I should like to make one general point about them. We are about to go into each of the four regulations one by one. I think something should be said about them in general. There is a lot to be said for the idea that the Government would lay down some general method of dealing with regulations. Instead of each Government Department presenting regulations individually, it might be better if they were drafted in accordance with a common pattern. Regulation No. 2, for instance, comes from the Department of Lands. Paragraph 9 refers to the fact that an offence under these regulations may be prosecuted by the Minister. It refers to contravention of certain regulations. Then we come to Regulations Nos. 3 and 4 before us. They are identical offences. It seems to me there is a great deal to be said, where regulations of this type deal with identical matters, that they should have some coherent pattern. I do not know whether it is possible to have such a system.
Consideration of Regulations.
It is a good point and perhaps it is something that the sub-committee to be set up to deal with regulations could have a look at. Members may be wondering why these four particular regulations are before us. As you know, the first confirmation Act confirmed 22 regulations. As they were confirmed under the former European Communities Act they do not come within our jurisdiction, though we can if we wish have a look at them. However, in order to have some start made and some one area completed, we felt that if we could discuss these four today, or if we were disposed to take note of them, we would then have dealt with all the regulations made up to 31st July. That is why these four are before us.
I would suggest that Nos. 2, 3 and 4 are relatively non-contentious. They deal with forest reproductive material, seeds and vegetable seeds. I suggest we should take note of these three and then perhaps we could deal with the Companies Regulations.
Does anybody want to say anything about Nos. 2, 3 or 4?
I am not very happy about the general form of the first one in relation to forestry productive material. First of all there is the directive. The directive has been scheduled which helps us to discover what it means, but if we look at the directive we will see that it contains options for member states to derogate from particular articles and gives alternative courses to individual states. This document is incorporated into our law and this gives problems to member states in relation to whether they will adopt one or other course. It seems to me to be undesirable to incorporate the directive itself as distinct from reciting it. I would prefer to see the regulation set out with a recital of the directive in the schedule rather than incorporating the directive in its entirety. That is a general point.
There is an explanatory note with each.
Senator FitzGerald's words are very important and we might bear them in mind in respect of other regulations. In this country we have got a common law system and we think in a certain way. Senator FitzGerald is a professional man. So am I. We appreciate what is behind this when it comes before the courts. Senator FitzGerald's suggestions or comments are very much on point because if you put the directives into the body of the statutory regulations you are binding yourself to interpretation elsewhere. I know there are certain difficulties under the Treaty in regard to directives. Certain decisions have been made in decided cases before the European Court and, as Senator FitzGerald has said in a rather quiet way, we should direct the attention of our statutory draftsmen and of the different Departments to this matter. It would be very unwise to incorporate a directive in the actual order. It could be recited, put in our own words. We must remember that here we have to deal with our own people's interpretation of our law.
I should like to be clearer on what is involved. Would Senator FitzGerald elaborate? Is the directive included in the regulation?
It is included in the regulation by the schedules to it and it is identified by definition in the second paragraph of the regulation. In the course of the regulation there is reference to the directive, for instance in paragraph 5.
The material shall be marketed in conformity with the criteria given in the scheduled directives.
I have not looked at this closely enough. There is also Article 6 :
Reproductive material shall not be imported unless it is accompanied by a certificate conforming to the requirements of the scheduled directives . . .
I think the criteria for marketing which are specified in the scheduled directives are quite open and loose and provide for derogation from the Commission. We have adopted Article 4 and what I suggest—I think it is the first committee—is that as a specimen case we might take this particular document, examine it and see if it does, in the view of the Committee, give rise to any recommendation.
It might be better if the four of them were sent to that sub-committee.
We have already had two very interesting suggestions, one in regard to the nature of the penalties and the other on the question of the directives being scheduled. My suggestion is that we should refer these specific areas and any others that arise to the sub-committee for a report, giving specific instructions to the committee so that they might, in fact, have a report ready for the next meeting of this committee. I wanted to refer to the regulation affecting company notepaper. The regulations were made on 20th June and were published and became operative on the 1st July. That gave ten days for every company in the country to change their notepaper to comply with regulation No. 9 which provided that the company should show their place of registration and their registration number. They had ten days to make these changes or become liable to penalties. I have heard my colleague, Senator Fitzgerald, make the point very eloquently that sufficient notice of changes should be given. In the case of statutory instruments there is much less notice and much less publicity. In this case there were ten days in which companies could comply or suffer penalties. This is something that we should note very strongly, that it is not necessary that there should be such very short time between the date when some change like that is made and the date when it comes into effect. Certainly the penalty clause could be delayed for six months to allow companies to adjust.
I think we might dispose of these four regulations by referring them to the sub-committee, not only the regulations themselves but the points they raise in our minds. Senator FitzGerald's main point was that incorporating those directives into our legislation could lead to serious interpretative difficulties because these directives are not framed in the light of the procedures and terminology to which we are accustomed. Senator Robinson's point concerned changes.
Yes, that changes such as those concerning company notepaper should carry adequate notice. It is not fair that time should not be given for adaptation.
It is the Committee's wish then, that these four regulations and the points that have been raised here should be referred to the sub-committee?
In the case of the companies regulations I do not know if it is possible for the State to do anything very different from what was done by the particular regulation because this was already embodied in an EEC directive some time ago. If this were at a draft stage and the Committee were considering it it could tell the EEC that this is a lot of extremely expensive nonsense. This is an example of where, perhaps, we could help the Commission to formulate a wiser type of directive.
Thank you very much for directing our attention to that. We can then proceed to get a report on these four regulations from the sub-committee.
When reporting, could we ask the sub-committee to notify us as to what extent existing law already provides for some of the proposals contained in the regulations? I presume existing law does not always coincide with some of the proposals and it would be helpful if the sub-committee could bring such matters to our attention.
Really the important point is to what extent existing law is affected by the proposals.
May I ask the lawyers on this committee as far as possible to make the benefit of their experience available to the sub-committee?