Pfeiffer v Stevens B40/2001 [2001] HCATrans 288 (26 June 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B40 of 2001

B e t w e e n -

OTTO PFEIFFER

Appellant

and

PAUL ERNEST STEVENS

Respondent

GLEESON CJ

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 26 JUNE 2001, AT 10.16 AM

Copyright in the High Court of Australia

MR R.A. INGHAM-MYERS: May it please the Court, I appear with my learned friend, MR A.C. HARDING, on behalf of the appellant. (instructed by Gall Standfield and Smith)

MR G.J. GIBSON, QC: May it please the Court, I appear for the respondent with my learned friend, MR S.M. URE, of counsel. (instructed by King & Company)

GLEESON CJ: Yes, Mr Myers.

MR MYERS: Your Honours, this appeal concerns the construction of Division 2 of Part 2 of Chapter 12 of the Local Government Act 1993 . Division 2 is concerned with making interim laws and could I take your Honours initially to section 859 of the division which makes the process mandatory - - -

GLEESON CJ: Mr Myers, I take it from the fact that we have only been given copies of sections 859 through to 867 that there is nothing else in the legislation that has any bearing on the construction of this section.

MR MYERS: In my submission, that is so. Your Honour, the copy of the legislation that should be used is the copy that was supplied by my friend and, in fact, he does refer to other sections to assist the Court in construction. I would submit it does not, but if - - -

GLEESON CJ: Well, we have a reprint No 4C and a reprint No 5C. Which should we be looking at?

MR MYERS: No 4, may it please your Honours. No 5 did not reflect the law at the material time. There are no major differences but certainly the earlier one is the one of relevance and, as I say, my friend does include some other material. Your Honours, could I take you to that and to section 859, and your Honours will see the fact that the section is in mandatory form and, in fact, by virtue of subsection (2):

If a local government purports to make an interim local law in contravention of subsection (1), the purported law is of no effect.

At the end of the day, the appellant's submission is that any extension or any purported extension of the interim local law was wrong and had that effect. Your Honours, section 860 then follows. Your Honours will see that it is in mandatory terms, it uses the word "must" and it requires again after the use of the word "must" in subsection (2) the inclusion of a sunset provision.

GUMMOW J: Where do we find the definition of this term "local government" - it is meaningless to me at the moment - in 859(2)?

MR MYERS: Your Honours, it is in the definition section of the legislation. It is not in any of the material.

GUMMOW J: Exactly.

MR MYERS: Your Honour, the definition is "`local government means - - -

GUMMOW J: Well, we had better be supplied with the relevant definitions. This really is not good enough.

KIRBY J: It is admirable not to waste paper but we have just - the marginal utility of keeping it away from us may not be worth it.

MR MYERS: Yes. Your Honours, I will have it supplied forthwith. Could I say that the definition is really not extensive and it simply says:

"local government" means a local government established under this Act.

McHUGH J: What about "law"? Is that defined anywhere?

MR MYERS: Certainly not in the definition section of the Local Government Act 1993 and as far as I am aware it is not defined elsewhere in the Act.

McHUGH J: What about "interim local law"?

MR MYERS: Yes, it is, and your Honours should have a copy of it. "Interim local law" is section 852, and your Honours will have that. I will make some further reference to section 852 in the course of my submissions.

KIRBY J: Section 842 is requirements of councillors before entering office.

MR MYERS: Yes, 852, I am sorry.

KIRBY J: But we do not have that. All of the Local Government Act of Queensland is in the library at the High Court in Canberra but it is often useful to make sure we have the most up to date version.

MR MYERS: Yes. Could I take you to the respondents - - -

GLEESON CJ: Section 852 is at page 519 of Reprint No 4C which you have just handed us.

MR MYERS: Yes, in the bundle of my friend's submissions, it is there, midway down page 519.

KIRBY J: I see, yes, it has been miscompiled in the collection I have. What was in place before this interim local law was introduced?

MR MYERS: Your Honour, nothing of this kind. It was innovative and there is a commentary to which I refer in my outline, and I will take your Honours to the commentary in due course, which makes it clear that it is really an innovative provision, and for that reason our ultimate submission is it should be strictly construed as such. But there was nothing similar in place, is the response to your Honour's question.

KIRBY J: There would be delegated legislation which the local authority could make under the Local Government Act, I assume. I mean, normally there are powers for local government authorities to make ordinances, are there not?

MR MYERS: And by-laws and, obviously, legislate in respect of - - -

KIRBY J: This addition of powers granted to the Minister was something entirely new.

MR MYERS: Yes.

KIRBY J: There was no analogy to it in Queensland before this.

MR MYERS: Not as far as I am aware.

KIRBY J: When did it come in?

MR MYERS:, and as I understand the situation, there is nothing comparable in other Australian States. That was a matter that was raised on the special leave application by our learned friends.

KIRBY J: Was there a power in the local authority to make and remake ordinances or was there anything analogous to this in respect of the other law-making authorities under the Local Government Act 1936 ?

MR MYERS: No, your Honour, the response to that is no, there was not. This is novel in the sense that it deals with a sunset provision. That is to say, in my respectful submission, a law which almost of its own effect repeals itself at the end of a period. There was nothing comparable as far as we are aware in our research.

KIRBY J: Is there any general study of sunset provisions in Australia? There have been sunset provisions in federal legislation. I think the Ombudsman Act or one of the administrative Acts had a sunset provision - FOI maybe.

MR MYERS: Yes, we have searched extensively and, effectively, everything that we have found I have not raised - I have not put it all in. It is used extensively, it seems, overseas. We have Canadian legislation. There was legislation in relation to firearms which brought the legislation to an end after a period of five years. It is extensively used and in our material we have referred to the Latimer House conference, which was a conference held under the auspices - Her Majesty the Queen is the patron and the Prime Minister of Australia is the vice-patron, and that discussed sunset clauses, and said in relation to them that if you are going to use a sunset clause there should be a specific provision in legislation which enables the law to be extended if need be.

It is our submission that you draw the obvious conclusion from that that this certainly was not intended to be withdrawn. I will take your Honours to the use of other words in the legislation which require that things be done immediately. You could not apply to the Minister for one of these interim local laws unless, to use the words of the legislation, you immediately put it in place to enact the law in its permanent form.

KIRBY J: I think I took you off your course. The starting point is the analysis of the legislation.

MR MYERS: Yes, if I may return to that. I have taken your Honours then to section 860 and if I could move from that. Could I submit that there is then no power, not in section 860, nor elsewhere, within the Minister to extend the interim local law beyond its expiration.

GLEESON CJ: I notice from section 860(1) that by hypothesis one of these laws is a law that has the agreement of the Minister. Is that right?

MR MYERS: Yes.

GLEESON CJ: So what we are dealing with is an exercise of power by a local government but the power requires the agreement of the Minister to make the law.

MR MYERS: Precisely, your Honour. That is really dealt with in section 861, to which I have made some passing reference in this sense, if I could take - - -

McHUGH J: I must say when I saw that I thought it supported your argument, but at some stage I will want to know what your answer is to 863(2)(c), which seems to me decisive against your argument.

MR MYERS: I was going to take your Honour to that almost immediately. Could I though now, the Chief Justice having raised section 861, refer you to the subsection to which I have made some passing reference, (4)(c). This is the procedure that must be followed, and your Honours can see the detailed procedure to get the Minister's consent. But before proceeding to step 3 the local government must get an advice and agree to satisfy any conditions imposed by the Minister, but (c), in my respectful submission, is of importance:

agree to immediately begin the process stated in division 3 (Making other local laws) to make the proposed interim local law as a local law under that division.

It signals the fact that the local government must move very quickly to go through the normal democratic process. But I will come to that in later detail.

Your Honours, could I go immediately to section 863 and make the submission that it is not a source of power in itself. The Court of Appeal, as I acknowledged in my outline of argument, seemed to treat it as such. Judge Hanger, when he dealt with the matter, said it could not possibly be. Section 863 is no more than a reference to the power vested in the Minister under section 860 to provide for an expiration date longer than six months after the commencement of the legislation.

HAYNE J: Is it right to see section 860 as conferring power on the Minister? Is not 860 concerned with the proposal made by local government and is not 860 confined in its operation to the steps that local government must take, as the heading to the Act suggests, as step 1 of a four-step process?

MR MYERS: Well, your Honour, that is obviously a view that is open but then one does not find any other power accorded to the Minister unless it is a power accorded under section 860(2)(b). Certainly, on all past hearings, it has never been challenged and it has really always been agreed, and the courts have so found, that 860(2)(b) is the source of the Minister's power.

McHUGH J: But it is talking about a proposed local law, so at the stage that 860 operates, there is no law. There is nothing that the Minister can operate on. Rather, as Justice Hayne points out to you, it appears to be directed to what the local government did. It must pass a resolution, propose that it proposes to make a law, and the proposed local law must include certain documents. Then, in step 2, they must advise the Minister of the "proposed local law", et cetera. So 860 seems to operate before the Minister has even been brought into the process.

MR MYERS: Well, certainly the proposed law has to say in it that it expires:

(a) 6 months after its commencement; or

(b) at the end of a longer period -

and then that is submitted to the Minister who either approves or disapproves of it, as I concede in the written outline of argument. We have to concede that the Minister has, in fact, approved it.

GUMMOW J: It comes at step 2, does it not, section 861(2) and (3)? It is a condition that the Minister agrees. There is a case on the Migration Act - I forget the name of it at the moment - to the effect that if the consent of a Minister is made a condition to something taking effect, the section stating the condition impliedly confers power on the repository to satisfy the condition. In other words, it impliedly empowers the Minister to agree if there is no other expressed conferral on the Minister for the power to agree.

MR MYERS: Your Honour, we do not contend to the contrary and at all levels it has been acknowledge that the Minister had the power.

GLEESON CJ: But to go back to the point raised by Justice McHugh, if standing alone there was an ambiguity in section 860(2) - and I am leaving aside the question of whether the Minister can later further extend the period - it is resolved, is it not, by 863(2)(c) because it tells you that the Minister can extend the date on which the local law will expire. Section 860(2) does not require at that stage a choice between either (a) or (b).

MR MYERS: Yes. Your Honours have probably perceived that it was initially contended that the Act was capable of being construed in any one of three ways but, with respect, what your Honour says has to mean that the ambiguity that, prima facie, might arise under section 860 is resolved. So it cannot be that 860(2) can be read disjunctively. That is to say, one has a choice of one or the other which, prima facie, it might have meant. Section 863(2)(c) resolves that ambiguity, but that is all it does. It cannot be seen as conferring any additional power on the Minister to do anything other than what 860 says he may do, perhaps even - - -

GLEESON CJ: So the issue then is whether or not, when you read 860 and 863(2)(c) together, the Minister may extend the date more than once.

MR MYERS: With respect, no. It is simply an acknowledgment of the fact that he may extend the six-month period once.

GLEESON CJ: The issue in the case is, is it not, whether or not, looking at the words of 863(2)(c), the Minister may extend the date more than once?

MR MYERS: Well, yes, obviously that is the issue in the case. That is to say, if you look at section 863, does that enable you to construe section 860 as meaning that? In our submission, it cannot do that. Section 863, reading it in the context of the legislation, is a clear acknowledgment that the Minister certainly has power to extend the first period of six months that the local authority enacts in its proposed interim local law.

GLEESON CJ: And the Court of Appeal, seeking assistance from the Interpretation Act said, "The Minister clearly has the power to extend the date at least once and we think he has the power to extend the date more than once".

MR MYERS: Yes, that was their conclusion, your Honour. We would submit that that is really - reversing the onus probably is not the right expression but, if a Minister is given power, it has to be in unequivocal terms, it has to be clear. It cannot be that an explanatory section such as 863, which really repeats the power that is conferred pursuant to 860, can be used in that way.

HAYNE J: Does that mean that the chief weight of your contentions is placed upon a proposition that 860(2)(b) is to be read as "at the end of a longer period", meaning a singular longer period, rather than at the end of (a), that is an indefinite reference longer period?

MR MYERS: Yes.

HAYNE J: Well, that is the choice, is there not? Does (a) mean singular or is (a) used simply as an indefinite reference?

MR MYERS: Yes, and, your Honour, that is against the background of an interim local law, and I stress "interim", I stress the immediacy of proceeding to one that is enacted in accordance with proper democratic process after due consultation. But, your Honours, to read it any other way ignores completely the use of the words "sunset provision" and the mandatory inclusion of a sunset provision in it. You could drop the words completely and they are not meaningless words. They are words that have a well-established meaning, and I will address that as I come to it.

GUMMOW J: Now, are these so-called laws subject to disallowance in the Parliament of Queensland?

MR MYERS: Well, your Honour, to the extent that perhaps the Parliament of Queensland can - - -

GUMMOW J: No, is there provision in your State Interpretation Act that provides for disallowance of delegated legislative activity? There is in most other places.

MR MYERS: Your Honour, I could only assume there is, but nothing specific in the - - -

GUMMOW J: Well, you had better know because it is an important aid to construction of all of this.

McHUGH J: This argument that you are putting at the moment makes me feel a bit uncomfortable about not having the whole Act and the history. What is the object of this? Is it really to keep a very firm hand on local governments so that they either have a very limited power to make these interim local laws, but the Minister is really in control of the matter and he can extend them for as long as he likes? So what is it really directed at? Your argument seems to indicate the Minister has a rather subsidiary part but perhaps the real purpose of it is to put the Minister very firmly in control of these local governments.

MR MYERS: Your Honours, I was going to take you to the commentary on the legislation, which I acknowledge has no legislative significance but, in my respectful submission, it is of assistance in the question of interpretation, and it really answers your Honour's question. The answer is that the intention of the legislator is not to have a law which would not be enacted in due course after proper process and consultation, enacted as effectively a permanent law, and if the construction contended for by the respondent is correct, there need be no end to this. The Court of Appeal - - -

KIRBY J: The Court of Appeal acknowledged that there may be a point at which something that was called an interim law could no longer gain that appellation.

MR MYERS: Yes.

GUMMOW J: That seems a strong argument in your favour.

MR MYERS: Your Honour, I was going to come to the Court of Appeal because they did use, as your Honour has used - - -

GUMMOW J: If ever there is a legal norm of utterly indeterminate reference, it is that statement in the Court of Appeal's judgment. It is meaningless.

MR MYERS: Yes. They used the word "may" which in itself is meaningless. Your Honour picked up the use of their word.

GLEESON CJ: But what about the obligation in section 861(5)? I am not sure I entirely understand what that means at the moment but that looks as though, by hypothesis, when an interim local law is made there will be then the commencement of a process to produce some other result.

MR MYERS: Your Honours, my submission would be that subsection (5) is simply reflecting subsection (3), that is, the Minister might not only simply agree but may impose conditions, and under subsection (4), "the local government" have to "agree to satisfy" those conditions, and subsection (5) is simply saying that, "The local government must satisfy" those "agreed conditions", that is to say the conditions imposed by the Minister to which they have agreed, and then they must begin the process stated in Division 3 to make the proposed interim law as a local law.

HAYNE J: But that latter process, the process of making what might loosely be called permanent local laws, that is, other local laws, is a process in which the Minister has a particular role under 867, does he not?

MR MYERS: Yes, he does.

HAYNE J: That is, controlling interest in it, that:

The local government must -

(a) advise the Minister of the proposed local law; and

(b) give the Minister information about -

it, and then, under (2) and (3) the Minister seems to have powers of veto.

MR MYERS: Your Honour, that is the case. Let me say there is no mischief about this in that the local government, in itself, has six months from the commencement of the legislation, pursuant to section 860. The consultation process, the only period of time that is laid down is a period of 21 days, so we are not talking about an enormous amount of time being required to enact this legislation, but even if there is some problem or delay, within that six months, the local authority goes to the Minister and says, "Minister, we are having this particular problem. We are going to need another 12 months".

GLEESON CJ: I was only wondering whether or not section 861(5) is not an important factor to bear in mind when evaluating your submission that if the argument accepted by the Court of Appeal is correct this process could just drift on indefinitely.

MR MYERS: Yes.

GLEESON CJ: Well, is that right? This seems to be necessarily an interim process leading in the direction of some other kind of process.

MR MYERS: Precisely, your Honour, and there must be immediacy, as the legislation says about the - - -

KIRBY J: Is the word "interim" used in the meaning the Chief Justice has indicated, that is to say, that it is on the way to a final law?

MR MYERS: Yes.

KIRBY J: One made by Parliament?

MR MYERS: Yes.

KIRBY J: Where do we get the clue to that?

GLEESON CJ: Not one made by Parliament.

MR MYERS: Not made by Parliament, made by the Minister - made by the local government and approved by the Minister under Division 3.

KIRBY J: And does that become a permanent law?

MR MYERS: Yes.

KIRBY J: I had better understand how that comes in the terms of the legislation.

MR MYERS: Your Honour, really under section 861. Before proceeding to make the proposed interim law under 862 the local government has to get the advice to which I referred under section 861(4)(a) and:

agree to satisfy any condition imposed by the Minister -

which he may impose pursuant to subsection (3) and then it must -

agree to immediately begin the process stated in division 3 (Making other local laws) to make the proposed interim local law as a local law under that division.

As my learned friends have addressed, that is a nine-step process, as opposed to this three-step process. There is an obligation to begin that process immediately and there is more than ample time, if one reflects on section 860, to enable the interim local law to be made a permanent local law - - -

GLEESON CJ: The Minister is very much in the box seat when it comes to that process of making what has been called a permanent local law.

MR MYERS: Yes.

GLEESON CJ: He takes into account State interests, for example.

MR MYERS: Yes, which he probably does not have to do and certainly there is no consultation with the public as required when you are making other local laws, at this stage. So, the Minister can really say, "Look, you have got to preserve" - I will take your Honours to the commentary which makes this very clear, but, "We have got to preserve that forest or we have got to ensure that there is no effect on public health or safety, so we are going to do this as an interim measure, but this is an interim measure and it must have a sunset provision".

GLEESON CJ: The process of making a local law under Division 3 involves not only the Minister taking account of State interests but also the public having an input at the local government level.

MR MYERS: Yes, public consultation.

GLEESON CJ: Now, if the process of making a local law under Division 3 involves this consideration of State interests, this political input, if it is desired, of the Minister, and consultation with the public and public input, why would you not construe the legislation on the basis that it may be found in a particular case that there is a necessity to further extend a sunset date that has already been extended once? Why should it be sudden death?

MR MYERS: Because it ceases to be interim. It ceases to use the word "sunset provision" in its usual sense, that is to say, a fixed date of expiration, and, your Honour, there is no need. There is six months from the start and there is whatever period, if those exigencies would require local government to go to the Minister and say, "Minister, we cannot get it through in the six months but we have looked at this. These are all the reasons that we should avoid public consultation and avoid the nine-step process but we are going to need 12 months to do it". And pursuant to section 860(2) the Minister can say, "Well, I give you that", and, therefore, you have - - -

GLEESON CJ: What if the Minister extends a date and then an issue is raised, politically or by the public, in consultation, which requires further investigation and the Minister wants to further extend the date?

MR MYERS: Your Honour, it would be odd that that would arise, with the greatest respect, because, for instance, the public consultation is section 868 and the obligation is for the local government to consult with the public about the proposed law for at least 21 days and, as I say, that is the longest period imposed, so at the expiration of the six months you would know about that, but if you did not and you had an extension from the Minister for 12 months and at the end of the 18 months - it would be hard to envisage what it might be, but if there was an outstanding issue the interim local law would come to an end and if someone was holding off for 18 months to knock down a tree they could go and do it because the process - it was an interim law, it was to contain a sunset provision which brought it to an end at the expiration of the sunset time and if the local government did not have its process in place by that time the law would come to an end.

GLEESON CJ: I thought the general idea of sunset provisions was to force people to consider things and not just let them drift along. There are sunset provisions, I think, applying to regulations in New South Wales, as I recollect it, and the objective of those provisions is to ensure that whoever is supervising this regulatory activity has to keep thinking about them at regular intervals. Now, why is that object of a sunset provision defeated if the construction against you is correct?

MR MYERS: Your Honour, it is not an unusual provision. It does keep people's minds on the job and it is for the very reason that we say this has ceased to be a law that the Latimer House Conference said, "If you are going to have a sunset provision you must or should" - it was a recommendation that you do incorporate a provision for an extension. Now, all that can be inferred in this case is that the legislator thought this matter of such moment - perhaps the necessity to consult with the public under section 868 and to consider State interests - that they were not prepared to incorporate into the legislation a provision for an extension.

GLEESON CJ: But the whole idea of a provision for an extension, as I would understand it, is that a sunset clause is not a sudden death thing; it is something that is there to force people to reconsider a matter.

MR MYERS: I would have to concede that, your Honour, but it is a sudden death thing in the sense that if you do not reconsider it by the due date it goes and that is why people do consider it and that is why Latimer House and most of the other publications say if you are going to have a sunset provision, because of its dire consequences, if I could use that expression, you generally should incorporate power to extend it, because if you do not, it is at an end.

McHUGH J: But what policy reason could there be for distinguishing between these two situations? The first is the one which you would, I think, accept that the Minister may say, "It is extended once for two years". But on the other hand you would say the Minister cannot say it is extended for 12 months and then extend it for another 12 months. Now, why would you distinguish between those two cases? What policy reason is there?

MR MYERS: Because perhaps the Minister might identify that the local government is not getting on with the job. It appreciates that if it consults with the public, if State issues are addressed, that it will not get the law through as a permanent law and it seeks interim extensions, whereas one extension, the Minister can say, "Look, I hear what you say. I see you have got some difficulties here. I am prepared to give you 12 months but no more". But, your Honours, once the matters are really getting rubber stamped, as they appear to have been in this instance, it is not an interim law.

GLEESON CJ: If the Minister is willing to say, "I am prepared to give you 12 months but no more", why cannot he say, "I am going to keep the pressure on you. I will give you six months and I will reconsider the position at the end of six months"?

MR MYERS: Because the legislator has taken it out of his hands to do just that.

McHUGH J: But supposing that what happened is the Minister was told by Mr Gibson, "Well, you have got no power to extend", so the Minister says, "Well, unfortunately, I have got no power to extend this Council but go back and pass another proposed local law and then I will gazette it again". It could be done in a day.

MR MYERS: Yes, exactly, so there is no mischief.

McHUGH J: But why would the legislature desire that result when the Minister could just simply extend the time?

MR MYERS: Your Honour, they would not desire that result and, in fact, that would be an unusual result. The legislation is there so that people will do their jobs and invariably they will get it done and this certainly puts the pressure on them to do it. But if the worst came to the worst, if the forest had to be saved, as your Honour says, within 24 hours the procedure could be followed once more and whatever mischief was sought to be addressed could be addressed. Your Honours, could I take you to the commentary. As I have acknowledged, it has no legislative significance. It appears in the Court record - - -

KIRBY J: Whose commentary is this?

MR MYERS: It is the commentary of the Local Government Association, I think they call themselves - the Local Government Association of Queensland. They publish a commentary on the legislation for the use of local authorities and lawyers and such other people. I was going to take your Honours initially to page 48 of the record. Your Honours will see that it addresses a section 463. You have not been given the old legislation. It is common ground that section 463 is in the precise terms of section 852, 852 being the definition section to which we have referred your Honours at an earlier time.

What the commentary says, as I said to your Honours before - this is the commentary on the 1993 legislation. This is about a third of the way down the page:

An interim local law is another new innovation. It is designed to deal with situations which require an urgent legislative response because waiting for the normal local law process to run its course might result in a threat to health, safety or property or to persons taking action (eg wholesale destruction of vegetation) which would defeat the purpose of the law by the time it is introduced under the ordinary process.

So, in my respectful submission, the commentary emphasises the urgency of the process. Could I take your Honours to page 52 of the record, which is the commentary on section 469. I can inform your Honours that that has now been reproduced or renumbered as section 860, which is obviously the principal section in contention. Reference is made to "The first step". Could I take your Honours to the next sentence:

Such a resolution would ordinarily be supported by a report explaining the necessity for urgent legislative action and, specifically, why using the ordinary legislative process might give rise to a threat to public health, safety or property or might allow the object of the legislation to be defeated before it can be put into place.

Subsection (2) requires that the proposed law include a sunset provision by which it expires 6 months after it is made (unless the Minister allows a longer period). Subsection (2) clearly contemplates that a draft of the law will have been prepared at the time the resolution is made under s 469 -

as I say, now 860 -

and that will be a practical necessity in any case if the Council is to obtain maximum advantage from the time savings inherent in the interim local law process.

KIRBY J: What happened here, they renumbered the Act, did they?

MR MYERS: Yes. Your Honour, it has been amended and, as I say, that was the mischief about using the most recent amendment but it has not been relevantly amended, only renumbered, in this context.

GLEESON CJ: I still have difficulty in understanding, consistently with that policy, this: if the Minister has the power to extend the period for 12 months, why would you deny him the power to extend it for six months and at the end of six months consider whether he will give a further extension?

MR MYERS: Your Honour, I would have to concede that sensibly the legislator, if they were prepared to countenance an interim local law going on indefinitely for 10 years or 20 years or 100 years, could have conferred upon the Minister a right to extend it as he saw fit, but it did not.

GLEESON CJ: It is not going on indefinitely, is it, because of section 861(4) and (5)? There is a process under Division 3 in place while all this is happening. That is what gives it its interim nature, is it not?

MR MYERS: It went for a particularly long time. The offence with which the appellant is charged was one that allegedly occurred on 4 September 1988 and the legislation was initially promulgated in early 1997. It does not have anything of an interim nature about it. But, your Honour, it is really a matter of statutory construction. There is no ambiguity. To the extent that there was some initial ambiguity arising under section 860, it is completely resolved by section 863. It is not a matter of going to those cases - and both my friend and myself have referred to them - of trying to second-guess, in effect, the legislator as to what it might have intended.

It is really a case similar to the Blue Metal Industries Case where you just cannot use the Acts Interpretation Act where it is very clear, as in this case, that there are mandatory provisions and a mandatory requirement that there be - and I know I keep harking back to this - a sunset clause. Could I take your Honours just finally, before leaving this commentary, to the legislation at page 53 of the record and could I give your Honours two references. At the top of the page section 470 is addressed. That is now section 861. If I could take your Honours to the final four lines of that first long paragraph:

the detailed provisions in ss 473-482 -

and, of course, that is making the permanent law -

show that the basic legislative intention is still that the public must have the opportunity to have input into proposed local laws, and that this process should be bypassed even on a temporary basis, only where there are genuine reasons to do so.

Now, "genuine reasons" cannot extend to six monthly extension from time to time, as really the local government sees fit. Could I take your Honours finally on this page to the five lines from the bottom, to the reference to section 469 which, as I say, is section 860.

GLEESON CJ: Just before you do that I would like to raise something with you that has nothing to do with the outcome of this case but is prompted by your argument. It is your reference to these Latimer House Guidelines. Have you observed that these Latimer House Guidelines include a pronouncement on judicial independence and have you observed that Australia does not comply with these Guidelines?

MR MYERS: No.

GLEESON CJ: It is worth thinking about how the Latimer House Guidelines came into existence and who promulgated them. I just mention that in passing, but I draw your attention to the fact that according to the Latimer House Guidelines:

judicial appointments should be made on merit by a judicial services commission -

and all -

Judicial vacancies should be advertised.

I merely make that comment, which I am afraid I have had to make on another occasion, too, on these Latimer House Guidelines.

MR MYERS: Yes. Your Honours, certainly the only reasons that they were raised - we did extensive research. We have really tried to find every reference that we could to sunset clauses. Your Honour, it may well be that the Latimer House Guidelines have been deliberately ignored in this case. Perhaps Queensland does not follow them but it simply acknowledges - - -

GLEESON CJ: I can assure you that in relation to appointments of judges Australia does not follow them.

MR MYERS: No.

KIRBY J: Although I think it is probably true to say that an increasing numbers of States of Australia are now advertising for magistrates and some are asking for expressions of interest for other judicial appointments, so, that seems to be seeping in here.

GLEESON CJ: But they do not advertise for members of the High Court of Australia yet, a distinction not drawn by the Latimer House Guidelines.

MR MYERS: Your Honour, I am certainly not putting them forward as guidelines that should generally be followed by the State or the Commonwealth. I simply put it forward on the basis that they certainly recognise what the term "sunset provision" means. That is to say, it generally means, or does mean, that legislation comes to an end on a date certain and the obvious way of overcoming any mischief that that might introduce - and I submit there cannot be mischief in a case of this kind - but you simply make provision in the legislation that introduces the sunset provision for the Minister, in this instance, to have the power to - - -

GUMMOW J: Do we have the whole of the text of Chapter 12? It starts at section 848. Does it finish at section 874? In construing Chapter 12 you would have to start with section 848 which tells you what the objects are.

MR MYERS: Your Honour, let me tell you - and if not I will ensure that your Honours have it - Chapter 12 starts at section 522 and finishes - - -

GUMMOW J: That is the wrong set of numbers.

McHUGH J: It certainly goes to 886, at least, and we do not have 886.

GUMMOW J: We stop at 874, at the moment.

MR MYERS: Yes. Well, Division 4 and Division 5 certainly follow.

GUMMOW J: We have to have the whole thing.

MR MYERS: I will ensure that your Honours get a complete copy.

GUMMOW J: The first section in Chapter 12 says:

A local government's jurisdiction to make laws is stated in chapter 2 -

and we do not have that, either.

MR MYERS: I will ensure that your Honours get a full copy of Chapters 2 and 12.

GUMMOW J: Now, the reference to the migration case that I mentioned is Immigration v Mayer [1985] HCA 70; 157 CLR 290 at 301 to 303.

MR MYERS: I am indebted to your Honour. Before leaving the commentary, could I give your Honours a final reference? Again, it is on page 53 and it is the first three of the last five lines:

As noted under s 469 -

which is section 860 -

interim local laws must be subject to a sunset clause which takes them out of operation 6 months after commencement (unless the Minister approves an extension).

I submit that that word is used in its proper sense.

KIRBY J: I have a memory that there had been some discussions in Law Review articles about sunset clauses in Australian legislation. Have you looked at the Law Reviews or not?

MR MYERS: No, your Honour, I have not.

KIRBY J: I am pretty sure there was an article in the Federal Law Review a few years back about sunset clauses and I am going to look for that.

MR MYERS: I must say it is certainly one that eluded us. As I say, we found Canadian reference.

KIRBY J: Because the strength of your argument, as I see it, is you say given the scheme of the Act, the purpose and the steps that are involved, the overall scheme is of this exceptional provision for a limited time and when the Court of Appeal sought to deal with that they said the limit is in the word "interim" and a point would be reached at which interim is no longer interim. But the problem with that theory is that it is very difficult to describe where that point is reached and, therefore, once you acknowledge that you have to have a point, you have to search in the terms of the statute for a stable foundation for the cut-off point and you say the only stable foundation in a scheme of an Act which is for an interim period and with a sunset clause is in the express language of the Act, express provision for one grant and an express provision for an extension and after that you are out.

It is true that that leads to certain anomalies with the six plus six months, but that is the best interpretation that could be offered, compatible with the cut-off point of an interim scheme leading through steps to a sunset clause.

MR MYERS: With respect, they are our submissions. That encapsulates the appellant's argument.

KIRBY J: But the problem with it is that the Act is expressed in general language and the general language picks up the Acts Interpretation Act and the question then is whether that is compatible with the particular scheme of this very special legislation. That is the problem.

MR MYERS: Yes. Your Honour, could I take it a step further. The legislation could be reworded without the use of sunset clause, if that is the proper construction. It takes away any meaning that is assigned to the use of that phrase, to the use of those two words.

McHUGH J: Mr Myers, one thing I just do not quite understand at the moment is how the interim local laws come to an end. What is it that brings the interim local law to an end? Suppose the other local law that is made amends the earlier provision because of submissions from the public, so that you have an interim local law with certain provisions and the local law with different provisions? What is it that brings the interim local law to an end?

MR MYERS: It could only effluxion of time, in my respectful submission, that is to say, if your Honours find that the Minister had the power to extend it from time to time, it would be that - - -

McHUGH J: No, I am talking about within the period. Supposing the Minister gives 12 months but a local law is passed and fulfils all the conditions within six months. Does the interim local law then cease to have effect or does it still continue until the gazetted period or - - -

MR MYERS: Your Honour, I would submit, as with other legislation, it should be addressed in the permanent law. Now, I do not know what happened in this instance but it would be a little bit like amending the Motor Vehicle Insurance Act or substituting the Motor Accident Transport Act for the Motor Vehicle Insurance Act.

GLEESON CJ: Well, can the Minister withdraw his agreement? The Minister's agreement is necessary to get an interim local law in the first place, is it not? Can he withdraw his agreement?

MR MYERS: His approval of the permanent legislation would imply, in my respectful submission - - -

GLEESON CJ: How could he just change his mind?

MR MYERS: For the reason that the interim local law is simply that. It is an interim law pending.

GLEESON CJ: But the law to come into effect needs a resolution of the local government and it needs the agreement of the Minister.

MR MYERS: Yes.

GLEESON CJ: Can the local government repeal its resolution and can the Minister withdraw his agreement? They are just possibilities that are suggested by asking how does one of these things come to an end.

MR MYERS: I would submit that certainly both things could be done but if there was a permanent - I use the word "permanent", it is not a legislative term - if a permanent law comes into existence it should reveal the interim local law if the interim local law has time to run.

GLEESON CJ: So, there are four possibilities: One is effluxion of the time; two, the Minister withdrawing agreement; three, the local government repealing or rescinding its resolution or a permanent law coming into effect.

MR MYERS: Which should specifically, I would submit, repeal the interim local law if it has a life to run of its own.

KIRBY J: Did you look at the second reading speech or the explanatory memorandum?

MR MYERS: Yes.

KIRBY J: Is there any discussion in that?

MR MYERS: None at all, and in fact the second reading speech is in the book.

McHUGH J: It is in the book.

MR MYERS: It is in the Court record and there is no reference to it.

McHUGH J: It does not touch it.

MR MYERS: No, it does not touch it at all. The only reference to it being a novel provision, an innovation, to use the word of the commentator, is in the commentary and there is certainly nothing in the second reading speech that touches on it.

GUMMOW J: Now, am I right in thinking that there is no addition to the four matters the Chief Justice raised with you? There is no provision for parliamentary disallowance?

KIRBY J: There is no requirement to table, is there, in Parliament with the power to disallow?

MR MYERS: No.

KIRBY J: That is one way Parliament keeps control over subordinate legislation. That does not apply here.

MR MYERS: No, it has no application.

KIRBY J: Is there anything in the Queensland Constitution Act that is relevant vis-à-vis the relationship between the Executive Government with the powers given to the Minister here and the Parliament of Queensland? This is an unusual power to delegate to a Minister. At least it is not common.

MR MYERS: Yes.

KIRBY J: Is there anything in the Constitution Act? You do not mount any constitutional argument?

MR MYERS: No, I do not and, in fact, the constitutional argument was specifically addressed as noted in the written submissions.

McHUGH J: There is a certain limitation, is there not, by reason of the making of the local law because there are a series of mandatory conditions that must be followed, and finally under 874(3):

If the local law is not notified within 1 year of the date of the local government's resolution making the local law . . . the process stated in this division must be used again before the local law is notified in the gazette -

unless the Minister extends the time. So, if you set this process in operation commencing with an interim local law, you are obliged to make a local law. You are obliged to follow certain steps, submissions, et cetera, et cetera. They are all mandatory steps along the way and it would seem that in a fairly short period the process just comes to an end.

MR MYERS: Well, unless this Court construes section 860 as giving to the Minister power to extend it indefinitely, and it does not.

KIRBY J: Justice McHugh's point is in your favour.

MR MYERS: Yes, precisely. There is no reason why the interim local law cannot be made a permanent law within the period that we would contend is provided by section 860 and the balance of the legislation, in our respectful submission is to be read that way.

McHUGH J: When you were reading the commentary, when you referred to there must be only genuine reasons for having this temporary law, it occurred to me that perhaps the challenge is on administrative law grounds as to the Minister's power in a particular case to extend more than once. But your argument is for a blanket argument. May it not be a view that the Minister has power to do it more than once but if he does his view may be challenged because there is no genuine reason for it?

MR MYERS: It is a novel approach. It would really require that the reasons submitted by the Council be canvassed and made available to interested parties.

McHUGH J: There is nothing novel about that in administrative law. We see it every day just about.

KIRBY J: He has to have a lawful reason for exercising the power. The power must be exercised for the purpose of fulfilling the grant of the power given to him by Parliament.

MR MYERS: Yes.

KIRBY J: Then you ask yourself what is inherent in the grant of power within an interim scheme and for interim purposes and for particular steps on the way to those purposes and therefore you would limit his doing it, as it were, continuously. The Court of Appeal saw this problem and they said like night merges into day it is hard sometimes to say when, but you will reach a point when it is night and then it will have lost its interim quality. But that leads it rather to an unstable matter in a question of power and a question of law but they are matters which the law generally tries to make a bit certain because people should not be under any uncertainty as to whether a law is valid.

MR MYERS: Yes.

GUMMOW J: You may come to a stage where this interim power is used to do indirectly what should be done directly by making a proper local law.

MR MYERS: That is the mischief. That is the mischief to which the appeal is directed.

KIRBY J: That is why I asked you about a constitutional principle because it is not a constitutional principle in a 78B sense, but it is a question of whether within the constitutional government of Queensland there is not some principle of the relationship between the Executive Government of Parliament that puts a limit on the Ministers being able to constantly remake laws which ought to be made by Parliament, or ought to be made under clear delegation of Parliament. Do you see what I am getting at?

MR MYERS: Yes.

KIRBY J: It is not a written constitutional principle. It is implied in our system of government.

MR MYERS: Yes. Your Honour, that is perhaps the implication. They relied upon the appellant in submitting that one should read the legislation strictly because the Parliament did not intend to allow the situation in respect of interim local laws, which must contain some set provisions to continue indefinitely.

Obviously, the issue addressed by your Honour Justice Kirby is an alternative view but the appellant's submission is you do not need to take that view. You do not need to test the reasonableness of the Minister's conduct from time to time in extending the legislation if, in fact, on a proper construction of section 860 - and coincidentally, when you look at the requirement that the permanent law be enacted within 12 months, it equates to the six months, in effect, that the local government has a power to extend the legislation for or at least to give life to the legislation and an additional six months given by the Minister, which was the first extension given by him, before he, we would submit, fell into the error of taking it upon himself - - -

McHUGH J: I am not sure I understand when you say this extension must be granted. Must it be granted before the interim law has the force of law, or can it be exercised at or about the time the interim local law is about to expire?

MR MYERS: Your Honour, I would have to concede that on a construction of section 863 - it has to be exercised before the law expires in the first instance, but it does not have to be exercised before then.

McHUGH J: Yes.

MR MYERS: Although there would be some doubt introduced by section 860, any doubt is removed by section 863 which really says that the notice can say just that, as it did in this instance. This local law will expire and it had a date, six months, unless it was extended by the Minister as contemplated by section 863.

KIRBY J: Now, the respondent relies on the Acts Interpretation Act with the Interpretation Act of Queensland. You mentioned the Blue Metal Case. I am not familiar with that. What is the principle, apart from the general rule, that is expressed in the Act that this is subject to any contrary indication in the statute or the scheme of the statute? What is the principle this Court has laid down using those extensions?

MR MYERS: Your Honour, in the Blue Metal Case 117 CLR - - -

GLEESON CJ: That was a case about the takeover provisions in the New South Wales Companies Act and they just held that they disclosed a contrary intention.

MR MYERS: Yes.

McHUGH J: It was all to do with plural and singular, was it not?

MR MYERS: No, it has not. It was, though, a case in which the provisions of section 23 were discussed. Your Honour, the report commences at page 651 and the reference I was giving your Honours is at 656, midway down, and a statement from the Judicial Committee of the Privy Council Lord Pearce has adopted - - -

KIRBY J: Has this Court not said something on this matter? Why are we reading this foreign court?

MR MYERS: The Court adopted with approval.

GUMMOW J: It was an Australian appeal.

KIRBY J: Yes.

GLEESON CJ: It is simply an example, is it not, of a court finding that the legislation revealed an intention which negated the provision of the Interpretation Act?

MR MYERS: Yes, and it is for that reason that I say section 23 does not aid the respondents here because on a proper construction - I do not want to repeat myself - requires a sunset provision and its mandatory terms as Lord Pearce said:

"The Interpretation Ordinance was intended to avoid multiplicity of verbiage and to make the plural cover the singular except in such cases as one finds in the context of the legislation reason to suppose that the legislature, if offered such amendment to the bill, would have rejected it".

Here, whether you look at the Latimer House Guidelines or whether you look at what people generally do when they have sunset provisions about giving a power to extend, the legislation - - -

KIRBY J: I think you had better tread lightly on the Latimer House Guidelines.

MR MYERS: Yes. It was really just the principle as opposed to the origin of the principle, but there is every opportunity for the legislator to say that, "We are happy for this to be extended from time to time by the Minister", and they specifically have not.

KIRBY J: That is not the basis of your argument. The basis for your argument, as I understand it, is the word `interim" and the provision of the sunset clause itself in the Queensland legislation indicates a purpose of Parliament to have a temporary short duration and that in that context you cannot have importation of the principle of the Interpretation Act that a power can be used and reused and reused indefinitely.

MR MYERS: Yes.

KIRBY J: That just does not square with the scheme of the legislation, so it has nothing to do with Latimer and rather little to do with what the Privy Council said.

McHUGH J: There is passage at 658 in the BMI Case which seems more in point from your point of view and that is at about point 3:

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. Acquisition of shares by two or more companies is not merely the plural of acquisition by one. It is quite a different kind of acquisition with different consequences. It would presuppose a different legislative policy.

MR MYERS: Yes, and the use of the expression "character" is, in my respectful submission, apposite here. The character is a law of an interim and very short nature which will come to an end on a specific date.

GLEESON CJ: Now, does that cover the points that you wanted to make?

MR MYERS: Yes, your Honours. I have made reference in our written outline to Bennion. Could I simply give your Honours the reference to page 123 point 9 where the author notes that:

Sometimes however Parliament deems it expedient to provide that an Act shall expire after a specified period.

My respectful submission is that that has happened here. The author goes on to say:

Often there is provision for extension of the period by resolution of each House of Parliament.

Of course, that could have been done and it specifically has not been.

Your Honours, could I simply conclude my submissions by adding that there was a necessity for Parliament to confer power on the Minister to grant the extension of a sunset period. It has chosen not to do so and that evidence is, in our respectful submission, a clear intention to bring the interim local law to an end on the date designated, which had to be the later of the two dates.

GLEESON CJ: Thank you, Mr Myers. Yes, Mr Gibson.

MR GIBSON: Thank you, your Honours. By way of introduction, could I indicate that the scheme of the provisions introduced by the Act of 1993, that is the Division 2 scheme for the making of interim local laws, had no precedent in earlier legislation. The previous legislation was the Local Government Act. It conferred on local governments, or local authorities as they were termed by that Act, the power to make by-laws or, as your Honour Justice Kirby has referred to them, ordinances as they are termed in other jurisdictions.

The procedures for the making of a by-law were extensive, rather similar to the Division 3 provisions of the 1993 Act but not identical but, as I have indicated, there was no provision for the making of an interim by-law or interim ordinance such as was introduced by Division 2 of the 1993 Act.

McHUGH J: But far-reaching consequences such as brought about by this legislation usually have some genesis somewhere or other. Now, it may be just suddenly in the Minister's office, but was there any report about this sort of problem or the need for this sort of law? Were there any academic articles? Was there any debate, any submissions that you are aware of?

MR GIBSON: Not that we are aware of, your Honour. I can say, however, that the 1993 Local Government Act 1992 is a wholesale - I was going to say amendment, but transformation of the legislative provisions pertaining to local government in Queensland. I am not aware of any particular decision or submissions or other discussions of an academic character that pertain to this particular division of the Act.

KIRBY J: Do you confirm that there is, as far as your researches have found, no equivalent in any other State of the Commonwealth?

MR GIBSON: That is so, your Honour, yes.

KIRBY J: Is there anything like it outside local government that you are aware of where Ministers are given, in effect, a power to extend laws?

MR GIBSON: I hesitate to say that there are none. There are none of which we are aware.

KIRBY J: It is an unusual arrangement now in our constitutional relationship between Parliaments and Ministers.

MR GIBSON: It is unusual, yes. Nevertheless, accepting that to be so, your Honour, the scheme, in our submission, for the reasons we have adverted to in our written outline and which I will expand upon briefly now, does indicate with sufficient clarity that the Minister was intended by the legislature to have the power to extend the expiry date of the interim local law, though not indefinitely. If I could address that indefinite issue shortly.

In response to a matter that Justice Gummow and others have raised, can I indicate that there is no provision for parliamentary disallowance of the interim local law or the Minister's decision to gazette a period or a longer period under section 860. There is provision in Queensland for tabling what is termed "subordinate legislation" before Parliament. In Queensland it is found not in the Acts Interpretation Act but in other legislation, namely the Statutory Instruments Act . I frankly do not recall the section number. That Act addresses what is termed "subordinate legislation", that is a term defined by the Act, and also "statutory instruments", another term defined by the Act.

The local law here is a statutory instrument because the definition of that term expressly includes statutory instruments and the gazettal of a period by the Minister would also be a statutory instrument. However, neither of those instruments satisfies the definition of "subordinate legislation" and if one has regard to the interim laws that were gazetted, in this case - my copy of the appeal record unfortunately has not been paginated correctly. However, each of the gazettals contains a notation that it is not required to be placed before Parliament and I will have a page - - -

GUMMOW J: .....really, one might think. These create criminal offences.

MR GIBSON: Yes. However, your Honour, the scheme of these provisions, in our submission, is to impose control or supervision upon local governments and the vehicle for the imposition of that supervision was identified by the legislature as being the Minister and that is evident, in our submission, from provisions that have been referred to thus far.

GUMMOW J: Yes, but the interim local law sets up a system which is backed by penalties.

MR GIBSON: Yes, it does.

GUMMOW J: You are saying it is not delegated legislation within this definition in the Statutory Instruments Act.

MR GIBSON: It is not subordinate legislation within the definition of that term in the Statutory Instruments Act.

GUMMOW J: What do you have to be to be subordinate legislation?

MR GIBSON: Your Honour, I frankly cannot recall the full scope of the definition but suffice it to say that this is not such a creature.

HAYNE J: The gazettes to which you referred are, I think, at pages 25, 27 and 29 of the appeal book and they contain the notation "Not required to be laid before the Legislative Assembly".

MR GIBSON: That is the notation I had in mind. Thank you. One further issue that arose out of the submissions earlier made - - -

KIRBY J: Just before you pass from that point, does not the fact that they do not require tabling in Parliament and, therefore, passing under the eye of the people's representatives in Parliament - and one might add as a footnote here in Queensland where there is only one chamber to Parliament - does that not make one, in terms of constitutional principle, a little vigilant about indefinite extensions without very clear legislation from Parliament empowering a Minister to do that over and over again?

MR GIBSON: Your Honour, in our submission, it raises no discrete principle of application here.

KIRBY J: Well, you say that but one could think that there might be an implied constitutional principle that if the Parliament can do this, it can grant to a Minister this power but it has to do so in very clear terms.

MR GIBSON: That is perhaps the point - - -

KIRBY J: But here it has not done it in very clear terms. It has done it in arguable terms.

MR GIBSON: In our submission, the matter to which your Honour has adverted is a matter to which regard would be had in the process of interpretation or construction. However, it raises no discrete principle as such and, in our submission, the effect is not to yield an outcome which is inconsistent with the decision of the Court of Appeal, that is that as a matter of interpretation of these provisions - - -

KIRBY J: It is, but this is a provision that is making an offence and it is making an offence that has not been expressly passed upon by Parliament, the Parliament of Queensland representing the people of this State, and it is imposing penalties. Does it impose imprisonment? Is that a possibility?

MR GIBSON: No.

KIRBY J: It imposes a sanction on - - -

MR GIBSON: A pecuniary penalty, yes.

KIRBY J: A criminal sanction, but in the theory of things it must be tested by the possibility that it could impose a penal sanction and, therefore, one would approach it, I think, on the basis that that has to be done extremely clearly.

MR GIBSON: Yes.

KIRBY J: It can affect people's reputations. It can affect their entitlement to stand for various offices, to have licences of various kinds. It can affect their situation in society. So it is quite a serious matter and if it is to be done, at least arguably - this is why I asked about the constitutional principle - there is a constitutional principle in our relationship between the Executive and Parliament and it has to be done very clearly.

MR GIBSON: Yes. A further point that was raised in the course of the submissions earlier made concerned the circumstances in which an interim local law may be terminated. Reference was made to the Minister's withdrawal of agreement or the local government itself determining to terminate the interim law.

Could I point out in that context that support is found for the authority in both the Minister and the local government to revoke the interim law from the provisions of the Acts Interpretation Act section 24AA. The Court does not have that as part of the material that was put forward. Section 24AA provides to the effect that:

If an Act authorises or requires the making of an instrument or decision-

(a) the power includes power to amend or repeal the instrument or decision; and

(b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.

Whether, as a matter of interpretation, section 861(2), which provides for the Minister's agreement to the local law, would be found to displace the particular requirements of 24AA in that 861(2) itself contemplates that the Minister may simply refuse that agreement, is ultimately beside the point but there is certainly statutory mechanism to yield that outcome.

Your Honours, it is evident from the submissions made against us that the key to the appellant's contentions is that acceptance of the respondent's submissions implies acceptance that the Minister has the power to extend the expiry date of an interim local law indefinitely. We reject that submission.

GUMMOW J: Can you just help me by going to the text of section 860(2)?

MR GIBSON: Yes.

GUMMOW J:

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

(a) 6 months after it commencement; or

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

So, the statement could say, "This will expire at the end of a period to begin six months after this commencement and ending at some date". How does it work and when does the gazettal take place? It has to be before the end of the longer period, does it?

MR GIBSON: In practical terms, yes, it would.

GUMMOW J: Not as a matter of practical terms, as a matter of the text.

MR GIBSON: Yes. If the interim local law - - -

GUMMOW J: It has to be, does it not, because otherwise it would collapse?

MR GIBSON: Indeed. If the interim local law has expired by the effluxion of time under section 860(2)(a), then the Minister could not at a later date make an ex post facto decision gazetting a longer period.

GUMMOW J: That is right. So where does this extension idea come from and how does it fit in with the statutory text?

MR GIBSON: The extension idea comes in from the power conferred by subsection (2)(b) or implicit in (2)(b).

GLEESON CJ: It is expressed, is it not, in 863(2)(c)?

MR GIBSON: Your Honour is quite right, that the Minister may extend - - -

GUMMOW J: That is a notice provision.

MR GIBSON: It is. It is a notice provision but implicit within it is the power to extend the date of expiries.

GUMMOW J: I am not sure about that.

HAYNE J: There are two questions, are there not, about 860(2) that may need consideration? Firstly, whether (a) and (b) are truly disjunctive.

MR GIBSON: Yes.

HAYNE J: Secondly, whether the proposal that goes forward would suffice for the purpose of the Act if it did no more than recite the terms of (a) and (b) with the word "or" between them. Do you say that a proposal would be sufficient if it said this local law will expire six months after its commencement or at the end of a longer period gazetted by the Minister?

MR GIBSON: Yes, indeed. That is the second of the two points that your Honour has raised. We do submit that that would be so. As to the first of those points, in our submission, the answer appears from the language of section 863(2)(c), to which we have referred in our written outline at paragraphs 13 to 15 and, in our submission, that the inclusion of that provision concludes the question of the disjunctive - - -

GUMMOW J: Both provisions are talking about statements being made, are they not, one, a statement in a proposal, that is 860; 863, statement in a notice?

MR GIBSON: Yes.

GUMMOW J: If your theory about renewals is true, when has there ever been a proposal with that statement or when has there ever been a notice with that statement, namely, a longer period gazetted or further gazetted? There has never been such a statement, has there?

MR GIBSON: No, not in those terms there has not been and that is where section 23 of the Acts Interpretation Act comes into operation.

GUMMOW J: But how does that alter the statement, what is required of a statement?

MR GIBSON: The statement referred to in each of 860(2)(b) and 863(2)(c) may be expressed in neutral language, that is, precisely in the terms of the legislation. In other words, the statement does not itself require to identify a date or later date to be gazetted by the Minister. It is sufficient if it identifies or asserts that the interim law will expire at the end of a longer period. One can insert the - - -

GUMMOW J: Or periods, you would have to say.

MR GIBSON: Or periods.

GUMMOW J: But it does not say that, you see.

MR GIBSON: No, no, it does not say that, your Honour, but the submission which is made against us, which is to the effect that the failure of the provision to state that thereby concludes the question against us, simply ignores the operation of the Acts Interpretation Act.

GUMMOW J: I do not know about that.

McHUGH J: Curiously, section 863(2) is permissive, whereas subsections (1), (3) and (4) are mandatory.

MR GIBSON: Yes. The difference, your Honour, is that 860 refers to the proposal which the local government must make and the proposed law must include a particular provision. For reasons of policy, section 863 is directed to the public notification which must be made, subsection (1) couched in mandatory terms, subsection (2) in permissive terms.

GLEESON CJ: Is it within the power of the local government to include a sunset provision that does not provide for the extension of the period of six months by the Minister?

MR GIBSON: Yes, it is.

GLEESON CJ: In other words, could the local government deny the Minister the power to extend the sunset period?

MR GIBSON: Yes, we would submit it could do that because - bear in mind that 860 is directed to a proposed law and the Minister's agreement is required to the proposed law under section 861. So, in effect, it would not be a case of the local government directing or perhaps itself purporting to fetter a power which the legislation confers on the Minister. The Minister may, having regard to the particular circumstances of the case - it may be some physical emergency, some other obviously short term situation - be willing under 861 to agree to such a provision. Were he not in agreement, then he could impose a condition under section 861 to the effect that the proposed interim local law contain a statement as per 860(2)(b).

KIRBY J: What would be to stop the Minister agreeing to a local government authority's proposal that a proposed local law called interim would contain a statement that the Minister might extend the law after its expiry for 50 years?

MR GIBSON: Well, that would raise questions of the validity of either the local government's decision or the Minister's decision because, in our submission, your Honour, a powerful consideration militating against acceptance of the appellant's submissions here, that is, that the respondent's submissions have accepted, necessarily entitle the Minister to extend the time indefinitely.

A powerful consideration against that is the statutory scheme which comprises both Division 2 and Division 3. Division 2, and in particular section 860(2)(b), ought not be read in a vacuum, obviously, and they form but part of an overall scheme which includes a requirement already adverted to in the course of submissions this morning and identified in our written submissions that, namely, the requirement in section 861(4)(c) that:

the local government must -

(c) agree to immediately begin the process stated in division 3 -

that is, the more extensive and comprehensive local law proper procedure, and also the requirement imposed by 861(5) that:

The local government must satisfy any agreed conditions and begin the process stated in division 3 -

This imposes a limitation because, although there will in many cases, perhaps most, indeed perhaps all, be uncertainty as to the length of the period it would be likely to take to complete the nine steps in Division 3 - - -

GUMMOW J: Yes, but they include consulting the public.

MR GIBSON: Yes. Although there would be uncertainty, undoubtedly - - -

GUMMOW J: Now, if your interpretation is correct, you can have infinite extensions under the other process and you never get near the public.

MR GIBSON: No, that is not so, with respect, your Honour, because one could only be confronted with the spectre of infinite extensions in a situation, firstly, for example, where a local government discontinued the Division 3 procedures. In other words, having engaged in public consultation, the local government decides it is all too hard and it is a lot easier to go back to the Minister and ask for another extension please. In our submission, the Minister could not lawfully agree to an extension in those circumstances.

KIRBY J: Why? On your theory, he has the power.

MR GIBSON: No, he does not because the power conferred by 860 is, as I have indicated, part of a statutory scheme which includes Division 3. Were the local government to discontinue or abandon the Division 3 steps, then necessarily there has been a severance of the relationship between these divisions.

GUMMOW J: I do not follow this. Why do you say, on your theory, Division 3 prevails in this way?

MR GIBSON: It does not necessarily prevail, your Honour, the two must be read together. If one is removed, if the Division 3 procedure is abandoned or discontinued, then there is no basis upon which a - - -

GUMMOW J: If you read them together, you would come to the view that "interim" means interim in the sense that it is sufficiently imperative and pressing to warrant taking these particular steps with the sunset clause, but that the primary process of law making should be Division 3.

MR GIBSON: The very purpose of the interim provisions, if one puts to one side imperative or pressing, no doubt in some cases they will be appropriate terms to use, but there is no need to use terms of that sort. The interim procedures established by Division 2 - - -

GUMMOW J: The simple answer is to just give literal effect to section 860. Why stretch it and push it around?

MR GIBSON: Your Honour, with respect, they must be read in their context. If there were no - - -

GUMMOW J: I know, that is what I am trying to encourage you to do. The current context is Division 3.

MR GIBSON: Your Honour, if there were no Division 3 - let me take the most extreme case, let me take a case - - -

GUMMOW J: With a less democratic deficit in the law-making process.

MR GIBSON: Let me take a case where the local government does not even begin the Division 3 process as it is required to do by section 861(5). Having failed to begin that process, were it to seek an extension of the expiry date by the Minister under 860(2)(b), in our submission, any purported extension would be unlawful, the reason being that the Division 2 process is not truly being employed. It is no longer an interim law. The local government, for whatever reason, has no intention to proceed with that law on an interim basis. Accordingly, the Minister would have no such power.

Secondly, and the position which I have posited earlier, were the Division 3 procedure to be commenced but not completed and the local government to declare to the Minister, "We have received public consultation on this issue. For whatever reason, we do not wish to proceed with it, but we would like you to extend the interim law, please, again", a purported extension of that law would simply be unlawful and invalid because it is not truly an interim law.

KIRBY J: Is that your answer to my 50-year point then, which I asked 10 minutes ago?

MR GIBSON: Indeed, your Honour, yes, and I apologise for not responding to it more squarely.

KIRBY J: But 50 years would not, on any view, be an interim law.

MR GIBSON: Exactly.

KIRBY J: When does the interim character get fixed? See, we start with - it is called interim, it is in a sunset provision and the first quality is six months, so that is a rather short period. So we are not talking about, even on your theory of indefinite or numerous extensions, a long time in that context, one would think.

MR GIBSON: Yes.

KIRBY J: But the problem that is suggested with that theory is it is impossible then to have a fixed time and in this context you have to have a fixed time because you are making law which binds citizens of Australia.

MR GIBSON: Again, the answer to that, in our submission, your Honour, is perhaps twofold. Firstly, the notion of a sunset provision does not in terms or always require, if indeed at all require, that the provision in question cease to have operation on a fixed or identified date. The sunset provision may provide to that effect but need not necessarily do so. In our submission, in this case, that is, Division 2 and Division 3, the content is given to the operation of the term "sunset provision" by virtue of the fact that the interim law procedure is, within the scheme of the Act, precisely that. In other words, the Division 2 provisions operate only during the pendency of the completion of the nine steps in the Division 3 process. Now, in our submission, bona fide, provided those steps are being undertaken, an interim local law made under Division 2 is truly an interim law and - - -

KIRBY J: On your theory, there is not a certain point?

MR GIBSON: No, there is not a certain time.

KIRBY J: What is wrong with this line of reasoning, tell me the fault in it, that it is true the legislation is ambiguous, it is true that one could construe it the way you urge, but that construction runs into the democratic deficit that it imposes the possibility of uncertainty in imposing criminal responsibility on citizens and others in this country and that in that case, there is a very strong reason of constitutional principle to construe the legislation in a way of certainty in the law, because we are talking about law making, and that in that circumstance one should accept the appellant's submission that "period" means period, not periods, and therefore you get one extension, and that is it, and it has to be an extension which is compatible with the interim quality in any case. What is wrong with that reasoning?

MR GIBSON: In our submission, with respect, it ignores the context in which 860 appears.

KIRBY J: On the contrary, the suggestion is it upholds the context of law making with criminal sanctions in the Australian Commonwealth.

MR GIBSON: In our submission, your Honour, the certainty to which your Honour quite properly directs attention, the certainty derives in the context of this statutory scheme, not from the imposition of a particular date or an identified date at the outset, nor even at the expiration of a particular date pursuant to one extension of time by the Minister, but the certainty derives from the fact that pending completion of the Division 3 steps, the interim local law scheme applies. Therefore, whilst it is not possible in many cases to ascribe a certain date at the time the interim local law is first made, nevertheless, it does not follow from that that there is a lack of certainty in a relevant sense.

HAYNE J: Then does this not bring us back to an important point about 860(2)?

MR GIBSON: Yes.

HAYNE J: If certainty is to be seen as an informing idea, certainty could be achieved if at the point of proposal, which is what 860 is directed to, the outer time limit of operation had to be identified.

MR GIBSON: It could be, your Honour, yes.

HAYNE J: If once you take the step that 860(2) does not require, the identification of the outer time limit at the point of proposal, reflected, no doubt, then in section 862 itself, and the making, if there is then some uncertainty about outer time limit, the question may then come to: how do you read "at the end of a longer period"? Do you read it "at the end of any longer period"? That is, is the indefinite article merely used as a term of indefinite reference? Or, by contrast, do you read it "at the end of a longer period", that is to say a single longer period? At the end, it seems to me the choice that the arguments require is a choice between reading "a longer period" as an indefinite reference or a singular reference.

MR GIBSON: Indeed, your Honour is quite right. Now, in our submission, the key to that is an appreciation that whilst the legislature saw fit to impose a fixed time limit on local government, namely, the time limit of six months under 860(2)(b), it recognised that, by their very nature, the steps required to be taken by the local government under the Division 3 procedure, it could not be foreseen in many, if not most, perhaps all, cases with accuracy at the outset how long those procedures would take.

GLEESON CJ: The certainty to which you refer would not be obtained in the notice if it referred to a singular period because the gazettal will only occur, or may only occur, just before the expiration of the six-months period.

MR GIBSON: Yes.

GLEESON CJ: The period for which the Minister will grant his extension will not have been known ordinarily, I should have thought, or at all, at the time of the notice.

MR GIBSON: Indeed, your Honour is quite right. With respect, that was the point I was proposing to make. So that the object of certainty would not be achieved even in that way.

GUMMOW J: Do you say that the Minister could not gazette in advance, as it were, at the time of making the interim law?

MR GIBSON: I am not submitting that he could not do so, your Honour, but to do so would be to largely undermine the very purpose, in our submission, of the conferral of the power.

GUMMOW J: If that is right, you cannot place too much necessary weight then, can you, on 863(2)?

MR GIBSON: No. I do place weight on - 863(2)(c) is the paragraph that your Honour is referring to, I do place weight on that. Your Honour's question was: could not the Minister act in a certain way?

GUMMOW J: Yes. What would the notice then state?

MR GIBSON: I would have to reflect on that. I am acknowledging that the Minister could so act but I am submitting, with respect, that to do so would be unusual in the extreme because - - -

GUMMOW J: It does not matter whether it is unusual or not. It is a question of construction. It is the one case in a thousand that has to be coped with.

MR GIBSON: As a matter of construction, 863(2)(c) recognises that the Minister need not, and at the risk of referring to practicalities again, your Honour, would not ordinarily exercise that power until shortly before or at or about the expiration of the six-month period in 860(2)(a).

GUMMOW J: Even if it was as plain as a pikestaff from the beginning that six months was not going to be sufficient?

MR GIBSON: It might often be plain that six months would not be sufficient. The real issue is how much longer than six months would be sufficient.

GUMMOW J: That will not be in a notice until five months.

MR GIBSON: Exactly.

GUMMOW J: Everyone else finds out - - -

MR GIBSON: Exactly.

GUMMOW J: So it would be quite clear to all the other actors that it is going to be more than six months.

MR GIBSON: At the time the interim local law is made, the goal of achieving certainty in the terms that it has been put to me cannot be achieved - will not be achieved in the typical case. Therefore, in our submission, the certainty argument does not militate against acceptance of the submissions that we have made as to the interpretation of the Act.

McHUGH J: One point that does seem to favour you is that step 4 can be complied with without any reference at all to the matters in section 863(2), so you could have under 863(1) a notice which simply stated the name of the local government making the law, the name of it and the date of its resolution and the name of any existing local law. A member of the public would not know, would he, when the law is likely to finally run out?

MR GIBSON: That is right, yes.

McHUGH J: I mean, he could say, "Well, I know the date of the resolution", but then it is not the date of the resolution but the date of the making of the law.. Step 3 says:

The local government must, by resolution, make the proposed interim local law.

I see, 863(1)(c) requires you to state that date. So you would know the date when the local law was made, but if you did not worry about section 863(2), one would not know, apart from the six-month period back in 862, when the law would expire.

MR GIBSON: Yes, that is so. Our learned friends have submitted that upon the expiration of the single period of extension which they acknowledge the Minister has under 860(2)(b), if there is found to be a need to further extend, then the appropriate course is to repeat the Division 2 procedure. As I think my learned friend quite candidly acknowledged, in the context, for example, of this interim local law which concerned vegetation protection or preservation, the consequence would be that during that period between the expiration of the interim law and the making of a new interim law - which may not be a lengthy period admittedly, but nevertheless is a period that would be some period of time - then, as he said, if the interim law expires, then a person can chop down a tree to their heart's content.

So there is a policy consideration which, in our submission, applied to the illustration put up by the circumstances of this case, demonstrate good reason why the interim local laws were intended by the Parliament to be maintained without interruption pending the completion of the Division 3 procedures. The other course - and we have referred to that in our written submissions - the other alternative would be for the Minister, if the appellant's submissions are accepted, cognisant of the limitation imposed on him under 860(2)(b), to provide for an excessively long period, perhaps not - I do not mean the 50-year period referred to by his Honour Justice Kirby, but a longer period that includes a comfort zone, as it were.

KIRBY J: That is a discomfort zone for those who are subject to criminal penalties.

MR GIBSON: Indeed, precisely, your Honour, and, again, in our submission, it could hardly be thought to have been the Parliament's intention that the Minister, concerned by the possible implications of the limitation on his power under (2)(b), would provide for a period which he though was necessary but an additional period to, shall we say, cover all contingencies just to be sure, when, in fact, such an extended or lengthier period may not be required. In our submission, the interpretation of this power and its application, assisted by the relevant provision of the Acts Interpretation Act, section 23, accommodates that position and others and that it is - - -

GUMMOW J: Now, section 23 talks about conferral of functions or powers, conferral by the Act.

MR GIBSON: Yes.

GUMMOW J: How do you make that work with the text of 860?

MR GIBSON: If a power is not conferred either by 860(2)(b) or 863(2)(c) or both of them - - -

GUMMOW J: There is no express conferral, is there?

MR GIBSON: No, there is no express conferral, but there is plainly, in our submission, an implicit conferral and it has never been suggested or submitted to the contrary.

GUMMOW J: There is a question as to whether 23 is operating upon those implicit conferrals.

MR GIBSON: In our submission, a power may be conferred either expressly, explicitly or implicitly.

GUMMOW J: Are there any authorities other than Mayer in which we could get some assistance on this question?

MR GIBSON: Not that I am aware of, your Honour. As I have said, this argument has never been put against us and was adverted to only this morning.

GUMMOW J: It might be now, you see.

MR GIBSON: Yes, I am conscious of that.

GUMMOW J: It is the first question, really, "Where is this Minister's power to be found?", I would have thought. If you look at the text, not there. You then look at Mayer's Case and you get some comfort. You then say, "Well, exercisable once". You then say, "23 helps me".

MR GIBSON: One does not have to go to Mayer's Case to find it, with respect. Mayer's Case elucidates by virtue of the circumstances of the case, of which I am unaware, elucidates as a matter of interpretation of a particular provision where the power or how the power is to be conferred.

GUMMOW J: That is right.

MR GIBSON: In our submission, as a matter of interpretation, if it is found that the Act does not impliedly confer the necessary power, of course, that is the end of it. But then one asks: what purpose is served by 860(2)(b) and 863(2)(c)? They can serve no purpose unless the conferral of power is implied within them, as it is in our submission, and that accommodates section 23. We have noted a total of six points in our written submissions which, as matters of interpretation of these provisions, individually and certainly collectively, in our submission, are persuasive towards acceptance of the Court of Appeal's views.

We note, for example, that in this Local Government Act, the term "a longer period" is used on a number of occasions. This is adverted to at footnote 23 at page 5 of our submissions, but nowhere does the term "a longer period or periods" appear. In our submission, that - - -

McHUGH J: What do you mean, do not appear? Do not appear in what?

MR GIBSON: In the Local Government Act the phrase "a longer period or periods" is not employed as a phrase. The phrase that is used exclusively throughout, in quite different contexts, is simply "a longer period". In our submission, there is nothing exceptional or surprising about that. It reflects the legislature's acknowledgment of the operation of section 23 and its application, indiscriminately, to the various provisions in the Act which use the term "a longer period" including section 860(2)(b).

GUMMOW J: In Mayer's Case, it so happens, Chief Justice Gibbs and Justice Brennan were of another view to the three Judges in the majority. They said there was no decision under an enactment. It was just simply a factor upon which something operated but there existed the certificate. I really think you had better look at Mayer's Case.

MR GIBSON: Yes, although it does - - -

GUMMOW J: You can assist us with a note about how you construe all this.

MR GIBSON: We will certainly do so, your Honour. Could I, finally - - -

GUMMOW J: It has been referred to in other decisions later in this Court too, which I cannot immediately recall at the moment.

McHUGH J: Before you come to your final submission, can I ask you this? It seems to me that there are very powerful arguments on both sides - and I am not sure that there is any right answer to this, speaking for myself, and you point to the absurdity of the Minister being able to extend the time for 12 months but then not being able to impose nine months and extend it another three months. On the other hand, your argument does seem to cut across the interim nature of these laws.

Why, in this situation, should not a court fall back on a presumption to the effect that a power conferred on a subordinate law-making body, will be construed as authorising an interference with the rights or liberty of the subject only when the power is expressed in clear and unambiguous language, which I do not think you can point to in this particular case? For instance, it has been held that a power to make regulations concerning taxi cabs does not authorise the making of a regulation requiring a taxi cab driver to incriminate himself. Justice Fullagar in Darling Island v Long doubted whether a regulation-making power could confer a right of action for damages. So why should you not construe these powers of subordinate bodies very strictly?

MR GIBSON: Your Honour, I am unable to add anything further to the submissions that we have made. In our submission, principles such as that to which your Honour has referred properly offer guidance in the interpretation of statutory provisions. But at the end of the day, it is a question for the interpretation of the language employed and, in our submission - - -

McHUGH J: Well, I have to say, at the moment I am - I do not know whether "confused" is the right word, but neither side's argument has great persuasion to me. They go a long way but neither gets me over the edge, at the moment anyway. There are many things to be said in favour of your argument and many things to be said in favour of your opponent's argument.

KIRBY J: Could I suggest that one can tip the balance, perhaps, by saying there is an implied constitutional principle that is involved and all your diligent research and that of the appellant has not turned up a similar problem in the whole Commonwealth, in the history of all of our legislation, the delegation to Ministers to do that, and if Parliament wants to do it, it has to do it very clearly because at stake is the criminal sanctions on people like the appellant. We live in the Commonwealth of Australia. If you are going to impose these sanctions, you have to have very clear authority.

MR GIBSON: Again, your Honour, I make the same response, with respect, as I did to Justice McHugh's proposition. In our submission, when one steps back from these provisions, reflects on how section 862 is but one piece in the jigsaw puzzle presented by Divisions 2 and 3, one sees that there is no offence to the fundamental proposition that your Honour put forward and that there is no reason why the operation of the Acts Interpretation Act ought not to be called up and applied in this situation. In our submission, the interim local law is precisely that whilst a local law proper is in the course of being made in accordance with the Division 3 steps and there is nothing in the language of 860(2) which, properly construed - - -

KIRBY J: Except, as Justice Hayne pointed out, the word "a", the indefinite article. That could be construed as meaning you get one bite of the cherry.

MR GIBSON: Your Honour, I have never denied that it could be construed in that way. We accept that it could be construed in that way. Our submission is that the preferable and, with respect, on balance, the plainly preferable interpretation is to the contrary and that it is primarily upon a focusing of the language of 860(2) removed from the context in which it appears upon which the appellant finds support. When read in the context in which it appears, in our submission, that support is found to slip. But I am conscious that I am merely restating a submission earlier made.

GLEESON CJ: Now, you will have seven days within which to put in any additional note that you want to make on the matter raised by Justice Gummow and your opponent will have seven days after that to make any reply to that he wants to.

MR GIBSON: Thank you, your Honours. Might I, with some embarrassment, draw the Court's attention to some potentially significant typographical errors in our outline. At paragraph 12 at page 3 - - -

GUMMOW J: Cannot they go in your note?

MR GIBSON: Yes, I will deal with it that way.

GLEESON CJ: Thank you, Mr Gibson. Yes, Mr Myers.

MR MYERS: Your Honours, but briefly, could I concede that Division 2 has to be construed against the background of Division 3 and could I make a submission that it emphasises the interim nature of the law implemented by Division 2 simply by giving your Honours these references. Section 866 is the resolution by the local government to make the permanent law. That has to be done, as your Honours know, immediately, so there is no time involved. Section 867 requires that notification of the resolution go to the Minister and, of course, he has to consider it. There is obviously no period but it would be a reasonable period and one would think that perhaps it might be some weeks.

The Minister then, obviously, at the end of that period, notifies the local government and pursuant to section 867(7), it then, that is to say the local government, has to seek an advice, so we are probably talking about another short period. There is then the three-week period of public consultation unless the Minister says the period should be a longer period, but one could only assume that it is only going to be three or four weeks. There is then a requirement to consider the submissions made at the end of that period. That is pursuant to section 870. Then the decision is made pursuant to 871.

There is a time for consideration under section 872 if it has not been done under 867 - one period seems to replace the other - and then the Minister must make his final decision under 872(3). A further advice is to be sought after the Minister has made his decision and then pursuant to 873, the law is made. In my submission, it is clear that those steps involving the matters that are set out there would generally not be seen as taking any longer than six months. If they cannot be done, of course, for good reason, the Minister may extend.

McHUGH J: What happens if - and I think it is section 871 - the Council decides not to proceed with the making of the proposed local law? What happens to the interim law then?

MR MYERS: Well, I think the four alternatives, your Honour, that were discussed - that is to say, if they are not going to proceed with it, one would have thought they would have the power to repeal their earlier decision.

McHUGH J: Supposing they do not. They just say, "Well, we are not going to proceed with the making of the proposed local law". Does the interim law then come to an end or continue on until its appointed date?

MR MYERS: I would submit, unless they made another decision, it would continue until its appointed date, but one would have thought that if the local government decided not to make the permanent law, there was probably good reason not to have the interim law and would probably repeal it. But, certainly, any of the four steps that the presiding judge, the Chief Justice, referred to would bring it to an end. Well, obviously, one of the steps would not, because there would not be a permanent law bringing it to an end, but any of the other three.

GLEESON CJ: Thank you, Mr Myers. We will reserve our decision in this matter. We will adjourn for a short time to reconstitute.

AT 12.18 PM THE MATTER WAS ADJOURNED