Brown, J.T. v Administration of Norfolk Island

Re: JOHN TERRENCE BROWN
And: THE ADMINISTRATION OF NORFOLK ISLAND; WILLIAM ARTHUR BLUCHER; ROSEMARIE
GAYE EVANS; GEORGE CHARLES SMITH and NEVILLE CHARLES CHRISTIAN
No. G621 of 1990
FED No. 363
Parliament
101 ALR 201
29 FCR 511

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1), Lockhart(2) and Beaumont(3) JJ.

CATCHWORDS

Parliament - Legislative Assembly of Norfolk Island - members of Legislative Assembly also members of Executive Council and executive members - whether determination of Remuneration Tribunal applied to Ministerial offices as designated - whether determination had ambulatory operation - whether they had taken remuneration other than in accordance with Norfolk Island Act 1979 - whether they had vacated offices.

Words and Phrases "services rendered in the Legislative Assembly" "office", "public office".

Norfolk Island Act 1979, ss.11, 12, 13, 39(2)(e), 65.

Remuneration Tribunals Act 1973, ss.3, 7, 7A, 8.

HEARING

SYDNEY

#DATE 14:6:1991

Counsel and Solicitors Mr Bennett QC with Mr Garling instructed
for Appellant by P.J. Donellan and Co.

Counsel and Solicitors Sir Maurice Byers QC with Dr Flick
for First respondent: instructed by Donald R. Wright

Counsel and Solicitors Mr Maconachie QC with Mr Gregg
for 2nd, 3rd, 4th and instructed by Donald R. Wright
5th respondents: (2nd, 3rd and 4th respondents) and by

J.P. Tate, Crown Solicitor, Administration of Norfolk Island (5th respondent)

ORDER

Appeal allowed in part.

Vary the orders made at first instance by adding the following additional declaration:

Declare that the determination of the Remuneration Tribunal made under the Remuneration Tribunal Act 1973 on 18 November 1988 and numbered No. 21 of 1988 did not apply in respect of the offices of Minister for Immigration and Commerce, Minister for Community Services or Minister for Tourism.

Costs reserved. Any party to be at liberty to file and serve a written submission with respect to costs within 21 days.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from the Supreme Court of Norfolk Island. The ultimate question is whether, by the operation of s.39(2)(e) of the Norfolk Island Act 1979 ("the Act"), the second to fifth respondents ("the respondent members") have vacated their offices as members of the Legislative Assembly of Norfolk Island by taking remuneration for services rendered in the Assembly otherwise than in accordance with s.65 of the Act.

Section 39(1) of the Act sets out the circumstances under which a person is not qualified to be a candidate for election as a member of the Assembly and s.39(2) makes provision for the vacation of the office of member. Section 39(2)(e) provides that a member of the Legislative Assembly vacates his office if:

"(e) He takes or agrees to take, directly or indirectly, any remuneration, allowance, honorarium or reward for services rendered in the Legislative Assembly, otherwise than in accordance with section 65."

Section 65 deals with the determination and payment of the remuneration and allowances of the holders of specified offices. The section is in the following terms:

"65. (1) A person shall, in respect of his services in an office to which this section applies, be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, he shall be paid such remuneration as is prescribed.

(2) In respect of his services in an office to which this section applies, a person shall be paid such allowances as are prescribed.

(3) This section has effect subject to the Remuneration Tribunals Act 1973.

(4) This section applies to an office of member of the Legislative Assembly, member of the Executive Council or executive member, or any other office in or in connection with the Assembly that can be held only by a member of the Assembly."

The relevant facts and circumstances are set out in the judgments of Lockhart J. and Beaumont J. which I have had the advantage of reading and I need therefore make only brief reference to them here.
At the first meeting of the Fifth Assembly of the Legislative Assembly of Norfolk Island, held on 17 May 1989, the Assembly resolved that pursuant to s.12 of the Act there should be four executive offices and that those offices have the following designations:

. Minister for Immigration and Commerce; . Minister for Finance;

. Minister for Community Services; . Minister for Tourism.

At the same meeting the Assembly resolved that:

. William Arthur Blucher be chosen to be Minister for Immigration and Commerce;

. Neville Charles Christian be chosen to be Minister for Finance;

. Rosemarie Gaye Evans be chosen to be Minister for Community Services;

. George Charles Smith be chosen to be Minister for Tourism,

and, in each case, that the Administrator be advised accordingly.

On the following day the Administrator, acting pursuant to s.13(1) of the Act and on the advice of the Assembly, appointed the respondent members to the respective executive offices having the designations to which I have referred.
Thereafter, in addition to the fee determined by the Remuneration Tribunal for the office of member, the respondent members received additional salary at the rate of $7,142 per year, on the footing that the determination made by the Remuneration Tribunal on 18 November 1988 ("the 1988 determination") was applicable.
The 1988 determination provided as follows:

"Pursuant to sub-sections 7(3) and 7(4) of the Remuneration Tribunals Act 1973, the Remuneration Tribunal has inquired into the remuneration to be paid to members of, and holders of offices connected with, the Legislative Assembly of Norfolk Island, and other matters significantly related thereto, and determines as hereunder, with effect from 24 November 1988:

1. Basic Fee and Travelling Allowance: Office Rate per annum of Fee Travelling Allowance per overnight stay $ $ Member 7,142 Capital city - 136 Other than a Capital City - 105

2. Additional Salary or, Fee, Expenses of Office Allowance and Travelling Allowance:

Office Rate per annum Rate per annum Travelling of Additional of Expenses of Allowance per Salary or Fee Office overnight stay Allowance $ $ $ President of the Capital City Legislative - 235 Assembly 7,142 1,393 Other than a Capital City -125 Deputy President

of the Legislative

Assembly - 649 Minister for Commerce Capital City and Health - 235 Minister for Finance 7,142 - Other than a Minister for Planning Capital City Minister for Works - 125"

The 1988 determination contained other provisions. One of them related to the subsequent adjustment of the rates determined; others related to the office of Deputy President of the Legislative Assembly and to travelling allowances. Travelling allowances were determined for members and for office holders and it is relevant to note that the term "Office holder" was defined for the purposes of travelling allowance to mean, amongst other things: "... the Minister for Commerce and Health, the Minister for Finance, the Minister for Planning and the Minister for Works."
The issues in the appeal arise from the circumstance that between the time of the appointment of the respondent members to executive office on 18 May 1989 and the making of a further determination by the Remuneration Tribunal on 16 November 1989 ("the 1989 determination") the only determination of the Remuneration Tribunal that could support the payment of the additional salary was the 1988 determination. But the 1988 determination reflected the designations of the executive offices for the Fourth Assembly, not the Fifth Assembly. After the first meeting of the Fifth Assembly on 17 May 1989 it was not until November, when the 1989 determination was made, that the executive offices specified in a determination of the Tribunal corresponded again with the executive offices designated by the Assembly.
And so it was contended that, no prescription having been made for the purposes of s.65(2), there was no entitlement to the payments taken as additional salary because there was no determination of the Tribunal that was applicable to the executive offices of the respondent members. It was also contended that the payments taken by way of additional salary were remuneration "for services rendered in the Legislative Assembly" and that since they were taken otherwise than in accordance with s.65 the offices of the respondent members as members of the Assembly were vacated by the operation of s.39(2)(e) with the consequential termination of their executive offices by the operation of s.14(a). There was no suggestion of any personal impropriety.
Morling C.J., from whose judgment this appeal is brought, held that on its true construction the 1988 determination did authorize the payments made by way of additional salary. His Honour also concluded that even if the respondent members had been paid remuneration not authorized by s.65, it would not have been remuneration "for services rendered in the Legislative Assembly". His Honour's reasoning on this question is set out in the judgment of Beaumont J.
I turn first to consider whether the amounts received by way of additional salary were taken otherwise than in accordance with s.65. Whatever the conclusion on the second question, this issue remains relevant because a declaration has been sought by the appellant that upon the true construction of s.65 and the 1988 determination, the remuneration received by the respondent members by way of additional salary was not authorized by the Act.
In my view, the starting point should be a consideration of whether s.65 of the Act contemplates that within what may be described as the class of office of executive member there are distinct executive offices, identified by the designation assigned to the office by resolution of the Legislative Assembly under s.12(1) at the time the office was created, in respect of which the Remuneration Tribunal may make individual determinations of the remuneration to be paid. The 1988 determination should be construed in the light of the answer to this question.
Section 65 refers to "an office" of executive member. Such an office is created by resolution of the Legislative Assembly under s.12(1). Section 12 is in the following terms:

"12. (1) There shall be such number of executive offices, having such respective designations as the Legislative Assembly from time to time determines by resolution.

(2) The matters in respect of which the executive members have executive authority are the matters specified in Schedules 2 and 3."

The Act provides for an Executive Council. It is to advise the Administrator on all matters relating to the government of the Territory (s.11(1)) and consists of the persons for the time being holding executive office: s.11(2). Obviously, there must be an Executive Council for the government of the Territory to function in accordance with the system of government provided for by the Act.
The expression "executive office" is defined by s.4(1) to mean "an office referred to in section 12". It is of some significance that the definition uses the words "an office" not "the office" or "the class of office".
A determination of the Legislative Assembly that there shall be an executive office having a particular designation does not, of course, complete the process by which membership of the Executive Council is determined. To do that, it is necessary for a member of the Legislative Assembly to be appointed to an executive office i.e., in terms of the statutory definition, to "an office referred to in section 12". That step is provided for by s.13, under which the Administrator, on the advice of the Legislative Assembly, may appoint a member of the Assembly to an executive office already created by it under s.12(1). Section 13(1) to (3) provides:

"13. (1) Subject to this section, the Administrator may, on the advice of the Legislative Assembly -

(a) appoint a member of the Legislative Assembly to an executive office; or

(b) terminate such an appointment.

(2) The Administrator may at any time terminate an appointment made under sub-section (1) if, in his opinion, there are exceptional circumstances that justify his so doing.

(3) A person who is employed in the Public Service of the Territory or of the Commonwealth shall not be appointed to an executive office, and a person holding executive office vacates his office if he becomes so employed."

Section 13(4) is not presently relevant.
There is no reason why the creation of an office and the appointment of a person to it should occur at the same time.
Section 14 makes provision for the tenure of a person appointed "to an executive office" (my emphasis). It provides:

"14. The appointment of a person to an executive office takes effect on the day specified in the instrument of appointment and terminates when -

(a) he ceases, by reason of his resignation or by reason of the provisions of section 39, to be a member of the Legislative Assembly;

(b) his appointment is terminated by the Administrator under section 13;

(c) he resigns his office by writing signed by him and delivered to the Administrator; or

(d) the Legislative Assembly first meets after a general election of the Legislative Assembly that takes place after the appointment takes effect, whichever first happens."

If a person resigns his or her office, the office still exists, having been created under s.12(1). Another member may be appointed to that office by the Administrator on the advice of the Legislative Assembly under s.13(1)(a). This is in fact what happened on 16 August 1990 when Mr Ernest Christian was appointed to the executive office having the designation Minister for Community Services. That office, to which Mrs Evans was appointed on 18 May 1989 and from which she resigned on 17 July 1990, was created by the resolution of 17 May 1989. The Assembly, by ballot, chose Mr Christian as Minister for Community Services and the Administrator, acting on its advice, so appointed him. There was no new designation.
If two or more appointments were to terminate simultaneously, and the offices that became vacant had designations under s.12(1), it would be expected that the Administrator would receive advice from the Legislative Assembly that particular members should be appointed to offices with particular designations. This is because differently designated offices may have, and in fact have, different responsibilities under the administrative arrangements for the affairs of the Norfolk Island Government.
It is quite true, as was argued by the Administration, that the executive authority of the executive members is not determined by their designations but by s.12(2). Specific authority can be assigned to particular executive members, as in fact happens, but the designation, as such, does not have this effect. Laws and the administrative arrangements have this effect by fixing on the designation as a means of identification.
But it does not follow that the designations lack significance. The fact that s.12(1) provides for designations, and indeed would seem to require them, suggests that the designations were intended to have significance in the scheme of government provided for by the Act. The significance of the designations is that they identify a particular office - "an executive office" - that can be identified as a particular office to which a person may, on the advice of the Legislative Assembly, be appointed, from which he or she can resign and to which, while the office exists, another member of the Legislative Assembly can be appointed. There is no requirement in the Act that the chosen designation should reflect any actual or proposed allocation of executive functions or responsibilities, although as a matter of practice this has in fact occurred, as one would expect. But the absence of any necessity for a designation that reflects function and the absence of any conferral of particular responsibilities by the mere fact of designation, does not alter the fact that designations are specifically provided for and that they have a useful part to play in the system of government. The degree of their significance will depend upon the extent to which responsibilities and functions are allocated by reference to a designated office. The capacity to assign specific authority to particular executive members by virtue of the office they hold is not inconsistent with the function of the Executive Council under s.11(1) to advise the Administrator on all matters relating to the government of the Territory.
In my view, these considerations point to the conclusion that the reference in s.65(4) to "an office of ... executive member, or any other office in or in connection with the Assembly that can be held only by a member of the Assembly" is a reference to (relevantly for present purposes) individual executive offices identified by their respective designations.
It was therefore open to the Remuneration Tribunal, if it chose, to make a determination fixing the remuneration to be paid in respect of a member's service in a particular executive office. It was also open to the Tribunal to make a determination in relation to those included in a class without specifying every person included in that class and the Tribunal could have fixed the remuneration to be paid to those in the class of executive member: Remuneration Tribunals Act 1973, s.7(3A)
I now turn to consider the 1988 determination. It follows the pattern of earlier determinations by the Remuneration Tribunal in respect of Norfolk Island by containing a table (comprising paragraph 2) which includes a column headed "Office". Under the general heading of "office" there are specified, in the 1988 determination, six named offices. The first two are dealt with differently and are obviously intended to be the subject of specific and separate provisions. The remaining four offices are separately mentioned and are identified by the designations given to them by the Fourth Legislative Assembly. These are strong indications that the determination for the executive offices was intended to be in respect of the specific offices identified in the determination.

The circumstance that, in the case of the four executive offices, the rate of additional salary was determined at the same level does not substantially weaken the conclusion, to which the language and structure of the determination points, that each office was intended to be the subject of specific and separate provision. The rates need not have been the same and earlier determinations provide examples of different rates. In determination No.14 of 1981 there were substantial differences in the rates determined for the three executive offices created and designated by resolution of the First Legislative Assembly, namely the offices of Chief Minister, Deputy Chief Minister and Minister for Resources and Planning. There are several later instances, as for example determination No.15 of 1986, of the rate determined for the President of the Legislative Assembly being substantially higher than the rate for other office holders, the determinations having a footnote that the remuneration of the office of President assumes the occupant also holds the executive office of Chief Minister. It was open to the Remuneration Tribunal to make these distinctions if it thought appropriate, informed no doubt by information about the duties of the offices including information derived from the administrative arrangements laid before the Legislative Assembly.
It is, I think, of some significance too that the definition in the 1988 determination of "office holder" for the purpose of travelling allowance specified all the offices separately, using in each case the definite article as part of the description.
Given the choice that the Remuneration Tribunal had and given that, in my view, the Act contemplates the creation of distinct executive offices, I consider that the Tribunal must be taken to have fixed the remuneration for the designated offices it specified in the 1988 determination, and for those offices only. I do not consider that the 1988 determination should be interpreted as referring to the class of executive member so as to have an ambulatory operation and so as to apply to any subsequently created office, however designated, provided that it was an executive office.
I appreciate that the exercise of the power to make determinations in respect of individual executive offices can lead to serious difficulties where, as here, new offices come into existence in circumstances where there would almost inevitably be an hiatus between the date of appointment of the person to a particular office and the date upon which the Tribunal determines the remuneration to be paid to the holder of that office. I do not consider, however, that this circumstance ought to lead to a different conclusion about the interpretation of s.65 or about the construction of the 1988 determination. The difficulties are not inevitable. There is power to make a determination in respect of the general class and, apart from anything else, it would seem that an appropriate prescription for the purposes of s.65(1) could at least lessen the problem.
It follows that, in my view, the 1988 determination did not determine the remuneration of the offices to which it did not refer, namely the offices designated as Minister for Immigration and Commerce, Minister for Community Services and Minister for Tourism. These are the offices held by the second and fourth respondents and the office formerly held by the third respondent, Mrs Evans.
The amounts paid to the second, third and fourth respondents were therefore not, when paid, authorized by any determination of the Remuneration Tribunal. There was no prescription then in force for the purposes of s.65(1).
It now becomes necessary to consider whether the payments taken by the three respondents in respect of which there was then no authority for payment in accordance with s.65, were payments "for services rendered in the Legislative Assembly".
In characterizing the payments taken by these respondent members it is necessary to look at the terms of the 1988 determination because, as Morling C.J. found, they were remunerated only in accordance with their understanding of their legal entitlement under the Act and determinations of the Remuneration Tribunal. Moreover, as his Honour also found, that understanding was shared by the Administration which, in accordance with the instructions received from the President of the Legislative Assembly, made the payments.
It is also necessary to look at the scheme the Act has for determining the remuneration of members of the Legislative Assembly and for the holders of executive office.
Section 65, which has effect subject to the Remuneration Tribunals Act 1973, contemplates that there will be separate consideration of the remuneration to be paid in respect of services in the office of member of the Legislative Assembly and in respect of offices that are executive offices.
In accordance with the Act, the Remuneration Tribunal has, from the time of its first determination for the purposes of s.65, dealt separately with offices falling within the two classes to which I have referred and, consistently with past determinations, the 1988 determination provided for what was described as "additional salary or fee" for the holders of specified executive offices.
Section 39(2)(e) proceeds, of course, on the assumption that a determination in accordance with s.65 will fix remuneration that will properly be described as being "for services rendered in the Legislative Assembly". Under the 1988 determination, remuneration of this character was payable at the same rate to all members, whether or not they were also executive members.
Bearing in mind the distinction that the Act contemplates, and which the 1988 determination drew, and bearing in mind the circumstances under which the payments of additional salary or fee were taken, it is difficult to see how those payments could be characterized for the purposes of s.39(2)(e) as remuneration or as a reward for services rendered in the Legislative Assembly. On the other hand, they fall naturally within the characterization of payments taken by way of an additional salary or fee for services rendered in the performance of executive offices.
It was argued however that executive office, of its nature, involves the performance of services in the Legislative Assembly and that, because of this, the additional salary should be characterized as remuneration or as a reward for such services.
In considering this argument it would, I think, be incorrect to draw too close an analogy between the government of Australia under the Australian Constitution and the government of the Territory of Norfolk Island under the Act. For example, although at times since 1979 there has been an executive office designated as Chief Minister, there was no Chief Minister during the term of the Fourth Legislative Assembly and none has been chosen by the Fifth Legislative Assembly. Whereas under the administrative arrangements in force during the term of the Third and Fourth Legislative Assemblies, the Chief Minister had responsibilities, amongst others, for the co-ordination of the executive, for forward and policy planning and for the legislative program, that combination of responsibilities does not appear in the administrative arrangements for the Fourth and Fifth Assemblies.
There are other obvious differences. In an assembly of nine members the number of executive offices has varied from two (in the first year of the First Assembly) to six during the Third Assembly. Under the administrative arrangements during the Fifth Assembly, each of the nine members has responsibilities or areas of interest. In the publication by the Administration of the areas of interest of the members of the Legislative Assembly in the Norfolk Island Gazette of 30 May 1986 and of 23 April 1987, it is stated that "Policies in all areas are established by the Legislative Assembly".
It may also be noted that although the Act provides for an executive council and otherwise deals with executive authority, it does not refer to Departments of State. Moreover, subject to the requirement of an oath or affirmation of secrecy under s.15(3), any member of the Legislative Assembly may attend any meeting of the Executive Council even though the member does not hold executive office: s.11(8).
It may nevertheless be accepted that in the performance of his or her executive office a member would, amongst other duties, perform services relating to that office in the Legislative Assembly. But it is clear from the material in evidence before Morling C.J., including the administrative arrangements, and from Acts and Ordinances to which the attention of the Court was directed during the hearing of the appeal, as well as from the terms of Part III of the Act, that executive members have substantial and distinctive functions of an executive nature that could not on any view be described as services rendered in the Legislative Assembly.
In my view, in the context and in the circumstances to which I have referred, the payments thought to have been authorized by way of additional salary or fee to the holders of the executive offices, should not be characterized for the purposes of s.39(2)(e) as a remuneration or as any other form of reward for services rendered in the Legislative Assembly. To characterize the payments in this way would be to ignore their essential nature.
To the extent, therefore, that the appeal challenges the conclusion that the respondent members had not vacated their offices as members of the Legislative Assembly of Norfolk Island I would dismiss the appeal.
For the reasons I have given earlier, I would allow the appeal to the extent that there should be a declaration that the 1988 determination did not apply in respect of the offices of Minister for Immigration and Commerce, Minister for Community Services or Minister for Tourism.
I agree with Beaumont J. that, in the circumstances, costs should be reserved and that the parties should have liberty to make written submissions within 21 days with respect to costs.

JUDGE2

This case raises questions of importance to Norfolk Island which is a territory under the authority of the Commonwealth. The Norfolk Island Act 1979 ("the Act") provides for the government of the Island. The ultimate question in this case is whether four members of the Legislative Assembly of Norfolk Island (the second to fifth respondents) received remuneration otherwise than in accordance with s. 65 of the Norfolk Island Act ("the Act") and have therefore vacated their offices as members of the Assembly, as executive members and as members of the Executive Council. The case turns essentially upon the construction of s. 39 of the Act relating to disqualification for membership of the Legislative Assembly, but it is necessary to consider that section in the context of the Act as a whole including s. 65.

Two proceedings were brought before the Supreme Court of Norfolk Island. In one case the Administration of Norfolk Island (a body politic constituted by s. 5 of the Act) sought declarations that the second to fifth respondents were validly appointed to executive office and did not, by accepting certain remuneration, vacate their offices as members of the Legislative Assembly. The appellant, John Terrence Brown, brought a separate proceeding which raised essentially the same questions. By consent both proceedings were heard together before the Chief Justice of the Supreme Court of Norfolk Island (Morling J.) from whose judgment this appeal is brought.
There is no suggestion of personal dishonesty or impropriety by the four members of the Legislative Assembly concerned. They received remuneration only in accordance with their understanding of their legal entitlements under the Act and determinations of the Remuneration Tribunal established by the Remuneration Tribunals Act 1973. The Administration of Norfolk Island shared their understanding.
The facts may be stated briefly. The first meeting of the Fourth Assembly of the Legislative Assembly of Norfolk Island was held on 28 May 1986. The Assembly resolved that, pursuant to s. 12 of the Act, there should be three executive offices having the following designations:-

. Minister for Commerce and Health . Minister for Finance

. Minister for Planning

The Assembly at the same sitting resolved that three of its members be appointed to those respective offices. On 30 May 1986, those appointments were formally made by the Administrator pursuant to his power under s. 13(1) of the Act.
On 15 October 1986 an additional executive office was created by resolution of the Legislative Assembly. It was designated as Minister for Works and a member of the Assembly was appointed to that office.
The first meeting of the Fifth Assembly of the Legislative Assembly was held on 17 May 1989 and the Assembly resolved that pursuant to s. 12 of the Act there should be four executive offices having the following designations:

. Minister for Immigration and Commerce; . Minister for Finance;

. Minister for Community Services; . Minister for Tourism.

At the same meeting the Assembly resolved that the following of its members should be chosen as executive members and that the Administrator be advised accordingly:

. Mr William Arthur Blucher - Minister for Immigration and Commerce; . Mr Neville Charles Christian - Minister for Finance; . Mrs Rosemarie Gaye Evans - Minister for Community Services; . Mr George Charles Smith - Minister for Tourism.

They are the second to fifth respondents.
On 18 May 1989 the Administrator of Norfolk Island appointed those four members of the Legislative Assembly to be executive members pursuant to s. 13(1) of the Act with effect from 18 May 1989 and with the abovementioned designations.
The membership of the Fifth Legislative Assembly has not altered in composition since May 1989. However Mrs Evans resigned as an executive member on 17 July 1990. Mr Ernest Christian was subsequently chosen to be Minister for Community Services and was appointed as executive member with effect from 16 August 1990.
Section 65 of the Act provides for the payment of remuneration and allowances to persons in respect of their services in an office to which the section applies. Section 65 provides as follows:

"65(1) A person shall, in respect of his services in an office to which this section applies, be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, he shall be paid such remuneration as is prescribed.

(2) In respect of his services in an office to which this section applies, a person shall be paid such allowances as are prescribed.

(3) This section has effect subject to the Remuneration Tribunals Act 1973.

(4) This section applies to an office of member of the Legislative Assembly, member of the Executive Council or executive member, or any other office in or in connection with the Assembly that can be held only by a member of the Assembly."

The Remuneration Tribunal (constituted by the Remuneration Tribunals Act) is empowered to inquire into and determine the remuneration to be paid to the holders of offices to which s. 65 of the Act applies: see ss. 7(3), 7(9)(ab) and 7A of the Remuneration Tribunals Act and certain of its interpretation provisions, namely, ss. 3(3A) and 3(4)(a).
The Remuneration Tribunal has made a number of determinations with respect to the remuneration to be paid to members of the Legislative Assembly and holders of offices in the government of Norfolk Island. On 18 November 1988 the Tribunal made a determination ("the 1988 determination") which relevantly provided as follows:

"Pursuant to sub-sections 7(3) and 7(4) of the Remuneration Tribunals Act 1973, the Remuneration Tribunal has inquired into the remuneration to be paid to members of, and holders of offices connected with, the Legislative Assembly of Norfolk Island, and other matters significantly related thereto, and determines as hereunder, with effect from 24 November 1988:

1. Basic Fee and Travelling Allowance: Office Rate per annum of Fee $ Member 7,142

2. Additional Salary or Fee, Expenses of Office Allowance and Travelling Allowance:

Office Rate per annum of Additional Salary or Fee $ Minister for Commerce and Health Minister for Finance 7,142 Minister for Planning

Minister for Works"

On 16 November 1989 the Remuneration Tribunal made its first determination ("the 1989 determination") which specifically referred to the designations "Minister for Finance, Minister for Immigration and Commerce, Minister for Community Services and Minister for Tourism" following the resolution of the Legislative Assembly on 17 May 1989 to which reference has already been made. The second to fifth respondent received remuneration in respect of their service in executive office at the rate referred to in the 1988 determination until the 1989 determination was made. Thereafter they received remuneration in accordance with the 1989 determination and subsequent determinations all of which refer to the executive offices under the designations adopted on 18 May 1989.
It is the absence of any determination of the Remuneration Tribunal before the 1989 determination specifically referring to the executive offices to which the designations of "Minister for Finance, Minister for Immigration and Commerce, Minister for Community Services and Minister for Tourism" attach, and the receipt of remuneration by the second to fifth respondents before the making of the 1989 determination for their services as executive members, that have given rise to the issues in this case.
The Chief Justice of the Supreme Court of Norfolk Island held that the references in s. 65(4) of the Act to "office of member of the Legislative Assembly" and to "member of the Executive Council or executive member" is a reference to office in a "generic" sense. His Honour then examined the 1988 determination and held that, although it did not refer in terms to the office of member of the Executive Council or executive member, the reference in it to the particular ministerial portfolio was a sufficient indication that the salary was payable to any holder of the office of member of the Executive Council or executive member because the description of "Minister" and the portfolio is simply a particular designation of the office of executive member. His Honour concluded that the second to fifth respondents had not received remuneration to which they were not entitled.
His Honour then proceeded to consider (though he noted it was not strictly necessary for him to do so) whether, if he had been of the opinion that the second to fifth respondents had received remuneration otherwise than in accordance with s. 65 of the Act, that fact caused them to vacate their offices as members of the Legislative Assembly and of the Executive Council and as executive members. This question turns on s. 39(2)(e) of the Act, to which I shall refer later. His Honour concluded that services rendered by a person as a member of the Executive Council or as an executive member are not services rendered in the Legislative Assembly; that the Act draws a clear distinction between the two types of service; and that in the result the offices of the four persons concerned had not been vacated pursuant to the operation of s. 39(2)(e) of the Act.

The question whether the second to fifth respondents automatically vacated their various offices pursuant to the operation of s. 39(2)(e) does not arise unless they received remuneration "for services rendered in the Legislative Assembly, otherwise than in accordance with section 65". The question whether they received remuneration otherwise than in accordance with s. 65 logically arises first; but I shall deal with it later because in my view it is plain that none of the offices held by the second to fifth respondents were vacated by the operation of s. 39(2)(e) even if it be assumed that the appellant succeeds on the section 65 point. The anterior question should be dealt with, however, because the appellant seeks a declaration that, upon the true construction of s. 65, the second to fifth respondents received remuneration unauthorised by the Act; also the question is of considerable interest in Norfolk Island itself and was fully argued before us.
I turn to s. 39(2)(e). Section 39 provides in sub-section (1) that a person is not qualified to be a candidate for election as a member of the Legislative Assembly of Norfolk Island if at the date of nomination he falls within any one of five prohibited categories. Section 39(2) deals with the vacation of office of members of the Legislative Assembly in these terms:

"(2) A member of the Legislative Assembly vacates his office if -

(a) he becomes a person to whom any of the paragraphs of sub-section (1) applies;

(c) he fails to attend the Legislative Assembly for 3 consecutive meetings of the Legislative Assembly without the permission of the Legislative Assembly;

(d) he ceases to be entitled, or qualified to become entitled, to vote at elections of members of the Legislative Assembly; or

(e) he takes or agrees to take, directly or indirectly, any remuneration, allowance, honorarium or reward for services rendered in the Legislative Assembly, otherwise than in accordance with section 65."

Section 39(3) and (4) do not touch the questions arising in this case.
To understand the operation of s. 39(2) it is necessary to say something about the administration and government of Norfolk Island. The government of Norfolk Island is vested in the Administrator who is charged with the duty of administering the government of the Island as a territory under the authority of the Commonwealth (s. 5(1)). The Administrator is appointed by the Governor-General and holds office during the pleasure of the Governor-General (s. 6). The Administrator is required to exercise his powers and perform his function in accordance with the advice of the Executive Council of Norfolk Island (s. 7(1)).
The Executive Council is dealt with in Part III of the Act (ss. 11 to 15) and its function is to advise the Administrator on all matters relating to the government of the Island (s. 11(1)). The Administrator is entitled to attend all meetings of the Executive Council and to preside at all meetings at which he is present (s. 11(3)). The membership of the Executive Council consists of persons for the time being holding "executive office" (s. 11(2)).
The Act uses the terms "executive member" and "executive office" interchangeably. "Executive member" is defined as meaning a person holding office under s. 13 and "executive office" is defined as meaning an office referred to in s. 12 (s. 4(1)).
Although the Executive Council consist solely of executive members, the oath or affirmation of membership of the Executive Council and of executive members is different (see s. 15 and the forms in Schedules 5 and 6). Thus all persons holding office as Executive Councillors are executive members and all executive members are Executive Councillors. The function of executive members is to exercise executive authority with respect to the matters specified in Schedule 2 and 3 (see s. 12(2)).
Section 12 provides for "executive offices" of Norfolk Island in these terms:-

"(1) There shall be such number of executive offices, having such respective designations, as the Legislative Assembly from time to time determines by resolution.

(2) The matters in respect of which the executive members have executive authority are the matters specified in Schedules 2 and 3."

Schedules 2 and 3 specify a large number of diverse heads of power.

Executive members are appointed by the Administrator on the advice of the Legislative Assembly and they may be removed from office by the Administrator on the advice of the Assembly if in the Administrator's opinion "there are exceptional circumstances that justify his so doing" (s. 13(2)). The appointment of a person as an executive member can be terminated in several ways, namely, if: he resigns as a member of the Legislative Assembly; he is disqualified from office under s. 39 from continuing as a member of the Legislative Assembly; his appointment is terminated by the Administrator under s. 13; he resigns his office in writing signed by him and delivered to the Administrator or if the Legislative Assembly first meets after a general election of the Assembly that takes place after the appointment takes effect (s. 14).
There are fundamental differences between the executive government of the Commonwealth of Australia and the executive administration of Norfolk Island. It would be a mistake to draw too close an analogy between the Government of Australia under the Australian Constitution and the administration of the territory of Norfolk Island under the Act. For example, there can be only nine members of the Legislative Assembly (subject to the regulations) (s. 31(2)), resulting in the situation that all members of the Assembly are appointed to some office of authority.
At the first meeting of the Fifth Legislative Assembly on 17 May 1989 the "Administrative Arrangements for operation of the affairs of the Norfolk Island Government" were tabled and agreed to unanimously. Every elected member was given responsibilities. The administrative arrangements were:

"PRESIDENT - D.E. BUFFETT

Lead and Co-ordinate the Norfolk Island Government Relations with Australia/Administrator Relations with Public Service Board (Relates to Education (Minister for Culture and Traditions (Community Community Events and Awards (Services DEPUTY PRESIDENT - JOHN T. BROWN

Primary Industry and Quarantine (Relates to and Domestic Animals (Minister for Fishing (Immigration and 200 Mile Zone (Commerce Sport and Recreation

MINISTER FOR FINANCE - NEVILLE C. CHRISTIAN Public Monies and Accounts

Budget

Customs

Postal Services and Philatelic Lotteries and Fund Raising

R.P.I.

MINISTER FOR IMMIGRATION AND COMMERCE - WILLIAM A. BLUCHER Immigration

Commerce

Air Services and Airlines/ALOP Trading hours, markets and stalls Building Controls

MINISTER FOR COMMUNITY SERVICES - R. GAYE EVANS Courts, Registries and Rolls

Forestry

Land Management (Including Environment Bill) Museum/KAVHA/Cemetery/Beaches and Foreshores National Parks

MINISTER FOR TOURISM - GEORGE C. SMITH Tourism

Tourist Accommodation

Companies

Police

Road Traffic

Broadcasting/Library and Archives MEMBER RESPONSIBLE FOR HEALTH AND SOCIAL SERVICES - ALICE I. BUFFETT

Public Health, Sale of Food,

Food and Beverages (Relates to Hospital (Minister For Social Services (Immigration Employment - including Workers (and Commerce Compensation

MEMBER RESPONSIBLE FOR BUSINESS UNDERTAKINGS - RIC N.I. ROBINSON

Electricity Undertaking Services (Relates to Norfolk Telecom Services (Minister for Liquor Bond Services (Finance MEMBER RESPONSIBLE FOR WORKS - ERNEST CHRISTIAN Roads and Bridges (Relates to Civil Works (Minister for Water and Sewerage (Community Garbage and Trade Wastes (Services Shipping and Lighterage (Relates to (Minister for (Finance

Norfolk Island is a territory under the authority of the Commonwealth, having been accepted by the Commonwealth as a territory under its authority by Order in Council of 30 March 1914 and governed by the Commonwealth initially pursuant to the Norfolk Island Act 1913, subsequently the Norfolk Island Act 1957 and now by the Norfolk Island Act 1979. The legislative power of the Commonwealth to pass laws with respect to Norfolk Island stems from its plenary authority under s. 122 of the Constitution. While there are many differences there are some broad similarities between the two governments. The provisions of ss. 5 and 7 of the Act relating to the Administrator and his powers reflect the executive powers of the Commonwealth which by s. 61 of the Constitution are exercisable by the Governor-General. Also, the function of the Executive Council of Norfolk Island is intended broadly to reflect the function of the Federal Executive Council of Australia under s. 62 of the Constitution. Similarly, executive officers or executive members of Norfolk Island are broadly comparable to Ministers of State of the Commonwealth under s. 64 of the Constitution.
The Legislative Assembly is the law making body of Norfolk Island. It consists of nine members (s. 31) who are elected for a maximum term of three years (s. 35) and it meets at least once every two months (s. 40). It is presided over by the President or in his absence, the Deputy President (ss. 41, 42). Five members constitute a quorum (s. 42(4) and questions are decided by a majority of votes of members present and voting (s. 42(4), (5)). The Legislative Assembly has the power to make standing rules and orders, not inconsistent with a law of Norfolk Island, with respect to the order and conduct of its business and proceedings (s. 45). It is empowered, with the assent of the Administrator or the Governor-General as the case may be, to make laws for the peace, order and good government of Norfolk Island (s. 19(1)). However, the legislative power of the Legislative Assembly does not extend to the making of laws authorising the acquisition of property otherwise than on just terms, the raising or maintaining of naval, military or air forces or the coining of money (s. 19(2)).
The power of the Legislative Assembly to determine the number of executive offices and their respective designations arises expressly from s. 12(1) of the Act. Curiously, the Act does not expressly empower the Legislative Assembly to determine the matters in respect of which each particular executive member may have executive authority within the general ambit of the power specified in Schedules 2 and 3. Doubtless the Assembly could enact laws, pursuant to its legislative power under s. 19, determining the specific matters over which particular executive members may exercise power within the scope of the matters specified in the two schedules. But in my opinion s. 12 is the source of the implied power of the Assembly to determine which particular matters specified in the two schedules constitute the executive authority of particular executive offices. I discern nothing in the Act which would empower the Administrator to determine the particular matters or heads of power which may be exercised by particular executive members. The power of appointment of executive members is vested in the Administrator on the advice of the Legislative Assembly, as is the power of termination of their appointment; but the Assembly has the power to allocate particular matters to be exercised by particular executive members. The power is implied from s. 12(1) and (2) of the Act.
The office constituted by the description "executive office" is the office of executive member (see ss. 4(1), 12 and 13). The particular designation that may be assigned to that office (e.g. Minister for Finance) is not an integer of executive office or executive membership. Nor are the particular matters that may fall within the authority of an executive member integers of executive office. Once the Legislative Assembly determines the number of executive offices it has created those offices. It may then assign particular designations to those offices, as it has in fact done, although I see no bar to an office being created without a designation; for example, an executive member appointed as Minister without portfolio. Nor is there a requirement that the designation be that of Minister at all; as that designation arises from convention. It is true that in practice one would expect to find (as in fact has been the practice of the Legislative Assembly) that when the Assembly determines the number of executive offices it also assigns particular designations to them and the matters in respect of which the executive members have executive authority within the framework of Schedules 2 and 3; but this does not lead to the conclusion that the executive office is properly characterised as the particular office with a designation and the allocation of certain matters of authority under the two schedules. The executive office is the office of executive member.
When s. 65 speaks of the remuneration, as determined by the Remuneration Tribunal, being paid to various offices, including the office of executive member, it is in my opinion directed to the office of executive member created by resolution of the Legislative Assembly rather than to any particular designation or allocation of powers to that office. But, I realise that in general parlance people would speak of, for example, the Minister for Finance as the description of the particular office.
Section 65(4) applies:

"to an office of member of the Legislative Assembly, member of the Executive Council or executive member or any other office in or in connection with the Assembly that can be held only by member of the Assembly".

Membership of the Legislative Assembly is a necessary qualification for appointment as an executive member (s. 13(1)(a)) and therefore for membership of the Executive Council (s. 11(2)). It is this necessary qualification which accurately describes membership of the Executive Council or an executive member as being "any other office in or in connection with the Assembly that can be held only by a member of the Assembly" (emphasis added). That is to say, the word "other" assumes that membership of the Executive Council or an executive member is an office in or in connection with the Assembly that can be held only by a member of the Assembly. Offices that may be held only by persons who are members of the Legislative Assembly also include the President and Deputy President of the Assembly (s. 41).

With this background I turn to s. 39(2)(e). Section 38 prescribes the necessary qualifications for election to the Legislative Assembly as a minimum age requirement of 18, entitlement or qualification to become entitled to vote at election of members of the Assembly and a residence qualification. Sub-section (1) of s. 39 specifies four grounds of disqualification from membership of the Assembly and sub-s. (2) provides for the vacation from office of membership of the Legislative Assembly on the occurrence of any one or more of the events there specified. Read literally it is plain that s. 39(2)(e) is talking only of remuneration, allowances, honoraria or rewards for service rendered by members of the Legislative Assembly in the Assembly itself, and this is what one would expect to find. Plainly enough the intent of s. 39(2)(e) is that the only remuneration, allowances, honoraria or rewards which a member of the Legislative Assembly may receive for his services rendered in the Assembly are the remuneration and allowances mentioned in s. 65, being remuneration determined by the Tribunal, or, in the absence of such determination, as prescribed. The primary application of the subsection section is thus clear being to prevent influencing a member for services rendered in the Legislative Assembly such as voting a particular way or raising a particular matter at question time (see the comments by G. Evans in "Pecuniary Interests of Members of Parliament under the Australian Constitution" (1975) 49 ALJ 464 at 470 on the Australian equivalent to s. 39(2)(e), namely, the second limb of s. 45(iii)). There is nothing in paragraph (e) to suggest that, if a member of the Legislative Assembly receives remuneration or other form of reward for services rendered otherwise than in the Legislative Assembly, he vacates his office. Otherwise people would be prevented from becoming members of the Assembly by receipt of remuneration from their ordinary employment or business, to mention but one of the anomalies that could arise.
Counsel for the appellant did not submit on appeal that paragraph (e) should be construed so that the words "for services rendered in the Legislative Assembly" qualify only the words "honorarium or reward". Such a submission was put to the learned primary Judge but rightly rejected by him. Counsel argued before us that, because the traditional form of responsible government under the Westminster system is in substance incorporated into the system of government of Norfolk Island, with ministers holding executive office as executive members and necessarily being members of the Legislative Assembly, they therefore perform their functions "in the Legislative Assembly", not only as members of the Assembly, but as executive members also; for example, by answering questions at question time in the Assembly. The taking of remuneration by the second to fifth respondents of the amounts awarded by the Remuneration Tribunal (in addition to the amount allowed for membership of the Legislative Assembly) in the 1988 determination, was in their capacity as executive members, the taking of which was unauthorised by s. 65; and since there is such a close connection between their services as executive members and as members of the Legislative Assembly (at least when performing duties in the Assembly) the unauthorised remuneration was essentially "for services rendered in the Legislative Assembly" within the meaning of s. 39(2)(e). Hence, they automatically vacated their offices as members of the Assembly.
This somewhat subtle argument recognises that, on the evidence in this case, the only path by which the second to fifth respondents can be said to have vacated their offices as executive members (and hence as Executive Councillors) must commence within the Legislative Assembly. If the office of membership of the Assembly is vacated under s. 39(2)(e) it follows from s. 14(a) that the appointment of the member concerned to an executive office thereupon terminates. The only other relevant vehicle for termination of executive office is s. 13(1) or (2) which empowers the Administrator, on the advice of the Assembly, to terminate such appointment (in the case of s. 13(2) without necessarily receiving the advice of the Assembly, but if, in his opinion, there are exceptional circumstances that justify his action). As the second to fifth respondents and the Administration itself assumed the legality of the receipt of remuneration for executive office of those respondents, it is obviously highly unlikely that the section 13 powers of the Administrator would be exercised.

A sharp distinction is drawn in the Australian Constitution between powers of the Legislature, the Executive and the Judiciary. Under the Westminster system of responsible government the Minister administering the affairs of a Department of State is responsible to Parliament for the decisions and actions he takes and for those taken by his subordinates. He is responsible for the policy of his Department. The Minister represents his Department in Parliament and answers for it, introduces Bills relating to its activities, appears before Committees of the Houses of Parliament on its behalf and should be present to answer criticisms of the Department. At Question Time it is the responsibility of a Minister to give factual information on matters for which he is responsible to the House of which he is a member. Indeed, Parliamentary Standing Orders contain detailed provisions, the objective of which is to ensure that Ministerial responsibility is carried into effect.
The structure of the Act reflects some degree of analogy between the Westminster system of government and the Administration of Norfolk Island; but it is not an analogy that should be taken too far, particularly because it appears that all members of the Legislative Assembly have some degree of executive or administrative responsibilities (see the earlier administrative arrangements of the Fifth Legislative Assembly). While I do not quarrel with the proposition that when an Executive member answers questions in the Legislative Assembly or otherwise performs duties there arising from his holding of the office of executive member, he does so because he is responsible for his actions as executive member to the Legislative Assembly. But s. 39(2)(e) of the Act is directed to the vacation of office of a member of the Assembly if he takes remuneration, allowances etc for his services rendered as a member of the Assembly otherwise than pursuant to a determination of the Remuneration Tribunal with respect to his office as a member of the Assembly. Section 65 itself draws the distinction between remuneration determined by the Remuneration Tribunal with respect to persons who hold office as members of the Legislative Assembly, members of the Executive Council or executive members, and any other office in or in connection with the Assembly that can be held only by a member of the Assembly. Section 65 thus creates its own classification of entitlement to remuneration based upon the particular office held by the person concerned. The Act thereby recognises a clear division between the various categories of remuneration payable to persons by virtue of their particular office within the system of government of Norfolk Island. On the facts of this case the remuneration in question was plainly not taken by the second to fifth respondents for services rendered by them in the Legislative Assembly; it was taken, whether authorised or not under s. 65, in their capacity as executive members. The fact that they are responsible to the Legislative Assembly for the performance of certain of their duties is of no relevance to the characterisation of the remuneration which they received in this case. See generally on this question Reference Pursuant to Section 204 of the Commonwealth Electoral Act 1918; Re Webster (1975) 132 CLR 270 per Barwick C.J. at 278-9; Quick and Garran: The Annotated Constitution of the Australian Commonwealth at 385, 447, 448, 493, 494, 499, 699, 703, 709, 711, 712; Erskine May's Parliamentary Practice 21st ed., 1989 at 285 and 289; Griffith and Ryle: Parliament - Functions, Practice and Procedures 1989 at 3, 34 and 74; House of Representatives Practice edited by J.A. Pettifer, 1981 at 89, 103, 319, 491 and 499; Lumb; The Constitution of the Commonwealth of Australia, 4th ed., 1986 at paragraphs 173, 174, 489 and 490; Current Topic in (1974) 48 ALJ 221; and Gareth Evans: Pecuniary Interests of Members of Parliament under the Australian Constitution (1975) 49 ALJ 464.
Accordingly, even if the second to fifth respondents had received unauthorised remuneration, they would have received it for their services as executive members and not "for services rendered in the Legislative Assembly" within s. 39(2)(e).
I turn to the question whether the second to fifth respondents were entitled to receive, pursuant to s. 65 of the Act, the remuneration which they in fact received after the making of the determination by the Remuneration Tribunal of 18 November 1988 and before the determination of 16 November 1989. Any such entitlement must be derived from s. 65 of the Act in the absence of prescribed remuneration (s. 65(2)); and it is common ground that none was prescribed. Their only relevant entitlement is to such remuneration as was determined by the Remuneration Tribunal in respect of their services in an office to which s. 65 applies, which in this case is office as executive members.
Section 65 has effect subject to the Remuneration Tribunals Act (s. 65(3)). I have already referred to the relevant sections of that Act. The specific relevant head of power of the Remuneration Tribunal is that conferred by s. 7(3), namely, the power (indeed, the duty) of the Tribunal to inquire into and determine the remuneration to be paid to the "holders of public offices", a description which includes the office of executive member or member of the Executive Council or member of the Legislative Assembly or any other office that answers the description of an "office in or in connection with the Assembly that can be held only by a member of that Assembly" (see ss. 3(3A) and 3(4)(a)). For the reasons which I gave earlier when considering the previous question, the relevant office in the present case is that of executive member. The office of executive member arises once the Legislative Assembly has determined by resolution that there shall be a certain number of such offices (s. 12 of the Act). It is not a necessary integer of an executive office that it has a particular designation or particular functions assigned to it within those enumerated in Schedules 2 and 3.
I have already set out the relevant provisions of the 1988 determination. At the time of that determination there were in fact four persons who held office as executive members and whose offices were designated Minister for Commerce and Health, Minister for Finance, Minister for Planning and Minister for Works. Under the administrative arrangements then in force those four persons had been assigned the particular powers mentioned in the resolution of the Legislative Assembly of 28 May 1986 with the addition of the executive office designated as Minister for Works in the resolution of 16 October 1986. As the relevant public office is that of executive member, it was within the power of the Remuneration Tribunal to have simply described "executive member" as the relevant office to which it assigned remuneration of $7,142. In my opinion this is in substance what the Tribunal did in the 1988 determination. It is true that the 1988 determination referred to each of the four portfolios as designated by the Legislative Assembly. But in the light of the Tribunal's legislative power to determine the remuneration to be paid to "the holders of public offices" (s. 7(3) of the Remuneration Tribunal Act) and the Tribunal's own express reference in the opening provisions of the 1988 determination to s. 7(3) and (4) of the Remuneration Tribunal Act as its source of power to inquire into the remuneration to be paid to "holders of offices connected with, the Legislative Assembly of Norfolk Island ...", upon its true construction the 1988 determination is one to pay $7,142 to each of the four executive members whose offices had been created by resolution of the Legislative Assembly. The particular designations adopted in the 1988 determination were merely descriptive of the designations assigned to each of the offices of the four executive members by the Legislative Assembly in its earlier resolutions.
In my opinion, the second to fifth respondents as holders of office as executive members fall within the opening words of the 1988 determination as being the "holders of offices connected with, the Legislative Assembly of Norfolk Island". Those words echo the language of s. 65(4) of the Act and are consistent with the language of ss. 3(3A) and 7(9)(ab) of the Remuneration Tribunals Act.
If the 1988 determination is construed otherwise, it would give rise to serious problems with respect to the administration and government of Norfolk Island. The Remuneration Tribunal is required to make reports and determinations on relevant matters at intervals of not more than one year (s. 8(1)), and, where an office comes into existence after the commencement of the Remuneration and Allowances (Amendment) Act 1983 or a substantial change in the functions or duties performed by the holder of an office has occurred since the Tribunal last determined the remuneration to be paid in respect of that office, the Tribunal is required as soon as practicable, but without prejudice to its obligations under s. 8(1), to enquire into and determine the remuneration to be paid in respect of that office (s. 8(2)). Although the Tribunal doubtless has power to specify a date for the commencement of the operation of its determination earlier than the date of the determination itself (s. 7(5)) (a power which in practice is not infrequently exercised), there would necessarily be an hiatus between the date of appointment of the person to a particular office and the date on which the Tribunal makes a determination with respect to the remuneration to be paid to that person. For the entitlement of the holder of the office to receive remuneration to be dependent upon the possibility that the Tribunal will make a retrospective determination provides a strong reason against construing the relevant legislative provisions as the appellant would have them construed. Designations of particular portfolios change not infrequently as governments come and go and within the life of existing governments. In the case of Norfolk Island the relevant power of the Remuneration Tribunal is to fix remuneration in relation to executive members.
I would dismiss the appeal.
As to costs, the learned primary Judge made no order as to costs of the proceedings before him. Counsel for the appellant submitted that, in the event that the appeal fails on all grounds (as in my opinion it should), the appellant should nevertheless not be ordered to pay the costs of any of the respondents because the proceedings were initially brought in the public interest and the appeal was also brought for the purpose of resolving a question of general and public importance in the administration of Norfolk Island.
There are two separate proceedings which were heard together by the primary Judge by consent, one of which was the proceeding brought by the Administration of Norfolk Island. It is common ground that there is no suggestion of impropriety on the part of the second to fifth respondents in receiving remuneration before the 1989 determination. Also, the proceedings concern matters of public importance in Norfolk Island. It was those considerations which led his Honour to make no order as to costs, notwithstanding that the appellant failed in his own case and in the case brought by the Administration to which he was a respondent.
The proceedings both at first instance and on appeal do concern questions of importance to the Administration of Norfolk Island; questions which concern not only the parties to the proceedings but the peace, order and good government of Norfolk Island itself. Plainly the Administration should not pay the costs of the unsuccessful appellant of the appeal. Nor should his costs be paid by the second to fifth respondents. However, in my view the appellant should not bear the Administration's costs of the appeal because of the public interest considerations mentioned earlier. Nor should the appellant pay the costs of the appeal of any of the second to fifth respondents unless they incurred costs in addition to those which the Administration incurred. The second to fifth respondents were represented by separate counsel from counsel who appeared for the Administration on the appeal (although there is a perplexing reference in the Appeal Papers to the fact that the same solicitors appeared for the first, second, third and fourth respondents, but a different solicitor appeared for the fifth respondent (Mr Neville Christian), namely, the Crown Solicitor for the Administration of Norfolk Island). As I am not aware of what arrangements, if any, have been made between the various respondents in relation to costs, I think it proper that, if the second to fifth respondents or any of them have incurred costs additional to those which have been incurred by the Administration, they should receive those costs from the appellant. Accordingly I would order the appellant to pay the costs, if any, of the appeal of the second to fifth respondents additional to those which have been incurred by the Administration. Otherwise I would make no order as to the costs of the appeal.

JUDGE3

By s.39(2)(e) of the Norfolk Island Act 1979 ("the Act"), it is provided as follows:

"39. ...

(2) A member of the Legislative Assembly vacates his office if -

....

(e) he takes or agrees to take, directly or indirectly, any remuneration, allowance, honorarium or reward for services rendered in the Legislative Assembly, otherwise than in accordance with section 65."

By s.65, it is provided as follows:

"65. (1) A person shall, in respect of his services in an office to which this section applies, be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, he shall be paid such remuneration as is prescribed.

(2) In respect of his services in an office to which this section applies, a person shall be paid such allowances as are prescribed.

(3) This section has effect subject to the Remuneration Tribunals Act 1973.

(4) This section applies to an office of member of the Legislative Assembly, member of the Executive Council or executive member, or any other office in or in connection with the Assembly that can be held only by a member of the Assembly."

A question having arisen whether four members of the Assembly had taken remuneration otherwise than in accordance with the provision of s.65 of the Act, with the alleged consequence that they had vacated their offices pursuant to s.39(2)(e) of the Act, two actions were instituted in the Supreme Court of Norfolk Island First, by its summons, the Administration of the Territory of Norfolk Island, the first respondent in the appeal, instituted proceedings against William Arthur Blucher, the second respondent, Rosemarie Gay Evans, the third respondent, and George Charles Smith, the fourth respondent, seeking declarations that Mr Blucher, Mrs Evans and Mr Smith were validly appointed to executive office and that they did not, by reason of receiving remuneration as holders of executive office, vacate their offices as members of the Assembly. Secondly, by his amended summons, John Terrence Brown, the appellant in this appeal, sued Mr Blucher, Mrs Evans, Mr Smith, Neville Charles Christian (the fifth respondent in the appeal), and the Administration, as respondents, seeking a declaration that, as from 18 May 1989, the personal respondents were not entitled to hold office as members of the Assembly together with an order that those respondents repay to the Administration all moneys received by them from 18 May 1989 in respect of their entitlements as members of the Assembly and as holders of executive office.
By consent of the parties, it was ordered by Morling C.J. that both proceedings be heard together and that evidence in one proceeding be evidence in the other. In the proceedings brought by the Administration, Morling C.J. made declaratory orders as asked in its summons. In the other proceedings, Morling C.J. ordered that the summons be dismissed (see (1990) 98 ALR 156). Mr Brown now appeals from these orders.
The background
The background to the present dispute is as follows. (1) At a meeting of the Legislative Assembly of Norfolk Island ("the Assembly") held on 28 May 1986, being the first meeting of the Fourth Assembly, it was resolved, pursuant to s.12(1) of the Act, that there should be three "Executive Offices" and that the offices be designated: (i) "Finance"; (ii) "Commerce and Health"; and (iii) "Planning".
(By s.11(1) of the Act, it is provided that there shall be an Executive Council of Norfolk Island to advise the Administrator on all matters relating to the Government of the Territory. By s.11(2), the Executive Council shall consist of the persons for the time being holding executive office. By s.12(1), it is provided that there shall be such number of executive offices, having such respective designations, as the Assembly from time to time determines by resolution. By s.12(2), the matters in respect of which the executive members have executive authority are the matters specified in Schedules 2 and 3.)
(2) At the same meeting, three members of the Assembly (Edward Davenport Howard, Geoffrey James Bennett and William Winton Sanders) were nominated for appointment to executive office. On 30 May 1986, pursuant to s.13(1)(a) of the Act, the Administrator appointed those members to be Minister for Finance, Minister for Commerce and Health, and Minister for Planning respectively.
(By s.13(1), the Administrator may, on the advice of the Assembly, appoint a member of the Assembly to an executive office.)
(3) On 15 October 1986, the Assembly resolved to create an additional executive office, thereby making a total of four executive offices, the additional office having the designation of Minister for Works. On 22 October 1986, the Deputy Administrator appointed Gerardus Hendrikus Aafjes, a member of the Assembly, to be Minister for Works.
(4) On 5 December 1986, the Tribunal, pursuant to ss.8(2) and 8(3) of the Remuneration Tribunals Act 1973, having inquired into the remuneration to be paid to members of, and holders of offices connected with, the Assembly, determined, with effect from 2 July 1986, a specified rate per annum of additional salary or fee in respect of the office of Minister for Commerce and Health, Minister for Finance and Minister for Planning.
(By s.7(3) of the Remuneration Tribunals Act, the Remuneration Tribunal ("the Tribunal") shall, from time to time, as provided by Part II of that Act, inquire into and determine, the remuneration to be paid to the holders of certain public offices. By s.7(4)(a), where the Tribunal inquires into a matter referred to in s.7(3), the Tribunal may also inquire into, and either determine or report on, any matter that is, or is considered by it to be, significantly related. By s.3(4)(a), a reference in Part II to a "public office" is a reference to, inter alia, an office established under a law of the Commonwealth. By s.3(3A), a reference in Part II to an office includes a reference to an office that, within the meaning of the Norfolk Island Act, is an office of member of the Assembly, member of the Executive Council or executive member and a reference to any office in or in connection with that Assembly that can be held only by a member of that Assembly. By s.7(5), a determination shall come into operation, or shall be deemed to have come into operation, on such date as the Tribunal specifies in the determination. By s.7(9)(ab), in the case of remuneration to which a subsisting determination of the Tribunal applies payable to a person who holds (i) an office that, within the meaning of the Norfolk Island Act is an office of member of the Assembly, member of the Executive Council or executive member; or (ii) an office in or in connection with the Assembly that can be held only by a member of that Assembly, such remuneration shall be paid in accordance with the determination out of the Public Account of Norfolk Island established under s.47 of the Norfolk Island Act. By s.8(1), the Tribunal shall, as soon as practicable after the commencement of the Remuneration Tribunals Act, and at intervals of not more than one year, make determinations in respect of, inter alia, the matters referred to in s.7(3). By s.8(2), where an office comes into existence after the commencement of the Remuneration and Allowances Amendment Act 1983 or a substantial change in the functions or duties to be performed by the holder of an office has occurred since the Tribunal last determined the remuneration to be paid in respect of that office, the Tribunal shall, as soon as practicable, but without prejudice to its obligations under s.8(1), inquire into and determine the remuneration to be paid in respect of that office. By s.8(3), where the Tribunal inquires into, and determines, the remuneration to be paid in respect of an office in accordance with s.8(2), the Tribunal may also inquire into, and either determine or report on, any matter that is, or is considered by it to be, significantly related.)
(5) On 6 February 1987, the Tribunal, pursuant to ss.8(2) and 8(3) of its Act, determined, with effect from 22 October 1986, a specified rate per annum of additional salary or fee in respect of the office of Minister for Commerce and Health, Minister for Finance, Minister for Planning and the Minister for Works.
(6) On 2 December 1987, pursuant to ss.7(3) and (4) of its Act, the Tribunal determined a specified rate per annum of additional salary or fee in respect of the office of Minister for Commerce and Health, Minister for Finance, Minister for Planning and Minister for Works. On 18 November 1988, pursuant to ss.7(3) and (4), the Tribunal made a further determination, with effect from 24 November 1988, in respect of these offices ("the 1988 determination"). The 1988 determination is important for present purposes. So far as relevant, it was as follows:

"Pursuant to sub-sections 7(3) and 7(4) of the Remuneration Tribunals Act 1973, the Remuneration Tribunal has inquired into the remuneration to be paid to members of, and holders of offices connected with, the Legislative Assembly of Norfolk Island, and other matters significantly related thereto, and determines as hereunder, with effect from 24 November 1988:

1. Basic Fee and Travelling Allowance: Office Rate per annum of fee $ Member 7,142

2. Additional Salary or Fee, Expenses of Office Allowance and Travelling Allowance: Office Rate per annum of Additional Salary or Fee $ Minister for Commerce and Health

Minister for Finance 7,142 Minister for Planning

Minister for Works"

(7) On 17 May 1989 (and this is the matter which led to the present litigation), at the first meeting of the Fifth Assembly, it was resolved that, pursuant to s.12 of the Act, there be four executive offices having the designations of Minister for Immigration and Commerce, Minister for Finance, Minister for Community Services and Minister for Tourism. On 18 May 1989, the Administrator, on the advice of the Assembly, appointed Mr Blucher to be Minister for Immigration and Commerce, Mr Christian to be Minister for Finance, Mrs Evans to be Minister for Community Services and Mr Smith to be Minister for Tourism.

(8) By letter dated 13 June 1989, the Administrator informed the Tribunal that following a recent election, revised administrative arrangements, including some different titles for Ministers, were adopted. The following document was enclosed:

"ADMINISTRATIVE ARRANGEMENTS for operation of the affairs of the Norfolk Island Government as announced by the President of the Legislative Assembly, David E. Buffett at the opening Session of Fifth Legislative Assembly, Wednesday 17 May 1989 PRESIDENT - D.E. BUFFETT

Lead and Co-ordinate the Norfolk Island Government Relations with Australia/Administrator Relations with Public Service Board (Relates to Education (Minister for Culture and Traditions (Community Community Events and Awards (Services DEPUTY PRESIDENT - JOHN T. BROWN

Primary Industry and Quarantine (Relates to and Domestic Animals (Minister for Fishing (Immigration 200 Mile Zone (and Commerce Sport and Recreation

MINISTER FOR FINANCE - NEVILLE C. CHRISTIAN Public Monies and Accounts

Budget

Customs

Postal Services and Philatelic Lotteries and Fund Raising

R.P.I.

MINISTER FOR IMMIGRATION AND COMMERCE - WILLIAM A. BLUCHER Immigration

Commerce

Air Services and Airlines/ALOP Trading hours, markets and stalls Building Controls

MINISTER FOR COMMUNITY SERVICES - R. GAYE EVANS Courts, Registries and Rolls

Forestry

Land Management (including Environment Bill) Museum/KAVHA/Cemetery/Beaches and Foreshores National Parks

MINISTER FOR TOURISM - GEORGE C. SMITH Tourism

Tourist Accommodation

Companies

Police

Road Traffic

Broadcasting/Library and Archives MEMBER RESPONSIBLE FOR HEALTH AND SOCIAL SERVICES - ALICE I. BUFFETT

Public Health, Sale of Food,

Food and Beverages (Relates to Hospital (Minister for Social Services (Immigration Employment - including Workers (and Commerce Compensation

MEMBER RESPONSIBLE FOR BUSINESS UNDERTAKINGS - RIC N.I. ROBINSON

Electricity Undertaking Services (Relates to Norfolk Telecom Services (Minister for Liquor Bond Services (Finance MEMBER RESPONSIBLE FOR WORKS - ERNEST CHRISTIAN Roads and Bridges (Relates to Civil Works (Minister for Water and Sewerage (Comminity Garbage and Trade Wastes (Services Shipping and Lighterage (Relates to (Minister for Finance"

(9) On 16 November 1989, six months after the election and the change in administrative arrangements, the Tribunal, pursuant to ss.7(3) and (4) of its Act, determined, but only from that date, a specified rate per annum of additional salary or fee in respect of the office of Minister for Finance, Minister for Immigration and Commerce, Minister for Community Services and Minister for Tourism ("the 1989 determination").

From this background, the following emerges: Mr Blucher, Mr Smith, Mrs Evans and Mr Christian received remuneration in respect of their service in executive office at the rate referred to in the 1988 determination in respect of the offices there specified, until the 1989 determination was made. Thus the 1988 determination was in respect of the offices of (i) Minister for Commerce and Health (ii) Minister for Finance (iii) Minister for Planning and (iv) Minister for Works, whereas the appointments made on 18 May 1989 were (i) Minister for Immigration and Commerce (ii) Minister for Finance (iii) Minister for Community Services and (iv) Minister for Tourism; hence, the Minister for Finance was the only executive office which was common to both periods.
The proceedings in the Supreme Court
In the Supreme Court, it was first contended, on behalf of Mr Brown, that the remuneration received by Mr Blucher, Mr Smith, Mrs Evans and Mr Christian in respect of the period between 18 May and 16 November 1989 was paid without statutory authority. Then it was said that, because they had received unauthorised remuneration, they had vacated their offices as members of the Assembly pursuant to s.39(2)(e) of the Act. Morling C.J. rejected the first argument, saying (at pp 160-1):

"The question whether the Ministers have received remuneration to which they were not legally entitled depends upon the proper construction of the Act and of the 1988 Determination. The crucial provision of the Act is s.65(4). Does that subsection refer to three classes of office - i.e.

(a) members of the Legislative Assembly; (b) members of the Executive Council or executive members; and (c) any other office in or in connection with the Assembly that can be held only by a member of the Assembly? Or does it refer to a greater number of offices because each member of the Executive Council or executive member holds a separate and distinct office for the purposes of the sub-section?... It is to be noted that the reference in s.65(4) to an 'executive member' is to a person 'holding office under section 13' - vide the definition in s.4(1) of 'executive member'. That is to say, the Act contemplates that an executive member holds his office under s.13, not s.12. This is a fine distinction but I think it should be kept in mind when construing the reference to 'executive member' in s.65(4)...

The critical question is whether 'office' in s.65 has a generic meaning and refers to the class of persons who have been appointed executive members. If it has such a generic meaning, and the Ministers are within the genus, then the members did not receive remuneration otherwise than in accordance with the section unless it can be said that the Remuneration Tribunal did not fix the remuneration payable to persons falling within the genus... ...The Act is replete with references to two distinct classes of persons, i.e. executive members and members of the Legislative Assembly. I think it is plain that the reference to 'office of member of the Legislative Assembly' in s.65(4) is a reference to an office in a generic sense. Similarly, the reference in the same sub-section to 'member of the Executive Council or executive member' is, in my opinion, a reference to an office in a generic sense. It is true that, in one sense, each person within each class has his or her own office. But he or she holds the same office as the other members of the class."

Although, in the light of this finding, it was, strictly speaking, unnecessary to do so, Morling C.J. also dealt with, and rejected, the further argument put on behalf of Mr Brown with reference to s.39(2)(e) of the Act. Morling C.J. said (at p 163):

"I do not think that services rendered by a person in his or her capacity as a member of the Executive Council or executive member are services rendered in the Legislative Assembly. The Act draws a clear distinction between the two types of service. Although the Legislative Assembly has the legislative power referred to in Division 2 of Part IV of the Act, the members of the Assembly themselves do not have executive authority and do not have the important function of advising the Administrator.

A member of the Legislative Assembly who is also an executive member renders two quite different types of service. First, the member renders service in the Legislative Assembly in his or her capacity as a member of the Assembly. In respect of that service the member receives a salary determined by the Remuneration Tribunal. Such a member also renders separate service as a member of the Executive Council or executive member, and receives an additional salary in respect of that separate service. The additional salary is not for services rendered in the Legislative Assembly. Even if the Ministers had been paid remuneration not authorised by s.65, it would not have been remuneration for services rendered in the Legislative Assembly."

The appellant's arguments on the appeal

Counsel for Mr Brown first submitted that s.65(4) of the Act referred to three (or, possibly, four) offices: (i) member of the Assembly; (ii) member of the Executive Council or executive member (these are necessarily coincident); and (iii) any other office in or in connection with the Assembly that can be held only by a member of the Assembly, e.g., a President, or Deputy President of the Assembly, elected pursuant to s.41(1) of the Act. It was then argued that a person appointed to ministerial office necessarily holds the following offices: (i) member of the Assembly; (ii) member of the Executive Council; (iii) executive member; (iv) the office of "Minister for (a designated area of authority)." It was then said that the reason for the separate enumeration of the offices specified in s.65(4) was to enable the Tribunal (or the Governor-General) to fix remuneration (a) by reference to each executive office or (b) as a general amount for any person who holds executive office. In the present case, the argument ran, the Tribunal considered each ministerial office separately and made a determination accordingly. It was submitted that Morling C.J. should not have held that the only relevant "office" under s.65(4) was "executive member". Section 12(1) of the Act refers to a "number of executive offices" and the structure of the Remuneration Tribunals Act, in its application to Norfolk Island, required that, in each session of the Assembly, fresh determinations were to be made in respect of each executive member. This was because an "office comes into existence" within the meaning of s.8(2) of that Act, whenever a designation was made pursuant to s.12(1) of the Act. It was argued that s.65 of the Act related to remuneration for the office of member of the Assembly and also for executive office. The reference to s.65 by s.39(2)(e) was an indication that the latter provision was intended to pick up both offices. There was no logical reason, in a disqualification provision, for distinguishing between an unauthorised payment for acts done as a member of the Assembly, on the one hand, and acts done as an executive member, on the other. In any event, many of the functions of an executive member were performed "in" the Assembly, for instance, answering questions at question time, and introducing legislation as the Minister responsible. It followed that remuneration for services performed as executive officer represented, in part, remuneration for services rendered in the Assembly. The word "in", when used in the expression "services rendered in the...Assembly" in s.39(2)(e), had a wide connotation. In this context, it meant "in connection with" or "in or around". Membership of the Assembly was a prerequisite for office as an executive member and it could truly be said that this office was held in connection with membership of the Assembly, that is, "in" the Assembly.
It is convenient to deal with these arguments in stages, considering first the construction of s.65(4), then the operation of the 1988 determination, before dealing with the possible application of s.39(2)(e).
(1) The construction of s.65(4) of the Act
It will be recalled that, by s.65(4), it is provided that the section applies to "an office of member of the...Assembly, member of the Executive Council or executive member, or any other office in or in connection with the Assembly that can be held only by a member of the Assembly"; and that, by s.65(3), it is provided that s.65 has effect subject to the Remuneration Tribunals Act. As has been said, under the latter Act, the definitions of "office" and "public office" correspond with the provisions of s.65(4) of the Act (see the Remuneration Tribunals Act, ss.3(4)(a); 3(3A)).
It is clear that s.65 is intended to be read in conjunction with the relevant provisions of the Remuneration Tribunals Act. Under that Act, the Tribunal has the power, and the duty, to determine, from time to time, the remuneration to be paid to a person holding a public office in Norfolk Island in respect of the services in that office (see the Remuneration Tribunals Act, s.3(4)(a)). The public office is one of those specified in s.65(4) (see the Remuneration Tribunals Act, s.3(3A)). Both s.65(4) and s.3(3A) of the Remuneration Tribunals Act speak, inter alia, of the "office" of "executive member". It is plain, then, that the Tribunal has the power, and the duty, from time to time, to determine the remuneration to be paid to a person in respect of his or her services as an executive member.
(2) The operation of the 1988 determination
It will be recalled that, in the 1988 determination, the Tribunal made a determination of additional salary or fee in respect of the office of Minister for Commerce and Health, Minister for Finance, Minister for Planning and Minister for Works; and that, in the determination, it was recited that the Tribunal had inquired into the remuneration to be paid to "members of, and holders of offices connected with, the...Assembly." It may be accepted that holders of executive offices having particular designations literally fall within the description "holders of offices connected with, the...Assembly," although s.3(3A) of the Remuneration Tribunals Act refers also to executive members. But, in my opinion, the 1988 determination was a determination of the remuneration to be paid in respect of the executive office having the designation "Minister for Commerce and Health", etc., as the case may be. No doubt it was also open to the Tribunal to determine the remuneration to be paid to any executive member, whatever designation his or her office may have had. If that had been the Tribunal's intention, one would have expected it to refer, in terms, to the office of executive member. Instead, the Tribunal referred to the office of the four specified Ministers. It follows, in my view, that this reference should be interpreted as a determination in respect of those four offices, and not as a determination in respect of any executive office, however designated.
As has been said, in May 1989, the designations of three of these executive offices changed. It must follow, in my view, that unless it is possible to give the 1988 determination an ambulatory operation, the 1988 determination did not apply to the offices created in May 1989.
In my opinion, it is not possible to give the 1988 determination an ambulatory operation. Its terms are quite specific in this respect. The language used in the determination cannot,in my view, be treated as the description of a class, that is, the class of executive members generally, regardless of the designation of their respective offices.
A similar question arose in Behsman v. Ansell (1957) 98 CLR 284. By s.19(1) of the Child Welfare Act 1947-1955 (W.A.) it was provided that the Governor may, by Order in Council, establish special courts to be called "Children's Courts", and may appoint a special magistrate for any particular court or courts, and may, by Order in Council, from time to time, determine the area in and for which each court shall exercise jurisdiction. It was held that the Act contemplated the appointment of a particular person to be a special magistrate for a particular children's court or children's courts. Accordingly, where an Order in Council purported to appoint the magistrates for the time being and from time to time respectively assigned to the magisterial districts enumerated thereunder to be special magistrates for the purposes of the Child Welfare Act for the courts in such magisterial districts in which they respectively exercised jurisdiction as such magistrates aforesaid, it was held that the Order in Council, in so far as it purported to appoint by a class description and moreover one of an ambulatory nature, was bad as an attempted exercise of the power conferred by s.19(1) of the Child Welfare Act.
Dixon C.J., Kitto and Webb JJ. said (at p 289):

"If the Order in Council notified by the Gazette were effectual the result would be that upon taking office as a magistrate and upon assignment to a magisterial district the person appointed a magistrate would automatically become a special magistrate appointed for the children's court of the specified magisterial district. It seems reasonably plain that this is no exercise of the power conferred by s.19(1). That provision contemplates the appointment of a particular person to be a special magistrate for a particular children's court or for particular children's courts. The language of s.19(1) is incapable of justifying an attempt to appoint by a class description and one moreover which is ambulatory. A good illustration is supplied by the present case. The gentleman who sat as the children's court at Merredin was simply an acting magistrate of certain local courts and an acting resident magistrate of the Avon magisterial district. In virtue of this he filled the description of the Order in Council as a magistrate for the time being assigned to the Avon magisterial district. Accordingly without more he was treated as appointed a special magistrate for among other children's courts a particular children's court, viz. that at Merredin. The fact was that he filled a long-standing class description. That cannot amount to an exercise of a power to 'appoint a special magistrate for a particular court or courts'."

In my opinion, this reasoning applies in the present case. Here the Tribunal was given the power to determine remuneration by reference to a class description or, if it wished, by reference to an executive office having a particular designation. The Tribunal chose to use the latter, and not the former, method. The Tribunal's determination in respect of the four executive offices nominated is not, in my opinion, open to an interpretation that would extend its operation to other Ministers with different designations appointed after the time the determination comes into operation. Put differently, and applying the reasoning in Behsman's Case, the 1988 determination should not, in my view, be regarded as having an ambulatory operation so as to pick up, prospectively, executive members having designations different from those stipulated in that determination.
It follows, in my view, that, to date, there has been no determination by the Tribunal of the remuneration to be paid in respect of the three new Ministerial offices created in May 1989 with respect to the period between the appointment of those Ministers and the coming into effect of the 1989 determination. For the reasons given earlier, the position of the Minister for Finance was different.
Accordingly, in my opinion, there should be a declaration that the 1988 determination did not apply to the three Ministerial offices concerned. I would allow the appeal to this extent.
It is not necessary to consider whether the Tribunal has the power, and the duty, now to determine the remuneration of these Ministers in the period between the 1988 and 1989 determinations. Nor is it necessary to consider whether this remuneration could now be prescribed pursuant to s.65(1) of the Act (cf. Day v. Hunkin (1938) 61 CLR 65 at pp 76; 77). It will be remembered, in any event, that s.39(2)(e) speaks of remuneration taken "otherwise than in accordance with section 65." The operation of s.39(2)(e) is not, in terms, dependent upon the existence, or otherwise, of a valid determination of the Tribunal in force at a particular point of time. For one thing, the Tribunal may make a determination to take effect from an earlier date. For another, the power to prescribe remuneration under s.65(1) may be exercised.
(3) The possible application of s.39(2)(e)
It will be recalled that Morling C.J. held that, assuming the reumeration paid was unauthorised, s.39(2)(e) did not apply here because the remuneration was not "for services rendered in the...Assembly". I agree with Morling C.J. for the reasons he gives.
(4) Costs
In the circumstances, it is appropriate, in my view, that costs be reserved. The parties should have liberty to make written submissions, within 21 days, with respect to costs in the light of these reasons.
(5) Orders
I propose the following orders:

1. Appeal allowed in part.

2. Vary the orders made at first instance by adding the following additional declaration:

Declare that the determination of the Remuneration Tribunal made under the Remuneration Tribunals Act 1973 on 18 November 1988 numbered No. 21 of 1988 did not apply in respect of the offices of Minister for Immigration and Commerce, Minister for Community Services or Minister for Tourism.

3. Costs reserved. Any party to be at liberty to file and serve a written submission with respect to costs within 21 days.

[1991] FCA 363

14 JUNE 1991