Devonport City Council, Central Highlands Council and Southern Midlands Council v Farrell, David (Chief Electoral Officer)

[1998] TASSC 92

92/1998

PARTIES:  DEVONPORT CITY COUNCIL

CENTRAL HIGHLANDS COUNCIL

SOUTHERN MIDLANDS COUNCIL

v

FARRELL, David (CHIEF ELECTORAL OFFICER)

TITLE OF COURT:  SUPREME COURT OF TASMANIA

JURISDICTION:  ORIGINAL

FILE NOS:  1017/1998
  1031/1998

DELIVERED:  3 August 1998

HEARING DATES:  31 July 1998

JUDGMENT OF:  Underwood J

CATCHWORDS:

Statutes - By-laws and regulations - Validity - Particular powers and words and phrases conferring power - Necessary andor convenient (or expedient) - In general - No power to extend the scope or general operation of the Act.

Local Government Act 1993 (Tas), ss324(1), 349(1)

Local Government (Elections) Regulations 1998 (Tas).

Shanahan v Scott (1956) 96 CLR 245; Utah Construction & Engineering Pty Ltd v Pataky [1966] AC 629, applied.

Aust Dig Statutes [149]

REPRESENTATION:

Counsel:

Plaintiffs:  M E O‘Farrell

Defendant:  Solicitor-General

Solicitors:

Plaintiffs:  Dobson Mitchell & Allport

Defendant:  Director of Public Prosecutions

Judgment category classification:

Court Computer Code:

Judgment ID Number:                  92/1998

Number of pages:  8

Serial No 92/1998

File No 1017/1998

1031/1998

DEVONPORT CITY COUNCIL
CENTRAL HIGHLANDS COUNCIL
SOUTHERN MIDLANDS COUNCIL v DAVID FARRELL in his capacity as CHIEF ELECTORAL OFFICER.

REASONS FOR JUDGMENT  UNDERWOOD J

3 August 1998

The issues for determination in two actions that were tried together are whether:

·       the Local Government (Elections) Regulations 1998; Statutory Rule 121998 (“the Elections Regulations”); andor

·       an order of the Minister for Local Government dated 30 July 1998 (“the impugned order”) are ultra vires the provisions of the Local Government Act 1993 (“the Act”).

The litigation

In both actions the plaintiffs are three councils established under the Act and the defendant is the Chief Electoral Officer appointed pursuant to the Electoral Act 1985.

On 16 February 1998, his Excellency the Governor signed the Elections Regulations. I was informed from the Bar table that all these regulations were promulgated and thus took effect on the day they were signed. Excepting the formal provisions, there are ten regulations. They purport to regulate the conduct of an election for a “proposed municipal area”.

On 22 June 1998, an order was made by the Lieutenant Governor called the Local Government (Restructuring) Order 1998, 661998 (“the Restructuring Order”). The authority relied upon for the making of this order is the Act, ss12 and 268A. By cls4-10 inclusive, the Order abolishes (inter alia) the plaintiffs and creates new municipal areas and councils. Clause 11(1) provides:

“The date for elections to be held in the proposed municipal areas specified in clause 7(1) is 25 August 1998.”

However, the Restructuring Order provides that only clauses 1, 2, 3 and 11 take immediate effect. Clause 2(2) states, in effect, that the clauses that abolish existing municipal areas and create new ones will not take effect until after the results of the elections for the proposed municipal areas have been published in accordance with the provisions of the Act. No attack is made upon the validity of the Restructuring Order.

For the plaintiffs, Mr O’Farrell submitted that the Elections Regulations are not authorised by the provisions of the Act. By a writ and statement of claim filed on 29 July 1998, the plaintiffs seek (inter alia) a declaration to that effect. The day after the issue of that writ, the Minister for Local Government made, and published in the Gazette, the impugned Order purportedly pursuant to the Act, s317 seeking, in effect, to validate any invalidity or irregularity in the elections for the proposed municipalities to be conducted pursuant to the Elections Regulations. The plaintiffs immediately issued another writ seeking a declaration that the impugned Order was ultra vires the

provisions of the Act. By consent, both actions were heard together on the same day as the second writ was issued. Urgency arose out of the fact that the electoral process for the election to be held on 25 August 1998, as ordered by the Restructuring Order, had started and nominations for the office of councillor had closed.

The Local Government Act 1993

The Act, Pt3, DivI, makes provision for “municipal areas”. Section 3 defines a municipal area to mean an area referred to in s16 and, relevantly, s16 defines a municipal area to be:

“(a)    any area which is in a city; and

(b)     any area created as a municipal area under this Act; and

(c)     any area which was a municipality with in the meaning of the Local Government Act 1962.”

In short, municipal areas are cities and municipalities in existence immediately prior to the commencement of the Act and any new area that is created by the Act. Division II establishes a council for each municipal area, makes provision for its incorporation and sets out its functions, powers and so on.

The Act clearly contemplates that there will be a review of councils and cities. The enactment of Pt2 created a Local Government Board, the statutory obligations of which include carrying out reviews and advising the Minister. Section 12(1) provides (inter alia) for the creation of new municipal areas andor the abolition of existing municipal areas. That subsection provides as follows:

“12—(1)     As a result of any review, the Governor by order and on the recommendation of the Minister, may—

(a)     create a municipal area; or

(b)     abolish a municipal area; or

(c)     alter and define the boundaries of a municipal area; or

(d)     combine 2 or more municipal areas or parts of such areas to form one municipal area; or

(e)     divide a municipal area into 2 or more municipal areas or parts of 2 or more municipal areas; or

(f)     name or change the name of a municipal area; or

(g)     declare a municipal area to be a city; or

(h)     create a council; or

(i)     abolish a council; or

(j)     dismiss all the councillors; or

(k)     name or change the name of a council; or

(l)     determine the total number of persons to be elected in a municipal area; or

(m)    determine the number of persons to be elected in respect of each electoral district; or

(n)     divide a municipal area into 2 or more electoral districts; or

(o)     abolish an electoral district; or

(p)     alter the boundaries of an electoral district; or

(q)     combine 2 or more electoral districts in a municipal area to form one electoral district; or

(r)     name or change the name of an electoral district; or

(s)     determine that the mayor and deputy mayor of a council are to be elected by the electors.”

Subsection (2) is dependent and consequential on subs(1) for it provides:

“(2)            If the Governor makes an order under subsection (1), the Governor in that order may—

(a)     fix a date for an election to be held; and

(b)     postpone an election otherwise due; and

(c)     extend the terms of office of councillors, mayors and deputy mayors.”

Subsection (3) provides:

“(3)            An election fixed to be held under subsection (2) may be conducted in respect of any proposed municipal area or areas.”

Presumably, reliance is principally placed on subs(2) and (3) for the authority to make the Restructuring Order, cl 11 fixing the election date as 25 August 1998. Although it is not an issue in either of these actions, I draw attention to the fact that s12(1) empowers the Governor (inter alia) to “create” a municipality, and that the making of an Order fixing a date for an election, conferred by subs(2), is dependent upon the Governor having exercised a power in subs(1). It seems to me arguable that at the time the election date for the proposed municipalities was ordered by the Restructuring Order, cl 11, no municipality had been created, as the provisions of the Order concerning the creation of new municipal areas had not then taken effect. Accordingly, it may be said that there was no power to fix a date for an election as the Restructuring Order, cl 11, purports to do. However, the validity of the Restructuring Order, cl 11, fixing an election date with respect to proposed municipal areas is not an issue in these actions and, as this matter was not the subject of argument, it is not appropriate that I express a view about it.

There is no definition of “proposed municipal area”. Indeed, the expression appears in the Act once only, viz, in s12(3). It is not permissible to interpret the Act by reference to an order purportedly made under the Act and therefore it is a little difficult to ascertain the meaning of a proposed municipal area as enacted in s12(3). The Act provides no machinery for proposing municipal areas and, of course, makes no express provisions for elections in respect of proposed municipal areas. The Elections Regulations define “proposed municipal area” as meaning, “a municipal area to be created by, or the boundaries of which are to be altered by, an order under section 12 of the Act.” Whilst Regulations can contain their own definitions, such definitions have no application to the Statute under which they are made. However, in argument, counsel assumed that the areas referred to in the Restructuring Order were “proposed municipal areas” within the meaning of the Act, s12(3), and it is appropriate that these reasons proceed on this basis.

The statutory election provisions

The Act, Pt15 and Sch7, contain a detailed code for council elections. Section 253 provides definitions for Pt15. “Electoral area” is defined to mean the municipal area or electoral district in which the election is to be held. Sections 3 and 17 define an electoral area to mean two or more divisions of a municipal area. Section 3 defines “an elector” to be a person entitled to vote in an election under Pt15. Sections 254 and 255 spell out the qualifications for entitlement to vote; and s256 prescribes the number of votes an elector is permitted to cast. For natural persons, entitlement to vote depends on enrolment on the electoral roll for the House of Assembly in respect of an address within a municipal area andor ownership or occupation of land in a municipal area. A corporate land owner may vote by nominating a person to vote on its behalf if it lodges an approved form with the general manager (a person appointed by the council as provided by the Act, s61) and the general manager accepts that nomination. Section 257 provides that a person entitled to vote must lodge an electoral enrolment form with the general manager of the municipal area in respect of which the

election is to be held. Section 258 obliges the general manager to keep an electoral roll of the owners and occupiers of property in his or her municipal area, and s259 confers on electors and corporations the right to inspect that electoral roll. Section 261 obliges the general manager to prepare and keep a list of electors prepared from the electoral roll and imposes a similar duty on the defendant with respect to the electoral roll for the House of Assembly. The Act, s262 confers a right of appeal to a magistrate against certain decisions made by the general manager in the course of exercising his statutory duties. Part15, Div3 makes provision for polling places and the appointment by the defendant of returning officers and electoral officers. Division 4 provides for notices of election. Section 268A empowers the Governor to fix a polling day. This provision was inserted by Act No 881995. Section 270 provides for the eligibility of candidates for election to council, foremost of which is that he or she be an elector in the municipal area. By virtue of s271, the nomination form for election to council must be signed by at least two electors in the municipal area. Section 275 requires the defendant to advertise certain matters concerning the election (inter alia) at all public offices. A public office is defined by s3 to mean the place at which a council carries on its administrative activities. The Act, Div5 and Div6, deal with advertising and the conduct of the polls respectively. No person is entitled to receive a ballot paper unless his or her name is on the list of electors kept by the general manager in accordance with the Act. Division 7 concerns postal voting. Division 8 (including Sch7) concerns the determination of elections and Div9 deals with vacancies and by-elections. Division 10 creates certain offences in connection with the conduct of elections. Division 11 is entitled “Miscellaneous” and contains ss321 and 324. Section 321 provides, in effect, that no person can act as councillor unless he or she has made a certain declaration, and further provides that the council is to acknowledge that fact at its meeting and the general manager is to record that fact in the minutes of the meeting. In the case of a “proposed council”, this will be difficult to do as the general manger is appointed by the council. Section 324 (1) provides:

“The Governor may make regulations for the purposes of this Part”.

The primary submission made by the learned Solicitor-General on behalf of the defendant was that the Act, Pt15, applies to elections with respect to proposed municipal areas, as well as with respect to existing municipal areas, as defined by the Act. He submitted that if that was correct, then the Elections Regulations were intra vires s324(1) as they only made such changes as were necessary to accommodate the differences between municipal areas and proposed municipal areas. He accepted that if the provisions of Pt15 did not apply to elections in respect to proposed municipal areas, s324(1) could not be relied upon as a source of power for the making of the Elections Regulations. The submission was that the enactment of s12(3) was itself the manifestation of the intention to make Pt15 apply to elections in respect of proposed municipal areas. I pause to observe that as the words “proposed municipal area” only appear in s12(3), no other submission was possible.

I reject the submission that Parliament intended Pt15 to apply to elections in respect of proposed municipal areas. Underpinning many of the fundamental provisions in Pt15 is the concept of the municipal area which, as I have pointed out, is defined in such a way that excludes proposed municipal areas (whatever that may mean). Mr Bale QC submitted that I should apply the opening words of the definition section, “unless the contrary intention appears”, but there is no reason to do this as the contrary intention does not appear in s12(3) or anywhere else in the Act. The brief, non-exhaustive summary of the provisions of Pt15 that I have just set out makes it perfectly clear that the whole of the Part is concerned only with elections in respect of existing municipal areas. Councils in those areas will have appointed a general manager, as the Act, s61 makes such an appointment mandatory. The provisions in Pt15 that refer to a “municipal area” and a “general manager” clearly only apply to a municipal area as defined by s3. They could not apply to a proposed municipal area, for such an area cannot have either a council or a general manager. There is nothing in the few words of s12(3) to counter that plain intention. This intention is reinforced by other provisions in the Act:

·       The Act, s3, defines a council to mean a council established under s18.

· No council can be established unless there is a municipal area either existing at the time the Act came into force or subsequently created under the Act, (ss16 and 18).

·       There is no definition of an election, but s25 provides that a council consists of persons elected in accordance with Pt4.

·       Part 4 provides (inter alia) that councillors are to be elected by electors in the municipal area in accordance with Pt15.

There is no doubt in my mind that Parliament did not intend the provisions of the Act, Pt15, to apply to an election “in respect of any proposed municipal area or areas” as is referred to in s12(3).

The learned Solicitor-General‘s submission is tantamount to inviting the Court to add to the legislation by inserting the words “or proposed municipal area” after the words “municipal area” wherever enacted in the Act, Pt15. With respect to this proposition, I draw attention to the well established authority of Thompson v Goold & Co [1910] AC 409 in which Lord Mersey said at 420, “it is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.” See also Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 61 ALR 471 at 475-476. There is no necessity to add any words to Pt15 as it appears to apply perfectly well to elections with respect to municipal areas as defined by the Act. Further, even if it were permissible to add the words, “or proposed municipal area” to the relevant sections in Pt15, in some instances, particularly those sections which impose obligations on a general manager appointed pursuant to the Act, s61, such an addition would make the legislation meaningless.

I hold then that the Act, Pt15 does not apply to an election in respect of a proposed municipality and accordingly that s324(1) does not authorise the making of the Elections Regulations.

The Election Regulations

The Elections Regulations, cl4 provides:

“Subject to these Regulations an election for a proposed municipal area is to be conducted as if it were an election for an existing municipal area.”

The next seven clauses modify the statutory provisions governing elections for existing municipal areas:

· Clause 5 obliges the defendant to keep an electoral role of the persons entitled to vote “under s254(1) of the Act in respect of a proposed municipal area”. These are the persons enrolled on the House of Assembly electoral roll in respect of an address in the relevant area.

·       Clause 6 imposes on the defendant an obligation to appoint “an electoral roll officer” for each “municipal area”. There is no restriction on the exercise of this power of appointment.

· Clause 7 requires the electoral roll officer to prepare and keep an electoral roll of owners and occupiers of land in the proposed municipality and confers upon him or her all the powers and functions of a general manager under the Act, ss255 and 258 in respect of that roll. This clause (inter alia) confers on this officer a power to reject, in accordance with the Act, s255(3), a corporate nominee elector.

·       Clause 8 imposes a duty on the electoral roll officer to keep a list of electors and to certify that the list is correct and imposes on the defendant an obligation to keep a list of electors with respect to the House of Assembly electoral roll and to certify that the list is correct.

· Clause 9 imposes a duty on the defendant to give notice of the election as is required by the Act and to display such notice in the public offices of the “constituent councils”. As there are no councils in respect of proposed municipal areas, the Elections Regulations create “constituent councils” by defining that term to mean “a council, the municipal area or part of the municipal area of which is to be included in a proposed municipal area.”

· Clause 10 prescribes the requirements for eligibility to be elected a councillor by reference to a proposed municipal area and certain provisions of the Act.

·       Clause 11 makes provision for the display of notice of nomination for election at the public office of “constituent councils”.

·       Finally, clause 12 confers a right of appeal to a magistrate against an action of the electoral roll officer as if that officer were the general manager.

Thus, in summary, the Regulations assume the existence of a statutory power to make regulations to:

·       prescribe the qualification for entitlement to vote;

·       prescribe the qualification for entitlement to be elected a councillor;

·       give the defendant power to appoint officers to carry out specified duties;

·       confer a right of appeal to a magistrate; and

· provide a complete code for an election as extensive as that provided by the Act, Pt15.

The power to make the Elections Regulations

It was common ground that if the Act, Pt15, did not apply to elections in respect of a proposed municipality, the only possible source of power for the Elections Regulations is the Act, s349(1) which confers a power to make regulations “for the purposes of this Act”. What is the extent of the power conferred by those words? The answer to this question must take into account the provisions of the Acts Interpretation Act 1931, s47(1), which provides:

“Where in any Act it is provided that the Governor or any specified authority may make regulations under or for the purposes thereof, those regulations may prescribe—

(a)     any matter or thing not inconsistent with the provisions of that Act and not repugnant to any express enactment in force, which—

(i)     that Act expressly or by implication empowers or directs to be prescribed; or

(ii)     is necessary or convenient for giving effect to the provisions or objects of that Act;”

The proper approach to the interpretation of the Acts Interpretation Act, s47(1)(a) and the Act, s349(1) has been authoritatively stated by the High Court on more than one occasion. The scope of this general power was considered by Dixon CJ, Williams, Webb, Fullagar and Kitto JJ in Shanahan v Scott (1956) 96 CLR 245 at 250. Their Honours surveyed a number of earlier cases and said:

“The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.”

See also Utah Construction & Engineering Pty Ltd v Pataky [1966] AC 629. In R v Toohe;y ex parte Northern Land Council (1982-1983) 151 CLR 170, Gibbs J (as he then was) said at 187:

“One thing that is clearly settled by numerous cases is that a power expressed in terms such as those of s 165 of the Planning Act does not enable the Governor-General in Council or Governor in Council to make regulations ’which go outside the field of operation which the Act marks out for itself‘: Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, at p 410.” [His Honour went on to express approval at the passage from Shanahan v Scott (supra) that I have earlier cited.]

Recent approval for the “Shanahan principle” is to be found in Minister for Foreign Affairs and Trade & Ors v Magno and Anor (1992) 37 FCR 298 at 310 and Johns v Australian Securities Commission & Ors (1992-1993) 178 CLR 408 at 469.

Section 12(3) only enacts that an election, the date of which has been fixed by the Governor pursuant to subs(2), “may be conducted in respect of any municipal area or areas.” It seems to me that the general Regulation power will authorise the making of regulations that are ancillary to the conduct of such an election. Such matters would encompass, for example, the fixing of polling places, the control of advertising at such poling places, the manner in which votes are to be kept and counted, and so on. All of those matters are truly ancillary to the conduct of an election. Section 349(1) will “authorise the provision of subsidiary means of carrying into effect [the conduct of an election] and will cover what is incidental to the [conduct of an election]” (supra). It is clear to me that the Elections Regulations go far beyond that. They purport to enfranchise the electorates and prescribe qualifications for office. They purport to confer on the defendant a power of appointment and purport to confer a right of appeal. None of this can be described as ancillary to the conduct of an election. As I have observed, the Regulations purport to be a code just as extensive as the whole of the provisions of Pt15 and Sch7. The learned Solicitor-General urged upon me the proposition that the words “may be conducted” in s12(3) mean “may be staged”. If this is so, I do not think it assists his argument for whether an election is conducted or staged, such conduct or staging has to be in accordance with defined boundaries. It is for the Legislature to set those boundaries just as it did by enacting Pt15 in the case of municipal areas. Qualification for entitlement to vote and to be elected are fundamental boundaries for any election and cannot be described as something that is ancillary to the conduct or staging of one. Accordingly, I am of the opinion that the Elections Regulations are ultra vires the Act and the plaintiffs are entitled to a declaration to that effect.

The Impugned Order

The Act, s317 provides:

“The Minister, by order and on the recommendation of the Chief Electoral Officer, may—

(a)     provide for such matters as the Minister considers desirable to enable a particular election or elections at a particular time, to be held; or

(b)     validate a defect or an informality in an election or an irregularity in the holding of an election that appears to the Minister not to affect materially the result of the election.”

The learned Solicitor-General submitted that this section was authority for the impugned Order which provides (formal parts omitted):

“I, Denise Swan, being and as Minister for Local Government, on the recommendation of the Chief Electoral Officer, do hereby order that to enable the elections referred to in the Local Government (Restructuring) Order 1998 to be held on the date specified in that Order, the provisions of Part 15 of the Act are to be adopted and applied in relation to those elections, after such adaption as the Chief Electoral Officer considers necessary or desirable.

I further order that, to the extent that there has been any defect, informality or irregularity in the electoral processes to date by reason only of their dependence upon the Local Government (Election) Regulations 1998, that defect, informality or irregularity is hereby validated.

As I observed to the learned Solicitor-General in the course of argument, the terms of the impugned Order are an extraordinary attempt to remove the legislative power from the Parliament into the hands of the Executive. The impugned order, in effect, provides that the law with respect to the entitlement to vote, the entitlement to be elected a councillor and all other matters touching and concerning municipal elections is not that enacted by Parliament but that which the defendant deems desirable from time to time. How that law is to be ascertained is not spelled out in the order. How such law is to be applied and enforced when its content is uncertain and known only to the defendant is more than a little puzzling. It seems to me that the terms of the order offend fundamental principles in a free democratic society. I hasten to interpolate that none of these observations are intended to reflect in any way adversely upon the defendant personally, whom I am quite sure is willing to do his duty in accordance with law as best he can.

Section 317 is an unusual provision. The Solicitor-General was unable to tell me its provenance. I can imagine par(b) authorising an order validating some minor omission in the course of conducting an election, for example, by abridging the time for giving notice pursuant to s269 when such notice was given a day or so late due to inadvertence. However, the scope of par(b) is immaterial for present purposes for it cannot be relied upon to authorise the making of the impugned order as the Minister could not possibly have been satisfied that any defect, informality, or irregularity in the holding of an election did not materially affect the result of the election simply because at the time the order was made there had been no election.

It is not appropriate to attempt to explain in general terms the full scope and extent of s317(a). It suffices to say that whatever its scope may be, it is inconceivable that the Parliament intended to thereby confer wider powers to govern by Ministerial Order than are conferred on the Governor-in-Council to make Regulations pursuant to the Act, s349(1). It would require the clearest words to confer a power to make lawful by Ministerial Order that which is unlawful by reason of being ultra vires the Act. No such clear words appear in the Act, s317(a). The plaintiffs are entitled to a declaration that the impugned order is not authorised by the Act.

I will hear counsel as to the terms of the declaratory orders.