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Tuesday, 9 June 2009

Evidence Act will allow judicial notice of regulations

When I wrote about Ostrowski v Palmer (2004) 218 CLR 493 a few weeks back, I was interested by Gleeson CJ and Kirby J's discussion of why the common law doesn't permit Courts to take judicial notice of regulations and rules.

[3.] One of the reasons that has been given for the common law rule that courts do not take judicial notice of regulations, as they do of statutes, and that a party relying on regulations must prove them in evidence, is that, in the past, in England, there was no official publication that would give ready access to the content of regulations of the kind that existed in relation to statutes. For purposes of pleading and evidence, unless the statute pursuant to which regulations were made provided that they were to be taken to be part of the statute, and subject to considerations that might arise out of the way particular litigation was conducted, in civil litigation the making and content of regulations were treated by the common law as facts to be alleged and proved. Proof of the making and the terms of regulations established that they formed part of the law to be applied to the resolution of the case. The same applied in criminal proceedings. Regulations duly made form part of the law but, subject to any statutory provision to the contrary, in legal proceedings their existence and content must be alleged and proved by the party relying on them. (Footnotes omitted.)

I must admit that I was ignorant about the rationale for a rule that is (it turns out) intended to prevent ignorance. And yes, I do see the irony in that!

The consequence of the rule is that tendering regulations and rules is a regular occurrence in summary prosecutions. But in 21st century Australia, regulations are published and available to the public. (Even if there are still practical problems finding them.)

When the Evidence Act 2008 commences operation, section 143 will provide for courts to take judicial notice of subordinate legislation. It will also apply to orders made by the Governor-in-Council (the formal legal mechanism for proclaiming government decisions, typically recorded in the Government Gazette) and other proclamations made under legislation and published in the Government Gazette).

143. Matters of law
(1) Proof is not required about the provisions and coming into operation (in
whole or in part) of—
(a) an Act, an Imperial Act in force in Australia, a Commonwealth Act, an Act of another State or an Act or Ordinance of a Territory; or
(b) a regulation, rule or by-law made, or purporting to be made, under such an Act or Ordinance; or
(c) a proclamation or order of the Governor-General, the Governor of a State or the Administrator or Executive of a Territory made, or purporting to be made, under such an Act or Ordinance; or
(d) an instrument of a legislative character (for example, a rule of court) made, or purporting to be made, under such an Act or Ordinance, being an instrument that is required by or under a law to be published, or the making of which is required by or under a law to be notified, in any government or official gazette (by whatever name called).
(2) A judge may inform himself or herself about those matters in any way that the judge thinks fit.
(3) A reference in this section to an Act, being an Act of an Australian Parliament, includes a reference to a private Act passed by that Parliament.
Note: Section 5 of the Commonwealth Act extends the operation of the equivalent Commonwealth section to proceedings in all Australian courts.

The only practical difficulty I see with this section is the temptation for advocates to leave it to judicial officers to inform themselves of the content of regulations. Given the volume of legislation and subordinate legislation, that's probably a bit of a gamble: it's unlikely any individual will be familiar with every Act of Parliament, let alone all rules and regulations.

That problem is greater for proclamations found in the Government Gazette.

So, as useful as this provision will be in updating our legal processes, there will probably still be a practical need for subordinate legislation in our courts.

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