Dignan v Australian Steamships Pty Ltd [1931] HCA 19

Dignan v Australian Steamships Pty Ltd [1931] HCA 19 - HCA 1931 case summary — Zoe

[21]

employs, engages or picks up a transport worker (being a water- side worker) in contravention of the last preceding sub-regula- tion shall be guilty of an offence." The official record of the proceedings that took place in the Senate on 26th March 1931, namely, the Journal of the Senate, showed that Senator Sir George Pearce moved a motion for the adjournment of the Senate "in order to discuss a matter of urgent public importance," namely, "the action of the Government in gazetting new Regulations under the Transport Workers Act." A motion was thereupon moved by a senator " That the document quoted by Senator Sir George Pearce during his speech be laid upon the Table." This motion was resolved in the affirmative, and a copy of Statutory Rules 1931, No. 34 (Transport Workers (Waterside Workers) Regulations) was laid upon the table of the Senate by Senator Sir George Pearce. The motion for the adjournment of the Senate was put and negatived. Senator Sir George Pearce then moved "that the Standing Orders be suspended to enable the moving of a motion for the disallowance of the Statutory Rule laid upon the table with respect to the Transport Workers Regulations." On a point of order taken by a senator that in view of the provisions of sec. 10 of the Acts Inter- pretation Act 1904-1930 such motion could not be moved without notice, the President of the Senate ruled that so far as the Standing Orders related to the case the proceedings were entirely in order, and that the legal aspect of the matter was not one to be adjudicated upon by him. The motion for the suspension of the Standing Orders was resolved in the affirmative by an absolute majority of the senators, and a subsequent motion that the Statutory Rule in question be disallowed was also carried. Later, on the same day, a notice of motion appearing on the Senate's Notice Paper for that day in the name of Senator Sir George Pearce, and referred to below, was withdrawn. The relevant Standing Orders of the Senate are as follows : - " 104. Notice of motion shall be given by the senator stating its terms to the Senate and delivering at the table a copy of such notice, fairly written, printed or typed, signed by himself and showing the day proposed for bringing on such motion." "114. No notice or contingent notice shall have effect for the day on which it is given." '115. Nosenator shall, unless by leave of

[33]

The laying of the regulations before Parliament constitutes part of the publication, and is essential to give them permanent validity : ' : the condition of laying them before Parliament is a matter of | - - substance and therefore mandatory (Bain v. Thorne (2)). It is not competent for any person other than a member of the Executive Council to lay regulations on the table of the Senate. Even if such regulations were laid before the Senate no notice of the motion for their disallowance was given within fifteen sitting days after they were laid upon the table. The words "fifteen sitting days" appearing in sec. 10 apply to the notice, that is, notice must be given within fifteen sitting days calculated from the day on which the regulations are brought before the House. That procedure was not followed here. A notice of motion to disallow given before the regulations were laid upon the table of the House is ineffective and cannot be relied upon. It is a proper and reasonable provision : the requirement that the papers should be before the House before a notice to disallow is given is so that members might have an opportunity of becoming acquainted with the nature and effect of the matter sought to be disallowed. The notice required by sec. 10 is such a notice as the Senate itself prescribes. As to this, see orders 104 and 115 of the Standing Orders of the Senate. The actions taken on 25th and 26th March do not constitute notice within the meaning of the Standing Orders. As the Standing Orders were suspended it would seem that the matter was actually dealt with without notice. Sec. 10 is a grant of a power subject to conditions, which conditions must be complied with irrespective of whether they are important or otherwise. To ascertain whether a provision is directory or mandatory regard must be had to the form of the provision. It is in the proper sequence of things that a notice of motion to disallow should be given after the matters proposed to be disallowed have been laid upon the table of the House.

[60]

controlling the selection of agents doing work only incidental to inter-State or foreign trade, or regulating the relationship of employer and employee. The Regulations of 1930, Nos. 158 and 159, provide that in the employment, &c., of transport workers (being waterside workers) for oversea or inter-State vessels priority shall be given to members of the Waterside Workers' Federation ; whilst the regulations here in contest provide that in the employ- ment, &c., of transport workers (being waterside workers) for work in or in connection with the provisions of services in the transport of goods the subject of trade or commerce by sea with other countries and among the States priority shall be given to members of the Waterside Workers' Federation. The description of persons for whose benefit the regulation is designed is the same, namely waterside workers. Looking at the definition given in the Transport Workers Act 1929 (No.3 of 1929), I take waterside workers to mean (subject to certain exceptions which are immaterial for present purposes) persons engaging in the loading or unloading of ships as to cargo, coal or oil fuel, and persons engaging in work in or alongside the ships in connection with the direction or checking of the work of other waterside workers. It is this class or description of workers who are given priority. But the work as to which they are given priority is not loading or unloading of ships as to cargo, coal or oil fuel, but work in or in connection with the provisions of services in the transport of goods the subject of trade or commerce by sea with other countries or among the States. So far as the regulation gives priority to waterside workers engaged in the transport of goods in inter-State or foreign trade, the Huddart Parker decision (1), in my opinion, supports its validity. But it is by no means clear, on the wording of the regulation, whether the transport of goods is confined to loading or unloading of ships within the description of such work mentioned in the definition of waterside worker contained in the Transport Workers Act 1929 (No. 3 of 1929), sec. 2, or whether it extends generally to the transport of goods and gives waterside workers priority of engagement and employment of all work of transport. When, however, a privilege is given to one description or class of workmen over all other subjects except

[65]

the Acts Interpretation Act, but they are expressly so made by the Transport Workers Act itself. The object of sec. 10 of the Acts Interpretation Act is twofold : one, to fix the date of commencement of regulations, the other to retain the power of disallowance in Parliament. The power to make regulations is construed, unless a contrary intention appears, as including a power to rescind, revoke, amend, or vary such regulations (Acts Interpretation Act 1901- 1930, sec. 33 (3) ). Therefore the power of disallowance is to ensure the control and supervision of Parliament over regulations. But it is argued that this control is subject to two conditions precedent : that the regulations be laid before each House of Parliament, and, before either House can disallow them, it must pass a resolution of which notice has been given within fifteen sitting days after the regulations have been laid before such House. Is this right ? Acts passed for the purpose of enabling something to be done, and prescribing the way in which it is to be done, may, in the language of the cases, be absolute, or imperative, or directory only. An absolute or imperative enactment must be obeyed or fulfilled exactly, and, if it be neglected or contravened, the Courts of law will treat the thing done as altogether invalid and void (Woodward y. Sarsons (1) ). On the other hand, if the enactment be directory only, its non-observance will not render the thing done invalid or void. "The question," says the Judicial Committee in Montreal Street Railway Oo. v. Normandin (2), "whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. . . . When the provisions of a statute relate to the perform- ance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general incon- venience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.' (See also Howard v. Bodington (3).) In the present case, the object of the

[67]

Legislature is to preserve the legislative power of the Houses of Parliament over regulations made by the Executive or ot} statutory authorities: not to give a new legislative power, but to maintain the Houses of Parliament as the dominant authority legislative matters. It is therefore desirable that some pro should be prescribed which will bring regulations to the notice the Houses. Hence the direction that the regulation be before each House within fifteen sitting days after the maki thereof. The implication of this provision, we have been told, is that the regulation-making authority must lay a regulation befi each House of Parliament within fifteen sitting days of that House. or else the regulation is void. But no such sanction is to be found in the Act itself, and the suggested implication is quite unnecessary if the purpose of the provision be to apprise the Houses of tions, and not to prescribe a condition of their power to disallow them. But then it is said that a regulation can only be disallo if a resolution be passed to that effect after notice of it has given at any time within fifteen sitting days after the regulat has been laid before the Houses. The purpose of the provision, however, is to fix a period of time beyond which disallowance should not take place, not to impose it as a condition on the power of disallowance. The opposite view would enable the regulation- making authority to delay the presentation of any regulation to Parliament, and thus keep it in force for fifteen days at least, a if disallowed, then re-enact it and delay presenting it to Parliam for another fifteen days. By this method a regulation might be kept in perpetual operation, and in fact it seems to have been adopted in the present case. On 20th March 1931 the Senate disallowed the Regulations 1930, Nos. 158 and 159, and on same date the present Regulation 1931, No. 34, was made, ha' as I think, substantially the same effect. This procedure entirely subversive of the control of Parliament over regulations which it is the main object of sec. 10 of the Acts Interpretation Act 1904-1930 to preserve. And when a member of the Senate refe to the new regulation and the House resolved that it be laid on table, there was nothing in sec. 10 which imposed any co or limitation upon its power to disallow the regulation. The Senate

[78]

that in no view could the expiration of fifteen days without the regulations coming before each House be fatal to the power. t 'Two interpretations then remain open: one by which the power to disallow continues in abeyance and does not arise until the regulations are laid before the House, if and whenever that may happen ; the other, by which the power is exercisable at any time unless the regulations have been laid before the House and fifteen sitting days have elapsed without notice being given of a resolution of disallowance. The reasons for adopting the first of these two interpretations are confined to the form in which the relative clause is expressed in the provision conferring power to disallow. Every - consideration of substance appears to be against it. It converts - into a condition essential to the validity of the disallowance a mere procedural requirement prescribed for no other purpose than to acquaint the Houses that regulations have come into existence, the annulment of which they might wish to consider. It treats the relative clause as not only specifying a time after which the power to disallow should cease, but as intending to require that some notice of motion should be given and that it should be given a the regulations had been laid before the House. Yet the nature of the notice and the manner and time of giving it are not defined by the section. The supposed requirement would be satisfied if the proposer stated to the House his intention to move the resolution at any appreciable interval of time before he actually did so. Indeed, it was suggested that in this case the motion to suspend the Standing Orders to enable the moving of the resolution of disallowance amounted to notice of that resolution within the - meaning of the section. A consideration of the matter leaves no doubt that the sole purpose of the relative clause was to place limit of time after which regulations should not be liable to annulment _ by resolution. If a time were prescribed within which the resolution must actually be passed, as was done in the Customs Act 190) sec. 271, the state of parliamentary business might make it easier to defeat a proposal for disallowance by delay than to obtain it consideration. To avoid this difficulty it was natural to fix a time within which the proposal must be made and, in doing so, to refer" to the familiar parliamentary procedure by which motions are-

[79]

made upon notice unless by leave of the House, or unless it be otherwise specially provided by the Standing Orders (e.g., see Senate S.0., No. 115). It may be conceded that as a result the relative clause describes a course which has not been exactly pursued. But the question is not simply whether the course has been exactly pursued, but whether an intention is expressed or otherwise sufficiently appears that exact compliance with its language shall be essential to the power. Again it may be conceded that upon this question weight should be given to the circumstance that the power of disallowance is expressed in the form of a condition, the occurrence of which defeats the regulations. The law supplies, however, other considerations which must also be attended to. "Tt is a rule of construction that matters shall not be deemed to be conditions precedent unless they are declared to be so. That is a sound rule to apply to statutes, and unless the legislature has in plain words said that a certain thing shall be a condition precedent, we must not so construe it " (per Martin B. in Thompson v. Harvey (1)). Unless obliged to do so by the terms of the enactment, Courts should not hold validity to be conditional upon an exact compliance with statutory provisions which describe the mode of exercising a public authority over large and indefinite bodies of persons where to do so would not achieve the main purpose of the enactment and would produce serious inconvenience and cause confusion and doubt in the ascertainment of the law. In the language of Lord Penzance: "There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the Court to be of that material importance to the subject matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings'? (Howard v. Bodington (2); see too Montreal Street Railway Co. v. Normandin (3) ). "The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially " (per Lord Coleridge C.J., who read the judgment of the Court (Brett, Archibald and Denman JJ.) in

At a glance

Court

Decision date

Before

Source

Judgment (174 paragraphs)

Cited By (1)