Pfeiffer v Stevens B31/2000 [2001] HCATrans 194 (4 May 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B31 of 2000

B e t w e e n -

OTTO PFEIFFER

Applicant

and

PAUL ERNEST STEVENS

Respondent

Application for special leave to appeal

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 MAY 2001, AT 1.00 PM

Copyright in the High Court of Australia

MR A.P.J. COLLINS: Your Honour, Mr Ingham-Myers cannot appear. If the Court pleases, I appear with MS C.M. MUIR, on behalf of the applicant. (instructed by Gall Standfield and Smith)

MR P.J. LYONS, QC: If the Court pleases, I appear for the respondent. (instructed by King & Company)

KIRBY J: Yes, Mr Collins.

MR COLLINS: Thank you, your Honour. Your Honour, the fundamental aspect of the complaint of the applicant with the decision of the appellate court is that the provisions of section 860 of the Local Government Act were concise and clear. They refer to "an interim local law" with a requirement that the:

local law must include a sunset provision stating the law will expire -

(a) 6 months after its commencement; or

(b) at the end of a longer period gazetted by the Minister.

Now, can I take your Honours to page 13 of the record which is the third page of the decision of the Queensland Court of Appeal and at paragraphs 7 and 8. The point here, your Honour, is it was gazetted for a first time to end on 14 September 1997:

unless extended by the Minister by further notice -

and then on 5 September was extended for a second time but it was stated is extended and now expires on 14 March 1998.

The point put forward on appeal was that there had been no provision for a further extension and, indeed, it was not open on the interpretation of the legislation of an interim law which compelled a sunset clause to further extend it.

KIRBY J: We understand the point, we have read the papers. The argument against you is that it is a matter of statutory construction upon which you could take two different views and the Court of Appeal of Queensland has taken its particular view. Is there any point of general principle that you say lifts this out of the ruck of simply a disputable question of statutory construction. Is there, for example, behind the issue some general principle relating to sunset clauses, the control by the legislature over Executive Government, the need to construe with some degree of strictness in the context of a sunset clause this facility of extension, or is there anything else that you can say that lifts it out of the ruck.

MR COLLINS: Yes, there, is too, one, the fact that it involves this specific call in the legislation for a sunset clause, and secondly, we submit, the inappropriate use that starts at paragraph 8 in the Court of Appeal's decision of the reliance on the provisions of the Acts Interpretation Act, in particular, section 23. In the Blue Metal Industries v Dilley decision of the Privy Council at page 658, the Council said:

The Interpretation Act is a drafting convenience. It is not to be expected that it would be used so as to change the character of legislation.

We submit that the factor which makes this different to normal cases of statutory interpretation is that the Court of Appeal has then attempted to use section 23 to say even though the conduct is contrary - we submit contrary to what the Act says, by using section 23, you can get around it. It is not specifically in the court's decision, but it is in my learned friend's submissions and, I think, was relied upon in the court below, about section 32, that something in the singular also applies in the plural. But this is not an appropriate case for that because it is not talking about singular and plural. What it is is the use of ongoing gazetting to extend a local government law and that is something different - - -

KIRBY J: On the theory of the Court of Appeal, notwithstanding the fact that peculiarly this Act had a sunset clause, could the Minister continue to give extensions indefinitely?

MR COLLINS: No, we say no, your Honour.

KIRBY J: No, but on the theory which the Court of Appeal has embraced, thereby permitting the Executive Government within the power afforded by the Parliament to, in effect, frustrate the purpose of the provision of a sunset clause in the first place?

MR COLLINS: Yes. Your Honour, that is referred to, I think, on the last page, page 14 of the record, at paragraph 10 at line 25:

Conceivably a point in time may be reached at which it is no longer possible to describe a local law as interim; but, in the case of Interim Local Law No 6, that stage had not been reached by 5 September 1997, nor by 14 September 1998.

But one cannot have it both ways. If one can, as the Court of Appeal's reasoning would suggest - - -

KIRBY J: You say that there is an illogicality, that if it can be done once, it can be done indefinitely and, once you accept that principle, there is no logic within the Acts Interpretation Act that prevents it being used indefinitely, which cannot be because it is a sunset clause.

MR COLLINS: Exactly, your Honour.

KIRBY J: Yes, very well, I think we understand the issue, it is quite a short point. What do you say, Mr Lyons? It is not an uninteresting point, this, and it would not take very long.

MR LYONS: It would not take very long, I would not think, your Honour. That, however, I do not think is the test. The real issue is whether the Acts Interpretation Act applied or whether a contrary intention appears and, in my submission, no contrary intention appears to the proposition that the power might be exercised more than once.

The provisions of Division 2 of the Local Government Act with which this case is concerned were directed not to regulating the power of the Minister, but to regulating the power of a local government to introduce a by-law without going through the more extensive procedures in Division 3. If the legislature intended to limit the power of the Minister, one would expect first to find an express grant of power, which is not found in Division 2 at all. The power to extend time is there by implication only. One would also expect to find a limitation on the time for which the Minister might extend the operation of the interim local law. Neither of those things appear and - - -

KIRBY J: It is really a question of whether you read down paragraph (b) by reason of the context, that is to say:

at the end of a longer period gazetted by the Minister -

whether you read it down by reason of the fact that it "must include a sunset provision" whose prima facie expiry is "6 months after its commencement", now, that is the will of Parliament, and whether or not by (b) in that context Parliament has provided the open-ended power of the Minister in the Executive Government to extend the period.

HAYNE J: And to do so repeatedly. It may be that it is the repetition which is the difficulty that arises here.

MR LYONS: Yes, your Honour, I understand the proposition. The point, however, is that the power which was controlled specifically was the power of the local government and in Division 2 the method of control is in a number of respects, not just here, the involvement of the Minister. The Minister's consent, for example, was required before the process might be carried out and the Minister was given the power to extend the required period for consultation when the next stage came, that is, the procedures to make a local law which was no longer interim. So that the Minister was given a controlling position over the local government's conduct and the only purpose of Division 2, from an examination of all its provisions, is to regulate the local government's position, rather than limit the Minister's power. There might be some inconvenient consequences in taking the view that the power was exercisable only once. Clearly, the intention is to ensure that an interim local law has a limited life and that limitation should be one which is appropriate to the circumstances of the case that it might be appropriate to grant a series of short extensions to see whether the period should be longer. If one took the view - - -

HAYNE J: That depends, does it not, on the way in which section 863A of the Local Government Act would, in fact, operate. That is to say, under 863A(1):

the local government must proceed to make the proposed interim local law as -

in effect, a final law -

under division 3, starting at step 3.

Now, I take it there are steps prescribed there with certain time limits, are there?

MR LYONS: I think that is correct, your Honours. The steps appear in the bundle of material which we have provided. The extracts from the Local Government Act include Division 3 and Step 3 is the consultation period which prescribes a period of 21 days, although I do not think a period within which the consultation must start is prescribed. Then, once that starts, there is a time prescribed for making the proposed law, that is the proposed final law, available to the public, that is Step 4, in section 869. Step 5 relates to consideration of submissions. There is no time limit on that. Section 871, Step 6, is the decision. It does not really seem to have a time limit either. Then Step 7 is recourse, again, to the State government to consider State interests. So that cannot really be said, I do not think, that in respect of the steps after Step 3 there are fixed time periods. Those matters might extend.

Indeed, one of the things that might happen is that in the course of adopting the final local law, first, there may be extensive consultation, and, secondly, the State may wish to consider the matter at some length which could result in a gap, as it were, between the time of the extension originally granted by the Minister and the time when the local law was adopted.

KIRBY J: The argument on the other side is that that is a reason for the Executive Government to persuade Parliament not to have sunset clauses and/or to make clear, as you do sometimes see specifically mentioned in the particular Act, that this may be exercised on multiple occasions. That is the argument on the other side. I am not saying this is a clear case one way or the other, but the question is whether there is something in it that makes it more important than simply a disputed question of statutory construction and the suggested basis for some differentiation is that this relates to the relationship between the executive branch and the Parliament, which has laid down a scheme and exceptionally included the included the sunset clause.

MR LYONS: The relationship between the Executive Government and the Parliament often arises under legislation. It, in my submission, would hardly be exceptional - - -

KIRBY J: That is the question, does it, beyond the first go?

MR LYONS: It does not beyond the matter of construction, in my respectful submission. The only real question is the application of the Acts Interpretation Act and that - - -

KIRBY J: Yes, well, your opponent says that is always to be read subject to a contrary intention and in this legislation, the sunset clause, the must, the limited period, all indicate sufficiently the contrary intention.

MR LYONS: Well, that obviously is a question of construction and, in fact, there is an express provision of the Acts Interpretation Act which adopts the contrary intention approach. But the real question here is whether there is sufficient in the material to lead to a finding of a contrary intention. I have tried to identify some matters which, in my submission, show the opposite and show it rather clearly.

KIRBY J: Yes.

MR LYONS: Beyond that, I suppose I would submit that, really, the circumstances, in any event, do not show this to be a matter of great significance because it is not suggested there are similar provisions in other States. There is no suggestion the operation of either these provisions of the Acts Interpretation Act or the Local Government Act have given rise to particular difficulties in Queensland and, indeed, even in respect of this particular local law, it is now being replaced by a final, as it were, local law. Those are my submissions, if the Court pleases.

KIRBY J: Thank you very much. Anything in reply, Mr Collins?

MR COLLINS: No, your Honour.

KIRBY J: Thank you. Yes, there will be a grant of special leave in this matter.

No doubt you will tell Mr Ingham-Myers, Mr Collins, that you have a success.

MR COLLINS: I certainly will, your Honour.

KIRBY J: The Court will now adjourn for the remaining matters and the Court will return at 2.00 o'clock. The Court will adjourn until 2.00 pm.

AT 1.17 PM THE MATTER WAS CONCLUDED