Bachrach v State of Qld

[1998] HCATrans 245

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B16 of 1997

B e t w e e n -

HA BACHRACH PTY LTD

Plaintiff

and

THE STATE OF QUEENSLAND

First Defendant

CABOOLTURE SHIRE COUNCIL

Second Defendant

KEYLIM PTY LTD

Third Defendant

GLEESON, CJ
GAUDRON J
GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 24 JUNE 1998, AT 12.31 PM

Copyright in the High Court of Australia

MR P.A. KEANE, QC, Solicitor-General for the State of Queensland:  May it please the Court, I appear with my learned friends, MR R.W. CAMPBELL and MR G.R. COOPER, for the first defendant in support of its demurrer to the statement of claim.  (instructed by the Crown Solicitor for Queensland)

MR E.J.P.F. LENNON, QC:   May it please the Court, I appear with MR R.M. DERRINGTON and MR G.F. CARNEY for the responding plaintiff.  (instructed by Phillips Fox)

MR J.C. SHEAHAN, SC:   May it please the Court, I appear with my learned friend, MR J.D. McKENNA, for the third defendant in support of this demurrer.  (instructed by Minter Ellison)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia:  May it please the Court, I appear with my learned friend, MS L.K. BYERS, for the Attorney‑General for South Australia, intervening in support of the first defendant.  (instructed by the Crown Solicitor for South Australia)

MR L.S. KATZ, SC, Solicitor-General for the State of New South Wales:  May it please the Court, I appear with my learned friend, MR N. HOPKINS, for the Attorney-General for Victoria, and with my learned, MR S. GAGELER, for the Attorney‑General for New South Wales, both intervening in the interests of the defendants.  (instructed by the Victorian Government Solicitor and by the Crown Solicitor for New South Wales)

GLEESON CJ:   Yes, Mr Solicitor.  The Court has been advised by the solicitors for the second defendant that the second defendant does not wish to take an active part in the proceedings and will abide by the decision of the Court.  Yes, Mr Solicitor.

MR KEANE:   May it please the Court, subject to the Court’s direction, we would propose to address the Court first.  Before we do so, our learned friend has some further material that he wishes to put before the Court and it is probably convenient for that to occur.

MR LENNON:   Your Honours, I ask for leave in relation to our consolidated submissions which were delivered at the Court on Monday night and to all the other parties yesterday morning.  I do not understand that that leave is opposed, and the circumstances appear at the heading of the submission in which it is indicated what parts are new by way of response to intervener’s submissions.

GLEESON CJ:   If that is not opposed, you have that leave.

MR KEANE:   That is not opposed, your Honours.  Your Honours have, in the demurrer book, we think, our written submissions in-chief and in reply. Subject to the Court’s direction, we would propose to proceed by outlining the issues as we apprehend them, then taking the Court to the pleading and then to the Act which has been impugned, and then to take the Court to the points of principle, by reference to authority, which we submit are decisive of the case. 

KIRBY J:   Your Haynes v .....point has been abandoned?

MR KEANE:   We apprehend so, your Honour, yes.  Your Honours, in this case the plaintiff challenges the validity of legislation which effected the rezoning of certain land to the north of Brisbane so as to render lawful its use as a shopping centre.  The challenge to the validity of the legislation is made by the plaintiff who owns a shopping centre two kilometres away.  The challenge is made on the basis that the legislation interferes with the judicial process in a way which impairs the integrity and partiality and independence of the Planning Court and the Supreme Court.

The challenge is made in that respect notwithstanding that the legislation, the Local Government (Morayfield Shopping Centre Zoning) Act 1996 in its terms does not confer upon, or deny to, any court any jurisdiction, power or discretion. It does not direct any court as to the manner of the exercise of any jurisdiction, power or discretion. It does not prevent any appeal to any court or, for that matter, any proceeding in any court.

GUMMOW J:   So you say that even if the litigation in question had been in the Federal Court, there would have been no point available without getting rid of the Builders Labourers’ Case 161 CLR.

MR KEANE:   Quite, your Honour.  We submit that the Builders Labourers’ Case is an answer to the point.

GUMMOW J:   That is concerned with various judgments recently in Nicholas.

MR KEANE:   It is, and it has been referred to as well in other cases, your Honour.  We do not apprehend that there was anything said in Nicholas or in Lim v Minister for Immigration to suggest any doubt as to the propositions for which the Builders Labourer’s Case stands.  Might we say as well, bearing in mind what was said in Nicholas and in the Builders Labourer’s New South Wales Case that the Act ‑ ‑ ‑

KIRBY J:   What was the case in this Court - there was a case concerning the federal legislation.  I think your submission is that that was a fortiori ‑ ‑ ‑

MR KEANE:   Quite, your Honour.  And the point being that this Act in no way enlists any court as an instrument of a legislative or executive plan, rather, it declares the use that may lawfully be made of land.  That consideration takes the case a long way from this Court’s decision in Kable v the Director of Prosecutions.

KIRBY J:   The only point that the court is involved with at the end of the process, apart that legislation has been enacted and the matter comes to a court, what can a court do except strike a matter out or terminate it?

MR KEANE:   And make such order as it thinks fit in relation to costs.

KIRBY J:   There are two steps in the judicial process which are required as a result of the legislation.

MR KEANE:   Quite, your Honour. 

KIRBY J:   It is pretty unusual to have - I mean, I am not saying this goes to validity, constitutional validity, but it is rather unusual in this country to see legislation introduced in the midst of litigation that effectively takes away a party’s rights, although it did happen in the BLF Case. 

MR KEANE:   It did, your Honour, and the circumstance that it rendered further proceedings futile was specifically said not to be a circumstance that attracted invalidity.  We were going to say, your Honours, that this case is a long way, in our respectful submission, from Kable, where it was held that the exercise of the extraordinary jurisdiction conferred on the Supreme Court of New South Wales by the Act there in question - at least, it was held by your Honours Justices Gaudron, McHugh and Gummow, that the exercise of that jurisdiction so conferred was incompatible with the integrity, independence and impartiality of the Supreme Court of New South Wales as an institution, which is a repository of the judicial power of the Commonwealth pursuant to Chapter III of the Commonwealth Constitution.

To the extent, as we have said, that the rezoning renders futile the litigation and futile an appeal from the Planning and Environment Court, instituted after the Bill was introduced into the Parliament, it is our submission that the position is securely established in our favour by authority, and that that is so, even if the motive or purpose of the legislature in enacting the legislation is to circumscribe or forestall a particular proceeding.

GUMMOW J:   If you are right about what you have been saying, does it matter which way the argument goes on the Bill of Rights point?

MR KEANE:   No, your Honour, it does not.  No.  If we are right about that, the law is valid, in our respectful submission, although we do apprehend that the challenge is also based on circumstances attending the introduction and passage of the Bill into and through the Legislative Assembly; in particular, what was said by the Minister in the course of those proceedings.  We are aware - and your Honours may have noted that in the submissions by our learned friend, the Solicitor-General for New South Wales, a query is raised as to whether it is appropriate to deal with those allegations on demurrer, the view on which he proceeds being that the allegations are not of material facts going to the case, merely being evidence as to motive, and motive is irrelevant on the authorities.

For our part, we think, your Honours, that these allegations - and one needs to go to the pleading to have a look at them - are made as allegations of fact, the materiality of which is as to a contention that the circumstances of what was said on the occasion of the introduction and passage of the Bill through the House themselves amount to an expression of, to put it shortly, no confidence in the courts to deal with technical obstructive delay and, hence, may be apt to adversely affect the public confidence in the courts, the logic being that if one affects adversely public confidence in the courts by statements made by way of comment in the house, one is attacking the integrity and impartiality and independence of the courts. 

That seems to us, with respect, to be a the nub of the other side’s case on this point.  We have in mind what is said at page 42 of the consolidated submisions handed to your Honours a moment ago, in paragraph N.  This way of putting it seems to us to involve a misunderstanding; indeed, we would submit, with respect, a confusion and an inversion of what Justice McHugh said in Kable 189 CLR and the relevant passage of Justice McHughis at 116 point 8, where his Honour said:

Public confidence in the impartial exercise of federal judicial power would soon be lost if federal or State courts exercising federal jurisdiction were not, or were not perceived to be, independent of the legislature or executive government.

In our respectful submission, his Honour is saying that interference, actual interference by laws with the independence or impartiality of the institution, may affect public confidence.  What his Honour is not saying is that

statements in the House are apt, of themselves, to adversely affect the impartiality, independence or integrity of the courts as institutions.  His Honour’s comments, in our respectful submission, predicated as they are upon his Honour’s analysis of the Act in question, presupposes some actual interference by a law or by a purported law.

KIRBY J:   I wonder if that is quite right, because there was no actual interference in the institution of the Supreme Court in Kable; it was simply that a law, as it were, imposed upon the court the obligation of doing certain things, which is what the plaintiffs say is, in effect, though not in form, what is required in this case. 

MR KEANE:   And when his Honour Justice McHugh characterised as the enlistment of the courts in the execution of an executive plan, hence our comment on his Honour’s characterisation.

GLEESON CJ:   Is that a convenient time?

MR KEANE:   It is, your Honours.

GLEESON CJ:   We will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.29 PM

GLEESON CJ:   Mr Solicitor, I am sorry to have kept you waiting.  We have been having a discussion about the case.  We have read your written submissions and those of the interveners.  We understand that it is customary for the demurring party to go first but we think that in the circumstances it might be convenient to hear what Mr Lennon has to say at this stage.  Yes, Mr Lennon.

MR KEANE:   May it please the Court.

MR LENNON:   Your Honours, at the outset of my submissions, might I clarify some matters in the submissions of the Solicitor-General for Queensland and they will, I think, explain some of the differences between our two cases immediately.

His first submission was to the effect that the Act had effected a rezoning.  That is not accurate.  It is fundamental to the case and it needs to be looked at, with the greatest respect.  The Act is in volume 1 of the statutory materials behind guide card 8.  The planning scheme itself is behind guide card 20.

KIRBY J:   Before we go into the detail of the Act and the planning scheme, could you just tell us in two or three sentences your client’s interest in the matter and how you came to bring these proceedings?  I mean, I do not quite understand it from the demurrer.

MR LENNON:   My client was an objector in the Planning and Environment Court.  It lost its objection and it appealed.

KIRBY J:   Is your client a neighbour to the development?

MR LENNON:   Not an immediate neighbour, but a business competitor.

KIRBY J:   I see.  That is an alternative development of some kind, is it?

MR LENNON:   No, an owner of nearby property whose commercial interests are affected by the proposed shopping centre and that is in ‑ ‑ ‑

KIRBY J:   But you have had a right as an objector to appeal to the Court of Appeal of Queensland and to seek special leave to appeal to this Court in the event of an adverse determination by that court?

MR LENNON:   Yes.

KIRBY J:   Very well.

MR LENNON:   And the issues - just to clarify the answers I was giving to your Honour - the issues before the Planning Court and the Court of Appeal would have transcended rezoning because they would have included the conditions that would be attached to the zoning and the uses that would be permitted within whatever zoning was either left, the original zoning, or granted.  It is critical to understand that because it could be a vital matter in an area, what uses or competing uses were permitted on the land.  The subject of uses is specifically dealt with in the Act as one of the reasons we say, in our submissions, that the effect of the Act was not simply to effect a rezoning.

KIRBY J:   Yes, thank you.

MR LENNON:   And your Honours, when I ‑ ‑ ‑

KIRBY J:   I interrupted you, you were about to take the Court to the statutory materials.

MR LENNON:   Yes, and when I do that, I want to do for your, I trust, greater assistance in the light of a comparison with two other pieces of statutory material that are relevant.  That is, the statute considered in the Commonwealth BLF Case 161 CLR and the whole effect of provision is set out at page 93 of the report of that case and it will only take your Honours a moment to see it.  If you will just bear with me, because while we are looking at the Morayfield Act, I will be drawing your attention to how different it is from the provisions in the Commonwealth BLF Case.  Your Honours, at page 93 ‑ ‑ ‑

KIRBY J:   The differences seem, on the face of things, to be against you in that the BLF Act was an Act which, at least arguably, was targeted directly at a particular organisation.  Yours is an Act which talks generally and to the world, at least the world of Queensland, on planning and rezoning.

MR LENNON:   We would not really concede that that is an accurate description of the Act affecting Morayfield and, really, to make that point I have to take your Honour to the Act and not only compare it with the two pieces of legislation I am immediately endeavouring to take your Honours to, but I am also going to, for the purpose of construing the object of the Act, take your Honours to Hansard, because it is regular practice to look at the materials that I am going to refer your Honours to with a view to construing the object, not the motives.  That is entirely a misdescription of our case.  There is no suggestion in our written submissions, or in our pleadings, that the motives of members of Parliament or that the making of statements, as such, constituted an interference with judicial process.

GLEESON CJ:   What is the question of construction of the Act that is in doubt?

MR LENNON:   The characterisation, rather than the working out of individual terms, that might be doubted would be whether it in fact is ad hominem.  It is part of the answer to his Honour Justice Kirby.

GUMMOW J:   Suppose it were?

MR LENNON:   If it is ad hominem, that is one of the features, not a determinant feature, its absence is not determinative one way and its presence not determinative the other way, but it is one of the features which, in compass with all the other circumstances, might entitle the court to declare the legislation an interference in judicial process. 

Now, if I might take your Honours to page 93 of the BLF Case.  I just want your Honours to notice that the relevant legislation in that case was in effect in one clause.  There were no other supporting clauses.  There was an associated Act to work out consequential provisions, but there were no other things done relevantly then set out in the section numbered 3 on page 93:

“The registration.....is, by force of this section, cancelled”.

It is immediate.  It is factual.  It is direct.  It does not require the use of any fictions.  Then may I take your Honours to the New South Wales BLF Case.  It is in volume 1 behind guide card 11 and at page 377, when it is convenient to your Honours, the Chief Justice of New South Wales at that page sets out the relevant section of that legislation and he compares and contrasts it with the Commonwealth Act.  May I just take you to some of the terms just under letter D on page 377:

“(1)   The registration.....shall for all purposes, be taken to have been cancelled -

Just as a matter of logic, there is a distinction between something being cancelled that is a matter of fact and something which is to be taken inferentially by, for example, a court to have been cancelled, whether or not that fact has been established judicially.  And so, in subsection (2) in the fourth line, I draw your attention to the words of direction:

shall (to the extent, if any, that that action was invalid) be treated, for all purposes, as having been valid.

And then in the next subsection, the words commencing in the first line:

notwithstanding that any proceedings were instituted -

reference to ongoing proceedings, and then in the next subsection the disposition of costs, the significance of which I will come back to.  So there is a direction that:

the costs of and incidental to the proceedings.....shall be borne by the party, and shall not be the subject of any contrary order of any court.

And on the next page, his Honour the Chief Justice expands on those differences.  Now, in so doing, he was conscious that it might be thought that he was engaged in pedantry.  I make that submission because at page 375, letter G, he had turned his mind to this question.  It sets out his concern.  So, with the greatest respect, he is not to be taken as engaging in an exercise of literalism but he is engaged in a search for substance and, in the third line on page 378, he says that the provisions to which I have just drawn attention “differed in substance” and he develops that in the last three lines of that paragraph, and he concentrates attention on the words “taken to have been”.  I will just draw to your Honours’ attention, while we are passing through this and not wanting to delay, the paragraph near letter C on that page and then again the paragraph near letter E which picks up the matter of costs which I draw to your attention.

May I go from there to the Morayfield Act.  In section 3 - we do not wish to be accused of pedantry either - but I will draw attention to the fact that it does not say that the land is rezoned by the force of this Act or, indeed, is rezoned.  It may be the same, it may not be the same to say that the “land is included in the central commercial zone”.

GAUDRON J:   Yes, well it had already been rezoned, the land.  Is that right?

MR LENNON:   No, that is not apparent.

GAUDRON J:   Well, let us not worry about the statute.  You had objected to a rezoning.  Is that correct?

MR LENNON:   Yes.

GAUDRON J:   And you had been unsuccessful.  Now, that is the rezoning ....., the rezoned land, is it?

MR LENNON:   People had objected to a proposed rezoning and there were four parcels of land, not all of them required to be rezoned or put into a particular zone, to permit the shopping centre to proceed and, quite independently of the zoning, for the shopping centre to proceed as the developer wanted it, the inference is to be taken from subsection (2) that he wanted permission to put in indoor entertainments.  In the town planning scheme, the expression “indoor entertainments” is a defined term as is mentioned there and includes a great many potential uses ranging from the circuses ‑ ‑ ‑

GAUDRON J:   All right, well do not trouble yourself with those.  The position is that the rezoned Morayfield shopping centre land is defined and whether it is rezoned or not, it refers to particular parcels and the operative provision is to include it in the central commercial zone.

MR LENNON:   It may be ‑ ‑ ‑

GAUDRON J:   Which is also defined, is it?

MR LENNON:   That is not defined in this Act.  Central commercial zone is a zone in the existing town planning scheme.  It is primarily defined, that is explained in the town planning scheme, and it is then redefined for the purposes of this Act by reference to that.  The effect of the local planning legislation was that an objection, taken as it was, meant that the rezoning under the existing law had not occurred and would not occur until other formalities were gone through.  That is, until the objecting and appealing processes had been exhausted and, indeed, it was the anticipation of the continuation of the litigation that caused, and was the subject of comment, on the introduction of the legislation by the relevant Minister.

KIRBY J:   There seems to be at least three points of difference from , say, the New South Wales BLF Case.  First of all, there is no naming of a party as disadvantaged.  There is naming of a party as advantaged in the Queensland Act.  Secondly, the Act is not making unlawful that which was lawful at the time it was enacted.  It is, as it were, confirming for the avoidance of doubt that which the courts up to that point had decleared to be lawful.  So that, there are two and there was a third difference.

MR LENNON:   As to the ‑ ‑ ‑

KIRBY J:   It is not specifically addressed to stopping legislation and providing for the cost consequences as was the New South Wales Act.  It simply addresses the world at large on the face of things.

MR LENNON:   We would submit that section 7 of this Act, which says that no compensation is payable:

by the.....council merely because of -

(a) the enactment or operation of this Act -

might have been relied upon by the Council to oppose any order for costs in relation to the pending proceedings.

KIRBY J:   Would that be compensation?  Would not costs be sui generis and in the power of the court in whose disposition an order for costs is?

MR LENNON:   Well, a question would arise as to what is the meaning of compensation.

KIRBY J:   Compensation does not ordinarily mean costs.

MR LENNON:   It is not a defined term in this Act.

KIRBY J:   One might say especially against the backdrop of the precedent to the New South Wales Act which expressly referred to costs.  Costs would remain in the disposition of the court, one would think.  I am not saying that conclusively.

MR LENNON:   Except that it could easily be argued by the local authority that - and the local authority could refer to what was said in the House to explain the object of the Act and the object of the Act was to put an end to the litigation.  One of the ways of putting an end to litigation would be to treat the word “compensation” as meaning no money should be paid by the Council to someone engaged in litigation on the subject matter of this Act. 

Now, your Honour, I had not responded to you in relation to your second point which really requires me to direct your attention to subsection(2) of 3.  Because an important consideration in this case is the uses to which the land could be put.  They are specific and they would, in the context of an objector to uses on land, one would normally think that if the objection was overruled by a legislative judgment, then the uses that had previously been objected to would be lawfully then carried on, because previously they could not be lawfully carried on.  That follows that - and I do not think there should be any issue about this - from the fact that indoor entertainment was not a lawful use under column 3.

GUMMOW J:   This advantaged the owner of the shopping centre land.

MR LENNON:   And will disadvantage the owner of the objecting land.

GUMMOW J:   Not necessarily.

MR LENNON:   It is an inference that you draw from the fact that he has objected and the kinds of uses under indoor entertainment.  They are wide.  They are not merely limited to necessarily money matters.  They cover things like music halls ‑ ‑ ‑

HAYNE J:   Let all that be assumed, what is the point about judicial power and what is the relationship at this point to the judicial power point?

MR LENNON:   Because the form of this legislation is ad hominem, it is a direction, it is a legislative judgment.  Those are three aspects.  It is specific to existing legislation that follows clearly enough from the express terms of the Act but to clarify that, reference to the accompanying ministerial statements, which are pleaded, shows that the object of the Act was particular litigation.  Particular in the sense of putting an end to it.  That can only be done by directing the outcome of the litigation in this context.

KIRBY J:   Your argument has to go thus, that the Court has repeatedly said, you look at the substance not the form; you said the form of the legislation, but all you have to do is point to the substance.  That if one looks at the substance, the substance is to address particular litigation, which is halfway through that.  So far as it does not name a party who is disadvantaged, it does that in substance, by naming a party who is advantaged and that is a matter of form not substance, and that the effect of it is to stop the litigation at a point where it has not been finally concluded, but where you are entitled to a right of appeal which you are deprived of by this litigation.  That is the way your argument runs.

MR LENNON:   In our developed written submissions we, by reference to the individual sections of the Local Government (Planning and Environment) Act 1990, on which this is laid, identify the issues which were live in the pending litigation. It starts in the essence of this submission at page 13 of our written consolidation and identifies the different aspects which arise out of the sections I have referred your Honours too. It starts at the bottom of page 13:

If the impugned legislation had not been passed -

and it goes on to deal in that, and following paragraphs, with issues.  We are at some pains to ‑ ‑ ‑

GUMMOW J:   What was the standing you required in able to get this litigation going in the Planning and Environment Court?  Were you doing any more than representing the public interest?

MR LENNON:   I do not think that the public interest was an element of entitlement.  The entitlement was vested by legislation in the object, just as a person.

KIRBY J:   It is one of the broad standing rights of environment legislation in Australia, is it not?  Any person may bring an objection and having made an objection, you can then become an appellant against a decision of the Planning and Environment Court.  Is that correct?

MR LENNON:   Yes, that is the substance.

KIRBY J:   We better have reference to the statutory provisions on the standing; is that in our volume or not?

MR LENNON:   The Local Government (Planning and Environment) Act 1900 is.  Your Honour, it is probably better to just briefly put it in context.  This was an area which was the subject of strategic planning, which would extend over a largish area and the general gist of the planning appears in the document that I have been reading from, which is the schedule to the town planning maps behind guide card 20 and the gist of that is that the general strategic plan called for a certain number of shopping centres at distances from each other.  It can be inferred that what was proposed by this particular developer was an additional shopping centre, not allowed for in the strategic plan and so that any owner of an existing shopping centre would appear to be an obvious, although not in the public interest, in the self interest, objector, because the intent of the strategic plan was to limit shopping centres to a certain number of defined areas and numbers and not to have any more shopping centres there until other broadly defined conditions have been met.

KIRBY J:   I think the right of standing in the Planning and Environment Court is section 7.1(1) of the Local Government (Planning and Environment) Act 1990, which says:

A person may appeal to the Court where:

(c)      that person is an applicant or objector who is dissatisfied with a decision of a Local Authority made pursuant to an interim development control provision.

Were you in that category?

MR LENNON:   I understand so, your Honour.  I was trying to explain that, as a proprietor of land with a competing shopping centre, we would be in that, and I am assuming that we are within the definition area of the plan.  The actual plan is not in the material; the strategy plan is a large document.

KIRBY J:   Where would we find the basis of your right as an objector who has failed in the Planning and Environment Court to appeal to the Court of Appeal in Queensland?

MR LENNON:   That is set out in the  Local Government (Planning and Environment) Act 1990, and if we go to page 12 of our submissions, section G, dissatisfaction, and the references follow on from there.

KIRBY J:   If any person feel aggrieved by a determination of the court, on the ground of error or mistake in law?

MR LENNON:   Yes.  And the appeal to the Court of Appeal was filed and followed immediately by the passing of the Act.

KIRBY J:   This is something enacted by the Parliament of Queensland.  Why would it not be seen that the Local Government (Morayfield Shopping Centre Zoning) Act 1996, is another Act of the Parliament of Queensland, which is, in effect, an amendment of section 7.5(4)(i)

GUMMOW J:   You have no common law rights, you have no cause of action known to the common law, of which you were deprived.  There was a statutory mechanism which was changed, that is all.

MR LENNON:   Not in the same way, your Honour, as ‑ ‑ ‑

GUMMOW J:   You were not an individual about to be incarcerated, or an individual about to be stripped of your assets; you had a right to stop other people doing something, namely developing their land.  It is probably putting it too high to say it was a right, but whatever it was, it was just a statutory creature and inherently unstable because of that.

MR LENNON:   Yet, if I might respond, your Honour, this way: it is not like the right to registration given by the Commonwealth Conciliation Act to the Commonwealth BLF and, in any event, that right was treated differently; it was cancelled, and when it was cancelled there was no issue in any pending legal proceedings about that right.

GUMMOW J:   The consequence of the cancellation was that there were assets and legislation had to deal with that, some of the sequences of which are still before the court actually, but there is none of that here, and yet the BLF legislation was upheld.

MR LENNON:   Well, not, with respect, in a broad sense; it was upheld in a context of referring to three previous decisions specifically:  Nelungaloo was a case in which one, in our respectful submission, has to pause to look at the particular cases that were relied upon in the Commonwealth BLF.  I do not want to repeat what is in our written submissions, but we have gone into a little detail to develop our arguments on this, but, in brief, Nelungaloo was seen as a case of retrospective affirmation of an authority by an administrator to acquire future wheat in addition to existing wheat.  It is very ‑ ‑ ‑

GUMMOW J:   Yes, but it is all about someone’s property and their crops, the pooling scheme.

MR LENNON:   In much the same sense, your Honour, this is about someone’s property in this way, that were it not for town planning legislation ‑ ‑ ‑

GUMMOW J:   You would be able to do nothing, unless you could sue them in nuisance.

MR LENNON:   That is precisely it; we may very well in the ‑ ‑ ‑

GUMMOW J:   And if you want to sue them in nuisance, you presumably still can.

MR LENNON:   This is the legislation that says a couple of things about that.  It says, in section 5:

Anything done on the Morayfield shopping centre land under a planning deed is lawful.

It seems to be a licence to commit nuisance, and secondly, in section 7:

Compensation is not payable -

KIRBY J:   “By the State or the council”, not by the tortfeasor.

MR LENNON:   That provision about compensation has a limit, not contained in section 6.  Now it is useful to note that the planning deed is something that does not even exist at the moment of the legislation; it is something that the Council and the developer are going to draw up later on.  It is an unusual piece of legislation and it is not easy to describe it when there is so much not yet done under it, as not affecting, or having certain interests or property.

HAYNE J:   What is the principle for which you contend?  Is it as wide as saying that there may not be an alteration of the legal regime that applies to pending litigation?

MR LENNON:   Not as wide as that.

HAYNE J:   Is it then that there may not be an alteration of the legal regime to pending litigation in a way that is determinative of that litigation?

MR LENNON:   We would not put it quite that way, but close to it, your Honour.  May I, with respect, without wanting to quibble about terms, it is accepted that the legislature can pass legislation, an affect of which is to alter rights in extant legal proceedings.  That is what BLF stands for.  Not that, if it does it, it is right, but that it can do it without it being wrong or invalid; it is a matter of logic as to what BLF stands for.  We accept BLF; we do not thrust ourselves against it at all.

GUMMOW J:   Well, you would need leave to do so.

MR LENNON:   And yet our learned friends seem to think that we were fighting the authority of BLF.  We are asking the Court to consider what the BLF Case stands for when there are extant legal proceedings and when the legislature has an option of doing what was done in Commonwealth BLF and by the force of an Act itself creating a new fact situation that is a cancelled registration ‑ ‑ ‑

KIRBY J:   You do not throw yourself at the BLF Case in this Court, but you do throw yourself against the BLF Case in the Court of Appeal in New South Wales, because there there were pending proceedings.

MR LENNON:   But we rely upon the decision in so far as the reasons of the Chief Justice and your Honour are expressed.

KIRBY J:   I think the Chief Justice and I had a different view on that case, but, however, you will no doubt develop it.  The former Chief Justice, that is.

MR LENNON:   Your Honour, if in a case of pending litigation the legislature directs the court how it is to proceed to find facts, what can occur is that the facts become separate from the necessary, that is, directed findings of the court.  This was a matter referred to by Mr Justice Stephen in Humby, which is the second of the cases referred to in BLF.

HAYNE J:   But what directed finding of fact is there here?

MR LENNON:   A direction that the “column 3 purposes” are taken to include.

HAYNE J:   Yes, that is changing the law, it is changing the rules of the game, it is not saying anything about facts.

MR LENNON:   Well, if in fact the law is changed, leaving zoning apart, to change the permitted uses in a column, then you can declare that to be so.  There might be consequences then, because if in fact in other proceedings in which that is a fact, it becomes necessary for the court to adjudicate whether or not column 3 contains a use “indoor entertainment”, then you have a factual situation for investigation.  But when you use an expression like “taken to include”, then there is nothing left for the court to do and the court appears to be required to make a finding, even if some requirement in government gazettal, it might be formal or it might be fundamental, but the court, when the expression “taken” is included in the statute, and the statute, if it can lawfully do so, does effect a change, then down one path, as the Chief Justice in New South Wales BLF said, it appears you have direction by the use of the word “taken” and down another path, as he distinguished Commonwealth BLF, you have the government, not asking the court to do the end thing, but taking in its own name and in its own legislative authority, whatever it can properly do.

HAYNE J:   Was the issue that it had been intended to agitate in the Court of Appeal the issue whether the Planning and Environment Court had made an error of law in determining that approval to rezoning had rightly been given or had not wrongly been given?

MR LENNON:   It was limited to matters of law, that appeal.

HAYNE J:   Yes.  What issue of fact, if any, was to be agitated in the Court of Appeal which was disposed of by this legislation?

MR LENNON:   Once the ground was made out, the Court of Appeal then had authority to either uphold the objection entirely or allow the objection on conditions.

HAYNE J:   I do not think you are grappling with my question at all, Mr Lennon.  My question was, what issue of fact was disposed of by this legislation?

MR LENNON:   It would be a range of facts relevant to the imposition of conditions following the successful raising of a point of law and the form of relief would be a yes or no in relation to re-zoning and conditions and uses spelt out in relation to that.

GUMMOW J:   Am I right in thinking that the provision under which objection might be made to the original town planning change is in section 4.3(8) and (9) on pages 61 and 62?  I am not at all confident, but we have to find it, it seems, for ourselves.  That seems to confer standing on any “person”.

MR LENNON:   Yes, but if you fall within the category of any “person” and you are an objector, then, as long as you can make your point of law out, which puts in issue again the validity of the previous refusal of your objection, then the Court of Appeal has the jurisdiction to re-draw conditions and uses to suit the fact situation previously developed.

GUMMOW J:   Yes, but the statutory standing is not conditioned upon the possession of any private rights or the injurious affectation of any private rights.

MR LENNON:   That is quite right, your Honour.

KIRBY J:   So, on your theory of the Constitution, any person who has made an application, made an objection, has the entitlement to hold up the development, though their connection with it may be very remote, whilst the whole court process is completed and the State Parliament has no power for the avoidance of doubt or settling of uncertainty to intervene during that whole process?

MR LENNON:   No, we do not go that widely at all, your Honour.  It is a matter of how the legislative power is used which determines whether it is used validly or not and the vice is the extent to which legislation is adopted which has too many characteristics of the kind I listed before.  We have focussed principally on the directory nature of the legislation and that is the most obvious distinction in this area.  The fact that it is ad hominem is not as clear because, in a planning situation, what appears to be legislation of general application, necessarily, may be directed to parties who are in propinquity, because they are neighbours contesting a local government application.  That is why, when one is characterising the legislation to see what its object is and to determine whether it is to be construed as perfectly general or whether it is to be construed as ad hominem, you look at what is said in the House to clarify the expressions, so far as they extend in the legislation.

And so, you may or may not feel there is an aspect to a greater or lessor degree of ad hominem character in the legislation, not determinative one way or another, but associated with the kinds of provisions - for example, is the court left to carry out its functions judicially?  It is one thing to leave the court to do so; it is another thing to apparently aim the legislation in a way that cures just the litigation.             Another peculiar feature of this Act is that it did not, in fact, make the sort of re-zoning either permanently or for the remainder of the time of the planning scheme, which, under this legislation, extend for periods of years at a time.

This Act says that it expires at the end of the year, this is section 12.  It is an inference that one draws from that, aided by reference in this case to Hansard, that it would be apparent that this is something temporary aimed at getting rid of this litigation so that the parties will not be occluding whatever it is the government sees it wants to do.

KIRBY J:   But there is no real interference in the court, the court just continues to perform its function.  It has an appeal before it, and it would ordinarily have gone ahead and applied the old zoning law but, in the meantime, between the time of the lodging of the appeal and the hearing of the appeal, there is a new factum, there is a new law, and the court would simply proceed independently to perform its function, note the change of the law in the meantime, which is not an uncommon thing - because Parliaments do not generally hold up their business just because there is some litigation - and then, if there was still a dispute before them, the court would be duty bound to apply the law as Parliament has enacted it, expressed in the general terms, so far as they are, of the Local Government (Morayfield Shopping Centre Zoning) Act.

MR LENNON:   But that is a description, with respect, of the proper course that the Commonwealth Government took in deregistering the federal BLF.  While there were pending proceedings in the High Court for prerogative relief, the registration of the BLF, in its federal sphere, was cancelled.  But we have tried to draw a distinction between a legislative act of cancellation and a direction to a court to take something as cancelled, irrespective of whether or not it has been, and that seems to be where we concentrate our attack, and it sounds as though we are attacking the form of legislation, but the form and the substance are difficult to unravel and they, in our submission, show that this is, on the side, effectively criticised by his Honour the Chief Justice in New South Wales BLF.     Your Honours, may I read from statutory volume 1 behind guide card 11?

KIRBY J:   Which tab?

MR LENNON:   Tab 11, your Honour.

KIRBY J:   If you are going to take us into the Hansard, there are some objections which raise two points; one, that we should not look at it anyway if it is, as it were, casting doubt on the free speech in the Parliament, and the other that, if we were to, you should secure, first, the permission of the Parliament before we do it.

MR LENNON:   As to the latter, your Honour, we have not taking the course of attempting to secure any such permission, and our brief summary of what is set out more extensively in our written submissions is that this Court is entitled to look at the material to determine what use, if any, it will make of it.  Secondly, that a constitutional question is involved and that, once the constitutional question is involved, it is difficult to construe or apply any legislation which would inhibit this Court in determining a constitutional question, and the question is raised in the context of this is relevant to the proper characterisation in that constitutional sense of the Act.

GUMMOW J:   Your point simply is that the Bill of Rights speaks to a legislature which is untrammelled in its power, not a legislature the validity of which calls for adjudication.

MR LENNON:   But even in its terms, your Honour, it does not prevent the references that are sought to be made here because these references are not made for the point of view of contradicting, or calling in issue, or criticising individual members of Parliament or their speech but, rather, they are the materials that this Court regularly uses to understand legislation.

GLEESON CJ:   What is the difficulty of understanding in this legislation?

MR LENNON:   It is not necessarily apparent, in this area of the law, which is not concerned solely with the internal wording of the Act - not necessarily apparent that the Court should confine itself to purely textural materials when one party is saying, in characterising this Act you should look at surrounding circumstances.

GLEESON CJ:   Does not the character of legislation depend upon what it does, and we know what it has achieved?

MR LENNON:   Except that when legislation is called ad hominem, it may be that you need to fully understand the objects of the legislation, that is, to whom the legislation will apply.  His Honour Justice Hayne, I think, has referred to sometimes it is suggested that legislation operates differently if it accepts five people or 50 people, or six or 60.  It is relevant to know who is affected by the Act.

GLEESON CJ:   I understand that a comprehensive knowledge of what the Act does might necessitate looking at some surrounding circumstances that are not apparent from the face of the legislation.  At the moment I cannot understand, however, why it necessitates looking at what some people said they were hoping would be achieved, unless that is a short cut to investigation of the surrounding circumstances and facts.  But we know where all the relevant surrounding circumstances and facts upon which this legislation will operate are, do we not? 

MR LENNON:   If there is no quibble with the demurrer process, as it applies to the statement of claim, that is probably so.  But there may not have been that usual acceptance of the facts in the statement of claim in this case.  There has been some criticism, by an intervening party - the Attorney‑General New South Wales - of the pleading and of the utility, or appropriateness, of the demurrer procedure.  If that complaint is intended to support a submission that the demurrer should be dismissed, then it would even receive support from us.  But it should not be allowed, as it were, to let the Attorney‑General for New South Wales say to your Honours you should not read the whole of the statement of claim, including the facts in it which are deemed admitted by the demurring parties, and part of our response to that is to not confine ourselves to the statement of claim, but to these materials as well.  It is really raised on the basis of fairness in response to that anticipated - it is a written submission.  May I read from page 1913 to your Honours.  If is the left column.

KIRBY J:   You are going straight to the Shadow Minister’s speech.  Is there nothing in the Minister’s speech?  Tab 10 is the Minister’s speech, and tab 11 is the Shadow Minister.

MR LENNON:   I am sorry that I may have dislocated, your Honour.  I deliberately, but perhaps wrongly, intended to refer to them in reverse order, but nothing turns upon it.  Behind tab 10 is the record of proceedings on 15 May.

KIRBY J:   Well, he says you are a competitor who is abusing the appeal system.

MR LENNON:   And the critical words - - -

KIRBY J:   He also says that when he was Minister, he introduced two Bills which were enacted by the Parliament along similar lines.

MR LENNON:   I only want to refer your Honours - and I should identify the passages, perhaps, that I am going to refer your Honours to.  In the left column, halfway down the page from the line:

Further appeals on technical matters of law are, however, open -

from there, down to the end of that paragraph and then the next paragraph.  So, just down to the bottom of that column.  And then, in the right‑hand column, the second paragraph:

I am concerned about this emerging trend.....limit the frivolous use of litigation - - -

GAUDRON J:   Now, that is not the Minister.  Sorry, yes, it is, the Shadow Minister.

MR LENNON:   And then, two paragraphs down from that, the paragraph reading:

The Bill, which has the support of the Caboolture Shire Council -

down to -

will remove any doubt or further challenge over the zoning status of the site.

And then, on the next page, page 1108, left column, the passage beginning:

The Government has decided to introduce this legislation -

which is six lines down into that column, down to the end of the first sentence:

without the threat of prolonged litigation which has already been ongoing for some years.

HAYNE J:   What use are we to make of these statements?  You have pleaded what you allege is their purport and effect in your pleading.  Either we may properly look at those in the course of considering the demurrer, or we set them to one side.  What is the point of taking us to Hansard on the hearing of a demurrer?

MR LENNON:   Your Honour, it is justifiable to answer such suggested doubts or ambiguities there are about the meaning and objects of the Act, and there has not been, in the case - now, I am referring just individually to the demurrers - there has not been, in the case, a complete acceptance of the notion that the court should act in an unfettered way on the demurred to pleading, and there seems to be some quibble about the factual content that the court is entitled to consider in reaching its decision.

HAYNE J:   I do not understand you to be engaging in an exercise of construing the Act.  For the moment, I understand your intention to be, in some way which I do not yet understand, to lead evidence on the hearing of a demurrer.

MR LENNON:   Our suggested answer to that, your Honour, is that, in construing legislation on a demurrer, the demurring party must accept whatever is pleaded as to the meaning and effect of the legislation unreservedly because if, in fact, the rules were otherwise, then the demurrer process would be at odds in this way:  at the trial, the true meaning of the legislation would be worked out, and this evidence would be available, let us assume; that it is now possible, as a result of some suggestions, that, for the purposes of the demurrer, the Court should decide the meaning of the legislation - I am using that word “meaning” a little loosely to include character - without reference to evidence that would be available at the trial.  That sounds illogical, with respect.

KIRBY J:   It may sound illogical but, for someone brought up in the old system of pleading in New South Wales, it was absolutely strict.  You have the first go, you plead, and the defendant says, “On the face of your document, to which you are confined, we will accept those facts and you have no cause of action known to law.”  That was the form of demurrer at the time that the High Court Rules were adopted, and that is the form of pleading argument which is now before the Court. 

There was a case, within the last year, on demurrer, and there are cases in this Court about the approach to demurrer.  There is a decision of Chief Justice Dixon and a decision of Justice Windeyer.  I think they say what Justice Hayne is suggesting; you take the facts as pleaded, and you have got to support your pleading on the basis of what you pleaded.  You might have pleaded some more, but you did not, so we are confined to the face of documents.

MR LENNON:   I do not quarrel with that, your Honour.  We are justifying the reference we are now seeking to make because the interveners are suggesting that the Court should proceed otherwise than on the full content of the pleading.  That is in the written submissions of the Attorney‑General for New South Wales.  Now, he is only an intervener.  He might have to withdraw that as an effective submission but, unless it is withdrawn, it really leads to either of two conclusions:  the demurrer process does not proceed, as your Honour has indicated, on the acceptance of the pleading, or that the demurrers are dismissed.

GLEESON CJ:   We have got what you want to make of this in your pleading.

MR LENNON:   Yes.

GLEESON CJ:   Now, given that, where does it take your argument?

MR LENNON:   No further than I have already expressed, namely, that if we proceed on the pleading as it is, then the ad hominem nature is sufficiently established, without necessarily referring to every detail of evidence to justify it.  Our pleading makes that plain.  The practical effect of the Act is to put an end to the utility of the litigation.

KIRBY J:   That, on your earlier argument, is, you say, clear on the face of the Act.  But you do not have to go into what Hansard says in order to establish that.  I am not sure that I have quite understood the reason that you are trying to take us to this because, as I understood your argument, on the face of the Act it is ad hominem legislation which is, in effect, in substance, directed at stopping your legal rights.  They may be good legal rights, they may be bad legal rights, but you have them, you are asserting them, you want to pursue them and they are stopped by this Act, and you say that cannot be done.

GLEESON CJ:   On the face of the legislation it is clearly not ad hominem, is it?  The legislation would apply to any like‑minded person in the neighbourhood.  It does not only stop your client doing something.

MR LENNON:   It can still be ad hominem if there is not, in a practical way, a large class of persons, or a significant number of persons other than one, affected. 

GLEESON CJ:   Take section 5, to which you have already directed attention.  It says:

Anything done on the Morayfield shopping centre land under a planning deed is lawful.

That, I would have thought, would affect anybody who wanted to complain about the unlawfulness of anything done on the Morayfield shopping centre land.

MR LENNON:   Yes.

GLEESON CJ:   Then, how can it be ad hominem?

MR LENNON:   That section, by itself, does not characterise the whole of the Act.  The Act derives its character from its practical effects overall, and the practical effect of it is to remove the only objector from the objection proceedings pending in the Court of Appeal.

GLEESON CJ:   But the practical effect goes beyond that, does it not?

MR LENNON:   It has partly practical effects, but we are not aware of any authority that, in effect, says that by adding to ad hominem legislation a clause that applies to other objects or other persons, you change the character in such a way that you apply a different set of principles to determine validity.

GLEESON CJ:   I would have regarded as ad hominem legislation that said, “H.A. Bachrach Propriety Limited shall not be permitted to claim, or complain that anything done on the Morayfield shopping centre, under a planning deed, is lawful.”

MR LENNON:   And if it did - just to test this, with respect, your Honour - if it did, then equally one could shift to another clause which did not mention H.A. Bachrach and develop the argument that any clause that did not mention the name of a person - if, once you assume that that changes the character, it is hard to find that there would be - or you are giving away a practical test.

GLEESON CJ:   But the point is the legislation achieves its object by changing the law in relation to this particular parcel of land.

MR LENNON:   Yes.  The object of that change is itself to - I do not say “object” in the meaning of motive, the object, meaning the way in which the Act works, is that there is only one legal proceedings with one objector pending.  So in a practical way the effect - and you know that the proceedings are pending the day before; because that is pleaded and in this I revert to your Honour Justice Kirby for a moment.  You said before we should be looking at the Act to answer this question but because it is a demurrer we can look as well at all the facts pleaded in the statement of claim.  So the statement of claim sets out the history of the previous proceedings between the parties.

KIRBY J:   It does not set out the debates in Parliament though.

MR LENNON:   It sets out the substance of the debates.

KIRBY J:   As I understand it, your argument - just let me understand it.  It runs thus, that it is really ad hominos legislation.  It is true that it specifically mentions Keylim, that is one hominem, which it is expressed.  But it is also by its substance, which is what the Court looks at, looking at Keylim’s competitor, which is your client, because that is the substance of the matter.  By, as it were, advantaging Keylim, it disadvantages you, and that the real reason you want to take us to the Hansard is because you say that demonstrates that at least those members who spoke conceived of this legislation as being targeted at your client and your client’s exercise of its allegedly technical appeal rights and that, therefore, you want to use the Hansard in order to make good your proposition that this is ad hominos legislation, addressed in part to Keylim but, in truth, to you.

MR LENNON:   In paragraph 19, on page 15 of the demurrer book ‑ ‑ ‑

KIRBY J:   When I put these things to you, you never agree with me or disagree.  Is that what you are saying or not?  I am not putting these propositions myself, I am trying to understand what your propositions are.

MR LENNON:   No, your Honour, I perhaps was nodding rather than acquiescing, but I was ‑ ‑ ‑

KIRBY J:   I thought you were just being a bit cagey.

MR LENNON:   No, your Honour. 

KIRBY J:   Is that how you put the case?  Is that what, essentially, you are saying and why you are trying to take us to the Hansard?

MR LENNON:   My primary difficulty about Hansard is occasioned by the submissions of the Attorney‑General for New South Wales, because in paragraph 19 of our statement of claim we had pleaded probably enough of the facts to entitle us to make as full a submission as we wanted about the ad hominem or selective nature of the Act.  Just at the bottom of page 15, your Honour, it is the phrase:

the Third Defendant was concerned that the Plaintiff would initiate a series of ongoing legal actions to frustrate its development -

and there are some references there.  Then, in paragraph 20, and then over the page, on paragraph 23.  So if that is accepted as the ordinary demurrer process requires it to be, there is a good deal of material to substantiate the notion that this was legislation ad hominem.  I am having turned up what I hope is a passage which will clarify a submission I desire to make that it is not necessary for ad hominem character to depend upon only one object; it can be selective. 

KIRBY J:   It does not have to be just one person.  Liyanage was a case where there were several persons who were targeted by the legislation, but they were identifiable and clear, on the face of it.  They were a schedule, I think, to the Act, of people affected.

MR LENNON:   In Nicholas, in paragraph [83], tab 24 of the book of cases that are not in the CLRs, paragraph [83], which is from the reasons of Justice Gaudron in Nicholas, is relied upon by us in relation to that last point about the limitation of numbers.  In paragraph [197] of the report of the same case, in the reasons of your Honour Justice Kirby, has subparagraph 4 of that, which is at the bottom of page 369 ‑ ‑ ‑

KIRBY J:   Do not forget that I was in dissent in Nicholas.  It really stands against you, does it not, because on one view Nicholas was of legislation which was designed to overcome a decision of this Court, and the, I think, really, uncontested evidence was that there were only five or six people who were affected by it, and the result of it would be to deprive them of the defence which the decision in Ridgeway in this Court afforded them.  So that the Court said that that was not an impermissible intrusion into the judicial activities of courts; it was just laying down a general principle of law.  Is that not really against the proposition you are urging on the Court here?

MR LENNON:   No.  For a start, there has been a material distinction drawn between changes in the law designed to give guidance to the Court as to the materials, the evidentiary materials.  I think I will confine myself to distinguishing that aspect by reference to the rule which relaxes the scrutiny by the Court of changes in the law which are suggested to be by way of reform of evidence law. 

KIRBY J:   Yes, but this was federal legislation; you are a couple of steps of behind, in a sense, that you are in the State sphere.  This was federal legislation which is subject to the full rigour of the Chapter III.

MR LENNON:   Yes.

KIRBY J:   Even there, when only five or six people are affected, the change of law, in form and as held in substance directed at the general law, was held not to intrude impermissibly into the judicial branch. 

MR LENNON:   But that was as a result of allocating weight to several different characteristics of the legislation, not in the result a finding that it was not legislation that had a relevant ad hominem potential.  Our submission is that the presence or absence of any one of these factors that we have mentioned is not determinative of the character you give to the Act, and it is a question of evaluation in all the circumstances.  A paramount consideration in Nicholas may well have been that the way the law of evidence is reformed from time to time is following a decision of the Court ‑in this case, there was an order for a stay because of the Court’s views about the way evidence had been collected.  The way law is reformed then is for the legislature to change the law after a case has been concluded.  That reforms it and it does so by an Act of general application ‑ ‑ ‑

GUMMOW J:   Yes, but one begins with a common law of evidence, one does not begin with a common law of town planning.  That seems to be an added problem you have just got to grapple with:  it is inherently unstable; it is subject to parliamentary change.

MR LENNON: In a sense, that does not distinguish town planning law because the theory is that all the law is subject to change, subject to the Constitution.

GUMMOW J:   But you begin with some common law rights.  You do not begin with any common law rights.  You do not even begin with any specific statutory right either, you are just one of a universal class, namely, anybody can object.

MR LENNON:   That analysis would make the Court’s reputation for integrity dependent upon cases before it which involved the examination of rights.  The Court’s reputation for integrity, presumably, has to arise in all aspects of its work and not be limited to adjudications where someone can say, “I am here wanting to enforce my property or other common law rights.”  So that if in fact the Court was simply making an examination of some matter where no particular course of action was the foundation, then the Court still ‑ ‑ ‑

GUMMOW J:  All he is doing is participating through administrative law procedures really in the enforcement of the public law.  This case is all about public law. 

MR LENNON:   And the Court’s process, integrity and independence would be as much as, at the least, under question.  I am not talking about perceptions, just in issue in those sort of proceedings compared to proceedings which involve the enforcement of a contract right or some other property right.

GAUDRON J:   How do you say this legislation does bring the integrity of the Court into question?  I mean, on one view, of course - and it is not an unimportant view - the integrity of the courts are brought into question if they do not apply the law.  Parliament has passed a law as to the use of land in Caboolture or Morayfield, passed a law.  And it deals with the rights of usage of that land.  If that law be valid, that has got to be effect to.  How is it that that law brings the courts into disrepute or integrity of their proceedings into question in any event?  I mean, this is not a law of the kind that was considered in Kable, where the law required the courts to, in effect, imprison a man for ‑ ‑ ‑

GUMMOW J:   No crime.

GAUDRON J:   For no crime.  All that is being required of the courts here is that they determine an appeal in accordance with the law that has since been passed, which gives effect to a particular planning decision as to the use of land.

MR LENNON:   There are not two different grades of justice, one for cases involving criminal law and liberty ‑ ‑ ‑

GAUDRON J:   No, nobody is saying there are different grades of justice, but you are dealing with a State court and a State legislature.  There is no inhibition on the State legislature enacting laws intruding into the judicial process, none at all, unless those laws somehow bring the courts - the integrity of the judicial process into disrepute in such a way as to affect the exercise of the judicial power of the Commonwealth.  What is affected here?

MR LENNON:   If the court is seen to act under direction, then ‑ ‑ ‑

GAUDRON J:   It acts in accordance with the law.

MR LENNON:   If the law is changed in what I will call the “usual way”, by the exercise of an Act of legislation which, for example, Commonwealth BLF, the Act by its own force cancelled their registration.  But unless this distinction is meaningless, if, as his Honour the then Chief Justice of New South Wales said in New South Wales BLF, it is a different matter.  The court is acting under direction if the court is told to take it that the registration has been cancelled.  So the legislature has a choice:  it can do the act itself so that there is a fact situation for all the world to see and to assign blame if necessary, and ‑ ‑ ‑

GAUDRON J:   It has done the act.  In this respect it said, “The land is included in the central commercial zone ‑ ‑ ‑

MR LENNON:   But that assumes ‑ ‑ ‑

GAUDRON J:   And it can be used for purposes including the following purposes:  it can be developed and so on.  It is doing the act.

MR LENNON:   Subsection (2) has a device that it directs the court to take the column 3 uses to include the following three paragraphs.

GAUDRON J:   Yes. 

MR LENNON:   When, in fact, it is not the case that this legislation says that column 3 uses for the Morayfield Shopping Centre land are such‑and‑such by changing the grant.

GAUDRON J:   It is not telling the Court to do anything in subsection (2).  What it is saying to the Council and the developer and anyone else who wants to be difficult - or anybody who wants to be difficult about it that, “Now that the land is in the central commercial zone it may also attract these uses.”

MR LENNON:   The use of the word “taken” invites the question, taken in what proceedings and by whom?

GAUDRON J:   No, taken by whom?

MR LENNON:   Taken by whom?

GAUDRON J:   Yes.  Taken by the whole world interested in people’s use of the Morayfield Shopping Centre.

MR LENNON:   If it were addressed to all the world, you would expect it to give in the text some indication of that by, for example, “taken by all persons, for all purposes and in all proceedings whatsoever”.

GLEESON CJ:   Is the local Council the body which would ordinarily have the responsibility of enforcing these planning laws?

MR LENNON:   Yes.

GLEESON CJ:   And of taking proceedings against somebody whose conduct was in contravention of the planning laws.

MR LENNON:   Yes, and other persons in the area, broadly speaking, would have rights to enforce those if the Council did not do so.

GLEESON CJ:   But you would think that the primary entity to which this legislation is directed is the Council.

MR LENNON:   If it is directed at the Council, does that mean - and I just ask this by way of an example of the oddity of the legislation - that it is the law only as between the Council and the Morayfield Shopping Centre developer.

GLEESON CJ:   No, any more than it is the law only as between the developer and Bachrach.  It is the law, full stop.

MR LENNON:   Which, in our submission, gives no weight to either the use of the word “taken” in this Act or to the considerations which underlay the analysis of the use of the word “taken” in New South Wales BLF.  It is our submission that our learned friends have not really ‑ ‑ ‑

GAUDRON J:   It is not directed to the court, is it?  In terms it is not directed to the court.  It can have wider application.  It can relate, for example, to what the Council is to do in relation to any further application for development of this land, at any time in the future, while the Act stands.  How can you describe it as directing the court, in any relevant sense, in the same way that the BLF legislation was directed to the Court?  That legislation was directed to proceedings which were then on foot.  This is directed to the use of land, in respect of which there happened to be proceedings on foot.

MR LENNON:   The words “taken to” then are apt to be directed to the practical consequence that in the present proceedings before the Court one of the issues, subject to the raising of that point of law, would be the uses to be given by the Court to the land.  If it was going to allow the land to be used differently from the existing uses, that would be an issue, so in ‑ ‑ ‑

GAUDRON J:   Is it the existing uses or permitted uses of land in the commercial centre, whatever it is called.

MR LENNON:   In column 3 they are permitted without consent of the Council, so the as of right uses, and so in the context of the litigation this is an immediate answer to an issue which is live ‑ ‑ ‑

GAUDRON J:   Which may arise.

MR LENNON:   ‑ ‑ ‑ and which is, as the pleading goes, expected to arise and that is the nub of the matter, that it is an odd thing that the column 3 amendment, if it be that, has not been done in what I will call the other ways it could be done.  The town planning scheme can be changed under the existing town planning legislation.  It can be changed by the government or it can be directed to courts to take it to have been changed irrespective.  So the court does not inquire into any other matter which might be raised and I am conscious, your Honours, that our focus is on the use of the word “taken” but, in context, it is so different from the previous clause that the legislation might have said “column 3 shall have included in it the following uses” and they would be those as of right uses.  It does not say that.  One has to ‑ ‑ ‑

HAYNE J:   Perhaps it does not say that because it was concerned to limit the amendment to the column 3 uses to this particular land and not more generally and it may be that you are fastening on no more than a particular drafting device.

GUMMOW J:   Given the definition of “column 3 purposes” in section 2 and they are defined in section 2 in generality.  Therefore, when there is specific treatment of it in subsection (3), it is given that form, are to be taken for this particular parcel of land.

MR LENNON:   Your Honour Justice Gummow, we see that reference as supporting us in this way.  The fact that the Act defines “column 3” as it does in section 2 then suffers from the vice that notwithstanding that it has created a fact situation about column 3, directs, as we submit, the court, because it is the relevant body - directs that the “column 3 purposes” include these following matters.  They are to be taken to include them, not that they are included.  If one were going about it differently, one would have at the heading “‘column 3 purposes’ for the Morayfield shopping centre land means” and then set it out in a way that included all the uses that were desired and then to put the matter clearly “By force of this Act the Morayfield shopping centre town planning scheme”, the planning scheme being defined, “is hereby amended”.

KIRBY J:   Is not Justice Hayne correct, though, that if one looks at that expression “are taken to include” which you have latched on, it is really just a legislative device.  If it said “include”, the argument would have been that the Act does not attach to previous expressions which are in the midst of litigation because of the well‑known presumption that an Act of Parliament is not designed to affect the rights that are for decision before courts, but it could have been done that way, say “include”, and then in the opening provisions of the Act some provision saying that it will have affect as from a certain date earlier than your client’s litigation.  It could have been done a different way, but this is just a legislative device.  Because that is what you would have been arguing if it had said “include”.  You would have said, “Well, that is prospective.”

MR LENNON:   Yet it does not, in fact, have any words in it which would support the limitation of it.  Once it is accepted that it is a device, if it says “are taken to include”, it is a speaking Act, it presumably would be relied upon at any future time to justify a submission that no judgment can be given contrary to the direction in section 3(2).  That is how, with respect, it is submitted it would work and the combination of sections 2 and 3 leaves column 3 uses as they were, unchanged, unless subsection (2) is, in fact, an amendment but the difference in wording between subsection (2) and subsection (1) is suggestive of a legislative purpose by device, if that be the appropriate expression for this, to not change the content of the “column 3 purposes” but to direct the court how they are to be interpreted and applied and they are to be taken to include, inter alia indoor entertainment.  And that is probably as far as we can take that submission, your Honours.

GLEESON CJ:   Thank you.

MR LENNON:   Your Honours, the second of the points that the Attorney‑General for Queensland made before the Court rose at lunch was that the proposition for which the Commonwealth BLF Case stands does contradict our case.

GUMMOW J:   Mr Lennon, just before you depart from section 3, are there provisions in the Local Government Act 1993 which provide for enforcement of these zoning restrictions?

MR LENNON:   I believe so, your Honour, without having looked at them specifically.

GUMMOW J:   Who has standing to enforce them apart from the Council?  One needs to know such things.

MR LENNON:   I believe it is possible for persons other than the Council to procure the enforcement of local use limitations.

GUMMOW J:   Is the Council placed in the shoes of the Attorney‑General for these purposes under the Act?  Is there a class of persons broader than those?

MR LENNON:   I could not answer for the Attorney‑General.

GUMMOW J:   Perhaps that could be looked up overnight because one needs to know the sections.  One is trying to construe this section, as you keeping ask us, and one needs to know to whom it is addressed really.

MR LENNON:   Yes, your Honour.  We have nailed our colours to the mast that it is addressed to the court.

GUMMOW J:   I know that, but I do not think that is the whole picture.

HAYNE J:   And in the course of that examination could you give attention to what statutory provision would empower the Court of Appeal, in framing relief on appeal on a question of law, to get into this question of conditions?  At least it is not immediately apparent to me that the Court of Appeal would do more than, in case of error of law, say that that was so and remit the matter back to the Planning and Environment Court, but perhaps I am wrong.

MR LENNON:   We have addressed that in our written submissions and we have included, that is remitter, as one of the options.  It is on page 13, the whole of paragraph I is devoted to that point.

GUMMOW J:   Yes, I know you say that, but one needs specific references.

MR LENNON:   Yes, I appreciate that, your Honour.  Your Honours, I will provide more information on that point for your Honour Justice Gummow and other members. 

The second proposition concerns the application of the Commonwealth BLF Case.  In our written submissions we have examined the preceding cases, Nelungaloo and Humby, and in the course of earlier submissions I diverted and said something briefly about Nelungaloo as being in context and not a case that, in effect, gave additional authority for what is said to be justified by Commonwealth BLF, but it can be seen as a case in which, retrospectively, the legislature declared in relation to its previous legislation what it had meant, that is the authority it had intended to confer, by the use of the word “wheat”.

The analogy in another area of the law is the ex post facto ratification by a principal of the act of an agent to put it beyond doubt whether his agent had been authorised to do something on his behalf and that was all.  That was all the relevant character of the legislation in Nelungaloo. 

In Humby Mr Justice Stephen in part - and I am referring now to the passage on page 243 ‑ ‑ ‑

KIRBY J:   Of what?

MR LENNON: 129 CLR 231. This is Reg v Humby; Ex parte Rooney.  The passage shows that his Honour was conscious of concern that when decrees were made they ordinarily followed a curial examination of true facts and beginning in line 4:

It does not deem those decrees to have been made by a judge nor does it confer validity upon them; it leaves them, so far as their inherent quality is concerned, as they were before the passing of this Act.

One of the features that we have drawn attention to in our written submissions is that the vice of a legislature using the term “taken” lends itself to the characterisation identified by the then Chief Justice of New South Wales in New South Wales BLF.  It has the character of a direction by the legislature to the court and, depending on other facts and circumstances, that may be in relation to pending litigation.  In our written submissions we look at these in some detail and what I want to take your Honours to in particular is what we say about BLF.

In the Commonwealth our submissions about that case commence at paragraph L on page 33 and we describe in detail all the previous proceedings and the thrust of our submission appears at the top of page 36 where we make the submission that the subject matter of the pending legal proceedings - and these were proceedings for prerogative relief - was not the registered status of the BLF, not whether its registration had been cancelled and not whether its registration should be cancelled, and we justify that in detail and I will not repeat it.  But logic ought to be enough alone to dispose of and limit the submissions made by our learned friends about Commonwealth BLF because, although in that case no interference with the court was seen, for example by way of direction, it does not follow that the fact that there is an alteration of rights then becomes a measure of protection.

It merely means - this is Commonwealth BLF- that absent other disqualifying or invalidifying features, the mere fact alone that rights are altered, notwithstanding that they are issues in pending legal proceedings, does not lead inevitably to a conclusion of invalidity.  Hence, we have directed the Court’s attention to relevant provisions of this Act and try to emphasise those that indicate there is a direction.

GLEESON CJ:   Mr Lennon, for the convenience of the next case on the list, could you let us know how long you expect to require to complete your submissions?

MR LENNON:   I think I can finish in another 15 minutes, your Honours.

GLEESON CJ:   Thank you.

MR LENNON:   Your Honours, save for the matter of direction, we would sum up the remaining differences between us and the demurring parties as these.  We have tried to analyse their written submissions.  They appear to concede the correctness of Kable and that ‑ ‑ ‑

GUMMOW J:   Of course they do.

MR LENNON:   ‑ ‑ ‑ and that thereby it means that Chapter III confers protection on federal courts and State courts invested with federal judicial powers.

GAUDRON J:   Yes, but not in exactly the same way.  Kable makes it clear that it does not protect them in the same way.

GUMMOW J:   The burden of the case against you is that even if all this was federal legislation being considered in a federal court in relation to a federal dispute, you still would not get anywhere near the line.  That is what is put against you and then, as Justice Kirby said before lunch, in the State system it is a fortiori, as it were, or the federal system, rather, is a fortiori.  So you have got to go two steps and it is being said you do not even get to the first.

MR LENNON:   Is your Honour’s statement of the first step is whether there is, in fact, a direction?

GUMMOW J:   No.  You do not get past the BLF Case, that in a federal jurisdiction, pure federal jurisdiction matter, you are Chapter III court you could not get past the BLF Case and, if you cannot do that, you cannot get sufficiently airborne to fly into Kable territory.  That is what is put against you.

MR LENNON:   Your Honour is seeing BLF Case as limited to pure federal jurisdiction.  Our submission is that the principle does not entitle the drawing of any distinction between a federal court exercising its own jurisdiction and a State court exercising - invested with federal jurisdiction.

GLEESON CJ:   Is that a convenient time, Mr Lennon?

MR LENNON:   Yes, it is, your Honour.

GLEESON CJ:   We will adjourn until 10.15 and we will say that the next case in the list will be taken not before 11 o’clock tomorrow morning.

AT 4.18 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 25 JUNE 1998