MINISTER FOR LOCAL GOVERNMENT and TOWN OF KWINANA
[2012] WASAT 132
•27 JUNE 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: MINISTER FOR LOCAL GOVERNMENT and TOWN OF KWINANA [2012] WASAT 132
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MR P McNAB (SENIOR MEMBER)
HEARD: 18 JUNE 2012
DELIVERED : 27 JUNE 2012
FILE NO/S: DR 115 of 2012
BETWEEN: MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
TOWN OF KWINANA
Respondent
FILE NO/S :DR 116 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
CITY OF ALBANY
Respondent
FILE NO/S :DR 117 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
CITY OF BELMONT
Respondent
FILE NO/S :DR 118 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
SHIRE OF MURRAY
Respondent
FILE NO/S :DR 119 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
SHIRE OF PERENJORI
Respondent
FILE NO/S :DR 120 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
SHIRE OF WESTONIA
Respondent
FILE NO/S :DR 121 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
SHIRE OF THREE SPRINGS
Respondent
FILE NO/S :DR 122 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
SHIRE OF EXMOUTH
Respondent
FILE NO/S :DR 123 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
CITY OF GOSNELLS
Respondent
FILE NO/S :DR 124 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
SHIRE OF KONDININ
Respondent
FILE NO/S :DR 125 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
SHIRE OF CHAPMAN VALLEY
Respondent
FILE NO/S :DR 126 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
SHIRE OF SANDSTONE
Respondent
FILE NO/S :DR 127 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
CITY OF ROCKINGHAM
Respondent
FILE NO/S :DR 128 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
SHIRE OF CARNARVON
Respondent
FILE NO/S :DR 129 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
CITY OF BUNBURY
Respondent
FILE NO/S :DR 130 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
SHIRE OF KALAMUNDA
Respondent
FILE NO/S :DR 131 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
CITY OF COCKBURN
Respondent
FILE NO/S :DR 132 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
SHIRE OF MURCHISON
Respondent
FILE NO/S :DR 146 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
SHIRE OF GOOMALLING
Respondent
FILE NO/S :DR 147 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
SHIRE OF WILLIAMS
Respondent
FILE NO/S :DR 148 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
SHIRE OF WOODANILLING
Respondent
FILE NO/S :DR 149 of 2012
BETWEEN :MINISTER FOR LOCAL GOVERNMENT
Applicant
AND
SHIRE OF DOWERIN
Respondent
Catchwords:
Local government - Rating - Question of general interest as to whether rates imposed in accordance with Local Government Act 1995 (WA) - Whether Minister for Local Government has standing to bring application - Whether Minister a person for purposes of section
Words and phrases: 'person' and 'any person'
Legislation:
Acts Amendment and Repeal (Valuation of Land) Act 1978 (WA)
Interpretation Act 1984 (WA), s 3, s 5
Justices Act 1902 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 681
Local Government Act 1934 - 1936 (SA), s 709, s 709(e), s 710
Local Government Act 1960 (WA), s 681
Local Government Act 1995 (WA), s 1.6, s 6.33(3), s 6.76, s 6.82, Pt 6, Div 6, Pt 8
Local Government Act 1999 (SA), s 276, s 276(2)
Road Districts Act 1919 (WA), s 359A
Road Districts Amendment Act 1946 (WA), s 14
State Administrative Tribunal Act 2004 (WA), s 56(2), s 59, s 59(2), s 59(10)
Result:
Applicant found to have standing to make application
Category: B
Representation:
DR 115 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: Mr D McLeod
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: McLeods
DR 116 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: Mr D McLeod
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: McLeods
DR 117 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: Mr D McLeod
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: McLeods
DR 118 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: Mr D McLeod
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: McLeods
DR 119 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: Mr D McLeod
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: McLeods
DR 120 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: N/A
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: Self-represented
DR 121 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: N/A
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: Self-represented
DR 122 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: Mr D McLeod
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: McLeods
DR 123 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: N/A
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: Self-represented
DR 124 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: Mr D McLeod
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: McLeods
DR 125 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: Mr D McLeod
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: McLeods
DR 126 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: Mr D McLeod
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: McLeods
DR 127 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: N/A
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: Self-represented
DR 128 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: Mr D McLeod
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: McLeods
DR 129 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: N/A
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: Self-represented
DR 130 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: N/A
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: Self-represented
DR 131 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: Mr D McLeod
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: McLeods
DR 132 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: N/A
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: Self-represented
DR 146 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: N/A
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: Self-represented
DR 147 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: N/A
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: Self-represented
DR 148 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: N/A
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: Self-represented
DR 149 of 2012
Counsel:
Applicant: Mr C Bydder
Respondent: N/A
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: Self-represented
Case(s) referred to in decision(s):
Boarland (Inspector of Taxes) v Madras Electricity Supply Corporation [1953] 1 WLR 920
Gidaro v Secretary Department of Social Security (1998) 83 FCR 139
Leo N Dunn & Sons Pty Ltd v McPhillamy [2000] NSWCA 343
Levy v State of Victoria [1997] HCA 31; (1997) 189 CLR 579
Madras Electric Supply Corporation Ltd v Boarland [1955] AC 667
McGraw Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633
O'Reilly v Commissioners of State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1
Re City Area Leases Ordinance 1936; Anthony Hordern and Sons Ltd (1963) 9 LGRA 190
Re Fielding and The Queen (1968) 2 OR 405
Wolff v Mosman Park Road Board (1944) 46 WALR 8
REASONS FOR DECISION OF THE PRESIDENT OF THE TRIBUNAL:
Summary of Tribunal's decision
The Minister for Local Government made an application to quash certain differential general rates imposed by each of the local government respondents. Section 6.82 of the Local Government Act 1995 (WA) provides that 'the local government or any person may refer' a question of general interest as to whether a rate or service charge was imposed in accordance with the Act. The question arose as to whether the Minister for Local Government came within the ambit of the expression 'any person' for the purposes of that section. The parties had reached agreement as to the validity of the rates and sought to have consent orders made by the Tribunal. The Tribunal could only make the proposed orders if there was a valid application before it commenced by a person with standing to make the application.
In order to resolve that jurisdictional question, the Tribunal, constituted by the President and a Senior Member was convened. After hearing submissions, the President, acting pursuant to s 59(2) and s 59(10) of the State Administrative Tribunal Act 2004 (WA) determined the question of law by concluding that the Minister for Local Government was included in the expression 'any person' for the purposes of s 6.82 of the Local Government Act 1995 (WA).
The applications
In each of these 22 matters, the Minister for Local Government brought an application pursuant to s 6.82 of the Local Government Act 1995 (WA) (LG Act), seeking to quash certain rates imposed by each respondent. In each case, the Minister contended that the rates had not been imposed in accordance with the LG Act.
Section 6.82 of the LG Act provides:
General review of imposition of rate or service charge
(1)Where there is a question of general interest as to whether a rate or service charge was imposed in accordance with this Act, the local government or any person may refer the question to the State Administrative Tribunal to have it resolved.
(2)Subsection (1) does not enable a person to have a question relating to that person’s own individual case resolved under this section if it could be, or could have been, resolved under section 6.76.
(3)The State Administrative Tribunal dealing with a matter referred to it under this section may make an order quashing a rate or service charge which in its opinion has been improperly made or imposed.
At the initial directions hearing, before Senior Member McNab, the Senior Member raised the question as to whether the Minister came within the expression 'any person' for the purposes of s 6.82 of the LG Act. The matter was subsequently referred to mediation, which resulted in agreement by each of the respondents that certain of the impugned rates should be quashed, apparently on the basis that it was accepted that those rates had not been imposed in accordance with the LG Act. The parties were, therefore, prepared to settle the proceedings.
By reason of s 56(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal cannot make an order to give effect to an agreed settlement if it would not have the power to make a decision in terms of that agreed settlement. Thus, the Tribunal could only make the orders proposed by the parties by consent, if the proceedings had been validly instituted by the Minister.
In order to resolve the question of jurisdiction, the application was referred to the President of the Tribunal who constituted a Tribunal comprised of himself and (with consent of the parties), Senior Member McNab (who had acted as mediator), to consider the question of the Minister's standing.
Submissions were filed by the Minister prior to hearing. A number of the local government respondents were represented by counsel, Mr McLeod, who did not seek to contradict the Minister's submissions. Those local governments who were self-represented also did not seek to contradict the arguments put forward by the Minister.
After hearing oral submissions, the Tribunal concluded that it had jurisdiction to deal with the matters on the application of the Minister. The determination of that question of law was made by the President pursuant to s 59 of the SAT Act. That section provides that where the presiding member of the Tribunal is the President, a question of law is decided by the Tribunal according to the opinion of the President. That opinion was not shared by Senior Member McNab.
Proper construction of the words 'any person'
Construing the words of an enactment requires consideration of the ordinary meaning conveyed by the words read in the context of the written law and the purpose or object underlying the written law.
The starting point is to consider the ordinary meaning of the expression 'any person'. The Macquarie Concise Dictionary, (4thed, 2006) (and online edition) define person, in law, as 'any human being or artificial body of people, having rights or duties before the law'. The Interpretation Act 1984 (WA) s 5, defines person to include a public body, company, or association or body of persons, corporate or unincorporated. That definition applies unless, in a particular written law, express provision is made to the contrary, or, in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with that application - Interpretation Act s 3. It is clear that the Crown, or its Minister, is capable of being a 'person' unless the context of the particular legislation otherwise demands - see McGraw Hinds(Aust) Pty Ltd v Smith (1979) 144 CLR 633 (McGraw Hinds at 649 where Stephen J referred with approval to Lord Tucker's observation in Madras Electric Supply Corporation Ltd v Boarland [1955] AC 667 at 692 that the 'ordinary and natural meaning of 'person' is one which 'clearly includes the Crown' (See also Gibbs J at 643 - 644, 656 per Mason J, and Jacobs J at 663, ).
Because in its ordinary meaning, in the context of legislation, the word 'person' includes the Crown, and thus a Minister, the question becomes whether the use of the word in s 6.82 of the LG Act, read in the context of the Act as a whole, including the legislative history of the section, demands that the word be read down so as to exclude the Minister.
In his submissions, counsel for the Minister, Mr Bydder, identified (but then argued against) two possible textual bases for reading down the term 'person' in s 6.82 of the LG Act. They were:
a)The express reference to local government in s 6.82 which, at least on the broader meaning provided by s 5 of the Interpretation Act, is a 'person' appears to be redundant if the term 'person' bears its wider meaning in s 6.82 of the LG Act;
b)The omission of any express reference to the Minister in s 6.82, despite the fact that the LG Act is replete with references to the Minister in its other provisions.
The separate reference to the local government, in the context of s 6.82, is understandable. As Mr Bydder submitted, it might be doubted whether the local government would have power to challenge its own rates absent a provision expressly authorising it to do so. The same observation cannot be made about the Minister, who might be expected to take action to ensure compliance with the legislation for which he holds administrative responsibility. The separate reference to the local government in s 6.82 does not provide a basis for excluding any other person from the definition of 'any person'.
It is true that the LG Act is replete with references to the Minister. Relevant to the present proceedings is a reference to the Minister in s 6.33(3) which requires the approval of the Minister to the imposition of a differential general rate in certain circumstances. A number of specifications for requirements for approval by the Minister as to various budgetary matters are found in Pt 6, Div 6 of the LG Act. There are numerous other provisions, particularly in Pt 8 of the Act, which reflect the overall supervisory role of the Minister in relation to local government. As counsel for the Minister submitted, those references appear in the context of things which only the Minister (or his delegate) has the power or duty to do. They do not appear in the context of things which the Minister can do in common with others as is the case in s 6.82 of the LG Act.
Section 1.6 of the LG Act provides that the LG Act does not bind the Crown. That provision does not deprive the Crown of the ability to take the benefit of provisions of the Act, such as s 6.82 - see McGraw Hinds at the passages referred to above.
The plain words of s 6.82 do not suggest any requirement for standing to refer a question of general interest as to whether a rate was imposed in accordance with the LG Act to the Tribunal.
There may be an argument, having regard to the legislative history of s 6.82, as to whether standing to refer a question under s 6.82 is at large, or requires that some form of material interest be demonstrated in order to enjoy standing to make a referral. For example, would it be open to a person resident outside of Western Australia with no connection to the land or to the local government that has imposed the impugned rate, to refer a matter to the Tribunal under s 6.82?
The origins of s 6.82 of the LG Act can be traced back to s 359A of the Road Districts Act 1919 (WA) which was inserted by s 14 of the Road Districts Amendment Act 1946 (WA). That section provided for 'a Board or a ratepayer of any district or any person interested' to lay a complaint to a court of summary jurisdiction to 'try the validity of any assessment, or general or loan rate or order for borrowing money' affecting a municipal district, and empowered a court of summary jurisdiction to quash any such assessment. That provision used the expression 'any person interested'.
Section 359A of the Road Districts Act was replaced by s 681 of the Local Government (Miscellaneous Provisions) Act1960 (WA), previously called the Local Government Act 1960 (WA) (the 1960 Act). Section 681 of the 1960 Act provided that where there is a question of general interest 'as to whether proper principles have or have not been applied' in relation to the imposition of a rate, 'the council or a ratepayer of the municipality, or other person', could take proceedings to have the question resolved. The proceedings were to be taken under the now repealed Justices Act 1902 (WA) and were to be determined by a stipendiary magistrate. Like s 6.82 of the LG Act, s 681 of the 1960 Act specified that the section did not enable a person to have a question relating to their own individual case resolved under that section, if it could have been resolved under an earlier provision of that Act which permitted appeals to the Valuation Appeal Court for rectification of a rate book in relation to a particular property on certain specified grounds, similar to those found in s 6.76 of the LG Act.
Section 681 of the 1960 Act was amended by the Acts Amendment and Repeal (Valuation of Land) Act1978 (WA), but not in any way relevant for present purposes. The amended section did not change the description of those who might appeal in relation to a question of general interest as to whether proper principles had been applied in the imposition under the Act of a rate.
Thus, the expression 'any person interested' used in the Road Districts Act was replaced by the expression 'other person' in s 681 of the 1960 Act, and in turn by the expression 'any person' in s 6.82 of the LG Act in 1995. The reference to 'a ratepayer' which appeared in both the Road Districts Act and the 1960 Act was not used in s 6.82 of the LG Act. Presumably that was because the expression 'any person' was considered to include ratepayers and 'other persons' who previously enjoyed standing under the 1960 Act.
Counsel for the Minister was unable to locate any relevant debate on the introduction of s 6.82 of the LG Act or s 681 of the 1960 Act. Debate on s 359A of the Road Districts Act was located. The relevant passages of Hansard suggest that s 359A was introduced following a challenge by a ratepayer to test the validity of a rate assessment in the Supreme Court about two and a half years after the assessment had occurred - see Wolff v Mosman Park Road Board (1944) 46 WALR 8. The section was intended to impose a time limit within which proceedings could be commenced to challenge the validity of the rate, and to provide for the challenge to be made by complaint to a stipendiary magistrate sitting as a court of summary jurisdiction. It was thus designed to provide both a time limitation for such challenges, and a more summary procedure and presumably more timely resolution of the question.
A marginal note to s 359A of the Road Districts Act makes reference to s 709(e) of the Local Government Act 1934 - 1936 (SA) (1934 SA Act). Reference was made to that section as the basis for the drafting of s 359A during parliamentary debate on introduction of that section. Section 709 of the 1934 SA Act enabled proceedings to try the validity of any rate to be determined in a summary way by a court of summary jurisdiction. Section 710 of the 1934 SA Act provided that a complaint under s 709 could be laid by 'the council, or by any elector for the area or any other person interested'. Section 359A of the Road Districts Act substantially reflected the same standing provision. The 1934 SA Act has now been repealed and the current position in relation to trying the validity of rates is dealt with by s 276 of the Local Government Act 1999 (SA) (1999 SA Act). Subsection (2) of that section permits proceedings to be brought by the council, an elector, the Minister, or any other person with a material interest in the matter.
Senior Member McNab is of the view that the formulation of potential applicants in s 276 of the 1999 SA Act so as to separately specify that the Minister may bring proceedings suggests that, absent that specification, the Minister would not come within the expression 'other person'. I do not, with respect, share the Senior Member's view. There is nothing in the materials before the Tribunal that s 276(2) was intended to extend the range of persons who could bring an application more widely than under s 709 of the 1934 SA Act. Rather, the expression 'any other person with a material interest in the matter', suggests that those listed before, including the Minister, also have a material interest in the matter and thus would have been an 'other person interested' for the purposes of s 710 of the 1934 SA Act.
In my view, nothing in the legislative history, nor in the relevant parliamentary debates, suggests an intention to exclude the Minister from the class of persons able to challenge the imposition of a rate on the basis that it had not been imposed in accordance with the relevant legislation. The mere fact that particular litigation instituted by a ratepayer inspired the amendment does not require that the category of persons who might avail themselves of the simplified procedures be limited in some way.
Even if it is accepted that a person referring a matter under s 6.82 of the LG Act must have a material interest in the validity of the rate, the Minister clearly satisfies that test. The Minister is charged with the proper administration of the LG Act. As noted above, the Minister has a particular supervisory role in relation to the affairs and performance of local governments, including various budgetary matters, and in some circumstances, the Minister's consent is required for the striking of differential general rates. In my view, given the role of the Minister as the person responsible for the administration of the LG Act, the Minister has an obvious material interest in questions of general interest as to whether a rate or service charge is imposed in accordance with the LG Act.
To deprive the Minister of standing to bring an application under s 6.82 of the LG Act would result in the Minister, should he wish to challenge the validity of a rate imposed by a local government, being required to institute proceedings for prerogative relief in the Supreme Court. It was in order to avoid that process that the simplified procedure for the challenge to the validity of the rate was introduced in the Road Districts Act, and was preserved by the various provisions which followed through to s 6.82 of the LG Act in its present terms. There is no reason to conclude that the legislature intended, when it introduced s 6.82 of the LG Act, or any of its predecessors, to exclude the Minister from that process.
There is no reason to read down the expression 'any person' as it appears in s 6.82 of the LG Act to exclude the Minister for Local Government.
Conclusion
It was for those reasons that I concluded that the Minister had standing to bring an application under s 6.82 of the LG Act, and that the Tribunal therefore has jurisdiction to deal with the application, and make the consent orders proposed by the parties.
REASONS OF SENIOR MEMBER MCNAB
I agree that the word 'person' is, on its face, wide enough to include a Minister; other State officials; a relevant body politic; and the Crown (perhaps even the Monarch herself). However, whether the word's use in a particular statute is directed to or has application to such a person will still depend upon the history, context and purpose of the relevant statutory provision: cf Boarland (Inspector of Taxes) v Madras Electricity Supply Corporation [1953] 1 WLR 920 per Upjohn J at 927 (aff'd: [1955] AC 667): 'There is here no context which compels me to give some special meaning to the word "person". In its ordinary meaning it is a word of widest import ...'
Importantly however, just as with defined terms 'one should start with examining the purpose of [the provision] as it appears on [its] face[.]' It is not then 'looking just at picking up the definition of the [relevant] word ... even though that definition serves the function of defining that word for the purpose of the whole of [the relevant part of the Act]. The [relevant] word ... appears in a context and with a purpose ...': per Mason P (Meagher and Heydon JJA agreeing) in Leo N Dunn & Sons Pty Ltd v McPhillamy [2000] NSWCA 343 at [17], emphasis added. So too, Burchett J in Gidaro v Secretary Department of Social Security (1998) 83 FCR 139 at 150 151 but extending the point to an expression 'with a technical legal meaning' in keeping with 'the trend of authority'.
I also agree that a related expression, such as 'any person', must be read very widely subject only, of course, to any limitations derived from legislative history, context and purpose. See, for example, Re City Area Leases Ordinance 1936; Anthony Hordern and Sons Ltd (1963) 9 LGRA 190 per Dunphy J at 207: ' "[A]ny person" cannot be taken in a literal sense. "Any person" must mean "any person who has a real and proximate reason to advance why the [lease] variation should not be granted …" '; Re Fielding and The Queen (1968) 2 OR 405 per Aylesworth JA (Kelly and Evans JJA agreeing) at 407: 'This language ['any person'], of course, is without restriction, but … must be given a restriction appropriate to the intention of the [Act], to the matter before the [decision maker] and to the construction of the statute as a whole.'
Here, the legislative history, context and purpose of s 6.82 of the LG Act all plainly point to the Legislature providing (1) to local governments and (2) to ratepayers and certain other interested parties (the latter two classes prevented from raising, as may be applicable, their 'own individual case[s]': 6.82(2)) a summary procedure to enable a challenge to certain local rates and charges. Against this backdrop there is set, and then in some contrast, an altogether different figure: the Minister administering the same Act.
It must be taken to form part of the received and basal assumptions of both the drafter and the interpreter of laws that there is (1) a 'special position of constitutional responsibility which Ministers occupy' (O'Reilly v Commissioners of State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1 per Gibbs CJ at 11) and (2) the certain knowledge of their many overarching duties, particularly as regards their involvement in the execution and maintenance of the laws (including here the giving of consent under the LG Act, the absence of which might lead to a successful challenge to a rate in the Supreme Court, or this Tribunal).
In this context, the inclusion of, or more accurately, the extension to, 'the Minister' in respect of this summary procedure, a procedure designed on its face only for local governments and, speaking generally, certain relevant citizens would, in my respectful opinion, require either express words or words of suitable implication indicating the same. Neither circumstance is satisfied here. In particular, the collocation 'any person' does not, without more, meet either of these criteria. For the reasons given immediately above, such a phrase cannot rise like a stream higher than its source. In short, a Minister, in this context, is not just 'any person'.
In addition, 'convenience', to the extent that it has been suggested, is insufficient to achieve the same goal: cf Levy v State of Victoria [1997] HCA 31; (1997) 189 CLR 579 per Brennan CJ at 600: '[T]he source of the jurisdiction should be identified to ensure that mere convenience or utility does not lead to a wrongful assumption of jurisdiction.'
It is thus more than a coincidence (or a mere convenience of drafting) that the South Australian parliament chose, in the latest version of the legislative device for more or less summary challenge to rates and other matters (1999 SA Act, s 276(2) - the predecessor of which, as appears above, was first adapted back in 1946 for use in this State), to expressly specify 'the Minister' as a person with a 'material interest' in respect of the bringing of such a challenge. Such a step was in my view neither declaratory nor confirmatory of the position but rather, as I have indicated, necessary to achieve the objective of Ministerial access to such summary procedures.
For these reasons I would have determined that the Tribunal lacked jurisdiction to entertain the applications.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT
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