Administration of Norfolk Island v Walsh
[2005] NFSC 6
•2 NOVEMBER 2005
SUPREME COURT OF NORFOLK ISLAND
Administration of Norfolk Island v Walsh [2005] NFSC 6
STATUTORY INTERPRETATION — amending Act purported to ‘repeal and replace’ sections of principal Act — literal meaning of ‘repeal’ to ‘obliterate’ a statutory provision — effect would have been to abolish an administrative tribunal and reconstitute it — whether true effect matter of substance rather than form — statutory language and extrinsic materials indicate that legislature did not intend to abolish tribunal — presumption against legislative interference with independence of quasi-judicial bodies and officers
ADMINISTRATIVE LAW — statutory power to appoint to an office included a power to remove or suspend — application to quasi-judicial officers — intention to remove must be expressed clearly and unambiguously
WORDS AND PHRASES — ‘repeal and replace’
Acts Interpretation Act 1901 (Cth), s 15AA
Administrative Review Tribunal Act 1996 (NI), ss 4, 5, 7, 8, 22
Administrative Review Tribunal (Amendment No 2) Act 2004 (NI), ss 5, 6, 8, 9, 12
Interpretation Act 1979 (NI), ss 31(2)(c), 36(4)Attorney-General (WA) v Marquet (2003) 217 CLR 545 referred to
Axon v Axon (1937) 59 CLR 395 referred to
Beaumont v Yeomans (1934) 34 SR (NSW) 562 followed
Re Becker and Minister for Immigration and Ethnic Affairs (1977) 15 ALR 696 referred to
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 applied
Coulton v Holcombe (1990) 20 NSWLR 138 referred to
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 referred to
Kartinyeri v Commonwealth (1998) 195 CLR 337 referred to
Kay v Goodwin (1830) 130 ER 1403 cited
Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268 referred to
Mathieson v Burton (1971) 124 CLR 1 cited
Worsley v Crawford (1994) 4 Tas R 78 distinguishedAdministrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39, Australian Government Publishing Service, Canberra, 1995
Australian Parliament, Tenure of Appointees to Commonwealth Tribunals, Joint Select Committee on the Tenure of Appointees to Commonwealth Tribunals, Canberra, 1989FAR Bennion, Statutory Interpretation: A Code, London, Butterworths, 4th ed, 2002
E Campbell, ‘Termination of Appointments to Public Offices’, Federal Law Review, vol 24, 1996, 1M Kirby, ‘Abolition of Courts and Non-Reappointment of Judicial Officers’, Australian Bar Review, vol 12, 1995, 181
M Kirby, ‘The Removal of Justice Staples — Contrived Nonsense or Matter of Principle?’, Australian Bar Review, vol 6, 1990, 1
PE Nygh and P Butt (eds), Butterworths Australian Legal Dictionary, Butterworths, Sydney, 1997
DC Pearce and RS Geddes, Statutory Interpretation in Australia, Butterworths, Sydney, 5th ed, 2001ADMINISTRATION OF NORFOLK ISLAND v JOHN FRANCIS PATRICK CYRIL COLCLOUGH WALSH OF BRANNAGH AND THE PRESIDENT, ADMINISTRATIVE REVIEW TRIBUNAL
SC 11 OF 2005
WEINBERG CJ
MELBOURNE
2 NOVEMBER 2005
IN THE SUPREME COURT OF NORFOLK ISLAND
SC 11 OF 2005
BETWEEN:
ADMINISTRATION OF NORFOLK ISLAND
APPLICANTAND:
JOHN FRANCIS PATRICK CYRIL COLCLOUGH WALSH OF BRANNAGH
FIRST RESPONDENTPRESIDENT, ADMINISTRATIVE REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
WEINBERG CJ
DATE OF ORDER:
2 NOVEMBER 2005
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application for prerogative relief, and any consequential declaratory relief, be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to this proceeding, such costs to be taxed in default of agreement.
IN THE SUPREME COURT OF NORFOLK ISLAND
SC 11 OF 2005
BETWEEN:
ADMINISTRATION OF NORFOLK ISLAND
APPLICANTAND:
JOHN FRANCIS PATRICK CYRIL COLCLOUGH WALSH OF BRANNAGH
FIRST RESPONDENTPRESIDENT, ADMINISTRATIVE REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
WEINBERG CJ
DATE:
2 NOVEMBER 2005
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
INTRODUCTION
This is an application by the Administration of Norfolk Island for a writ of prohibition directed to John Walsh of Brannagh (‘the first respondent’), a member of the Administrative Review Tribunal (‘the ART’). The President of the ART is named as the second respondent to this proceeding. The applicant also seeks declaratory relief.
The writ sought would prohibit the first respondent from purporting to sit alone and thereby constitute the ART, such that he can hear and determine matters before it. The declaration sought would declare that in proceeding to do so, the first respondent has been acting in excess of his jurisdiction. Although the second respondent is not mentioned in the draft writ of prohibition, I expect that he has been joined to this proceeding as he is responsible for the administrative arrangements of the ART, including the determination of the member(s) who are to constitute the ART for the purposes of a particular proceeding. See ss 6(1) and 6(2) of the Administrative Review Tribunal Act 1996 (NI).
At a directions hearing on 22 June 2005, I ordered that this matter proceed directly to a trial of the substantive application without any order nisi being first made. For that reason, the proceeding is styled with the Administration of Norfolk Island being named as the ‘applicant’, and the other parties as ‘respondents’, rather than the traditional form of ‘prosecutor’ and ‘respondent’, which would have been the case had an order nisi been granted and this proceeding been the return of that order nisi. I also directed, at the suggestion of the parties, that the matter be determined on the basis of written submissions filed by them, and without an oral hearing.
THE FACTUAL AND STATUTORY BACKGROUND
There is little, if any, dispute between the parties as to the relevant facts that have given rise to this proceeding. They can therefore be stated in relatively short compass.
On 21 May 2003, the Administrator of Norfolk Island re-appointed the first respondent to the position of senior member of the ART for a period ending 12 June 2008. The first respondent had previously been appointed a senior member by an earlier instrument, or instruments. The appointment on 21 May 2003 was made under the Administrative Review Tribunal Act 1996 (NI) (‘the 1996 Act’) as it then stood. At the time of that appointment, relevant sections of Part 2 of the 1996 Act provided as follows:
‘4 Establishment of Tribunal
(1)The Administrative Review Tribunal is established, and shall consist of a President and such other members as are appointed in accordance with this Act.
(2)The President shall be the person appointed to be the Chief Magistrate under the Court of Petty Sessions Act 1960.
5 Appointment of members of Tribunal
(1)The members of the Tribunal, other than the President, shall be appointed by the Administrator.
(2)A person who is to be appointed as a member of the Tribunal under subsection 5(1) shall be appointed as a senior member or as a member.
(3)A person is not eligible for appointment as a senior member unless he or she is enrolled as a legal practitioner of the High Court or of the Supreme Court of a State or Territory and has been so enrolled for not less than 5 years.
(4)A member holds office for the period specified in the instrument of appointment but is eligible for re-appointment.
(5)A member may resign office by written notice delivered to the Administrator.’
It bears noting that the 1996 Act contained no provisions for the removal of the senior members and members of the ART (as the President holds office by virtue of his appointment as Chief Magistrate, it may be assumed that his removal from the ART may only be effected by removal from his substantive position). The only other statutory provision that could be characterised as relating to the removal of senior members or members is s 36(4) of the Interpretation Act 1979 (NI) (‘the Interpretation Act’), which relevantly provides:
‘Where an enactment confers upon a person or authority a power to make an appointment to an office or place, the power includes … a power to remove or suspend a person appointed …’
(As to the effect of such a section, see generally E Campbell, ‘Termination of Appointments to Public Offices’, Federal Law Review, vol 24, 1996, at 5–8.)
On 23 June 2004, the Administrative Review Tribunal Amendment Bill 2004 (‘the first Amendment Bill’) was agreed to by the Legislative Assembly of Norfolk Island. The Bill was thereafter submitted to the Administrator for his assent. However, evidently some objection was taken by one or more departments of the Commonwealth Government, and ultimately the Administrator’s assent to the Bill was not forthcoming.
On 11 August 2004, the Administrative Review Tribunal (Amendment No 2) Bill 2004 (‘the second Amendment Bill’) was introduced into the Assembly. This Bill was for ‘an Act to amend the Administrative Review Tribunal Act 1996’. Clauses of the second Amendment Bill that are relevant to the instant proceeding provided as follows:
‘5 Repeal and replacement of section 4
Section 4 of the principal Act is repealed and replaced by the following —
“4 (1) The Administrative Review Tribunal is established.(2)The Tribunal consists of the President, the Deputy President, the senior member and ordinary members.
(3)The President shall be the person appointed to be the Chief Magistrate under the Court of Petty Sessions Act 1960.
(4)The Deputy President must be a person resident in Norfolk Island who is enrolled as a Legal Practitioner of the High Court or of the Supreme Court of a State or Territory and has been so enrolled for not less than 5 years.
(5)The senior member must be a person who is enrolled as a Legal Practitioner of the High Court or of the Supreme Court of a State or Territory and has been so enrolled for not less than 5 years.”.
6 Repeal and replacement of section 5
Section 5 of the principal Act is repealed and replaced by the following —
“5(1) The Deputy President, the senior member and ordinary members of the Tribunal, but not the President, shall be appointed by the Administrator by notice in the Gazette.
(2)A member, other than the President, holds office for the period specified in the instrument of appointment, but is eligible for re-appointment.
(3)A member, other than the President, may resign office by written notice delivered to the Administrator.”.’
The second Amendment Bill also effected a number of other amendments to the 1996 Act that are not presently material.
The second Amendment Bill was agreed to by the Assembly without amendment later that same day. It received the assent of the Administrator on 17 August 2004. The Administrative Review Tribunal (Amendment No 2) Act 2004, Act No 14 of 2004 (‘the Amendment Act’) took effect upon its gazettal on 20 August 2004, and a consolidated version of the 1996 Act, as amended by the Amendment Act, was produced on 23 August 2004, under the title Administrative Review Tribunal Act 1996 (‘the consolidated Act’).
On 31 January 2005, the Deputy Administrator of Norfolk Island purported to appoint the first respondent to the position of ordinary member of the ART. It is appropriate to set out this instrument of appointment in full:
‘ADMINISTRATIVE REVIEW TRIBUNAL ACT 1996
APPOINTMENT OF ORDINARY MEMBERI, Michael Leslie Stephens, Deputy Administrator of Norfolk Island, as a result of the reconstitution of the Administrative Review Tribunal and the lapsing of previous appointments, under subsection 5(1) of the Administrative Review Tribunal Act 1996, appoint —
John Francis Patrick Cyril Colclough Walsh of Brannagh
to be an ordinary member of the Administrative Review Tribunal for the period ending 16 August 2005.
Dated 31 January 2005.
[signed]
M.L. Stephens
Deputy Administrator’If this appointment of the first respondent as an ordinary member of the ART were to be legally effective, it had at least one important consequence: the first respondent would not be competent to constitute the ART sitting alone. Section 7(1) of the consolidated Act specifies that only the President or the Deputy President or the senior member may sit alone to constitute the ART. Ordinary members are only authorised to sit in multi-member panels presided over by one of the President, Deputy President or senior member.
The next relevant event occurred on 14 March 2005, when the first respondent, sitting alone, purported to constitute the ART in proceeding ART 1 of 2005, Re Jope and the Administrator of Norfolk Island. Miss Cowles, a solicitor appearing on behalf of the Administrator, took a preliminary objection to the constitution of the ART in that proceeding. She submitted that the enactment of the Amendment Act terminated the appointments of all previous members of the ART (with the exception of the President), and that the first respondent’s subsequent appointment as merely an ordinary member meant that he was not able to sit alone, and thereby constitute the ART. This objection was renewed at a later stage of the same proceeding, but does not appear to have been resolved in any conclusive fashion.
On 23 May 2005, the first respondent, again sitting alone, purported to constitute the ART in proceeding ART 4 of 2005, Re Clarke and the Minister for Land and the Environment. In the course of that day’s hearing, Mrs Comer, a solicitor appearing for the Minister, received urgent instructions from her client to seek an adjournment of the matter in the ART, in order to institute proceedings in this Court seeking prerogative relief in the nature of prohibition against the first respondent. Those instructions were then changed to the effect that Mrs Comer was to make submissions objecting to the first respondent’s competency to sit alone and constitute the ART. After hearing and considering detailed submissions on the point, the first respondent ruled that he retained the status of senior member, in accordance with the instrument of his appointment dated 21 May 2003, and was therefore competent to conduct the proceeding sitting alone.
When the same matter was again called on for hearing two days later, Mrs Comer renewed her request for an adjournment, which was, with the consent of counsel for Mr Clarke, ultimately granted. The instant proceeding for prerogative relief was instituted in this Court the following morning, and upon resuming the hearing that day and being so informed, the first respondent adjourned the matter sine die.
THE FIRST RESPONDENT’S PRELIMINARY OBJECTIONS TO THE COMPETENCY OF THE PROCEEDING
The central issue for determination in this proceeding is the first respondent’s status as a member of the ART. However, the first respondent prefaced his submissions on that issue with a number of preliminary objections to the manner in which the proceeding had been instituted. He submitted, amongst other deficiencies, that the originating application was defective, that a number of proper parties had not been joined, that the applicant did not have standing to bring the proceeding, and that he was entitled to the benefit of ‘judicial immunity’.
For reasons that will become apparent, it is unnecessary to consider whether there is substance to any of these preliminary objections.
THE APPLICANT’S SUBMISSIONS
The applicant’s central contention was that the enactment of ss 5 and 6 of the Amendment Act, which were said to ‘repeal and replace’ ss 4 and 5 of the 1996 Act, had a number of legal effects. Firstly, the ART was disestablished. Secondly, the appointments of the members of the now-defunct ART were terminated, as the offices they had once held no longer existed. And thirdly, a ‘new’ ART was immediately constituted, comprising only one member, the President (who took office again by virtue of his substantive appointment as the Chief Magistrate). Therefore, during the period 20 August 2004 to 31 January 2005, the first respondent did not hold office as a member of the ART. And as from 31 January 2005, the first respondent’s appointment as an ordinary member meant that he could not constitute the ART sitting alone.
The applicant submitted that the legal effects set out in the preceding paragraph were the ‘clear intent and effect’ of ss 5 and 6 of the Amendment Act. In aid of its submission as to the construction of the term ‘repeal’ in the Amendment Act, the applicant relied upon the principle espoused in Kay v Goodwin (1830) 130 ER 1403 (‘Kay’) at 1405 per Tindall CJ, that to repeal an Act is to ‘obliterate it’. Therefore, upon the ‘repeal’ of s 4 of the 1996 Act (the section that established the ART and provided for its membership), the institution itself, and the offices, immediately ceased to exist.
Section 31(2) of the Interpretation Act provides that:
‘Where an enactment repeals in whole or in part a former enactment, the repeal does not — …
(c)affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment so repealed; …’
The applicant contended that this section did not assist the first respondent in arguing that the ‘repeal and replacement’ of ss 4 and 5 of the 1996 Act were not effective to abolish the ART, and terminate the appointments of its members. At its highest, this provision could only aid the first respondent by maintaining the existence post-abolition of any rights, privileges, obligations or liabilities that he acquired, or accrued to him, in the exercise of his office. However, it could not preserve the office itself, once the 1996 Act that established the office had been repealed.
The applicant also submitted that the argument that the Amendment Act was essentially intended to reorganise the officers of the ART, by providing for a Deputy President and introducing greater specificity into the sections relating to senior members, was flawed. It contended that the shift from the possibility of there being multiple senior members in office at any one time to clarification that there was to be only one senior member supported the view that these were wholly new offices in a ‘new’ ART.
Additionally, the applicant further contended that s 36(4) of the Interpretation Act (reproduced at [6] of the reasons for judgment) supported an inference that the members of the ART, appointed under the 1996 Act, were liable to have their appointments terminated at will.
Finally, the applicant argued that the terms of the Amendment Act were so clear and unambiguous as to render unnecessary, and inappropriate, reference to any extrinsic materials in aid of ascertaining the relevant legislative intent.
The applicant also advanced an alternative submission in the event that the enactment of the Amendment Act did not have the effects for which it contended. This was that the instrument that appointed the first respondent an ordinary member of the ART, dated 31 January 2005, ought to be treated as a valid, implied revocation of his earlier appointment as a senior member.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent resisted the interpretation of the Amendment Act advanced by the applicant. He argued that there was ample evidence to suggest that the intention of the Assembly, in enacting the Amendment Act, was essentially to bring about an administrative reorganisation of the ART by making provision for a Deputy President, and specifying that there was only to be one senior member in office at any one time. He submitted that it had never been the Assembly’s intention to ‘disestablish’ the ART and then, in the same provision, to re-establish it. Nor had it ever been the Assembly’s intention to terminate the appointments of the ART’s existing members.
The first respondent argued that this view of the Amendment Act was supported by the failure to include any transitional provisions investing the ‘new’ ART with jurisdiction to hear and determine matters that were pending in the ‘old’ ART. It was also significant that the Amendment Act did not make provision for any waiver of limitation periods that might otherwise bar the filing of those matters in the ‘new’ ART. He submitted that the speech delivered by the Chief Minister in the Assembly, and the Explanatory Memorandum accompanying the second Amendment Bill, clearly demonstrated that drastic changes of the kind for which the applicant now contended had never been contemplated when the Bill was agreed to.
The first respondent relied, in part, upon s 20C(3) of the Interpretation Act in support of his contentions. That section provides:
‘Where an enactment alters the constitution of a body (whether or not the body is incorporated), then, unless the contrary intention appears —
(a)the body continues in existence as newly constituted so that its identity is not affected; and
(b)the alteration does not affect any functions, powers, property, rights, liabilities or obligations of the body;…’
This section was said to embody a presumption, or general supposition, of continuance, applicable to everything which has once been proved to exist, that applied to, inter alia, statutory bodies such as the ART. See generally Axon v Axon (1937) 59 CLR 395 at 405 per Dixon J.
The first respondent replied to the applicant’s argument that the offices of members of the ART were wholly new ones by pointing out that this did not necessarily follow from the reduction in the number of senior members from an unspecified number to only one. As the first respondent was the only senior member in office at the time of the enactment of the Amendment Act, the Act’s reduction in numbers from an unspecified number to only one could still be given effect without the removal or demotion of any existing members.
The first respondent also argued that the fact that the Administration had not seen fit to reappoint the Secretary and Deputy Secretary of the ART to their respective posts after its supposed abolition and re-constitution, and was rather content for them to hold office under their previous appointments to the ‘old’ ART, supported an inference that the legislature did not intend to disestablish the ART when it enacted the Amendment Act.
Finally, the first respondent argued that, as a principle of statutory construction, the Court should avoid according an interpretation to the Amendment Act that would have an unjust or capricious outcome.
The first respondent did not address the contention that his appointment as a senior member of the ART had been impliedly revoked by the 31 January 2005 instrument.
THE SECOND RESPONDENT’S SUBMISSIONS
The second respondent properly refrained from taking any active part in this proceeding, save for indicating that he submitted to the orders of this Court.
REASONING
THE TEXTUAL EFFECT OF THE AMENDMENT ACT
The question of the first respondent’s status as an ART member is contingent upon the intent to be attributed to the Legislative Assembly of Norfolk Island when it enacted the Amendment Act. By using the expression ‘Repeal and replacement’ in the headings, and ‘repealed and replaced’ in the body of ss 5 and 6 of the Amendment Act, did the Assembly intend to abolish the ART, terminate the appointments of its existing members, and immediately thereupon constitute a ‘new’ ART, devoid of any members apart from the President? Or did the Assembly simply use those expressions as a drafting device, in preference to other drafting devices that might have required more prolix operative clauses, with no actual intention to abolish the ART, terminate appointments, and establish a new body with the same name?
Before embarking upon this inquiry, it is important to be clear as to exactly what textual effect the Amendment Act had upon the 1996 Act. It is helpful to compare ‘before’ and ‘after’ snapshots of ss 4 and 5 of the 1996 Act and ss 4 and 5 of the consolidated Act, as those sections now appear:
Section 4 of the 1996 Act
‘4 Establishment of Tribunal
(1)The Administrative Review Tribunal is established, and shall consist of a President and such members as are appointed in accordance with this Act.
(2)The President shall be the person appointed to be the Chief Magistrate under the Court of Petty Sessions Act 1960.’
Section 4 of the consolidated Act
‘4 Establishment of Tribunal
(1)The Administrative Review Tribunal is established.
(2)The Tribunal consists of the President, the Deputy President, the senior member and ordinary members.
(3)The President shall be the person appointed to be the Chief Magistrate under the Court of Petty Sessions Act 1960.
(4)The Deputy President must be a person resident in Norfolk Island who is enrolled as a Legal Practitioner of the High Court or of the Supreme Court of a State or Territory and has been so enrolled for not less than 5 years.
(5)The senior member must be a person who is enrolled as a Legal Practitioner of the High Court or of the Supreme Court of a State or Territory and has been so enrolled for not less than 5 years.’
Section 5 of the 1996 Act
‘5 Appointment of members of Tribunal
(1)The members of the Tribunal, other than the President, shall be appointed by the Administrator.
(2)A person who is to be appointed as a member of the Tribunal under subsection 5(1) shall be appointed as a senior member or as a member.
(3)A person is not eligible for appointment as a senior member unless he or she is enrolled as a legal practitioner of the High Court or of the Supreme Court of a State or Territory and has been so enrolled for not less than 5 years.
(4)A member holds office for the period specified in the instrument of appointment but is eligible for re-appointment.
(5)A member may resign office by written notice delivered to the Administrator.’
Section 5 of the consolidated Act
‘5 Appointment of members of Tribunal
(1)The Deputy President, the senior member and ordinary members of the Tribunal, but not the President, shall be appointed by the Administrator by notice in the Gazette.
(2)A member, other than the President, holds office for the period specified in the instrument of appointment, but is eligible for re-appointment.
(3)A member, other than the President, may resign office by written notice delivered to the Administrator.’
It will be seen that, upon coming into effect, the Amendment Act made the following changes to the 1996 Act, now reflected in the consolidated Act:
·section 4(1) of the 1996 Act was split into ss 4(1) and 4(2) of the consolidated Act and reworded to include the new category of ART membership of Deputy President;
·section 4(2) of the consolidated Act distinguishes between ‘the senior member’ and ‘ordinary members’, whereas s 4 of the 1996 Act did not draw that distinction;
·section 4(2) of the 1996 Act was moved to s 4(3) of the consolidated Act with no change to its terms;
·a new s 4(4) into the consolidated Act was introduced to specify the professional and residency requirements of the Deputy President;
·section 5(1) of the 1996 Act was slightly reworded in the consolidated Act to refer in terms to the Deputy President, the senior member, and ordinary members of the ART, and to provide that their appointment shall be by the Administrator by notice in the Gazette;
·section 5(2) of the 1996 Act was subsumed into s 4(2) of the consolidated Act;
·section 5(3) of the 1996 Act was renumbered as s 4(5) of the consolidated Act and repeated in near-identical terms; and
·sections 5(4) and 5(5) the 1996 Act were renumbered as ss 5(2) and 5(3) of the consolidated Act, with minor changes to their terms but no change to their effect.
In order to produce those changes, the Assembly adopted the drafting technique of ‘repealing’ ss 4 and 5 of the 1996 Act, and ‘replacing’ them with the new ss 4 and 5 as they appear in the consolidated Act. It is possible that this technique was chosen by the parliamentary draftsperson because it represented a less clumsy means of securing the desired result than the alternative drafting technique of ‘amending’ the sections by ‘deleting’ or ‘omitting’ certain words, and ‘substituting’ others. However, the question that must be resolved is whether the Assembly intended, by adopting the expression ‘repeal and replace’, to also bring about the three consequences for which the applicant contended, namely abolition, termination and re-constitution. I turn now to consider the relevant statutes, academic writing and authorities on the meaning of ‘repeal and replace’, or like expressions, in amending Acts.
RELEVANT PRINCIPLES OF STATUTORY CONSTRUCTION
Neither the Norfolk Island Interpretation Act, nor its Commonwealth analogue, the Acts Interpretation Act 1901, offer any explicit guidance as to the meaning that is to be accorded to the expression ‘repeal and replace’ when adopted in an amending Act. The question therefore falls to be determined on the basis of the relevant common law principles of statutory construction.
The entry on ‘repeal’ in PE Nygh and P Butt, Butterworths Australian Legal Dictionary, Butterworths, Sydney, 1997, seems to accord that word a somewhat flexible meaning. It is in the following terms:
‘The deletion, omission, or reduction in scope of a statutory provision by another statute.’
FAR Bennion, Statutory Interpretation: A Code, Butterworths, London, 4th ed, 2002, takes a narrower, and more strident, view, writing at 251 that:
‘To “repeal” an enactment is to cause it to cease to be in law a part of the Act containing it. … A repeal revokes or abrogates an Act or part of an Act. … The law has made use of many synonyms for the operation known as repeal, often in the same sentence. … There is no special wording required however, and the one word “repeal” will delete the provision as effectively as any jumping on its bones or scattering of its ashes.’
And the classical position has been restated as recently as 2003 by the High Court in Attorney-General (WA) v Marquet (2003) 217 CLR 545 (‘Marquet’) at [46] per Gleeson CJ, Gummow, Hayne and Heydon JJ:
‘It may readily be accepted that the central meaning of “amend” is to alter the legal meaning of an Act or provision, short of entirely rescinding it, and that the central meaning of “repeal” is to rescind the Act or provision in question.’
At first blush, therefore, the tenor of these statements of principle appears absolute. They suggest that there is little scope for an enactment, or part thereof, to survive the legislative command that it be ‘repealed’.
It is also appropriate to note at this point the remarks of Kirby J (in dissent) in Marquet at [133]:
‘First, it remains the fundamental task of statutory construction to give meaning to a parliamentary purpose in accordance with the words used in the law in question. Interpretation is a text-based activity. Although the context of a law, or of the subject matter dealt with, may suggest that the interpreter’s immediate, or intuitive, response to the words should be reconsidered, the admonition of Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation remains true: “[I]t is not unduly pedantic to begin with the assumption that words mean what they say.”’ (citations omitted)
This idea that the starting point is that ‘words mean what they say’ finds support in comments in DC Pearce and RS Geddes, Statutory Interpretation in Australia, Butterworths, Sydney, 5th ed, 2001 (‘Pearce and Geddes’) at [7.2]:
‘[I]t may be necessary for a person asserting the contrary to convince the court that the legislature has not deliberately used the words “amend” and “repeal”.’
The application of Gibbs CJ’s aphorism to the present circumstances has the effect that when the Assembly enacted the Amendment Act with the word ‘repeal’ contained therein, it meant just that. Sections 4 and 5 of the 1996 Act were repealed. Given that those sections established the ART, and made provision for the appointment of its members, their repeal meant that the ART no longer existed, and its members no longer held office.
However, a more nuanced approach to this issue is also suggested in Pearce and Geddes, supra, at [7.1]:
‘There has been some discussion from time to time in the courts as to the manner in which one determines whether a section in an Act is a repealing provision or an amending provision. It may be thought that the distinction lies in whether the section uses the word “repealed” on the one hand or the word “amended” or “omitted” on the other. But there is strong authority to suggest that a court is entitled to go behind the words used and endeavour to determine for itself whether the effect of a provision is to repeal or only to amend an existing Act.’
The learned authors place a good deal of reliance upon the leading judgment of Jordan CJ in Beaumont v Yeomans (1934) 34 SR (NSW) 562 (‘Beaumont’) at 568–70 (with whom Stephen and Maxwell JJ concurred). Jordan CJ said:
‘At common law, the repeal of a statute obliterated it as if it had never existed, except as to transactions past and closed … It had been held that at common law it likewise follows that the effect of the repeal of a clause in an Act is that the clause must be taken as if it never existed …
Whether an Act has been repealed or amended is a matter of substance and not one of form only. … An amendment may be effected by … the repeal of the section and the substitution of the same words with the phrase added. …
And where a provision of an Act is repealed and re-enacted in a form which enlarges its scope, this has been construed as amounting in substance to an amendment, because the new provision has been regarded as intended to be retrospective so far as it is mere repetition, and prospective so far as it is new: Ex parte Todd [(1887)] (19 QBD 186).’
This statement of principle can be read as support for the thesis that there is a distinction between a ‘repeal and re-enactment’ (which may simply have the effect of amending the statutory provision in question, such that there was never a time when the provision did not exist) and a ‘true repeal’ (which is to ‘obliterate’ the provision in the manner suggested by Tindall CJ in Kay, and also by Bennion).
The formulation adopted by Jordan CJ was doubted (in the context of the statutory term ‘repeal’ in the Acts Interpretation Act 1931 (Tas)) by Zeeman J in Worsley v Crawford (1994) 4 Tas R 78 (‘Worsley’) at 84–5:
‘Whilst I would not disagree with the stated effect of Ex parte Todd, it is important to note that that case did not decide that such a repeal and re-enactment did not actually involve a repeal. …
In my respectful opinion, to the extent that it was held in Lewis v French … and in Beaumont v Yeomans … that a statutory provision which purports to repeal some other provision may yet not effect a repeal for the purposes of the Acts Interpretation Act, s 16(c) or its equivalent, those cases were wrongly decided. … Merely because a repealing statute on a proper construction may have the same operative effect as if Parliament had chosen to amend by adding some further provision … it does not follow that such a statute is an amending statute so as to fall outside the purview of s 16. Where an Act expressly purports to repeal some other Act or a portion of it then there has been a repeal which attracts the provisions of s 16.’
However, the authorities on the meaning of words such as ‘repeal’ speak consistently of the need to consider matters of substance rather than matters of form. On this point, Pearce and Geddes note at [7.1] that:
‘this notion that one can go behind the form and look to the effect of the provision was followed by a majority of the judges of the High Court in Bird v John Sharp & Sons Pty Ltd (1942) 66 CLR 233.’
Allen J in Coulton v Holcombe (1990) 20 NSWLR 138 expressed the principle this way, at 174:
‘I accept the submission that albeit the form of the legislation is not without significance the question, fundamentally, is one of substance rather than of form.’
Kirby J, in dissent in Kartinyeri v Commonwealth (1998) 195 CLR 337 (‘Kartinyeri’), drew an analogy, at [174], with the technique of characterisation of legislative subject matter to a Commonwealth head of power:
‘Whether a repeal or amendment is made is thus not dependent upon the use of a particular legislative formula any more than the constitutionality of a statute is decided by the “badge” of the verbal description which the statute wears. However, care must be taken in the use of observations made by the Court as to the character of a law as a “repeal” or “amendment” having regard to the different contexts in which the question may be raised. Absolute statements should be avoided for they are likely to produce error.’ (citations omitted)
And Gleeson CJ, Gummow, Hayne and Heydon JJ were at pains to press a similar point in Marquet at [47], [51] and [52]:
‘But concluding that the words [amend and repeal] have different meanings is not to say that the distinction between them always depends upon the form in which a particular piece of legislation is cast. The distinction must depend upon considerations of substance not form. …
… The form in which the legislative steps to effect the change is framed is not determinative; the question is, what is their substance?
… The evident purpose of the provision should not be defeated by preferring form over substance.’
In my view, the statement of principle expressed by Jordan CJ in Beaumont should be accepted. His Honour’s approach has been cited with approval on a number of occasions, most recently by Kirby J in Kartinyeri at [174]. I also note that the comments of Zeeman J in Worsley were made in the specific context of considering whether any ‘repeal’ of the statute in question had been effected such that s 16 of the Acts Interpretation Act 1931 (Tas) would be enlivened. They are not necessarily applicable to the more abstract question of statutory construction that arises in this proceeding.
With respect to Zeeman J, I therefore propose to adopt the approach favoured by Jordan CJ when construing the expression ‘repeal and replace’ in this proceeding.
INFERENCES TO BE DRAWN FROM THE STATUTORY LANGUAGE AND THE EXTRINSIC MATERIALS
There is no doubt that, having regard to modern principles of interpretation (as enunciated in cases such as CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, and s 15AA of the Acts Interpretation Act 1901 (Cth)) the Court will prefer an interpretation of a statute that would give effect to the legislative purpose, as opposed to one that would not. There is also no doubt that the task of construing the expression ‘repeal and replace’ requires that expression to be considered in context.
There is, however, an issue between the parties as to whether it is permissible or appropriate, when construing the expression ‘repeal and replace’ in the instant context, to have regard to extrinsic materials such as the Chief Minister’s speech, and the Explanatory Memorandum.
I am far from persuaded by the applicant’s submission that the Assembly’s intention, to be distilled from the expression ‘repeal and replace’ in the Amendment Act, was unambiguously to disestablish the ART, and terminate the appointment of its members. The possibility that the choice of the expression ‘repeal and replace’ (which is not, so far as I can tell, a term of art) was merely a drafting device designed to effect an administrative reorganisation of the ART, and was not intended to bring about a more revolutionary outcome, cannot be ignored. In these circumstances, it is helpful in ascertaining the legislative intention, or at least in understanding the ‘mischief’ to be rectified by the enactment of the Amendment Act, to have regard to the extrinsic materials available to the Court. In my view, it is appropriate to have regard to those materials for that purpose.
At the time of the introduction of the second Amendment Bill into the Assembly, an Explanatory Memorandum dated 5 July 2004 was tabled. It is useful to set out this Memorandum in some detail:
‘This Bill is proposed to effect several changes in the constitution of the Tribunal including the creation of a Deputy President, provision for one senior member and for the designation of other members as ordinary members.
While the President remains the Chief Magistrate, the Deputy President must be resident in Norfolk Island and be legally qualified. The senior member must also be legally qualified but ordinary members need not. …
The Bill varies the power of the Tribunal to hold a hearing elsewhere than on Norfolk Island …
This Bill clarifies the position of the Secretary and Deputy Secretary of the Tribunal …
This Bill clarifies and simplifies the time limits within which appeals may be brought and also gives power to the Tribunal to order costs against a person …’ (emphasis added)
The passages highlighted above make it clear that the Amendment Act was intended to do just what its title suggested, namely amend the 1996 Act. It was not intended to repeal that Act in its entirety, and establish a ‘new’ ART with ‘new’ members. The very fact that the President, by virtue of his office, continued to occupy the position of head of the ART makes it clear that legal continuity, rather than revolutionary change, was intended.
A second document, entitled ‘Outline of Clauses’, dated 5 July 2004, also appears to have been tabled in the Assembly on the day of the Chief Minister’s speech. After dealing with the second Amendment Bill’s preliminary clauses, the ‘Outline’ relevantly provides:
‘Interpretation
4.Clause 4 seeks to introduce definitions of the “Deputy President”, as well as clarify that all appointees to the tribunal are “members” and that there is one senior member.
Repeal and replacement of section 4
5.Clause 5 re-establishes the Tribunal to include the Deputy President. It also provides for the qualifications of various members.
Repeal and replacement of section 5
6.Clause 6 provides for the method of appointing, removal and resignation of the various members of the Tribunal.
Insertion of new subsection 6(3)
7.Clause 7 provides the powers and functions of the President to be exercised by the Deputy President in certain circumstances.
Deletion and substitution — section 7
8.Clause 8 provides for a clarification of the membership of the Tribunal when it is constituted by only one member or when it is constituted by 2 or 3 members.
Deletion and substitution of section 8
9.Clause 9 establishes who is to provide over the Tribunal in various circumstances.
Amendment of section 12
10.Clause 10 empowers the Tribunal upon application by a party to convene a hearing outside Norfolk Island but at the cost of the applicant. The clause further empowers the Tribunal if it considers it necessary to appoint an independent expert to assist it.
Insertion — new subsection 13(3)
11.This Clause seeks to ensure the independence of the Secretary and Deputy Secretary of the Tribunal in performing their duties.
Section 22 — Repeal, substitution and addition of new subsections
12.Clause 12 clarifies the time for the bringing of an appeal where none is provided and fixes the time as 28 days from the date of the decision appealed against. As the Act provides for applications to extend time, the clause clarifies matters to which the Tribunal must have regard, and the calculation of time.
Addition of new section 43A
13.Clause 13 empowers the Tribunal to require an applicant to pay costs if it satisfied that an appeal was frivolous, vexatious or without merit.
Consequential amendments
14.Clause 14 makes some changes to references arising from the passage of the Public Sector Management Act 2000. These are necessary because the Enactments Reprinting Act 1980 while permitting changes to the reference to persons does not permit the replacement of the name of a new Act that replaces another.
Amendments proposed by the Administrative Review Tribunal Amendment Bill 2004
15.Clause 15 makes provision for the circumstance that if the earlier Bill eventually receives assent and comes into force, certain provisions that are identical to provisions in this Bill will come into force and this section is intended to ensure that those provisions are effective from the same date as those under this enactment, while the provisions that are new are effective from the date when that Bill finally comes into force.’
Once again, the language is redolent of continuity, rather than change of a revolutionary nature.
These aids to statutory construction uniformly point in the same direction, namely, that the Assembly did not intend to abolish the ART, but rather to effect its administrative reorganisation. Words such as ‘varies’, ‘clarifies’ and ‘simplifies’, used in the Explanatory Memorandum, and in the ‘Outline of Clauses’, to describe the effects of the second Amendment Bill in respect of the ART as constituted under the 1996 Act, are not apt to describe arrangements for a new tribunal established after a metaphorical ‘scorching of the earth’. They make far greater sense if read as making changes to an institution that already exists, and will continue in existence, albeit in an altered form.
I note that the Amendment Act uses various verbal formulae to indicate the changes to the 1996 Act that are intended. For example, whereas ss 5 and 6 use the expression ‘repealed and replaced’ in relation to ss 4 and 5 of the 1996 Act, s 8 of the Amendment Act is headed ‘Deletion and substitution — section 7’, and speaks of s 7 of the 1996 Act as being ‘amended by deleting paragraphs 7(1)(a), (b) and (c) and substituting the following …’. If there were a logical pattern to the formulae adopted for change, one would expect to see it in s 9 of the Amendment Act, which again is headed ‘Deletion and substitution of section 8’. Curiously, s 9 provides that ‘Section 8 of the principal Act is repealed and replaced by’ a new s 8. Thus the draftsperson saw no apparent distinction between ‘amending by deleting’ and ‘repealing and replacing’, at least in the context of ss 8 and 9 of the Amendment Act. Another formula used later in s 12 of the Amendment Act in relation to s 22 of the 1996 Act is ‘Repeal, substitution and addition of new subsections’, which may or may not be different from ‘Repeal and replacement’. It appears that the different formulae are used almost interchangeably, without regard to whether they are likely to be read as producing different legal consequences.
It is of some significance to note that the consolidated Act bears the same title, and date, as the 1996 Act, namely, Administrative Review Tribunal Act 1996, again a tacit indication that it was not the intention of the Assembly to abolish the ART, but rather to provide for its continued existence, albeit in a modified form. The same inference can be drawn from the fact that the Amendment Act refers to the 1996 Act as the ‘principal Act’ and, in s 15, provides that once the Amendment Act comes into force, ‘all references therein to the principal Act shall be read as references to the principal Act as amended by this Act …’.
The absence of any transition provisions in the Amendment Act also lends support to the interpretation for which the first respondent contended. Whilst the applicant correctly points out that s 31(2)(c) of the Interpretation Act would operate to save any proceedings pending in the ART at the time of its ‘abolition’, the absence of any statutory provisions investing any ‘new’ ART with jurisdiction to hear and determine those proceedings supports an inference that the Assembly did not intend the Amendment Act to have the wider effect for which the applicant now contends.
I am not persuaded by the applicant’s contention that it was a dominant feature of the Amendment Act that the possibility of having more than one senior member be excluded, or that even if this were so, it had any legal effect upon the status of the first respondent.
The official record of parliamentary debate on the second Amendment Bill indicates that the members of the Assembly spent little time giving detailed consideration to the Bill. See Norfolk Island, Legislative Assembly, Debates, vol 10, at 1609–12. Rather, the majority of the debate seems to have been taken up with members indicating their satisfaction that the second Amendment Bill was in a near-identical form to the first Amendment Bill (save for the omission of some provisions relating to a migration jurisdiction of the ART), and expressing their frustration with the Commonwealth Government’s apparent insistence upon some modifications to the first Amendment Bill. It was this insistence that evidently led to the need for the second Amendment Bill to be introduced.
The only use that can sensibly be made of the parliamentary debate on the second Amendment Bill is to note the absence in that debate of any indication that the Bill was intended to have the effects now contended for by the applicant. One might reasonably have supposed that had it been intended to abolish the ART, and to re-constitute its membership, someone might have said something about that matter during the course of the debate.
I do not find particularly persuasive the submission advanced by the first respondent that the Administrator’s failure to re-appoint the Secretary and Deputy Secretary under new instruments following the enactment of the Amendment Act is indicative of an absence of intention on the part of the Assembly to abolish the ART. Whatever this might say about the state of mind of the Administrator, as advised by the Executive Council, it has little relevance to the intention of the Assembly at the time it enacted the second Amendment Act.
INFERENCES TO BE DRAWN FROM PRINCIPLE OF INDEPENDENCE OF QUASI‑JUDICIAL OFFICERS
I have already indicated that the expression ‘repeal and replace’, as it appears in the Amendment Act, when read in context seems to me to suggest that these words are not to be read literally, but rather as indicating an intention to bring about an administrative reorganisation in the ART. That view is supported by the extrinsic materials, and by a purposive approach to the construction of the relevant expression. There seems no point whatever in abolishing the ART, and then re-establishing it as a completely new body, with no continuity of membership other than the President, unless it be the Assembly’s desire simply to rid the ART of a senior member. Had that been the intent, the objective could easily have been achieved by revoking the first respondent’s appointment, expressly and in terms, and then re-appointing him at the lower level of member. Moreover, it is difficult to think of any sensible reason, on the part of the Assembly, for disestablishing the ART and giving rise to a period (that might be quite lengthy) in which the ‘new’ ART would be operating substantially below its ordinary complement of members. As a matter of common sense, the greater likelihood is that insufficient care was given to the language used in the Amendment Act, which was intended simply to bring about the reorganisation of which I have previously spoken. The later provisions of the Amendment Act that do not bear upon the ART’s members support precisely this conclusion.
I am further reinforced in my conclusion by consideration of the principles relating to the independence of judicial and quasi-judicial officers in systems of government in the liberal democratic tradition. It is accepted in such polities that the relationship between the state and the individual is one that must be governed by law, and that the individual’s and the state’s respective legal rights and obligations must be decided by independent persons, usually, but not always, judges.
The proliferation of administrative tribunals in recent years, such as the Administrative Appeals Tribunal of the Commonwealth and the ART on Norfolk Island, has created new challenges for the traditional principle of judicial independence. Very often these tribunals are called upon to adjudicate disputes involving the legal rights and obligations of individuals and government agencies. In doing so, they generally exercise executive power, yet invariably are expected to ‘act judicially’. See, eg, Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 585 per Bowen CJ and Deane J, and Re Becker and Minister for Immigration and Ethnic Affairs (1977) 15 ALR 696 at 699 per Brennan J.
Tribunal members are expected ‘to bring the same quality of independent thought and decision making to their task as do judges’: Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Canberra, Australian Government Publishing Service, Report No 39, 1995 at [4.2]. They are ‘charged with duties which require the same attitudes of independence, integrity and courage as are required of judicial officers’: M Kirby, ‘Abolition of Courts and Non-Reappointment of Judicial Officers’, Australian Bar Review, vol 12, 1995, 206.
Security of tenure for judicial and quasi-judicial officers is essential to guaranteeing meaningful independence. The abolition of a judicial or quasi-judicial body, and the consequent termination of the appointments of its members, constitutes an obvious threat to independence. The well-established convention in such circumstances is that the members are appointed to another judicial or quasi-judicial office of equivalent or higher status, with no diminution of salary or financial benefits. See, eg, M Kirby, ‘The Removal of Justice Staples — Contrived Nonsense or Matter of Principle?’, Australian Bar Review, vol 6, 1990, 9. To do otherwise risks the appearance that the political arms of government have used the reorganisation of the court or tribunal or the reallocation of its jurisdiction for the improper purpose of removing some or all of its members without observing the ordinary processes.
The New South Wales Court of Appeal had the opportunity to consider a situation analogous to the present in respect of the reconstitution of the magistracy of that State in Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268. In that case, Kirby P stated, at 281, that courts ought to give effect to a presumption in statutory construction against interference with courts and judicial officers in a manner inconsistent with their independence:
‘Courts will therefore be slow to impute to Parliament, which has traditionally been most respectful of the convention governing the independence and tenure of judicial officers, that by its legislation it meant to deprive those who formerly enjoyed judicial office of the benefits and responsibilities of that office, including, but not limited to, the economic benefits. Especially will courts be slow to impute this purpose where to do so completely bypasses established disciplinary procedures…’
These issues have also been the subject of consideration by legislators. In 1989, a Joint Select Committee of the Australian Parliament was established to examine issues relating to the independence of Commonwealth tribunal members. Whilst not wishing to restrict the right of the legislature to reorganise courts and tribunals where necessary to better serve the administration of justice, the Committee did, however, enunciate principles that ought to be observed in any such process:
‘The Committee does not believe that the Parliament should seek to limit its sovereign power to enact or repeal legislation, including legislation for the abolition of tribunals which it has created. It does consider, however, that some principles should be borne in mind by Parliament when considering the enactment of legislation to abolish an existing quasi-judicial tribunal.
First, all members of tribunals should be re-appointed to a restructured tribunal, or a tribunal replacing an existing tribunal, unless demonstrably good reasons are given for their non-reappointment.’
(Australian Parliament, Tenure of Appointees to Commonwealth Tribunals, Joint Select Committee on the Tenure of Appointees to Commonwealth Tribunals, Canberra, 1989 at [5.21]–[5.22]).
The Committee went on, at [5.24], to formulate the following recommendation:
‘The Committee suggests that in drafting legislation which substantially changes the law relating to the jurisdiction of a quasi-judicial tribunal, a presumption should be adopted that the legislation should refrain from the abolition of the tribunal.’
It will thus be seen that there has been support from a number of different quarters (including from the nation’s highest legislature itself) for developing a principle of statutory construction that legislatures may only interfere (where they can do so at all: see, eg, ch III of the Australian Constitution) with the independence of courts and tribunals by the enactment of legislation that makes the legislature’s intention to do so clear and unambiguous.
The applicant has, in effect, submitted that the enactment of the Amendment Act was effective to abolish a quasi-judicial tribunal, and peremptorily terminate the appointment of its members, with no provision being made for their continuance in equivalent office. Indeed, the applicant has then purported to procure the appointment of the first respondent to an office in what it claims is a successor tribunal, with a near-identical jurisdiction, which office is unambiguously inferior.
A clearer departure from the accepted principles relating to the independence of quasi‑judicial officers from the political arms of government would be difficult to imagine. I am unwilling to countenance that such unpalatable effects can be achieved by anything less than statutory language of the utmost clarity. The Amendment Act does not meet that threshold.
THE EFFECT OF THE APPOINTMENT OF THE FIRST RESPONDENT AS AN ORDINARY MEMBER
As indicated earlier in these reasons for judgment, the applicant advanced an alternative submission, namely, that the Deputy Administrator’s purported appointment on 31 January 2005 of the first respondent as an ordinary member of the ART had the implied effect of revoking his earlier appointment, and removing him from office as a senior member of the ART.
It certainly appears open to the Administrator to remove or suspend members of the ART (putting to one side the position of the President) from office in the exercise of his powers. Authority for that course of action is to be found in s 36(4) of the Interpretation Act. However, it stands to reason that if a power to appoint a person to a particular office includes the power to remove that person from that office, removal should be effected in a similar manner to that adopted to make the appointment in the first instance. Appointments to the ART by the Administrator are now required to be made by notice published in the Gazette. By implication, removal from such an office should also be effected by similar notice. Any such notice should be expressed in clear and unambiguous terms.
The Deputy Administrator’s purported appointment of the first respondent to a more junior office within the same statutory body did not have the effect of revoking the earlier instrument by which he was appointed a senior member until 12 June 2008. On the contrary, the instrument of 31 January 2005 seems to me to suggest that the Deputy Administrator was under a misapprehension as to the legal effect of the Amendment Act, and consequently the first respondent’s status at the time within the ART.
If the Administration wishes to remove, or suspend, from office a person who occupies a senior and responsible position, of a quasi-judicial nature, such as the first respondent, it should follow appropriate procedures. In my opinion, these include the use of an instrument, properly gazetted, that makes it plain that its objective is removal or suspension. It should not do so by enacting legislation that is unclear, or imprecise, in its legal effect.
ORDERS
It follows that the application for prerogative relief, and consequential declaratory relief, should be dismissed. In accordance with the usual rule, costs should follow the event.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Weinberg. Associate:
Dated: 2 November 2005
Counsel for the Applicant: G Rhead and PH MacSporran Solicitor for the Applicant: Crown Counsel for Norfolk Island Counsel for the First Respondent: MD Hehir Solicitor for the First Respondent: Hehir & Co Solicitors The Second Respondent submitted to the orders of the Court. Dates of Written Submissions: 29 June, 10 and 17 August, 13 and 14 September 2005 Date of Judgment: 2 November 2005
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