Parkes v Entwhistle

[1990] HCATrans 130

•• ---~JI

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Mll of 1990

B e t w e e n -

NORMAN DOUGLAS PARKES

A:J:J:;_ica:::.:

and

KEITH ERIC ENTWHISTLE

Res po:::.ce:-::

Application for special

leave to appeal

DEANE J
GAUDRON J

McHUGH J

Parkes

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 JUNE 1990, AT 12.20 PM

Copyright in the High Court of Australia

MlT 10/1/PLC 1 8,16/90

MR J.D. HAMMOND: If Your Honours please, I appear on behalf c:

the applicant in this matter. (instructed by Pu::-,:2s

Clarke Richards)

MR H.C. BERKELEY, QC, Solicitor-General for Victoria: If the

Court pleases, I appear with my learned friend,

MR R. HOWIE, for the respondent. (instructed by

G. Lewis, Victorian Government Solicitor)

MR H.Ai'1MOND: If Your Honours please, in our submission,

Your Honours, this does raise a matter which is of

general importance throughout Australia. I have

taken the liberty of preparing a very short outline

of submissions which may assist the Court in dealin2

with the matter. If I could be permitted to hand

them up.

DEANE J:  Yes, Mr Hammond.

MR H.Ai'1MOND: If the Court pleases, we submit that this partL:·_ilar

case does raise for determination a question of

constitutional importance to all Australian parliacents.

As the Court is no doubt aware, there are similar

provisions in at least the statutes of New South ~212s,

Queensland and Western Australia which have • rovisions

similar to the provision in the ROAD SAFETY ACT and

some 26 other Acts, at least, in Victoria.

We submit the same principles that need to je

applied in this case interpreting those provisions

will be the same sort of principles that ought be

applied in interpreting the like provisions in the
other State statutes. In our submission, Your Honours,

the critical question is whether or not the Executive

carried out the intention of Parliament when it, we

say wrongfully proclaimed various provisions of a

particular Act on various days to come into effect on

various days.

The case also raises, Your Honours, the question of the use of "plain English" as it has become knoi:v--n

in the intepretation of statutes. There has been a

growing tendency, as Your Honours are no doubt aware,

to endeavour to shorten, make more simple, the

legislation and we respectfully submit that notwithstandin2

that attempt, any "plain English" statute need be

looked at not only as to its words but in its context

both historical and philological. In our respectful

submission, His Honour Mr Justice Marks,when

seizing upon the "plain English" concept, with

respect, failed to read the "plain English" words in

the context of the statute in which they appear,

namely, the INTERPRETATION OF LEGISLATION ACT.

We also submit that in any event, Your Honours,

that if, as a matter of statutory construction,

Parliament did empower and thereby intend the Exec.1tive

to make the proclamations, and there were some six

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proclamations made, Your Honours - if they did in:end

the Executive to make those proclamations then, in

any event, the particular sections are not in force,

are not operative, because the particular proclama:ion

which purported to bring sections 49(1) (f) and 95

of the ROAD SAFETY ACT into force was not a valid

proclamation. In that respect, Your Honours, we will

be relying and do rely on the case of B V MEDICAL

SUPERINTENDENT OF MACQUARIE HOSPITAL, (198 7) 10 ~S\·,"LR.

440, per the President, His Honour Mr Justice Kirby

at page 447 and of Your Honour Justice McHugh when

you sat as a Justice of Appeal in that court at
page 463, and it is no doubt that Your Honour

Justice McHugh would recollect, in that particular

case, the question as to the validity of the

proclamation was not raised but two members of that

court did raise the issue as to the validity of a

proclamation when the effect of the proclamation or

lack of proclamation may have changed the legisla:ive

plan.

GAUDRON J: Well, what, precisely, is it in this case, Xr Ha:::..~onc,

that takes from the validity of the proclamation if

Parliament did empower different proclamations on

different dates?

MR HANMOND:  Perhaps if I could hand up the annexure, Your Ho:1c·..::- ,

that is the annexure to my submission.

GAUDRON J:  And this, I take it, is a matter that was not raised

below, is it?

MR HAMMOND:  In the alternative, it was not, Your Honour. In

fact,there were two reasons for that.

DEANE J:	I do not follow that answer, "In the alternative,
it was not"?
MR HA.''1MOND:	No, the alternative argument was not put below,

that is what I meant, Your Honour, I am sorry.

And it was not put for two reasons: the first

reason was that the argument was not put before the

magistrate and the reason why the argument was not
put before the magistrate was that counsel's
researches, when searching out the law in this
area, did not disclose the MACQUARIE HOSPITAL case.

Attempts were made to see whether a particular case determined by His Honour Mr Justice Powell,

CCR V PS (No 2) case, (1986) 6 NSWLR 622, and in

all of the standard references as to citations

such as Australian Citater and the like, no reference

was made to the MACQUARIE case and it was more by

good luck than good management that counsel stumbled

over it when preparing for the supreme court proceeding.

I think it is fair to say that when the matter came on

before Mr Justice Marks, His Honour felt that he would

not be assisted by any other authority that did not bear

directly on the particular point and it was certainly no:

run as an alternative argument, Your Honour.

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If I can go to the particular sections whLc~

are referred to in annexure A, Your Honours wou~G

see that at the foot of that page there is a refere~ce

to "Gazetted on 25/2/87" and "GS" is the gazette

number and "p.445" is the relevant page.

DEANE J:	Mr Harrnnond, unless there is something dramatic such
as the proclamation introduces a provision creatin£ an offence and leaves out a provision providing the de:ence,
you have a real problem in getting leave from us to
consider this sort of argument when it has not been
raised below.
MR Hfu'1MOND:	Yes. Well, in fact, it does raise a similar point, Your Honour, and this, at all events, is f'.',v
alternative argument. I am answering Her Honour -
Justice Gaudron on these points.  For example, if
one goes to the first item which is shown in the annexure which is a comparison of section 59(1)(c) and 59(1)(d) of the ROAD SAFETY ACT with section 59(~) (j)
and 59(2)(c) of the ROAD SAFETY ACT and annexed a-:e
the two sections, Your Honour, just by way of
comparison.

Your Honours would observe that section 59(2) (j)

and 59(2) (c) which are at the lower half of the ~a~e

create an offence and that offence is an offence-	-
against subsection (1), part of which is extrac:e~
above.	Now, Your Honours would observe that the

offence section came into operation on 1 May 1987.

Your Honours would see at the foot of the page the

gazette reference. In that particular case, the duty contained, for example, in section 59(1)(c)
and 59(1) (d) was not created until 1 March 1988

thus in that particular instance, you have a case

of an offence being created before the duty oursuant

to which the offence refers being created.

In answer to Your Honour's question about

creating a defence, if I can take Your Honour now

to the second page of that bundle and the second

page of that bundle, Your Honours, is extracted

section 59(2) (a).	Do Your Honours see that, a~
the head?

DEANE J:	Yes.
MR HA1'1MOND:	Now, Your Honours would observe that in

subsection (2) it refers to:

Subject to sub-sections (3) and (4) -

now subsections (3) and (4), Your Honours, are extracted

below and Your Honours would observe that subsections (3)

and (4) are defences, so that the offence created by

section 59(2)(a) is to be read subject to the proviso,

that is, subject to subsections (3) and (4) which is

contained in the sections below. Yet the offence came

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into operation on 1 March 1987 - Your Honours we~~~

see - but the defences, namely, the relevant

subsections, did not come into operation until 1 ~!a~ 7 :J '< -

One finds similar problems as one continues

through the Act. If I can take Your Honours co the

next bundle which is section 66 and section 67. Gow,

if I can take Your Honours over the page to section 661~)

Your Honours would observe that it provides that:

This section expires on 14 March 1988.

Then one goes over to section 67 on the next page

and, in particular, subsection (7):

The provisions of Part 7 -

that is Part 7 of the ROAD SAFETY ACT -

extend and apply to an offence to which

section 66 applies and an infringement notice

under this section.

And then subsection (8):

This section expires on 14 March 1988 -

also. Now, Your Honours would observe that section 66

and section 67 came into operation on 1 March 1987.

The gazette reference is there.

The next bundle which should have a little vellow

tag, Your Honours, annexed to those sections is·

Part 7 of the Act. Now, I could take Your Honours

straight to the last page of that bundle and Your Honours

would observe that Part 7 came into operation on

1 March 1988. So, you have references in 66 and 67 to

Part 7 of the Act coming into operation on 1 March 1987,
yet the very Part 7 to which it refers, not corning

into operation until 1 March 1988.

DEANE J:  And what did the provisions of Part 7 relevantly do?

MR HAMMOND:  They provide liability for owner onus, effectively,

Your Honour: owner onus on parking infringements and

the like; how parking infringement notices are

served and the payment of the penalty and that is

important, with respect, Your Honour, we say, because

under that provision you can expiate your offence by

paying the penalty before the expiration of a certain

time. Now, if those provisions were intended to

apply, which clearly they were, to sections 66 and 67,
that is offences detected by photographic detection
devices, right until 1 March 1988 the citizens of
Victoria were denied, as it were, the provisions of

Part 7 which evidently Parliament intended they attain

and especially when one considers, Your Honour, that

Parliament intended sections 66 and 67 to expire on

14 March 1988 and the Executive does not bring

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Part 7 into operation until 1 March 1988, givi~g

some 13 days for Parliament's will to be impleme~:ec.

Your Honours, the next page - if I may say so, with respect, Your Honours, this problem that I am

going to now is a classic example of the problem

that His Honour Justice McHugh referred to in the

ViACOUARIE HOSPITAL case, that is, where vou have an

Act 'which has been brought into operation in a different form than that, one would have assumed, was intended bv Parliament and that becomes even

more evident if I can just take Your Honours throush

the next two or three pages.

GAUDRON J:  Could I ask a question just before you do,

Mr Hammond?

MR HA.i.''1MOND:  Yes.

GAUDRON J:  What is the section in issue in your case and wha:

is the proclamation and how does the proclamation

relate with the proclamations to which you have

referred us?

MR HAMMOND:  The sections that relate to our case are

section 49(l)(f), and that is referred to on page 1 of my outline, that is at 1.3, Your Honour. Both of

those sections became operative as a result of a

proclamation gazetted on 25 February 1987, gazette GS

at page 445 and that is the very proclamation of which

I am critical to which I draw the Court's attention of

bringing into operation sections or provisions of the

Act in disconformity with other provisions. If

Your Honours could look at annexure A, Your Honours

would see an asterisk opposite the operative dates of

particular sections and those asterisks demonstrate

that it is the same proclamation that purports to

bring into operation section 49(1) (f) and section 95

of the ROAD SAFETY ACT.

It actually gets a little more interesting in

the last three, Your Honours. If I can just go back
to the Act in answer to Justice Gaudron.	The next

document refers to section 76 of the ROAD SAFETY ACT.

Now there we have a section, section 76(1) and

section 76(2) where, for some reason or another best
known to the Executive, they have decided to bring

the subsections in at different times. In my respectful submission, when one considers the

subject-matter of those sections, namely, "Arrest

without warrant" and the fact that a police officer

can then, when he or she arrests a person without

warrant or otherwise, take possession of the motor

vehicle, one would assume that Parliament would have

intended both oowers to be available to the police

officer at the· same time. yet we have, in section 76(:2.)•, ,-

coming into operation on 1 March 1987 and section 76(1)

coming into operation a year later on 1 March 1988.

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The next document, Your Honours, demonstrat2s

evidentiary provisions coming into operation in
support of an offence before the offence coses into

operation. It is section 84(5), Your Honours. If I

can take Your Honours to that:

In any proceedings for a contravention of

section 7(1) proof -

and then it goes on to establish a prima facie

evidence provision. Yet section 7(1) to which it

refers did not itself come into operation for soce four months later and, in my submission, one would

have thought Parliament intended both to come into

operation at the same time especially where there is

an express reference in section 84(5)(2) to section 7(~).

DEANE J: Well now, you have indicated the type of problem

upon which you can rely your alternative argument b·,-

this, to some extent, highlights the problem when

those matters were not raised in the court below.

I mean, really -

MR HA.7'1MOND: It does, Your Honour, there is no doubt about tha:.

DEANE J: It is not the function of this Court to undertake 22

original analysis of the workings of sections sue~

as this.

::-1R HAJ.'1MOND:	We would also put the alternative argument on this basis, Your Honour, that by looking at these sections
the Court can elicit an intention of Parliament that
the Act come in as a whole - into operation as a whole.
DEANE J:	I can see the relevance of this to your first
argument but - - -
MR HAMMOND:	Yes, and, in fact, the next document is an

example par excellence of that submission because

the next document refers expressly to what Parliament

can do and that is sections 96(1) and 96(2), Your Honours.

Now, sections 96(1) provides: 

This section applies to the following instruments -

and five instruments are therein __ described:

(a) An Order in Council under section 3(2);

(b) A notice under section 10;

(c) A notice under section 38;
(d) An Order in Council under section 56;

(e) A notice under section 94.

Now, I take Your Honours to subsection (2):

A power that is conferred by this Act to

make regulations or an instrument to which

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this section applies is subject to the

regulations or instrument being disallowed

by Parliament.

Thus, Parliament has expressly provided in section ?6 ,_ .::)

that it can disallow instruments which are refer:-ed :o

in section 96(1). Now, that section came into ooe:-3:ic:-:

on 1 March 1987, thus the opportunity for Parlia~en: :c

disallow it did not arise under the Act until 1 ~arc~

1987.

DEA.i'JE J:	I am sorry, I have not followed the argument, :fr Ha~..:-:-.c:-:c'..
MR HAMMOND:	I am sorry, Your Honour, perhaps I will just go 02c~

a step. Section 96(1) expressly provides that cer:ain

instruments may be made, as it were, under the Ac:.

This section applies to the following

instruments:

It refers to particular subordinate instruments

that the Executive may bring into force. Subsection (2)

provides expressly that:

A power that is conferred by this Act to make regulations or an instrument to which

this section applies is subject to the

regulations or instrument being

disallowed by Parliament.

So, Parliament has reserved to itself the opoort1..;.nit'l of disallowing any of those subordinate inst~umencs.·

That section came into operation, according to the

gazette, on 1 March 1987. Now, one would expect that

the power of Parliament to disallow would be in force

before any of the other provisions were in force or

at the same time. But when we go over the page,

Your Honours, the first section that is referred to in section 96(1) (a) is:

An Order in Council under section 3(2).

Section 3(2) came into operation on 1 January 1987,

that is, two months before the power to disallow came

into operation. In my respectful submission, one

could not find a more obvious intent of Parliament

that it have the opportunity to disallow an

instrument before the power to issue the instrument

comes into being.

When one then goes to the other sections which

are referred to in section 96(1) (a) to (e), and I do

not propose to take Your Honours through them but

Your Honours would observe,at the foot of each section

that we have extracted, the date upon which they car:-,e

into operation and they range from 1 July 1987,

1 March 1988, 1 March 1987 and 1 March 1987. There is

nothing, we would submit, in section 96 which suggests

that the sections referred to there should come into

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operation at any other time and, in our resoect:u1

submission, supports the proposition that the Act
as a whole should come into operation at the one

time.

The last part, Your Honours, simply is a

demonstration of identical provisions being in force

under an Act which was supposed to have been reoeale~

by this Act, namely, the MOTOR CAR ACT, at the saF.e

tiQe as the ROAD SAFETY ACT was in ooeration. There

are some provisions that for a period of a month

appear to have been on foot under both Acts. I will

not take you through those details but that is what
the next document demonstrates and, in our respectful

submission, that could not have been the intention

of Parliament to still have extant provisions of t~e

MOTOR CAR ACT which is to be expressly repealed by

the ROAD SAFETY ACT.

Now, if I could just return to our substantive

argument rather than the alternative one, Your Eoncurs.

In our submission, ordinarily it would be expeccec

that all provisions of a statute would come into

operation at the one moment. In my respectful s;_;_':):-:;issic-:-:,

an Act is intended to operate as a who le and we rel·,· there on the words of His Honour Mr Justice Dixon as he then was in the BANKING case, (1948) 76 CLR la:

page 3 71 where His Honour there was discussing c :---.::c
principle of severance and in discussing the pri-:-:ci=le

of severance, His Honour referred to that presu~p:ic-:-:

and, in our respectful submission, the principle

relating to severance, namely, that an Act is intenced

to operate as a whole unless there is, perhaps, sc2e:hing

in the Act itself which demonstrates certain parts can

stand alone, is equally applicable to bringing

the very Act into operation by the Executive. There is,

in our respectful submission, no difference in principle

and we would rely on the principle enunciated by

His Honour Mr Justice Dixon as he then was.

In our submission, to bring into operation onl::

certain provisions of an Act may be to distort the
effect of that Act.	And Your Honours are no doubt

aware, after looking at the papers, that this, in face,

has happened in Victoria in the PROSTITUTION REGl:l.ATION

ACT. The PROSTITUTION REGULATION ACT, when a bill in

the House,was substantially amended by legislative

council who were the opposition in Victoria.	The
opposition controlled the upper House.	And the bill
became an Act with the opposition amendments.	The

bill became an Act with a very similar commencement

clause as is in the Act in question, the ROAD SAFETY

ACT. Subsequently, the government of the day decided they would only proclaim the provisions of that Act
which were not put in by the opposition, thus we have

a truncated Act in Victoria called the PROSTITGTrm;

REGULATION ACT which only has part of the provisions

required or inserted by Parliament as a whole. There

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was a subsequent debate when that Act was proclai2ed

or certain provisions of that Act were proclaimed and

the Attorney-General was roundly criticized by the

opposition for only bringing that into force.

DEA.l.\JE J: Mr Hammond, I do not think it helps us to go into

specific other examples which are not before the

Court. I mean - - -

MR HA1."1MOND:	Well, they are, with respect, Your Honour.
DEANE J:	I know it is in the affidavit but, I mean, we are
not really going to express views or form views abo~c
validities of Acts which are not before us in this
case. You can take it that the Court can envisage
many circumstances in which the proclamation of an
Act may be attacked as an exercise of power for a
collateral purpose or be involved for some other reasons.
MR HA11MOND:	Yes, Your Honour. Well, the reason I rely on

that Act specifically, Your Honour, is that it was

passed by the Parliament on the same day as this

Act and -

DEANE J:	But you are not going to get any better example, are you, than the case where one sections provides t~e
offence and another section provides the defence:
MR HAi'1MOND:	I will not take the matter any further, Your Hono~r.

DEANE J: If you want to add that the section providing the

defence in your example was initiated by the
opposition in the upper House of the Parliament,

well, it possibly makes the argument a little bit

clearer but that is about all.

TlO MR H.Ai'1MOND: There were certain amendments made, Your Honour,

but they were proclaimed ultimately - in the ROAD

SAFETY ACT but they were proclaimed.

Your Honour, we submit that it is quite clear

that the Parliament can delegate to the Executive

its power to fix the particular day or days uoon

which an Act's provision shall come into operation.

There would be little question about that. But we submit that such a delegation requires clear words

particularly where the Parliament grants the

Executive the discretion to decide when particular

provisions shall come into operation.

In our submission, there is a time-honoured formula for granting that discretion and that

time-honoured formula, Your Honours, is extracted

at paragraph 2.2 on page 2 of my outline and that,

in my respectful submission is as "plain English"

as one could ever get:

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The several provisions of this Act shall

come into operation on a day or the

respective days to be fixed by proclamation,
or successive proclamations, of the

Governor in Council, published in the

Government Gazette.

It makes it crystal clear that the Executive has th2:

power and discretion. But that is extracted as

as Your Honours will note from the MAGISTRATES

(SUMMARY PROCEEDINGS) ACT, Your Honours, but the

examples can be multiplied many times.	His Honour
Mr Justice Marks -

DEANE J: Well, if that is a convenient time, Mr Hammond, the

Court will now adjourn until 2 o'clock.

AT 12.53 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.11 PM:

DEANE J:  Yes, Mr Hammond?

MR H.Ai.'1!:1OND: If Your Honour pleases. Before I just return to

my substantive argUJ.uent, Your Honours, might I be

permitted to have handed up a schedule showing the

proclamations that were made to give the Court sone

idea of the matters to which I took the Court earlier.

I had intended coming to them at the end of

my argument and I omitted to hand that up. It I may

be permitted to do so. Your Honours, this is, in fact,

a photocopy of what in Victoria is known as A~TSIA".i:'

annotations and they annotate the statutes. The

evidence supporting this is by way of the copies of

the gazettes which have been exhibited to the
affidavit of Mr Tully save for one gazette.	The

gazettes were produced simply by way of example of

the numbers of proclamations that were made. As

Your Honours could see from the two pages, that the

provisions came in over a fairly lengthy time in a

rather disjointed form.

Your Honours, prior to the luncheon adjournment

I had taken Your Honours to what we submit was the

time-honoured formula for delegating to the Executive

the discretion to determine when certain provisions

of an Act may come into operation. Paragraph 2.4
of my outline, Your Honours, if I could take

Your Honours to that position:  His Honour Mr Justice ~ar~s

held below that the time-honoured phraseology has been

replaced by a new "plain English" formulation and, in

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effect, His Honour held that the formulation wnicn is shown in the submission, namely, this Act comes

into operation on a day or days to be proclained

reolaced the time-honoured one which is extracted

at.paragraph 2.3.	His Honour held that that
formulation - - -

DEA.c~E J:  Mr Hammond, we have read the judgment.

MR HA.i.'1MOND: If Your Honour pleases. In my submission,

Your Honour - if I can take Your Honours now to the

INTERPRETATION OF LEGISLATION ACT. We submit,

Your Honours, that by virtue of the manner in whic~

the distinction has been drawn between an Act ~d

the provisions of an Act, in our respectful s~J2issio~.

the provision which would give effect to the 2anner

in which the Executive has proclaimed this Act would

need to have been worded similarly to the words whic~

we have suggested at paragraph 3.2 of the outline.
As Your Honours would observe, we submit that

a "plain English" formulation which would be consis:2~-=

with both the time-honoured formula and with the

provisions of section l0A of the INTERPRETATION OF

LEGISLATION ACT would be, for example:

The provisions of this Act come into operatio~

on a day [or days] -

as the case may be -

to be proclaimed.

And, in our respectful submission, that would have been sufficient and had that prov is ion been in the ROAD

SAFElY ACT then we would not be here today because,

in our submission, that would have empowered the

Executive to at least, prima facie, proclaim the Act in the mmner that it has subject, of course, to the

alternative argument that I have put.

Now, in our respectful submission, Your Honours,

the words "an Act" and the provisions of the Act

should be given their ordinary and natural meaning

and if I could take Your Honours very briefly to

section l0A of the INTERPRETATION OF LEGISLATION

ACT 1984, Victoria. Your Honours have the reprint.

It is on page 4 of that reprint. Section l0A(l)

provides:

If an Act provides for the Act or a

provision of the Act to come into operation

on a day to be proclaimed, the Act confers

power on the Governor in Council to fix

by proclamation published in the Government

Gazette a day for the Act or provision to

come into operation.

8 ; ;:., 1 on

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We submit, Your Honours, that that provision acco~n:5

for the situation where the whole Act is recuired co

come into operation on a day or a oarticula~ orovision

is to come into operation on one p~rticular d~y.

When one goes then to section 10A(2), if I can

take Your Honours to that:

If an Act provides for the Act or provisions

of the Act to come into ooeration on a dav

or days to be proclaimed~

and I pause there, Your Honours, to draw Your Honours'

attention to the plural "days" -

the Act confers power on the Governor in

Council to fix by proclamation or proclamations -

that is also plural -

published in the Government Gazette -

(a) a day for the Act or provisions to

come into operation; or

(b) different days for different provisions

of the Act to come into operation.

In our submission, Your Honours, subsection (2) is

the relevant subsection for the purposes of the

ROAD SAFETY ACT. If Parliament intended the Ace :o

be introduced and brought into operation by a

provision then they would have needed to have provided

in the commencement section of the ROAD SAFETY ACT

a nhrase which incoroorates the reference to

"p~ovisions". In my' respectful submission, it is the

lack of that reference which distinguishes between
when the Parliament empowers the Executive to bring

the Act into operation as a whole or its several

parts as it were.

McHUGH J: If you throw all the weight of your argument on

the words "this Act" - if you put the emphasis on
the words "or days" to the same extent as you do

"this Act", then it becomes a question of

construction, does it not, and if you read it:

''fhis Act comes into operation on days to be proclaimed"

as one alternative then, in an attempt to give that

meaning, why is it not legitimate to say that it was

intended that provisions of the Act could come into

operation on days to be proclaimed?

MR HAMMOND:  Because, Your Honour, with respect, section 2,

Act by way of several proclamations.

"Commencement" - Act, is not an empowering provision. bring in the

One is required to go to the INTERPRETATION OF

LEGISLATION ACT for the empowering provision and,

MlTll/4/PLC	13	MR HAMMOND	8/6/90
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in my submission, the INTERPRETATION OF LEG I SLAT IJ:; _:.._:,-:.

in section 10A(2), the empowering provision of it is

the first two lines:

If an Act provides for the Act or provisions

of the Act to come into operation on a dav or days to be proclaimed,'the Act confers'

power on the Governor in Council -

et cetera. So, one looks at the substantive Act,

in this case the ROAD SAFETY ACT, and sees whether

or not the words which are provided for in section l.).:..,c2:,

appear. If they do, then the INTERPRETATION OF

LEGISLATION ACT enlivens, as it were, the jurisdicti.cc1

of the Executive to bring several provisions or

perhaps the whole Act, as the case may be.

McHUGH J: Well, they give it more content but if section l0A

had never been passed surely section 2 in its
present form would have still had a legitimate

function to perform.

MR HAMMOND:  Wel 1, the argument, as I apprehend it, Your Honct.:.r,

virtue of the 11 plain English 11 , section 10A(2), w:,.ic:1	put against our submissions is that it is really '::):;
entitles a court to read in the wording of section 2 of the ROAD SAFETY ACT that the Executi~2
may bring the Act into operation provision by pro~i5i.cn.
If section l0A had not been enacted and, in fact, ~=
was onLy enacted at the end of 1985, then the time-honoured formula to which I have already taken
the Court makes it perfectly clear what is required
and, in those circumstances, had a Parliament wishec
the provisions to come in over a period or on a
particular day, they would say so. What is put azainst
us now, however, is by virtue of section 10A(2)
or perhaps even section l0A(l) the wording, the
time-honoured formula, is no longer necessary.

McHUGH J: Yes, but I think what will be put against you LlOre

tellingly is that your argument leads to the conclusion that the words 11 or days" in section 2 have no

meaning, no function at all.

MR HA11MOND:  Yes, surplusage, Your Honour, and that was

rejected -

McHUGH J: That is a large proposition.

MR HAMMOND: It is, indeed, Your Honour, but we would answer

that in this way: His Honour Mr Justice Marks in

his decision, in holding that the words which are

provided in section 2:

This Act ..... comes into operation on a

day or days to be proclaimed -

Without mentioning the word "provisions" would then,

it would seem, make otiose, make surplus, section 10A(2)

MlTll/5/PLC	14	8/6/90
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whe1e it provides for"provisions"to be in the releva:-'..::

section. His Honour has said, '·You don't need to

refer to provisions, the words will carry '?rovisio~s•.

The words 'or days' and 'the Act' will carry 'provisic:-'..s'·

Well, if that be correct then His Honour is saying

implicitly that the word "provisions" in the

INTERPRETATION OF LEGISLATION ACT, the very provision

which, as it were, empowers that interpretation

is otiose, surplusage, it is unnecessary to have that

in the Act. So, we would say that the same argument

cuts both ways.

We would say that when we are debating the

delegation of such an important power to the Executive.

clear words are necessary and if there is any doubt

then the doubt should not necessarily be resolved

in favour of the Executive in these circumstances,

that it is the intent of Parliament one should seek

and, in our submission, the intent of Parliament

is more clearly established when one looks at the

context of section 10A(2) in the Act. In fact, as

Your Honours are no doubt aware, a fairly quick skim through the INTERPRETATION OF LEGISLATION ACT

would demonstrate that the distinction bet~een

"an Act" or "the Act" and the "provisions of the

Act" appear time and time and time again; in fact, sore

66 times in the first 19 sections, and one can keeJ

going right the way through the Act and find a

similar distinction and we would submit that -

DEANE J:	Mr Hammond, I think we follow the way you put your
argument.
MR HAMMOND:	If Your Honour pleases. I was trying to, I thought,

answer His Honour Mr Justice McHugh.

DEANE J:	You have really covered 4, have you not, in terms of
identifying for a leave application what is
involved?

MR HAMMOND: In paragraph 4, Your Honours, of my - - -?

DEANE J: That is what I have said: you have really covered

that, have you not, in outlining your alternative argument::?

MR HAMMOND:  Yes, I have covered the alternative argument,

yes, Your Honours.

DEANE J: Well now, can I ask you this: I presume there is

no procedure by which this matter can be brought

before the Full Court?

MR HA"'1MOND:	To the best of my knowledge, no, Your Honour. There is an express exclusion of reviewing a
decision of a single judge brought by way of
review by a Full Court.
DEANE J:	Could it have been referred to the Full Court on a
case stated?

MlTll/6/PLC	15	MR HAMMOND	8/6/90
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MR HA.i."1HOND:  Well, I would have to check that, Your Honour,

but, in fact, this matter, as I apprehend it,

when an order to review was sought by the Crown,

the court's attention was drawn to the fact that

another matter raising a similar point had been

referred to the Full Court but, as I apprehend it,

His Honour Mr Justice Marks felt that this matter

ought to be handled, on return, by a single judge.

DEANE J:  I see. No request was made that this matter be

referred to a Full Court?

MR HA.i.'1MOND:  No, Your Honour. )ro, it was not, on the basis

of the understanding that His Honour had decided to retain the matter but no application was mane.

DEA..1E J: Well now, you were going to add something when I

interrupted you.

MR HAMMOND:  Yes. The final point that I would add, Your Honour, is

that as a matter of statutory interpretation, we

would submit that the plain, ordinary and natural

meaning of the words "the Act" and the "provisions
of the Act" ought to apply and if one places on

the ordinary and natural meaning of the words

"an Act", one is dealing with a singular object,

the whole Act, and if one is using the natural and

ordinary meaning of "provisions", plural, one is

talking about the parts of the Act. We would sub2it

that there is no straining of language to place the

ordinary and natural meaning on these words. And

if one does place the ordinary and natural meaning

on these words, in our submission, one should then

use the maxim reddendo singula singulis. It is

probably inappropriate in a "plain English" submission

to be quoting Latin, however, Your Honours are no

doubt familiar with the maxim, that is the one of

reading words distributively. In my submission, if

one goes section 10A(2) and reads the words

distributively then one, in my respectful submission,

reaches a conclusion that when Parliament wishes an

Act of Parliament to be proclaimed piecemeal

it will use the word "provisions", when it wishes

to be proclaimed as a whole it will not use the

word "provisions".

If I could just take Your Honours to

subsection (2), I submit the proper reading of

subsection (2) is in the following manner, "If an Act provides for the Act or provisions of the Act

to come into operation on a day or days to be

proclaimed", I submit that the word "Act" should be

read with the word "day" and the word "provisions"

should be read with the word "days" and that is

consistent with the maxim that I submitted to the

Court. In my respectful submission, it does violence

to language to read section 2 of the ROAD SAFETY ACT

to refer the word "days" to a singular object, "the Act".

MlTll/7/PLC	16	MR HAMMOND	8/6/90
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In mv respectful submission, it is an inaoposi:e ~s2

of l~nguage to say, "This Act comes into ~peratio:-i.

on days", it is a more comfortable use of langua:,;;e

to say, "The provisions of this Act comes into

operation on day" or "days" and, in my submission,

using the ordinary and natural meaning of the words and that maxim it would follow that Parliament, had

it intended the ROAD SAFETY ACT to come into

operation piecemeal, it would have used the word

"orovisions" and thus enlivened the Executive's

j~risdiction pursuant to section 10A(2). If Your Hono~~s

please.

DEANE J:  Thank you, Mr Harrnnond. Yes, Mr Solicitor?

MR BERKELEY:  Your Honours, there are, I think, four possible

situations. There is a situation where an Act of

Parliament comes into operation on a day to be
proclaimed or there is a situation where the Ace of

Parliament comes into ooeration forthwith

on assent but specific provisions are to come into
operation on a day to be proclaimed.- that is

subsection (1)- and if that is intended to be used

the Act of Parliament will say, "This Act corr.es inco

operation on a day to be proclaimed" or it will say

specific provisions are to come "into operation on a c.2°:

to be proclaimed".

Then there is the situation where the Act co8es

into operation on more than one day or the Act coces

into operation forthwith but provisions come into

operation on more than one day. Then you go to

subsection (2) and the Act will say, "This Act co~es

into operation on a day or days to be proclaioed"
or it will say, "This Act comes into operation on
assent except for" certain provisions, "on a day
or days".

Now, if my learned friend's submission is right that you cannot say, "An Act comes into operation on

a day or days to be proclaimed, it has to come into

operation on one day" then if that is covered by

subsection (2), you do not need subsection (1) at

all and we would adopt, with respect, what

Your Honour Mr Justice McHugh said, that you just

have to ignore "or days" and there is no necessity

to do that. It all fits in comfortably with the

structure of the INTERPRETATION OF LEGISLATION ACT

and it means what it says. There is no sort of magic

unity about an Act of Parliament or difficulty in

lawyers understanding that an Act can come into

operation on a day or days to be proclaimed.

The case that is pending in the Full Court that

my learned friend referred to is a case in which, I

think, he appears for the appellant and that is

called FLYNN V McEWEN and that was an order nisi made

on 10 April 1990 and that raises in ground (b) of the

order nisi exactly the same point which is raised in

MlTll/8/PLC	17	8/6/90
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this case. I will hand up a photocopy of the or

nisi that was made in that case if I may.

Finally, on what was called the point

that was raised for the first time in this

Court, I do not want to go through it all but we

do not concede that, in fact, there is a situation

where defences are proclaimed in one proclamation

and defences in another, but even so the importanc

thing to remember is that this applicant is charged

with an offence under 49(l)(f), that is an offence

in relation to driving under the influence, and

nothing that my learned friend has said bears U?On

that particular section or the validity of that

section or that charge at all and one can

understand there might be a situation where the

proclamation would not operate in respect of some

sections but would operate in respect of others.

DEANE J:	When you say you do not concede the offence defence, is what was said about 59(1) and 59(2) on page 1
inaccurate?

MR BERKELEY: Well, that is the difficulty. One of the

difficulties is, Your Honour, that the first time I

heard about this point was when my learned friend

got to his feet and one would have thought it was

perhaps proper, if not sensible, to have let me know

about it in advance. I am not really in a posicion =~

argue it but looking at the matter briefly, if

Your Honour looks at that page, that is, section 59(2):

Subject to sub-sections (3) and (4), a

person who fails to do anything that he or she

is required to do under sub-section (1) - now, when that was proclaimed, as I understand it,

subsection (1) had not yet been proclaimed.

So, I cannot give a definite answer but it is

not obvious on the face of it that my learned friend

is right.

McHUGH J: Well, it is obvious in the terms of the gazette though,

is it not?

MR BERKELEY:  No, Your Honour.

McHUGH J: Well, subsection (2) was proclaimed on 1 May 1987.

MR BERKELY:	Yes.
McHUGH J:	And it makes it an offence to fail to do what you

are required to do under subsection (1).

MR BERKELEY:	Yes.
McHUGH J:	Which was not proclaimed until 10 months later.

MlTll/9/PLC	18	8/6 90
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MR BERKELEY:  No, what my learned friend said was this:

subsection (2) was proclaimed which creates the 0f:e~ce:

subsections (3) and (4) which provide the defence ~ere

not ~roclained until later. That was his point. Bu:

when you look at subsection (2) that refers back to

subsection (2) by itself creates an offence.

subsection (1) which also had not been proclaimed.

DEANE J: It is an awful muddle, Mr Solicitor.

MR BERKELEY:  I could use stronger language, Your Honour, b 1.1t

I am not sure I would be allowed to.

McHUGH J: Well, it certainly seems a strongly arguable case

that what has been done in relation to this Act ::--.,,·2.r:s

the will of the Victorian Parliament.

MR BERKELEY:  I heard my learned friend use that language,

Your Honour, I am not sure that he should have use~

it because it is ambiguous. I have always had grea:

trouble knowing what the will of Parliament is,

Your Honour, except by looking at the Act of Par:i~~e~:.

McHUGH J: Well, I will use - the purpose of Parliame~:.

"MR BERKELEY:  Yes, Your Honour. The purpose of Parliamen: ·.-::1.;

to give the Executive complete discretion as to

bringing in this Act piecemeal. Now, that may je

politically and constitutionally and certainly

legally unsatisfactory and you would not get any

argument from me about that, Your Honour.	I spenc
time enough thumping the table talking to

parliamentary counsel but the fact is one has :o -

when you say, "We assume that Parliament inter.ds :o

create offences" and do this, that and another, l::lu:

also you have to balance that against the cleares:

evidence that Parliament meant to leave it to the

Governor in Council as to the order in which this Act

was to be brought into operation.

McHUGH J:

Yes, but it is a settled rule of construction

that you do not construe a power of proclamation, for

example, to do things which vary the plan of Parliament

as laid down in this legislation.

MR BERKELEY: Well, Your Honour, I have the greatest sympathy

with that proposition and no doubt some day I might

have to argue against it. I understand the force of

that, Your Honour, but he has to tie it in with his

case.

McHUGH J: Yes, I think that is the strongest point you gain,

that those group of sections, 47 through to 58, seem

to have all been proclaimed together and they are -

MR BERKELEY:  And there is no suggestion he has been deprived

of the defence that is open to him.

MlTll/10/PLC	19	MR BERKELEY, QC	8/6/90
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GAUDRON J: Well, does that assume that a proclamation • ay ~a~2

partial validity?

MR BERKELEY:  The argument assumes it and I would be oreoared :o

stand up and argue that. It is not necessa~il~

the case that the whole thing would fall because it -

if it deals partly with an impermissible subject-matter

and partly with permissible subject-matter, it is a ~a==~~

of asking perhaps - you see, it depends on how ouch~=

the proclamation.	You have to ask yourself the sase
question that you ask	about subordinate legislation.

Would the Governor in Council have intended fhis to

operate anyway without the deleted parts? Now,

the vice of raising this at the last moment without

any notice is you cannot really argue it and it is

uncomfortable to argue it on a special leave

application. And in the absence of any suggestion

that this person has been directly deprived of a

defence, the Court should not encourage these matters.

The final Court of Appeal - this is an important

point - ought to argue it with the benefit of

something in the court below.

DEANE J:  Thank you, Mr Solicitor. Mr Harmnond, what is the

position about this matter that is said to raise

the only point in this case that was raised below?

MR HAMMOND:  The case to which my learned friend the

Solicitor-General has referred is a case of a

hardware company called McEwen's Limited. There were

two points in that case, Your Honour. The first

point which is probably the point that was upheld

below was that the proclamation itself was bad as

gazetted, it was an evidentiary problem. In that
case, Your Honours, the proclamation purporting to
bring a particular Act into operation was published

in the Government Gazette but omitted to include the

Governor's signature and the Governor's seal.	Now,
that was just a windfall, as it were, in the
research.	The same point, I must confess, was taken
in respect of proclaiming the whole Act.	The two

points were taken. The magistrate upheld the first

point, that is, that the proclamation itself, as

published, was bad and that could not be cured.

He then went on to say, much to our dismay, I might add, that although it was not necessary to decide

it, he also upheld the second point which is the point

which is before the Court today. And the disti.t.--iction, in

OlT subrriission, between that case anl this case is that when that ffi3.tter o-oes before the Full Court there is a verv sii"J:Jle nar-rmv m2thod of deterr.rining that case and that is sii~iy on the

question as to -;,;,hether or not the ?roclarnation as published ,,;as

valid and if the Full Court found that that ryroclarration as oublished
was not valid, then the second point, which is the 1Joinc no-w-

before this honourable Court, would not be deternined.

So, this ooint in McEWEN's case is a secondarv

issue, not a primary issue, but the Crow-n. have ob,:io·..:.s ;..·:

sought to review that ground also.

MlTll/11/PLC	20	8/6/9:)
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Your Honours, when my learned friend referred

to the Act corning into operation on days and the

use of the word "days" should be sufficient, that

is, adopting the findings of His Honour Mr Justice ~arks.

we would rely on the fact that the Parliament, in face, ·

has subsequent to 1985 provided in Acts of Parliamenc

in 1988 that the remaining provisions of this Act

come into operation on a day to be proclaimed - dav

or days to be proclaimed, and those Acts have been·

referred to the Court in the affidavit in support. So

the Parliament has used the word "provisions" subs eq 1--1.en '.:

to 1985. It has picked up, we say, section 10A(2).

So far as my learned friend says we cannot

complain about section 49(1) (f), well, I would adopc

the point that was raised by Your Honour Justice Gaudron:

how are our sections affected by these proclamations?

Well, we say that the proclamation that proclaimed those sections to which we have directed the Court

was bad and it is the very same proclamation.

GAUDRON J:  You have got to say it is wholly bad, that it

cannot have partial validity.

McHUGH J: Section 22 of the INTERPRETATION ACT provides that

a:

subordinate instrument shall be construed .....

so as not to exceed -

the power to make -

it under the Act.

MR HAMMOND:	Yes. Well, we would submit that this point has only been raised, to the best of our knowledge,
by way of obiter by His Honour Dr Bray when he was
Chief Justice of the Supreme Court of South Australia
in PALAIS- PARKING V SHEA, (1977) 16 SASR 350. At page 358 His Honour is talking about statutory
instruments, discussing the South Australian
ACTS INTERPRETATION ACT and in that case the question
there, Your Honour, was whether or not there was
power to revoke a proclamation as there is power
under the ACTS INTERPRETATION ACT to revoke
subordinate instruments.  So, in one sense, it is
somewhat analogous to the point that Your Honour
is raising.  And at page 358, His Honour Dr Bray,
the Chief Justice, says:

I can find no case where the revocation

or repeal of proclamations, express or

implied, has been discussed. As the

learned Judge points out, s. 39 of the

ACTS INTERPRETATION ACT, 1915, as amended, which provides that power to make

regulations and other instruments shall be

deemed to include a power to revoke or

MlTll/12/PLC	21	MR HAMMOND	8/6/90
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vary them and to substitute others,

does not include proclamations amongst the

instruments specified. It may be -

savs His Honour in relation to that - and that is

wh~re it differs from our INTERPRETATIONS ACT in

so far as the revocation power is concerned -

that, prima facie and apart from statutory

authority, a power to make proclamations is

one of those powers which can only be

exercised once and the exercise of which

cannot be revoked or altered, except, if at
all, as specifically authorized in the

instrument exercising the power -

and then he cites authority for that proposition.

Some proclamations are obviously in this class, e.g. a proclamation of the day on

which an Act of Parliament shall come into

force. The power to proclaim the Act is

obviously exhausted by the proclamation

and I should doubt whether even a power

reserved in the proclamation to substitute another date by another proclamation would

be effective.

Now, it is only obiter there, Your Honour, because·-

was not necessary to decide that.

McHUGH J:  Yes, but, you see, a premise of this argument is

that you have lost the construction of section 2.

Now, on that hypothesis that section 2 does enable the Executive to proclaim the Act on different days

or parts of the Act on different days, then that

says nothing.

MR HAMMO~D:  That would be correct, Your Honour, yes. If the

interpretation of section 2 of the ROAD SAFETY ACT

is to carry with it proclamations, then. bv

definition, the latter argument falls

to the ground but if it does not, if it is to be read

distributively as we submit then, in my submission,

there is some force - we can rely, to a certain extent, on what His Honour Dr Bray said in that decision.

McHUGH J: Well, you do not need it then.

MR HAMMOND:  Is that a question or a statement from the Bench?

If Your Honours please.

MR BERKELEY: 

I wonder if Your Honours would give me per2ission

to mention one thing about section 22. It deals with
the alternative argument?

DEANE J: Yes, Mr Solicitor.

MlTll/13/PLC	22	MR HAMMOND	8/6/90
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MR BERKELEY:  "Subordinate instrument" is defined bv the

INTERPRETATION OF LEGISLATION ACT as incl~ding a

proclamation and what I want to point out is ttat

this section goes a great deal further than

section 15A of the Commonwealth Act, that is, if

one looks at the last words of subsection (1) it

says:

it shall nevertheless be a valid provision

to the extent to which it is not in excess

of that power and the remainder of the

subordinate instrument and the application

of that provision to other persons,

subject-matters or circumstances shall not

be affected.

So, it really does provide for partial validity.

DEANE J:	Mr Solicitor, this case raises yet again a most
unsatisfactory state of affairs, really, where
the only appeal is to this Court in circumstances
where,if the case is an appropriate one, the Full Co~~=
should have some means of allowing the matter co coce
before it. It is said more by way of complainc to
the winds rather than anything else.
MR BERKELEY:	No, I hope Your Honour's pleas are not in vsi:--..

because some years - and I think it was several

years ago - I promoted an amendment to the Act

which would allow appeals from a single judge to

the Full Court in order to review by leave and I
think that has been passed. It has never been

proclaimed. Next time I see His Excellency I

will see what we can do. It does not fall on

deaf ears, Your Honour, and I shall bellow it where

it will not do much good I am afraid but I will

certainly try again.

DEANE J:	The Court is of the view that in all the circumstances, including the fact that one of the two arguments upon
which the applicant wishes to rely on any appeal was
not relied upon in the court below, the present is an
inappropriate case to grant special leave to exanine
the questions of law which the applicant wishes to raise. That being so, special leave to appeal is
refused.

AT 2.46 PM THE MATTER WAS ADJOURNED SINE DIE

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