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Published online by Cambridge University Press: 24 January 2025
(1970) 44 A.L.J.R. 211. High Court of Australia.
2 S. 3(2) provided :
For the purposes of this Ordinance, the unimproved value of a parcel of land leased or to be leased under this Ordinance is the capital sum which the lease, subject to the terms and conditions upon which it is held or is to be held, might be expected to realise if offered for sale on reasonable terms, assuming that the improvements (if any) on the land had not been made and that the lease had an unexpired term of ninety-nine yearsat the time of the sale, and leaving out of consideration any rent payable in respect of the lease other than prospective increments or decrements or rent after reappraisement.
3 44 A.L.J.R. 211, 2ISC.
4 Kitto J. also regarded section 50 of the Australian Capital Territory Interpretation Ordinance 1967, requiring a regulation made under an Ordinance to be published in the Gazette, as a further inlportant check on the 11inister's power which could be circumvented by use of his power of delegation. However, section 6(1) of the City Area Leases Ordinance requires notice in the Gazette of any delegation of the Ministers powers under that Ordinance.
5 44 A.L.J.R. 211, 219B.
6 Id., 217C.
7 Id., 212G.
8 Supra. n. 2.
9 44 A.L.J.R. 211, 213.
10 But see Leary v. National Union of Vehicle Builders [1970] 3 W.L.R. 434, where Megarry J. recognised that hvo bodies in the same hierarchy may both have a duty to observe the requirements of natural justice. The case related to a union member who was denied natural justice when excluded from the Union by a meeting of his branch committee, but was afforded the right at a subsequent rehearing of his case by an appeals tribunal.
11 Sections 3(2) and 25 have since been repealed: City Area Leases Ordinance 1970, sections 3(c) and 21.
12 The Senate Select COll1rnittee on Regulations and Ordinances has recommended disallowance of certain regulations on sinlilar grounds. In their TwentySecond, Twenty-Third and Twenty-Fourth Reports they recon1n1ended that the relevant regulations be disallowedbecause they made the rights of persons unduly dependent upon the discretion of the lvIinister. It is pertinent to note the COlllment of the Committee in their Twenty-Third Report:
We are concerned with the maintenance of a system which does not make the rights of persons unduly dependent on adlninistrative decision without protection of theCourts of Justice.
13 The City Area Leases Ordinance has been substantially amended since this case: see City Area Leases Ordinance 1970. A significant alteration has been the repeal of sections 3(2) and 25(1) and in their stead, the insertion of new sections requiring the linister to determine the rent payable under the lease according to a new formula which is far more exhaustive and far less subjective than the previous one.
14 44 A.L.J.R. 211, 216C.
15 The Acts Interpretation Act 1904-1934 was repealed in 1937, although a provision for tabling of regulations was thereupon inserted in the Australian Capital Territory Interpretation Ordinance 1937 (section 16(1)).
16 The authorities are collected in two interesting articles where tbe point is discussed: J. F. Northey, “Sub-Delegated Legislation and Delegatus Non Potest Delegare” 6 Res Judicatae 294 and R. Fox and O. M. L. Davies, “Sub-Delegated Legislation” 28 A.L.J. 486. See also The Queen v. Lampe and Others; ex parte Maddalozzo (1963) 5 F.L.R. 160, 171 and the discussion of that case in (1966) 1 F.L. Rev. 149.
17 Ibid.
18 Section 16(1) of the Interpretation Ordinance 1937 did, until the reall that section in 1959, subject regulations made under an Ordinance to Parliamentary scrutiny. However, it is submitted that this section, by itself, would have been sufficient to validate section 38 of the Ordinance. For although the Interpretation Ordinance was subjected to Parliamentary scrutiny, no affirmative resolution of the Parliament was necessary for it to take effect, and hence there was no express recognition by the Parliament that regulations would made under Ordinances. [Note—Acts Interpretation Act 1901-1966 does apply to Australian Capital lerritory Ordinances—see section 6, Interpretatince Ordinance 1967].
19 Section 6(1) of the Seat of Government (Administration) Act 1930 metro spectively validated all regulations made by the authority of any Ordinance under the Seat of Government (Administration) Act 1910-1930, but in no way did in apply to regulations subsequently made. See also Cameron v. Deputy Federed Court Commissioner of Taxation (Tas.) (1924) 34 C.L.R. 8, where the High Court held, where a regulation was originally ultra vires conferred by an Act. but the Act was subsequently amended so as to permit of the making of such a regulation, the regulation already made is not thereby rendered. effective.
20 44 A.L.J.R. 211, 216C.
21 Section 12(1) of the Act gave to the Governor-General the power to “make Ordinances having the force of law in the Territory”.
In The Queen v. Lampe and Others; ex parte Maddalozzo (supra). the Supreme Court of the Northern Territory upheld as being a plenary grant, a grant of legislative authority to the Legislative Council of the Northern Territory which was of virtually the same extent as the grant to the Governor General at present under consideration, yet which was expressed differently: “for the peace order and good government of the Territory”.
Section 12(1) of the Act has recently been amended, to establish uniformity with the grants of power given to other legislative bodies in Australia : viz. “for the peace order and good government of the Territory”; Seat of Government (Administration) Act 1970, section 3.
22 See Cobb & Co. Ltd v. Kropp (1966) 40 A.L.J.R. 177 and Kitto J's comment on that case—44 A.L.J.R. 211, 214B; The Queen v. Burrah (1878) 3 App. Cas. 889, Hodge v. The Queen (1883) 9 App. Cas. 117, and Powell v. Apollo Candle Co. Ltd (1885) 10 App. Cas. 282.