1974 more than a year later. To neither can the Act of 1972 apply. However to the earlier of the two the provisions of the Banking Act 1974 will apply. That Act came into operation on 23rd December 1974 and s. 4 (1) (a) provides:
"Notwithstanding the repeal of Part III of the Principal Act effected by section 3 of this Act - (a) the Banking (Foreign Exchange) Regulations as in force, or purporting to be in force, immediately before the commencement of this Act shall, after the commencement of this Act, continue in force, and be as valid and effectual, as if they had been made under section 39 of the Principal Act as amended by this Act, and may be amended or repealed by regulations under that section."The Banking (Foreign Exchange) Regulations in the form they bore after the October 1973 amendments of course purported to be in force "immediately before the commencement" of the Banking Act 1974. Section 4 (1) (a) provides that they shall "continue in force, and be as valid and effectual" as if made under s. 39 of the Banking Act 1959. No doubt s. 4 (1) was not specifically directed to this problem of defective gazettal which the plaintiffs have now raised, but its specific reference not only to regulations in fact previously in force but also to those previously purporting to be in force makes it entirely apt to apply to the regulations as amended in 1973. Although the sub-section declares that such regulations shall "continue in force", a phrase which might in another context be thought to limit its effect to regulations theretofore lawfully in force, the fact that this is immediately preceded by the reference to regulations purportedly in force excludes such a limited operation. The cases of Brown v. Green (1951) 84 CLR 285 and Bradshaw v. Gilbert's (Australasian) Agency (Vic.) Pty. Ltd. (1952) 86 CLR 209 support this view of the effect of s. 4 (1). It follows that the regulations in their form as amended by the 1973 regulations are valid and effectual despite the defect in the gazettal of the 1973 amendments. (at p389)
11. Quite apart from the 1973 amendments, the remainder of the regulations are in one respect also affected by the Banking Act 1974. Although in the view I have formed they require no validation, their defective gazettal being cured by the Act of 1972, so that they were, immediately before the commencement of the Act of 1974, regulations then "in force", they are, by virtue of s. 4 (1), continued in force as if made under s. 39 of the Banking Act 1959 as amended. (at p389)
12. There remains the case of Statutory Rule No. 265 of 1974. By virtue of the terms of reg. 1 of that statutory rule, read in conjunction with ss. 2 and 6 of the Banking Act 1974 and with the proclamation fixing the coming into operation of that Act, it took effect on 23rd December 1974. It was gazetted on that date but copies of it only became available at the places mentioned in the gazettal on 2nd January 1975. The 23rd December 1974 was also the date on which the Banking Act 1974 itself was proclaimed to come into operation. Since s. 4 (1) (a) of that Act only applies to the regulations in force or purporting to be in force "immediately before" its commencement, it can have no effect upon the regulations as purportedly amended by Statutory Rule No. 265 of 1974. That statutory rule must therefore, unlike all the others, stand or fall on its own merits, unaided either by the Ordinances and Regulations (Notification) Act 1972 or by the Banking Act 1974. (at p390)
13. In considering the case of Statutory Rule No. 265 one begins with the agreed fact that at the places which its gazettal described as places where copies of it could be bought copies were not, for some ten days after gazettal, available for purchase. (at p390)
14. The first question is whether this situation involved any non-compliance with statutory requirements concerning gazettal. In my view it did. I have already set out s. 5 (3) of the Rules Publication Act. It provides what is no doubt an administratively convenient alternative to compliance with requirement for publication or notification of regulations in the Gazette. It was, clearly enough, with its terms that the gazettal of Statutory Rule No. 265 was intended to comply. However, for there to be "sufficient compliance", in terms of s. 5 (3), with a requirement of notification in the Gazette the notice which s. 5 (3) calls for must state "the place where copies of them (the regulations) can be purchased". The phrase "can be purchased" speaks as of the present time, the date of gazettal, and a notice which names a place at which at that time date copies cannot be purchased is simply not such a notice as the section requires. While the subsection does not impose any requirement concerning the making available of copies, it does require that what shall be named in the notice is a place where copies are in fact available. This requirement is that a "place" of a certain description be named, not just any place but a place where copies of the regulations can be purchased. To name some other place is as ineffective as it would be to fail altogether to name any place. Each will result in failure to satisfy the statutory requirement concerning the notice; and unless that requirement is satisfied, the benefit which the sub-section offers, that of having something deemed to be sufficient compliance with statutory requirements as to gazettal, is not available. It follows that the gazetted notice regarding Statutory Rule No. 265, because it named a place which in fact was not a place where copies of that statutory rule could be purchased, was not such a notice as would, by virtue of s. 5 (3), constitute "sufficient compliance" with the relevant statutory requirement of gazettal, in this case imposed by s. 48 (1) (a) of the Acts Interpretation Act. (at p391)
15. This view of the effect of s. 5 (3) not only gives effect to the plain language of the sub-section; it also accords it just such an operation as might be expected to have been the legislative intent. The sub-section acknowledges the existence of statutory provisions requiring publication or notification of statutory rules and seeks to reduce the burden of compliance with such provisions. It does so by offering an alternative course, which it says "shall be sufficient compliance", thereby substituting for those relatively onerous obligations one less onerous: a quite concise notice in the Gazette takes the place of the publication or notification in it of the regulations themselves. But, just as the very purpose of full gazettal is to allow interested members of the public to learn of the contents of the regulations, the permitted substitution of a concise notice retains, albeit in modified form, the essence of this concept: true, the notice prescribed will not itself set out the regulations, but it will do the next best thing, it will tell those interested where they may buy copies of the regulations. The concept that those members of the public who wish to learn of the contents of regulations can readily do so is preserved, despite some sacrifice of their convenience in favour of convenience in administration, since they must now not only read the Gazette but also buy the regulations. All this underscores the importance of the requirement that the place where copies of the regulations can in fact be bought should appear in the notice, thus permitting the public to learn of their contents. (at p391)
16. So understood, the terms of s. 5 (3) can, in my view, only bear what I regard as their ordinary meaning: for the gazetted notice to be a "sufficient compliance" it must name a place where copies of the regulations can be purchased. In the present case copies of regulations did, of course, ultimately become freely available for purchase at the place named in the gazettals but this I regard as of no consequence. The reason lies in the nature of s. 5 (3). The sub-section is not at all concerned to insist upon the making available of copies for purchase by the public. It imposes no duty to publish or sell copies: that is a subject matter wholly foreign to its concern, which is exclusively with the prescribing of a convenient means of effecting due gazettal of regulations. It prescribes such a means and to take advantage of it that prescription must be complied with; non-compliance arises when the notice fails to contain what is prescribed and this failure will not be made good by later having copies available for sale but only by the gazettal of a further notice which does conform to the prescription, that is, which does name a place where copies of the regulation can then and there be purchased. (at p392)
17. If, then, there was a want of compliance with s. 5 (3), what was its consequence? Since that sub-section will not operate to produce deemed compliance with statutory requirements for gazettal, the focus of attention turns upon those requirements themselves, in this case s. 48 (1) (a) of the Acts Interpretation Act. It and its succeeding sub-sections are as follows:
"(1) Where an Act confers power to make regulations, then, unless the contrary intention appears, all regulations made accordingly - (a) shall be notified in the Gazette; (b) shall, subject to this section, take effect from the date of notification, or where another date is specified in the regulations, from the date specified; and (c) shall be laid before each House of the Parliament within fifteen sitting days of that House after the making of the regulations. (2) Regulations shall not be expressed to take effect from a date before the date of notification in any case where, if the regulations so took effect- (a) the rights of a person (other than the Commonwealth or an authority of the Commonwealth) existing at the date of notification, would be affected in a manner prejudicial to that person; or (b) liabilities would be imposed on any person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of notification, and where, in any regulations, any provision is made in contravention of this sub-section, that provision shall be void and of no effect. (3) If any regulations are not laid before each House of the Parliament in accordance with the provisions of sub-section (1) of this section, they shall be void and of no effect.(4) If either House of the Parliament, in pursuance of a motion of which notice has been given within fifteen sitting days after any regulations have been laid before that House, passes a resolution disallowing any of those regulations, any regulation so disallowed shall thereupon cease to have effect." (at p392)
18. In my view, what occurred by way of gazettal of Statutory Rule No. 265, deprived as it must be of the aid of s. 5 (3) of the Rules Publication Act, will not involve compliance with the gazettal requirements of s. 48 (1) (a) of the Acts Interpretation Act. It is true that s. 48 (1) (a) speaks only of regulations being "notified" in the Gazette and not of their "publication" in it. In some contexts "to notify" may convey the notion of a briefer announcement than does "to publish". But this is not, I think, such a context. Here it is not some fact that is to be notified: it is regulations themselves that must be notified in the Gazette under s. 48 (1) (a), not merely their making. When "notify" is used in this sense its meaning may well be synonymous with that of "publish": that is capable of bearing such a meaning appears from the Shorter Oxford English Dictionary, where the meanings of "to notify" include "To make known, publish, proclaim; to announce". (at p393)
19. In 1903, when the Rules Publication Act was first enacted, there was no general Commonwealth statutory provision such as s. 48 of the Acts Interpretation Act, which first appeared on the statute book in 1904; each Act which provided for delegated legislative power had to prescribe its own regulation-making formalities, the details of which varied from Act to Act. Thus, in the twelve Commonwealth Acts of 1901 and 1902 which called for the gazettal of regulations, four different formulae are used, with variations occurring even within particular formulae, a disorderly situation only rectified by the enactment in 1904 of what is now s. 48 of the Acts Interpretation Act. Of those twelve Acts, six refer to "publishing", the other six to "notifying": hence, no doubt, the reference to "published or notified" in s. 5 (3) of the Rules Publication Act. Those twelve Acts appear to use the one terms or the other more or less indiscriminately and s. 5 (3) itself drew no apparent distinction between the two, treating the burden which was involved in compliance with either as requiring mitigation by the form of notice which it offered as a substitute. Whatever may be the precise content of "notified" in s. 48 (1) (a), whether or not synonymous with "published", it must at least involve something more than the gazettal of the bare form of notice permitted by s. 5 (3). It is for that reason that I conclude that the notice which in fact appeared in the Gazette in respect of Statutory Rule No. 265 will not itself satisfy s. 48 (1) (a). (at p393)
20. The consequence of a failure to comply with this requirement of s. 48 (1) (a), that regulations, once made, should be notified in the Gazette, is, in my view, that those regulations do not take effect. The failure will not affect the making of the regulations, their making precedes and is quite distinct from notification, as the terms of s. 48 (1) demonstrate. But notification is a critical step in the statutory process of delegated law-making and without it that process in incomplete. (at p393)
21. Its great importance is apparent from the history of delegated legislation. That history reflects the tension between the needs of those who govern and the just expectations of those who are governed. For those who govern, subordinate legislation, free of the restraints, delays and inelasticity of the parliamentary process, offers a speedy and flexible mode of law-making. For the governed it may threaten subjection to laws which are enacted in secret and of whose commands they cannot learn: their reasonable expectations that laws shall be both announced and accessible will only be assured of realization by the imposition and enforcement of appropriate controls upon the power of subordinate legislators, whose power, as Fifoot observed "requires an adequate measure of control if it is not to degenerate into arbitrary government": English Law and its Background (1932). (at p394)
22. In the United Kingdom the nineteenth century saw a great increase in the volume of delegated legislation. The London Gazette, in which was published such delegated legislation as individual Acts called for the publication of, became much cluttered with non-legislative material so that what was gazetted was "buried rather than revealed in its pages": Carr, Concerning English Administrative Law, p. 57. The publication, from 1890 onwards, of annual volumes of statutory rules and the enactment, three years later of the Rules Publication Act 1893 were remedies applied to control the flood of unknown and unknowable subordinate legislation: Ilbert, Legislative Methods and Forms, p. 42. As early as 1903 the Commonwealth Parliament enacted its own Rules Publication Act and in the following year the Acts Interpretation Act 1904 for the first time imposed a general obligation to gazette all regulations and lay them before Parliament. (at p394)
23. These two enactments of the Commonwealth Parliament provide a mechanism for parliamentary oversight of delegated legislation and, no less importantly, allow those whom such laws affect to learn of their making and of their terms. As Scott L.J. said in Blackpool Corporation v. Locker (1948) 1 KB 349, at p 361 , speaking there of sub-delegated legislation, "there is one quite general question . . . of supreme importance to the continuance of the rule of law under the British constitution, namely, the right of the public affected to know what that law is". The maxim that ignorance of the law is no excuse forms the "working hypothesis on which the rule of law rests in British democracy" but to operate it requires that "the whole of our law, written or unwritten, is accessible to the public - in the sense, of course, that at any rate its legal advisers have access to it at any moment, as of right". It was, his Lordship said (1948) 1 KB, AT p 370 , "vital to the whole English theory of the liberty of the subject, that the affected person should be able at any time to ascertain what legislation affecting his rights has been passed". (at p395)
24. All this applies with at least equal force at the present day and in Australia. As Benjafield and Whitmore observe in Australian Administrative Law, 3rd ed. (1966), p. 120 "It is essential in the interests of citizen and administrator alike that there should be prompt publication of delegated legislation". The legislature has shown itself to be sensitive to the need for strict observance of the statutory controls which it has imposed upon delegated legislative power. When, in Dignan v. Australian Steamships Pty. Ltd. (1931) 45 CLR 188 , it was held that non-compliance with the then equivalent of s. 48 (1) (c) of the Acts Interpretation Act, requiring the laying of regulations before Parliament, did not result in invalidity, sub-s. (3) was subsequently introduced on consolidation of the legislation in 1937. That new sub-section expressly provided that in the event of any such non-compliance the regulations "shall be void and of no effect". Again, when this Court held, in Broadcasting Co. of Australia Pty. Ltd. v. The Commonwealth (1935) 52 CLR 52 , that regulations which purported to take effect before gazettal were void and two years later s. 48 (1) (b) was amended to overcome that decision, sub-s. (2) of s. 48 was at the same time enacted in its present form, thus ensuring that no regulation affecting rights or imposing liabilities should take effect before gazettal. Should any provision purport to have that effect it was to be void. (at p395)
25. This all reflects the concern of the legislature for those safeguards with which s. 48 surrounds the exercise of delegated legislation. Parliament, when it has expressly adverted to the consequence of non-observance of those safeguards, has not hesitated to legislate for invalidity of offending regulations or offending provisions within particular regulations. (at p395)
26. Against this background the mandatory language of s. 48 (1) (a), "shall be notified in the Gazette", may readily be understood as requiring notification as a prerequisite of validity. Indeed the terms of sub-s. (2) of s. 48 appear to me to preclude any other view: they are emphatic in their emphasis upon the importance of notification, there is to be no affecting of rights or imposition of liabilities before notification and any provision to the contrary is to be void. It would be inconsistent with this view to nevertheless treat a failure to notify altogether as having no effect upon validity. (at p396)
27. It is in the light of all these considerations that I conclude that failure to notify in accordance with s. 48 (1) (a) results in the regulation in question being void. I prefer to base this view upon those considerations rather than upon such of the authorities in other jurisdictions as were cited to this Court or are to be found in the texts. Those authorities are upon other legislation and in some instances are either obscurely expressed or of only quite secondary relevance. I should however say something further about Dignan v. Australian Steamships Pty. Ltd., an authority which was said to support the view that s. 48 (1) (a) was directory only. In my view that decision, to the extent that it is at all in point, is, rather, to the opposite effect. The question there was whether the then equivalent of s. 48 (1) (c), concerned with the laying of regulations before Parliament, affected the effectiveness of the purported disallowance by the Senate of certain regulations. The views of Dixon J., which may be taken as representative of those of the majority, were that the Senate's power of disallowance was not conditional upon par. (c) having first been complied with - see especially (1931) 45 CLR, at pp 206-208 . Only Evatt J., in his dissenting judgment, said anything about pars. (a) and (b). However what his Honour said is not, I think, in any way inconsistent with anything appearing in the judgments of the majority. His Honour (1931) 45 CLR, at p 210 spoke of notification in the Gazette as "essential to the Regulations taking effect at all". Because of the terms of par. (b), he regarded that proposition as "a necessary correlative of the positive enactment in the sub-section". This view he repeated in different language (1931) 45 CLR, at p 213 when he said of the sub-section that ". . . it requires the Executive to notify the regulations in the Gazette. It prevents the regulations from taking effect at all until notification has been duly made". (at p396)
28. The view of the majority that par. (c) was directory only affords no ground for treating the requirement in par. (a) as also only directory. The majority judgments recognized the quite special subject matter with which par. (c) was concerned. That paragraph allowed the legislature to oversee the legislative products of its delegates but ensured that its power of disallowance should not be exercised at a time long after regulations had come into effect. As Dixon J. said (1931) 45 CLR, at pp 205-206 , the sole purpose of par. (c) was to inform Parliament of the making of regulations so that it might consider the exercise of its power of disallowance, but this only within a limited period after regulations were laid before it. The section did not operate to deny to Parliament a power of disallowance when delegated legislation came to its notice before being laid before it under par. (c). In those circumstances the directory nature of par. (c) cannot be extended to pars. (a) and (b), directed as they are to quite different ends. Of course, if it matters, the legislature has now intervened, as mentioned above, so as to render compliance with par. (c) mandatory, non-compliance now carrying with it the consequence of invalidity - see s. 48 (1) (c). (at p397)
29. As I have said earlier, the foregoing does not deny that Statutory Rule No. 265 was "made" when it emerged from the Governor-General-in-Council. It needed no gazettal in order to be "made": but s. 48 (1) contemplates that the making of regulations precedes their gazettal and is distinct from their "taking effect". The position of this statutory rule is that although it was duly made it has never been notified in accordance with s. 48 (1) (a) and accordingly never took effect, despite its internal reference to taking effect "on the date fixed under s. 2 of the Banking Act 1974". (at p397)
30. Statutory Rule No. 265 is relevant in the present case only because it amended the pre-existing form of reg. 42 (1) by increasing the maximum penalty for contravention of the regulations, if prosecuted upon indictment. In my view that amendment has never taken effect. (at p397)
31. The foregoing conclusions concerning the gazettal of regulations leads me to answer question 1 by saying that regs. 6 and 42 of the Banking (Foreign Exchange) Regulations were operative at all times material to the charges against the plaintiffs save that the amendments to reg. 42 purportedly effected by Statutory Rule No. 265 did not take effect. (at p397)
32. There remains the constitutional issue. It turns initially upon whether s. 51 (xii.) of the Constitution confers legislative power with respect to foreign as well as Australian currency. Regulation 6 (1) of the Banking (Foreign Exchange) Regulations, for breaches of which the plaintiffs face prosecution, forbids the taking or sending out of Australia of "any Australian currency or foreign currency". If s. 51 (xii.) does not confer legislative power with respect to foreign currency then, unless either some other grant of legislative power can be relied upon or s. 15A of the Acts Interpretation Act can be called in aid, reg. 6 (1) will be beyond power. (at p397)
33. Section 51 (xii.) confers legislative power with respect to: "Currency, coinage, and legal tender". (at p397)
34. As Latham C.J. remarked in Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1, at p 193 , s. 51 (xii.) provides "a very clear case of overlapping" of the meanings of words. This is especially so in the case of "currency" and "coinage", the meaning of the former including the latter but also covering much else. Both "coinage" and "legal tender" involve quite specific and narrow concepts, the former being concerned with coins as money and the latter with the prescription of that which is, at any particular time, to be a lawful mode of payment within a polity. It is with these two concepts that are linked the provisions of s. 115 of the Constitution, which prohibits State coining and restricts States in what they may make legal tender. (at p398)
35. Any interpretation which seeks to confine s. 51 (xii.) to domestic currency encounters gave difficulties. One may begin with the meaning of "coinage". To be consistent the plaintiffs' submissions must involve the confining of this grant of coinage power to a grant of legislative power restricted to Australian coins, but such a submission is unacceptable. Mann in The Legal Aspect of Money, 3rd ed. (1971), p. 506, points out that one duty has become firmly established in public international law: it is the responsibility of every member of the family of nations to prevent and punish the counterfeiting of a foreign state's currency. As at 1900 the self-governing Australian colonies had fully accepted that responsibility. By way of example I instance the criminal law statutes of New South Wales and of Victoria. The Crimes Act 1900 (N.S.W.) in ss. 318 to 324, contained comprehensive provisions aimed at the counterfeiting of gold, silver or copper coins of foreign nations and the uttering or importation of such counterfeits. The Crimes Act 1890 (Vict.) contained similar provisions in ss. 284 to 290. (at p398)
36. It is not to be supposed that the Constitution's grant of power with respect to "coinage" was not also to extend that far: otherwise the Commonwealth would be deprived of power with respect to one important aspect of the legislative subject matter of coinage which was possessed and exercised by nations generally; an aspect, moreover, which intimately concerns foreign countries and which is, therefore, one appropriate to vest in the Commonwealth, the federal entity concerned with external affairs, rather than in the States. (at p398)
37. If the grant of power in respect of "coinage" is not to be restricted so as to exclude power to legislate as to foreign coinage, it is difficult to see any reason for so restricting the grant of power with respect to "currency", a term of wider meaning which appears wholly to overlap the subject-matter of "coinage" and which, unlike it, would extend to paper money and its counterfeiting. (at p399)
38. In construing the Constitution it is proper to have regard "to the state of things existing when (the Constitution) was passed, and therefore to historical facts" - Attorney-General (Cth); Ex rel. McKinlay v. The Commonwealth (1975) 135 CLR 1, at p 47 , per Gibbs J. The state of things at the time of Federation is revealing so far as pl. (xii.) is concerned. Not only was the prohibition of the counterfeiting of foreign coinage an established feature of national and colonial legislation in 1900. For centuries, the importation into the realm of foreign currency had been the subject of domestic legislation: "Restrictions on the influx of foreign money have been known since the Middle Ages. . . . In later times measures were taken especially against infiltration of foreign paper money": Nussbaum, Money in the Law (1950), p. 331, and see at pp. 447-449. Although exchange control laws in all their modern complexity are a manifestation of the second and third quarters of this century, the exportation of both domestic and foreign money has likewise for centuries been the subject of prohibition or regulation, except perhaps "during the happy century that preceded World War 1": Nussbaum, op, cit., p. 447. (at p399)
39. When bank notes were still convertible into gold and before sophisticated concepts of central banking and exchange controls became the commonplace of economists it would, I think, have been appropriate enough to speak of laws concerning the import and export of currency generally as laws concerning the subject matter of "currency"; the word, without more, is not necessarily to be confined in its meaning to the money of a particular nation nor to that which is one nation's legal tender; indeed it has sometimes been used in a quite opposite and special sense to distinguish sterling from the irregular local coins formerly circulating and competing with sterling in some British colonies, particularly in Australia, from which was derived the old description "Currency lads and lasses". In 1900, there was, in Australia, no currency particularly identified with particular colonies, other than Queensland's Treasury notes: there were three Imperial mints, in Sydney, Melbourne and Perth which variously minted Imperial bronze, silver and gold coins and these, together with coins imported from the United Kingdom, circulated in Australia, as did the note issues of local banks: see generally Quick and Garren, Annotated Constitution of the Commonwealth of Australia, pp. 572-576, and Chalmers, A History of Currency in the British Colonies (1893). This situation persisted long after Federation. In such circumstances to confine the legislative head of power conferred by s. 51 (xii.) to Australian currency would have been to exclude the Commonwealth from whole areas concerned with the regulation and control of the everyday currency of the country, and this despite the apparently unrestricted nature of the grant of power in s. 51 (xii.). (at p400)
40. Quite apart from these considerations and of no less significance is the fact that what is here in question is the interpretation of a Constitution, an organic instrument itself the source of laws. No authority need be cited for the undoubted proposition that it would be wrong to import into its grants of legislative power limitations which the words of grant do not call for. I see nothing in s. 51 (xii.), nor, for that matter, elsewhere in the Constitution, calling for the kind of limitation which the plaintiffs urge. (at p400)
41. Turning then to the relevant regulations, reg. 6 of the Banking (Foreign Exchange) Regulations occurs in Pt II, concerned with "Monetary Control". As the name of the regulations as a whole suggests, they are not concerned directly either with Australian coinage or with what is legal tender in Australia: this is especially true of Pt II and of the monetary controls which it imposes. The scope of the regulations has been much discussed, notably by Horton in the Australian Law Journal vol. 47 (1973), p. 124 and by Sexton in the Australian Business Law Review, vol. 2 (1974), p. 241. (at p400)
42. A variety of, and sometimes a combination of, legislative heads of power have from time to time been suggested as available to support the validity of the Regulations as a whole. With their validity as a whole I am however not concerned; it is only the validity of the restriction upon the export of foreign currency, to be found in reg. 6 (1) that presently arises. As to it there can, of course, be no doubt concerning Australian currency and, for the reasons already advanced, I also have no doubt that power exists under s. 51 (xii.) to restrict the export of foreign currency. Accordingly, without recourse to severability or to other heads of power, I would answer the question of validity in the affirmative. In doing so I do not exclude the possibility that this very regulation may itself be supported by other heads of power. For example, Latham C.J. observed in the Banking Case (1948) 76 CLR, at p 191 that although the topic of central banking was irrelevant to that case, legislation with respect to the Commonwealth Bank, which he had earlier described as including all those powers conferred upon it "in relation to . . . exchange control, foreign exchange", might be supported "more effectively under s. 51 (xiii.) than under s. 51 (xxxix.)". The trade and commerce power and the external affairs power might also be thought by some to play their part in conferring appropriate power. (at p401)
43. There remains only one further matter to be considered, whether reg. 6 of the Banking (Foreign Exchange) Regulations was so dependent upon the operation of regs. 5 and 8 as to make relevant the constitutional or statutory validity of those regulations. I do not propose to say more than that reg. 6 appears to me to be capable of operation independently of those other regulations to such an extent as not to call for any examination of their validity. (at p401)
44. The answers to the specific questions which my conclusions call for are as follows:
1. Yes, but reg. 42 was only operative in the form it took prior to the purported amendment effected to it by Statutory Rule No. 265 of 1974. 2. Yes. 3. No. 4. Does not arise. 5. No. (at p401)
MASON J. This case, in which the plaintiffs seek declaratory relief, has been removed into this Court pursuant to s. 40 of the Judiciary Act 1903, as amended. According to the agreed facts the plaintiffs have been charged with committing in or about the month of March 1976 various offences against reg. 6 (1) of the Banking (Foreign Exchange) Regulations. (at p401)
2. Regulation 6 (1) has at all material times provided:
"A person shall not, except with the authority of the Bank, take or send out of Australia any Australian currency or foreign currency, other than foreign currency obtained under the last preceding regulation."The expression "the Bank" means the Reserve Bank of Australia (reg. 4 (1)). (at p401)
3. Regulation 42 (1) has at all material times provided:
"A person shall not contravene or attempt to contravene, or fail to comply with, any of the provisions of these Regulations. Penalty - (a) if the offence is prosecuted summarily - a fine not exceeding One thousand dollars or imprisonment for a term not exceeding six months; or(b) if the offence is prosecuted upon indictment - a fine not exceeding One hundred thousand dollars or imprisonment for period not exceeding five years." (at p402)
4. The plaintiffs' case is that the two regulations were invalid or inoperative at all times relevant to the commission of the alleged offences. For the plaintiffs to succeed they must obtain favourable answers to a series of questions which have been stated at the end of the agreed facts. (at p402)
5. Question 1 is directed to the consequences of a failure to comply with certain common law and statutory requirements in relation to the publication of regulations. It is in these terms:
"Having regard to the provisions of the Rules Publication Act 1903 (Cth), as amended, and the facts herein set forth, particularly in pars 19 to 22 inclusive, and the information in the Schedule hereto, were regs 6 and 42 of the Banking (Foreign Exchange) Regulations operative at times relevant to the charges . . .?" (at p402)
6. The Banking (Foreign Exchange) Regulations ("the regulations") were made on 18th December 1946 under the Banking Act 1945. The relevant parts of that Act came into operation on 21st August 1945. On 19th December 1946 notification of the making of the Regulations was published in the Commonwealth of Australia Gazette, later called the Australian Government Gazette ("the Gazette"). (at p402)
7. The regulations have been amended from time to time. The making of each of the statutory rules effecting amendments was notified in the Gazette. By virtue of amendment, reg. 42 (1) as it stood in March 1976 differed in some respects from the terms of the regulation as it was originally made. (at p402)
8. The Banking Act 1945 was repealed by the Banking Act 1959. Part III of the new Act came into operation on 14th January 1960. It contained s. 39 which conferred power on the Governor-General in the circumstances there mentioned to make regulations making provision for or in relation to the control of foreign exchange. (at p402)
9. Section 29 of the Banking (Transitional Provisions) Act 1959 which also came into operation on 14th January 1960 empowered the Governor-General, by instrument published in the Gazette, to declare that, notwithstanding the repeal effected by s. 4 of the Banking Act 1959, the regulations in force under the Banking Act 1945 (as amended) immediately before the commencement of Pt VII of the Banking (Transitional Provisions) Act should continue in force as if they were made under the Banking Act 1959. The power conferred by s. 29 was exercised by Statutory Rule No. 8 of 1960 which was notified in the Gazette on 14th January 1960. (at p403)
10. Part III of the Banking Act 1959-1973 was repealed by s. 3 of the Banking Act 1974 which substituted a new Pt III dealing with foreign exchange and foreign investment. It contained a new regulation-making power in the new s. 39. Section 4 of the 1974 Act continued in operation the Banking (Foreign Exchange) Regulations in force immediately before the commencement of the 1974 Act. (at p403)
11. The remaining facts on which the plaintiffs rely are designed to show that there has been a non-compliance with the requirements respecting publication. Before recounting them, I should refer to s. 48 (1) of the Acts Interpretation Act 1901, as amended, and s. 5 of the Rules Publication Act 1903-1964. (at p403)
12. Section 48 (1) provides:
"Where an Act confers power to make regulations, then, unless the contrary intention appears, all regulations made accordingly - (a) shall be notified in the Gazette; (b) shall, subject to this section, take effect from the date of notification, or, where another date is specified in the regulations, from the date specified; and (c) shall be laid before each House of the Parliament within fifteen sitting days of that House after the making of the regulations."Section 5 provides:
"(1) All statutory rules made after the commencement of this Act shall forthwith after they are made be sent to the Government Printer, and shall, in manner prescribed, be numbered, and (save as prescribed) printed and sold by him. (2) Any statutory rules may, without prejudice to any other mode of citation, be cited by the number so given and the calendar year. (3) Where any statutory rules are required by any Act to be published or notified in the Gazette, a notice in the Gazette of the rules having been made, and of the place where copies of them can be purchased, shall be sufficient compliance with that requirement.(4) Regulations under this Act may prescribe the classes of cases in which the exercise of a statutory power by any rule making authority constitutes or does not constitute the making of a statutory rule within the meaning of this section." (at p403)
13. The Schedule to the agreed facts sets out the dates of notification of the various statutory rules constituting the regulations as well as the dates on which the statutory rules became available for purchase. The details are as follows:
"STATUTORY DATE OF DATE AVAILABLE RULES. GAZETTAL. FOR PURCHASE. (1) (2) (3) 1947, No. 65 23 May 1947 Unknown 1947, No. 102 4 August 1947 Unknown 1948, No. 39 15 March 1948 Unknown 1948, No. 165 6 January 1949 Unknown 1950, No. 46 18 August 1950 Unknown 1952, No. 15 13 March 1952 Unknown 1952, No. 80 19 September 1952 Unknown 1953, No. 24 26 March 1953 Unknown 1954, No. 96 1 September 1954 Unknown 1960, No. 8 14 January 1960 Unknown 1965, No. 168 18 November 1965 19 November 1965 1967, No. 70 8 June 1967 Unknown 1970, No. 130 17 September 1970 18 September 1970 1973, No. 72 5 April 1973 17 April 1973 1973, No. 197 4 October 1973 12 October 1973 1974, No. 56 11 April 1974 24 April 1974 1974, No. 97 28 May 1974 6 June 1974 1974, No. 265 23 December 1974 2 January 1975 1975, No. 222 23 December 1975 24 December 1975 1975, No. 223 23 December 1975 24 December 1975."It will be seen that it is not known when the early statutory rules became available for purchase. In no case was the statutory rule available for purchase on the day on which it was published in the Gazette. (at p404)
14. It is evident from the terms of s. 48 (1) of the Acts Interpretation Act that a regulation is made when the Governor-General assents to its making, i.e. by signing it. The sub-section speaks to a situation in which a statute confers power to make regulations and then requires that "all regulations made accordingly" (emphasis supplied) shall be notified and laid before each House, these events taking place subsequent to the making of the regulation. Conformably with s. 48 (1) the various Banking Acts vest in the Governor-General a power to make regulations. (at p404)
15. Moreover, s. 48 (3) assumes that regulations which have been made and notified are valid and operative before they are laid before each House in accordance with s. 48 (1) (c). Section 48 (4) makes the same assumption. So also do s. 48 (5) and (6), in particular s. 48 (6) which provides that the disallowance of the regulation shall have the same effect as a repeal of the regulation. In Dignan v. Australian Steamships Pty. Ltd. (1931) 45 CLR 188 it was held that it was not a condition essential to the validity or operation of a resolution of disallowance that the regulation should first be laid before the House and notice of such resolution given. Rich J. considered that s. 10 (c) of the Acts Interpretation Act 1904-1930, the equivalent of the present s. 48 (1) (c), was "directory", not "imperative" (1931) 45 CLR, at p 198 , as did Starke J. (1931) 45 CLR, at pp 201-202 . Dixon J. said (1931) 45 CLR, at p 205 , "I can find no justification for the view that if the view that if the regulations are not laid before both Houses within the time provided by the statute they cease to operate". (at p405)
16. The subsections to which I have referred and the comments made in Dignan's Case proceed upon the footing that a regulation takes effect from the date of its notification, or where another date is specified in the regulations, from the date specified, for this is what s. 48 (1) (b) explicitly provides. Whether the requirement in s. 48 (1) (a) that the regulations shall be notified in the Gazette would, viewed in isolation, call for the publication in the Gazette of the regulations in their entirety is not a question that needs to be answered because s. 5 (3) of the Rules Publication Act applies so that publication of a notice in the Gazette that the regulations have been made and of the place where copies can be purchased is a sufficient compliance with the statutory requirements respecting notification. In Myer Queenstown Garden Plaza Pty. Ltd. v. Port Adelaide Corporation (1975) 11 SASR 504, at p 537 Wells J., referring to the requirement in s. 38 of the Acts Interpretation Act 1915-1972 (S.A.) that regulations "shall be published in the Gazette", said: "In the setting of s. 38, and more especially because it is associated with the Government Gazette, the word, in my judgment, means rather to make generally accessible or available to the public". It is perhaps possible that the requirement in s. 48 (1) (a) that regulations "shall be notified in the Gazette" means something less than this, but for the reason which I have already given, I have no need to discuss this question. (at p405)
17. Section 48 (1) (b) leaves open the question whether it is permissible to provide in the regulations that they shall take effect from a date anterior to the date of notification. This question is answered by s. 48 (2) which provides that in the circumstances there set out regulations shall not be expressed to take effect from a date before the date of notification and, further, that "where . . . any provision is made in contravention of this sub-section, that provision shall be void and of no effect". The sub-section therefore implicitly recognizes that the prescription of "another date" in s. 48 (1) (b) is not confined to a date after notification and also that a regulation expressed to take effect before the date of notification will come into operation accordingly, subject of course to s. 48 (2) itself. The contrary argument is that, because notification is an essential preliminary condition to the coming into operation of a regulation, the second limb of s. 48 (1) (b) is intended to make provision only for the case in which the other date specified is subsequent to notification. This argument is destroyed by the presence of s. 48 (2). As I have said, it concedes an operation to a regulation expressed to commence before notification, so long at any rate as it does not contravene that subsection. (at p406)
18. The plaintiffs submitted that it was a principle of the common law, applicable to the notification of Commonwealth statutory rules before the Statutory Rules Publication Amendment Act 1978, that copies of every statutory rule should be available for purchase at the time when notification of the making of the statutory rule was published in the Gazette and that if copies were not available for purchase at that time at the place designated, the statutory rule was thereafter inoperative. The cases do not support the proposition for which the plaintiffs contended. Johnson v. Sargant &Sons (1918) 1 KB 101 decided no more than that at common law subordinate legislation does not come into operation before the date on which it is published. There an order made by the Food Controller was held to come into operation on the day on which it became known, which was the day after it was made. Harla v. State of Rajasthan (1952) SCR 110 is to the same effect, as are R. v. Ross (1945) 1 WWR 590 and Myer Queenstown Garden Plaza Pty. Ltd. v. Port Adelaide Corporation (1975) 11 SASR 504 . Scott v. Bank of New South Wales (1940) NZLR 922 is even more opposed to the plaintiffs' argument, for there it was held that the regulations came into force when they were made, whether they were gazetted on that day or not. (at p406)
19. The plaintiffs then submitted that the statutory provisions should be read in conjunction with the common law principle enunciated in Johnson v. Sargant &Sons. It was said that, so understood, s. 48 (1) (b) would require not only that the making of the regulation be notified in the Gazette, but also that copies of it be available for purchase by the public. The obstacle in the way of this argument is that the statutory provisions effectively displace the common law rule. Section 48 (1) (b) says that a regulation takes effect from the date of notification in the Gazette or from the date specified in the regulation, whereas at common law the regulation took effect when it was published or became known. When s. 48 (1) (b) is applied in conjunction with s. 5 (3) of the Rules Publication Act, as it now must be applied, its effect is that a regulation comes into operation from the date when its making is notified in the Gazette or from the date specified in the regulation, so long as the Gazette nominates the place where it can be purchased, not from the date when the regulation is available for purchase by the public. (at p407)
20. The plaintiffs further submitted that s. 5 (3) of the Rules Publication Act prescribes as a condition of sufficient compliance with the statutory requirements respecting notification actual availability of copies of the statutory rule at the designated place for purchase contemporaneously with notification in the Gazette. This argument takes too much from s. 5 (3). It merely provides that notification of the making and of the place where copies can be purchased is a sufficient compliance with s. 48 (1) (b). It does not go on to insist on the availability of copies, or of sufficient copies, for purchase, as an additional prerequisite of compliance with the statutory requirements. The prescription relates to the contents of the notification, not to the availability of the documents. The evident purpose of the relevant part of the prescription is to require the giving of notice of the place where the documents will ordinarily be available for purchase. In this respect I note that in Golden-Brown v. Hunt (1972) 19 FLR at p 447 Fox J. stated that the purpose of s. 12 (2) and (2A) of the Seat of Government (Administration) Act 1910-1970, which correspond to s. 48 (1) (a) and (b) and s. 5 (3), must be to give every person an opportunity of obtaining a copy of the law "at the earliest moment, so that he can see how he is affected thereby". His Honour went on to say (1972) 19 FLR, at pp 447-448 :
"True it is that he has to procure a copy of the Gazette first, and then find his way to the relevant part thereof, but, having gone through these steps he should be able to learn where he can, without undue delay, procure a copy of the Ordinance."His Honour did not treat the statutory provision as prescribing simultaneous availability of the documents for purchase at the place designated. Accordingly, in my opinion there is no reason for reading into the statutory provisions the additional requirement for which the plaintiffs contend. (at p407)
21. The plaintiffs made much of the suggestion that a necessary corollary of the maxim Ignorantia juris non excusat is that the terms of the relevant law should have been published at least to the extent that the relevant law is available for purchase by members of the public at the place mentioned in that behalf in the Gazette. However desirable this may be, it is not a matter which is now prescribed by the Rules Publication Act. In an ideal world it would be right to insist on widespread publication of the terms of a law before it takes effect. However, in Australia there is no requirement that a statute should be published before it comes into operation. Notwithstanding the opportunities for debate of statutes, there are many statutes which come into operation today without the public being aware of the provisions which they contain or having the opportunity of purchasing copies of them before they take effect. It is true, as Bailhache J. suggested in Johnson v. Sargant &Sons (1918) 1 KB, at p 103 that statutes attract a publicity that is absent in the case of orders. But it is now beyond question that the terms of the overwhelming majority of statutes enacted by Parliament attract little publicity, and that the publicity which they do attract does not extend to a precise and accurate statement of what they provide. (at p408)
22. Indeed, the very notion that notification of a regulation in the Gazette and of the place where a copy of it can be purchased is contributing in a substantial way to public awareness of the contents of the regulation is a fiction. It may be that commercial organizations make it their practice to subscribe to the Gazette, if that be possible, and to comb through it for matters of interest to them, but it is quite ludicrous to suggest that the arid information which it purveys is read by the ordinary citizen. (at p408)
23. Golden-Brown v. Hunt (1972) 19 FLR 438 had nothing to say about the question now under discussion. It held that s. 12 (2) and (2A) of the Seat of Government (Administration) Act 1910-1970 were mandatory and that the relevant notice failed to specify with sufficient clarity the place where copies of the Ordinance could be purchased. No question arose as to the availability of copies of the Ordinance for purchase at the time when notification was published in the Gazette. (at p408)
24. A final and, as it seems to me a comprehensive, answer to the plaintiffs' case is to be found in s. 4 of the Banking Act 1974. Section 4 (1) (a) provides:
"Notwithstanding the repeal of Part III of the Principal Act effected by section 3 of this Act -(a) the Banking (Foreign Exchange) Regulations as in force, or purporting to be in force, immediately before the commencement of this Act shall, after the commencement of this Act, continue in force, and be as valid and effectual, as if they had been made under section 39 of the Principal Act as amended by this Act, and may be amended or repealed by regulations under that section;" (at p409)
25. It may well be that the reason underlying the enactment of this section was the apprehension that the regulations made under the 1959 Acts were not entirely supported by the regulation making power. That power was not as explicit as that contained in the new s. 39 introduced by s. 3 of the Banking Act 1974. But I do not consider that the existence of this possibility is a sufficient justification for construing s. 4 (1) as if it were directed to this question alone. As the Solicitor-General pointed out, s. 4 (1) addresses itself to the Banking (Foreign Exchange) Regulations in their entirety. It speaks of them as being in force, or purporting to be in force, and proceeds to continue them in force and make them as valid and effectual as if they had been made under the new s. 39. As s. 4 (1) does not even make the assumption that the regulations were in force before the commencement of the 1974 Act there is no room for the implication that, if they were not in force, they were not to continue in force under that Act. The evident purpose of s. 4 (1) was to give the regulations new statutory force, indeed the backing of the new regulation-making power, whether the regulations had previously been in force or not. The case for holding that the statute gave the regulations statutory validity and operation is stronger than that in Brown v. Green (1951) 84 CLR, at pp 291-292 . See also Bradshaw v. Gilbert's (Australasian) Agency (Vic.) Pty. Ltd. (1952) 86 CLR, at p 215 . (at p409)
26. For these reasons regs. 6 and 42 were operative at times relevant to the charges and I would therefore answer question 1 in the affirmative. (at p409)
27. Question 2 is in these terms:
"Are Sections 3 and 4 of the Banking Act 1974 (Cth) valid laws of the Commonwealth?" (at p409)
28. The plaintiffs submitted that to the extent to which s. 39 (2) (f) of the Banking Act 1959-1974 authorized reg. 6, it exceeded the legislative powers conferred upon the Commonwealth Parliament by s. 51 of the Constitution. Section 39 (2) (f) is in these terms:
"(2) The regulations authorized to be made by this section are regulations (being regulations with respect to matters with respect to which the Parliament has power to make laws) making provision for or in relation to - . . . (f) the control or prohibition of the taking or sending out of Australia, and of the bringing or sending into Australia, of Australian currency or foreign currency;"The short answer to this argument is that s. 51 (xii.) authorizes the Parliament to legislate with respect to currency. The plaintiffs sought to restrict the subject matter of this legislative power to Australian currency. They advanced no argument to sustain this restriction other than to say that because coinage and legal tender are mentioned in s. 51 (xii.) along with currency, the latter should be read as a reference to Australian currency. To my mind this is a quite inadequate reason for importing into the Constitution the suggested limitation on the subject matter of the Constitution the suggested limitation on the subject matter of the power, a limitation which would, subject to the uncertain ambit of other powers, leave the Parliament without power to control and regulate the receipt and use of foreign currency in Australia. (at p410)
29. I would therefore answer question 2 in the affirmative. (at p410)
30. Question 3 is in these terms:
"Are regs 6 and 42 of the Banking (Foreign Exchange) Regulations in excess of the powers conferred by s. 3 of the Banking Act 1974?" (at p410)
31. An affirmative answer to this question hinges on the plaintiffs' success in relation to question 2, for no independent argument was advanced to sustain the invalidity of regs 6 and 42. As I am of the opinion that ss. 3 and 4 of the Banking Act 1974 are valid, I would give a negative answer to question 3. (at p410)
32. Question 4 is in these terms:
"If question 3 is answered affirmatively, are such Regulations in excess of the powers conferred by s. 3 of the Banking Act 1974?" (at p410)
33. The question presupposes an affirmative answer to question 3. As I have given a negative answer to that question, question 4 requires no further discussion, although, as appears earlier, I would have given an affirmative answer to the question had it arisen for decision. (at p410)
34. Question 5 is in these terms:
"If question 3 is answered in the negative, is the validity of such regulations otherwise dependent upon the validity of any or all of the other Regulations made under the Banking Act 1974?" (at p410)
35. In support of a favourable answer to this question the plaintiffs submitted that regs 5 and 8 exceeded either constitutional or statutory power and that reg. 6 was dependent upon them. I am unable to agree with this submission. Regulation 6 is quite capable of having an independent operation apart altogether from any relationship which it may have with the two regulations in question. (at p411)
36. I would therefore answer the questions asked as follows: 1. Yes. 2. Yes. 3. No. 4. Does not arise. 5. No. (at p411)
AICKIN J. I have had the advantage of reading the reasons for judgment prepared by my brother Stephen in this case. I find myself in complete agreement with those reasons and with the answers which he proposes should be made to the questions asked. There is nothing that I can usefully add. (at p411)
Orders
Order that the questions removed by the case stated be answered as follows:
1. Having regard to the provisions of the Rules Publication Act 1903 (Cth), as amended, and the facts herein set forth, particularly in pars 19 to 22 inclusive, and the information in the Schedule hereto, were regs 6 and 42 of the Banking (Foreign Exchange) Regulations operative at times relevant to the charges against Roger William Watson and Donald Gordon McLellan mentioned in par. 1 hereof?
A. Yes.
2. Are ss. 3 and 4 of the Banking Act 1974 (Cth) valid laws of the Commonwealth?
A. Yes.
3. Are regs 6 and 42 of the Banking (Foreign Exchange) Regulations in excess of the powers conferred by s. 3 of the Banking Act 1974?
A. No.
4. If question 3 is answered affirmatively, are such regulations or either of them validated by the operation of the Banking Act 1974? A. Does not arise.
5. If question 3 is answered in the negative, is the validity of such regulations otherwise dependent upon the validity of any or all of the other regulations made under the Banking Act 1974?
A. No.
Order that the plaintiffs pay the defendants' costs.
Actions
Download as PDF
Download as Word Document
Citations
Watson v Lee [1979] HCA 53
Most Recent Citation
Johnson v Director of Consumer Affairs Victoria [2011] VSC 595
Cases Citing This Decision
15
Travelex Ltd v Federal Commissioner of Taxation
[2010] HCA 33
Travelex Ltd v Federal Commissioner of Taxation
[2010] HCA 33
Chang v Laidley Shire Council
[2007] HCA 37
Cases Cited
6
Statutory Material Cited
0
Scurr v Brisbane City Council
[1973] HCA 39
Bradshaw v Gilbert's (Australasian) Agency (Vic) Pty Ltd
[1952] HCA 58