Magno, G. v Evans, G. (Minister for Foreign Affairs & Trade)
[1992] FCA 192
•16 APRIL 1992
Re: GERALDO MAGNO and INES ALMEIDA
And: GARETH EVANS, MINISTER FOR FOREIGN AFFAIRS AND TRADE OF THE COMMONWEALTH
OF AUSTRALIA; COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE and COMMONWEALTH
OF AUSTRALIA
No. V G9 of 1992
FED No. 192
Delegated Legislation
(1992) 35 FCR 235
(1992) 25 ALD 85
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)
CATCHWORDS
Delegated Legislation - Act of Parliament adopting Vienna Convention as part of the law of Australia - duty imposed upon Australia to take appropriate steps to prevent any disturbance of the peace of a foreign mission or impairment of its dignity - power to make regulations not inconsistent with the Act prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to the Act - regulations authorising Minister to certify that the removal of specified objects placed near a mission is an "appropriate step" - regulation effectively empowering Minister to decide what amounts to a disturbance of the peace or an impairment of the dignity of a mission - regulation beyond power.
Diplomatic Privileges and Immunities Act 1967
Diplomatic Privileges and Immunities Regulations (Amendment) 1992, SR 1992 No. 7
Morton v. Union Steamship Co. of N.Z. Ltd. (1951) 83 CLR 402 at p 409
Esmonds Motors Pty. Ltd. v. The Commonwealth (1970) 120 CLR 463 at p 467
HEARING
MELBOURNE
#DATE 16:4:1992
Counsel for the applicants: Mr K.H. Bell
Solicitors for the applicants: Bernard Collaery
Counsel for the respondents: Dr C.N. Jessup QC and Mr R. Kendall
Solicitor for the respondents: Australian Government Solicitor
ORDER
1. The Court answers the question:
"Was the making of the Diplomatic Privileges and Immunities Regulations (Amendment) being Statutory Rule 1992 No. 7 authorised by and within the power conferred by Section 15 of the Diplomatic Privileges and Immunities Act 1967?"
in the negative;
AND ORDERS that:
2. The respondents pay the applicants' costs of and incidental to the
trial of the separate issue concerning the validity of Statutory Rule 1992 No. 7 but execution thereon be stayed until further order;
AND DIRECTS:
3. (i) That within 14 days the respondents file and serve any
further affidavit material upon which they will seek to rely together with a statement of contentions in relation to all unresolved questions;
(ii) That within 14 days after service of the respondents' further affidavit material and statement of contentions the applicants have liberty to file any further affidavit material and a statement of contentions upon which they seek to rely in reply;
(iii) That the trial of all remaining questions to be decided in the proceedings be placed in the list of cases to be fixed for hearing as a matter of priority but not before 18 May 1992 with an estimated time of 1 day.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Introduction
By application filed 20 January 1992 the applicants commenced proceedings seeking the following orders:
1. A declaration that the Diplomatic Privileges and Immunities Regulations (Amendment) 1992 ("the Regulations") are invalid, void and of no force or effect.
2. A declaration that the Certificate issued by the Firstnamed Respondent on or about 17 January 1992 pursuant to the Regulations ("the Certificate") is invalid, void and of no force or effect.
3. An injunction, interim, interlocutory and permanent, restraining each of the Respondents whether by themselves, their servants, agents or howsoever otherwise from:
(a) acting upon or giving any effect to the Certificate; and
(b) removing or taking any steps to cause the removal of any of the 102 crosses presently placed on the land opposite or adjacent to the premises known as the Embassy of the Republic of Indonesia situated in the Australian Capital Territory.
4. A declaration that the decision to issue the Certificate ("the decision") was invalid, void and of no force on the grounds that in making the decision the Firstnamed Respondent:-
(a) failed to accord procedural fairness to the Applicants;
(b) took into account irrelevant considerations;
(c) failed to take into account relevant considerations;
(d) acted unreasonably; and
(e) acted ultra vires.
5. An order that the decision and the Certificate be set aside.
6. Costs.
7. Such further or other orders, directions or relief as the Court deems fit.
In the application the applicants sought by way of interlocutory relief inter alia:
An injunction restraining each of the Respondents whether by themselves, their servants, agents or howsoever otherwise from:
(a) acting upon or giving any effect to the Certificate; and
(b) removing or taking any steps to cause the removal of any of the 102 crosses presently placed on the land opposite or adjacent to the premises known as the Embassy of the Republic of Indonesia situated in the Australian Capital Territory.
Contemporaneously with the application the applicants filed a notice of motion returnable on 23 January 1992 seeking, inter alia, an order that
Until the hearing and determination of this proceeding or further order each of the Respondents whether by themselves, their servants, agents or howsoever otherwise be restrained from:
(a) acting upon or giving any effect to the Certificate issued by the Firstnamed Respondent on or about 17 January 1992 pursuant to the Diplomatic Privileges and Immunities Regulations (Amendment) 1992; and
(b) removing or taking any steps to cause the removal of any of the 102 crosses presently placed on the land opposite or adjacent to the premises known as the Embassy of the Republic of Indonesia situated in the Australian Capital Territory.
These proceedings had been preceded by an urgent ex parte application made before me on behalf of the applicants on 17 January 1992 when I made the following orders:
Upon the Applicants by their Counsel giving the usual undertaking as to damages, the Court Orders that:
1. Until 4.30 p.m. on 23 January 1992 or further Order each of the Respondents whether by themselves, their servants, agents or howsoever otherwise be restrained from removing or taking any steps to cause the removal of any of the 102 crosses presently placed on land opposite or adjacent to the premises known as the Embassy of the Republic of Indonesia situated in the Australian Capital Territory.
2. The costs of this application be reserved.
3. Liberty to apply on 24 hours notice to each party.
4. Applicants to file and serve an Application by 4.00 p.m. on 20 January 1992, such Application to be returnable at 10.15 a.m. on 23 January 1992.
5. The contents of this Order to be notified to the office of the Australian Government Solicitor in Melbourne by telephone.
6. Service of this Order and other documents may be effected by facsimile transmission to the office of the Australian Government Solicitor in Melbourne.
On the return of the notice of motion on 23 January 1992 before Ryan J the application for interlocutory relief was part heard. The injunction granted on 17 January 1992 was extended to 4.30 p.m. on 24 January 1992. On the latter date the hearing of the application was finalised and Ryan J made orders:
1. That the interim injunction ordered on 17 January 1992 and extended on 23 January 1992 be dissolved;
2. That the matter proceed to a directions hearing at a date to be fixed; and
3. That the costs of all parties in the interlocutory application be costs in the cause.
On 7 February 1992 Ryan J ordered, inter alia:
That the following question be heard and decided separately from and before the trial of any other question in the proceedings herein:
"Was the making of the Diplomatic Privileges and Immunities Regulations (Amendment) being Statutory Rule 1992 No. 7 authorised by and within the power conferred by Section 15 of the Diplomatic Privileges and Immunities Act 1967?"
On 18 February 1992 Black C.J. refused an application made on behalf of the applicants pursuant to section 20(1A) of the Federal Court Act to have the matter heard by a Full Court and directed that it be heard by a single judge.
The separate question referred to in Ryan J's order of 7 February 1992 came before me for hearing on 13 April 1992. At the outset counsel for the applicants sought, and was granted without opposition, leave to amend the application by adding a further claim for relief:
4A. An order that upon the delivery of the subject 124 crosses by or on behalf of the applicants to the secondnamed respondent the respondents or one or other of them restore the crosses to the position from which they were removed by officers of the secondnamed respondent on 26 January 1992, namely the land opposite or adjacent to the premises known as The Embassy of the Republic of Indonesia situated in the Australian Capital Territory.
No issue is taken as to the standing of the applicants to seek the relief presently sought nor as to the jurisdiction of the Court to grant it.
After hearing argument from counsel I reserved my decision.
THE FACTSThe factual context in which the question for determination arises is of no relevance in any consideration of the validity of the regulations but a brief overview of the circumstances may assist in understanding the purpose sought to be achieved. The following summary appears to be common cause but should not be regarded as containing any finding of fact.
It is said that on 12 November 1991 at the Santa Cruz Cemetery in Dili, East Timor, a large number of East Timorese were killed and injured by the Indonesian military. This event gave rise to both national and international comment and condemnation. The exact number of individuals killed is a matter of debate but it is thought that more than 100 people were involved. A cousin of the first applicant is known to have been one of the victims. On 18 November 1991 the first applicant (an East Timorese) and a countryman of his together placed 124 white crosses measuring about 500mm in height (the crosses) on the grass verge next to the footpath outside the Indonesian Embassy in Darwin Avenue, Yarralumla, ACT (the Embassy). (The application refers to 102 crosses but the evidence refers to 124. Nothing turns on this discrepancy.)
From and after 17 November 1991 a demonstration was conducted and maintained outside the Embassy by 3 groups notably the ACT Trades and Labour Council (TLC), a Canberra based East Timor support group (the Canberra group) and the Sydney based East Timorese community (the East Timorese community). As part of the demonstration certain objects were placed on public land close to the Embassy. The objects in question were:
(i) a demountable hut once described as the East Timorese Embassy but
later described as the East Timorese information centre;
(ii) a flag pole and associated flags and banners;
(iii) the crosses.
The demountable hut and the flag pole were put in place by the TLC and the Canberra group. The crosses were put in place by the East Timorese community.
After negotiation with the Minister, the TLC and the Canberra group agreed to relocate their material to a new position diagonally across the road some 50 metres from the perimeter of the Embassy, but the spokesperson for the East Timorese community (the second applicant) would not agree to move the crosses.
On 15 January 1992 the Governor-General made the Diplomatic Privileges and Immunities Regulations (Amendment) (SR 1992 No. 7) which came into force upon being notified in the Commonwealth of Australia Gazette on 16 January 1992. On the same day the first respondent (the Minister) signed a certificate in the form following:
COMMONWEALTH OF AUSTRALIA Diplomatic Privileges and Immunities Regulations CERTIFICATE
I, Gareth Evans, Minister of State for Foreign Affairs and Trade, certify that in my opinion the removal of the following prescribed objects:
crosses
from prescribed land or premises, being the prescribed land located within 50 metres of the boundary of the premises of the Indonesian Embassy described below, and in proximity to the premises of the Indonesian Embassy situated at 8 Darwin Avenue, Yarralumla in the Australian Capital Territory, would be an appropriate step within the meaning of Article 22 or 29 of the Convention.
The reasons for the issue of this certificate are that the presence of the prescribed objects on that land or those premises could lead to:
the impairment of the dignity, or the disturbance of the peace, of the mission or of the head, or other diplomatic agent of, the mission. This certificate has effect from 3.30 p.m. the 16th day of January 1992
Dated this 16th day of January 1992 (Signed)
GARETH EVANS
Minister of State for Foreign Affairs and Trade
On or about 26 January 1992 officers of the Australian Federal Police removed the crosses from outside the Embassy. The crosses are now in the custody of the applicants' solicitor.
THE REGULATIONSThe Diplomatic Privileges and Immunities Regulations (SR 1989 No. 287) were made by the Governor-General on 25 October 1989 under the Diplomatic Privileges and Immunities Act 1967. Until amended in January 1992, they contained nothing of relevance in the context of these proceedings. The amending regulations made on 15 January 1992 (SR 1992 No. 7) (hereafter referred to as the regulations) are relatively short and it will be useful to refer to them in full.
Regulation 2 inserts the following new definitions into the parent regulations:
'prescribed land or premises' means land or premises belonging to the Commonwealth or a State or Territory to which the public has access;
'prescribed object' means an object or a structure that is on prescribed land or premises within 100 metres of the premises of a mission or of the residence of the head, or another diplomatic agent, of a mission;
Regulation 3 adds the following new regulations:
5A. (1) The Minister may certify, in the form set out in
the Schedule, that in his or her opinion removal of a prescribed object described in the certificate from prescribed land or premises described in the certificate would be an appropriate step within the meaning of Article 22 or 29 of the Convention.
(2) In deciding whether to issue a certificate, the matters to which the Minister is to have regard include:
(a) the nature of the prescribed object;
(b) the proximity of the object to the premises of a mission or to the residence of the head, or another diplomatic agent, of a mission;
(c) the period for which the object has been on the prescribed land or premises.
(3) A certificate takes effect when the certificate is issued, unless a later time or day is specified in the certificate.
(4) A certificate has effect for a period of 30 days from the day when the certificate was issued.
(5) Subregulation (4) does not prevent the issue of further certificates in respect of matters stated in a certificate.
(6) The Minister is to cause a copy of a certificate to be laid before each House of the Parliament within 15 sitting days of that House after the day when the certificate is issued.
5B. (1) In this regulation:
'prescribed officer' means:
(a) a member or special member of the Australian Federal Police; or
(b) a member of the police force of a State or Territory; or
(c) a member of the Australian Protective Service.
(2) A prescribed officer, with such assistance as the officer reasonably believes is necessary and with such force as is necessary and reasonable, may remove a prescribed object described in a certificate from prescribed land or premises described in the certificate.
(3) A prescribed officer must not remove a prescribed object from prescribed land or premises before giving a reasonable opportunity to a person:
(a) who is apparently in control of the object; or
(b) who placed the object on the land or premises;
to remove the object from the land or premises and take it to a location:
(c) where it may lawfully be placed; and
(d) that is more than 100 metres from the premises of the mission referred to in the certificate or the residence of the head, or another diplomatic agent, of the mission.
(4) When a prescribed officer removes a prescribed object from prescribed land or premises, the officer may retain the object for a period of 7 days from the day when the object is removed from the land or premises.
(5) At the end of the 7 days, the prescribed officer must take reasonable steps to return the prescribed object to a person referred to in paragraph (3)(a) or (b) or (if that person is not entitled to posses it) the owner, unless:
(a) proceedings in respect of which the object may afford evidence (including an appeal to a court in relation to those proceedings) were begun before the end of the 7 days and have not been completed; or
(b) the officer is otherwise authorised by a law, or an order of a court, of the Commonwealth or of a State or Territory to retain, destroy or dispose of the object.
Regulation 4 adds the following schedule at the end of the parent regulations:
SCHEDULE COMMONWEALTH OF AUSTRALIA Diplomatic Privileges and Immunities Regulations CERTIFICATE I, (insert the full name of the Minister), Minister of State for Foreign Affairs and Trade, certify that in my opinion the removal of the following prescribed objects: (insert a description of the objects) from prescribed land or premises, being (insert a description of the land or premises), in proximity to (insert a description of the premises of a mission or of the residence of the head, or another diplomatic agent, of a mission) would be an appropriate step within the meaning of Article 22 or 29 of the Convention. The reasons for the issue of this certificate are that the presence of the prescribed objects on that land or those premises could lead to:
*(a) the impairment of the dignity, or the disturbance of the peace, of the mission or of the head, or another diplomatic agent of, the mission;
*(b) the endangering of the head, or another diplomatic agent, of the mission; *(c) the endangering of the premises of the mission or of the residence of the head, or another diplomatic agent, of the mission. This certificate has effect from (insert the time and date of issue of the certificate or the time and date when the certificate takes effect)
Dated (insert date of issue of certificate) (signature of Minister)
Minister of State for Foreign Affairs and Trade *Omit if inapplicable.
On 10 February 1992 the parent regulations as amended were further amended in the following manner:
(a) A new definition as follows was inserted:
'certificate' means certificate referred to in subregulation 5A(1);
(b) Subregulation 5A(1) was amended by:
(i) omitting 'in his or her opinion';
(ii) omitting 'within the meaning of' and substituting 'to give effect to';
(c) Subregulation 5A(2) was amended by adding at the end:
(d) whether a measure other than removal of the object would give effect to the special duty of Australia under Article 22 of the Convention;
(d) Paragraph 5A(3)(d) was omitted and the following paragraph
substituted:
(d) that is not on prescribed land or premises described in the certificate;
(e) The schedule was amended by:
(i) omitting 'in my opinion';
(ii) omitting 'within the meaning of' and substituting 'to give effect to'.
As the question before the Court deals with the regulations in the form they took at the commencement of the proceedings it is unnecessary to refer to the further amendments. Whether or not the recent amendments cure any defects that may be found to exist in the regulations in their unamended form has not been argued and is not a question presently before the Court for determination.
THE ACTThe Diplomatic Immunities and Privileges Act 1967 (the Act) defines the term "Convention" to mean the Vienna Convention on Diplomatic Relations (a copy of the English text of which is set out in the Schedule to the Act) and relevantly provides in sections 7 and 15:
7. (1) Subject to this section, the provisions of Articles 1, 22 to 24 (inclusive) and 27 to 40
(inclusive) of the Convention have the force of law in Australia and in every external Territory.
(2) For the purposes of those provisions as so having the force of law:
(a) a reference in those provisions to the receiving State shall be read as a reference to Australia and, where the context so permits, as including a reference to every State of the Commonwealth and every Territory;
(b) a reference in those provisions to a national of the receiving State shall be read as a reference to an Australian citizen;
(c) the reference in paragraph 1 of Article 22 to agents of the receiving State shall be read as including a reference to members and special members of the Australian Federal Police, members of the police force of a State or of a Territory and persons exercising a power of entry to premises;
(d) a waiver by the head of the mission of an overseas country, or by a person for the time being performing the functions of the head of the mission of an overseas country, shall be deemed to be a waiver by that overseas country;
(e) the provisions of Articles 35, 36 and 40 shall be treated as granting the privileges or immunities that those Articles require to be granted;
(f) the reference in paragraph 1 of Article 36 to such laws and regulations as the receiving State may adopt shall be read as including a reference to subsection (3), to section 8 and to any regulations made under this Act for the purposes of that paragraph as having the force of law by virtue of this section;
(g) the references in paragraph 4 of Article 37 and paragraph 2 of Article 38 to the extent to which privileges and immunities are admitted by the receiving State shall be read as references to the extent to which privileges and immunities are granted by section 11; and
(h) the reference in paragraph 1 of Article 39 to the Ministry for Foreign Affairs or such other ministry as may be agreed shall be read as a reference to the Department of Foreign Affairs and Trade.
(3) Nothing in subsection (1) affects the application of any law of the Commonwealth or of a Territory relating to quarantine, or prohibiting or restricting the importation into, or the exportation from, Australia or that Territory, as the case may be, of any animals, plants or goods, but this subsection does not prejudice the immunity from suit or from civil or criminal process that a person has by virtue of subsection (1).
(4) The provisions of the Convention, in so far as they provide for the exemption from tax of any income, apply, for the purposes of the application of the Income Tax Assessment Act 1936, to assessments in respect of income of the year of income that commenced on 1 July 1967, and in respect of income of all subsequent years of income.
(5) For the purposes of section 38 of the Judiciary Act 1903, a matter arising under the Convention as having the force of law by virtue of this section shall be deemed not to be a matter arising directly under a treaty. ...
15. The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act.
The only two articles of the Convention having any relevance in these proceedings are articles 22 and 29 which are as follows:
Article 22
1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
Article 29 The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
THE ISSUE
The single issue for determination is whether the making of the regulations was a valid exercise of the regulation making power conferred by section 15 of the Act. The argument that the regulations are invalid was put for the applicants was advanced under a number of different headings notably:
- the regulations go beyond the scope and object of the legislation; - the regulations contain an impermissible subdelegation; - the regulations are inconsistent with the enabling legislation; - the regulations are uncertain; - the regulations are not reasonably proportionate to the pursuit of the enabling purpose;
- the regulations cut down the rights of individuals to express themselves.
Each of these propositions was supported by judicial authority of considerable standing and I do not understand the respondents to challenge any of the principles involved. They do however take issue with the manner in which the applicants seek to apply those principles in the instant case.
With respect, I do not think that this case requires an analysis of all of the issues raised. Rather it seems to me that the answer to the question posed can readily be ascertained by resorting to basic principles. Two such principles may be expressed thus:
The question of the validity of the regulation depends upon the statutory power in pursuance of which it was adopted by the Governor-General in Council (Morton v. Union Steamship Co. of N.Z. Ltd. (1951) 83 CLR 402 at p 409). The nature and purpose of the (Act) and of its substantial provisions ... set the limits to the ... power to make regulations (Esmonds Motors Pty. Ltd. v. The Commonwealth
(1970) 120 CLR 463 at p 467).
It will be useful to first examine the relevant sections of the Act and for present purposes it will be convenient to consider the application of the Act, and the regulations, in relation only to article 22(2). The conclusions reached will have equal application with respect to other parts of article 22 and to article 29.
The term "mission" is not defined in the Convention but in the Act it is defined to mean a diplomatic mission (s.4(1)) and having regard to the fourth recital of the Convention and article 1, the term obviously has the same meaning in the Convention.
The effect of subsections 7(1) and 7(2)(a) is that Parliament has enacted that:
'Australia is under a special duty to take all appropriate steps ... to prevent any disturbance of the peace of a diplomatic mission or impairment of its dignity.'
Such is the duty which Parliament has imposed. It is a duty that is subject only to the provisions of section 7 of the Act, which provisions in the present context do not affect the generality of what is set out above. As the power conferred by section 15 is to make regulations 'not inconsistent with (the) Act', it must follow that nothing in the regulations can validly affect the nature and extent of the duty imposed by section 7.
It is notable that section 7 contains a number of provisions which control the manner in which the Convention provisions are to be applied under Australian law, but apart from paragraph 7(2)(a) none of those provisions touches upon the manner in which articles 22 and 29 are to be construed or implemented.
The Act is silent as to the manner in which the duty imposed by subsection 7(1) is to be enforced, however it would seem that a regulation prescribing a procedure whereby the duty imposed by section 7(1) could be enforced would fall within the ambit of the power to make regulations 'necessary or convenient ... for ... giving effect to (the) Act.'
The respondents argue that the amendments are indeed an exercise of that power.
Neither the Convention nor the Act seeks to define what is to be regarded as conduct which amounts to a 'disturbance of the peace of (a) mission or impairment of its dignity'. If it had chosen to do so, Parliament may well have defined what, for the purpose of Australian law, the concepts of disturbance of the peace and the impairment of dignity are to convey but it did not take that course and accordingly the terms of the Convention, in so far as they have the force of law in Australia must be construed according to the usual principles of construction. The same observation may be made in respect of the meaning of the words 'all appropriate steps'.
The existence of an object or a structure on land or premises belonging to the Commonwealth or a State or Territory to which the public has access (public land), within 100 metres of the premises of a mission (in the regulations a prescribed object) may well constitute a disturbance of the peace, or an impairment of the dignity, of the mission. Whether it does or not will depend upon the particular facts of the case and upon the proper construction of the words of article 22(2) of the Convention. Clearly, it will not be every prescribed object that will constitute such a disturbance or impairment nor will every step capable of being taken to prevent a disturbance or impairment be 'an appropriate step'.
The nature and the purpose of section 7 of the Act is to give the Convention the force of law in Australia. Nothing in the Act indicates that the provisions of articles 22 or 29 are to have a meaning in Australian law other than the meaning which the words used in the articles convey. A regulation which enables the meaning of the words of the Convention to be either expanded or contracted is not a regulation 'not inconsistent with (the) Act' and would therefore fall outside of the power conferred by section 15.
The real effect of regulation 5A is to permit the Minister to decide that an object constitutes a threat to the peace, or an impairment of the dignity, of a mission and further that the removal of the object will be an appropriate step to prevent such threat or impairment. He does this simply by forming an opinion that the removal of a particular prescribed object or class of prescribed objects would be an appropriate step under article 22 or article 29 and certifying to that effect.
The regulation making power clearly does not extend to authorising regulations to be made defining the meaning of terms used in the Act. Nor does it contemplate that regulations may authorise the Minister, or indeed any other person or authority, to be the arbiter of what constitutes a threat to the peace, or an impairment of the dignity, of a mission or of what steps are appropriate to prevent any disturbance of the peace of a mission or impairment of its dignity. To achieve either of those ends very specific powers would be required in the Act itself.
What the regulations purport to do is something which Parliament has neither done itself nor delegated to the regulation making authority the power to do. The regulations are neither necessary nor convenient for the giving effect to the Act. They are clearly inconsistent with the Act. For these reasons the regulations are not a valid exercise of power under section 15 of the Act.
CONCLUSIONFor the reasons set out above, the question referred to the Court for determination should be answered in the negative.
0
1
0