Perrett v Attorney-General of the Commonwealth of Australia
[2015] FCA 834
•13 August 2015
FEDERAL COURT OF AUSTRALIA
Perrett v Attorney‑General of the Commonwealth of Australia [2015] FCA 834
Citation: Perrett v Attorney‑General of the Commonwealth of Australia [2015] FCA 834 Parties: GRAHAM DOUGLAS PERRETT, CLAIRE MARY MOORE, GREG DAVIES, KAREN BATES AND TING WEI v GEORGE HENRY BRANDIS, ATTORNEY‑GENERAL OF THE COMMONWEALTH OF AUSTRALIA File number: QUD 613 of 2015 Judge: DOWSETT J Date of judgment: 13 August 2015 Catchwords: CONSTITUTIONAL LAW – subordinate legislation – validity – disallowance of regulations by Senate – whether a new regulation, Family Law (Fees) Amendment (2015 Measures No 1) Regulation 2015 (Cth), is “the same in substance” as a regulation previously disallowed within the meaning of s 48 of the Legislative Instruments Act 2003 (Cth) and hence of no effect.
CONSTITUTIONAL LAW – standing to seek injunctive and declarative relief under s 39B of the Judiciary Act 1903 (Cth) – where applicants are parliamentarians or senators – whether applicants have “special interest”.
Legislation: Acts Interpretation Act 1901‑1941 (Cth) ss 48, 49
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Family Law Act 1975 (Cth) s 125
Family Law (Fees) Amendment (2015 Measures No 1) Regulation 2015 (Cth)
Family Law (Fees) Regulation 2012 (Cth)
Federal Courts Legislation Amendment (Fees) Regulation 2015 (Cth)
Legislative Instruments Act 2003 (Cth) ss 24, 38, 39, 41, 42, 45, 46, 47, 48
National Security Act 1939‑1940 (Cth)
Women’s Employment Act 1942 (Cth)Cases cited: Australian Conservation Foundation Inc v Commonwealth (1978‑1980) 146 CLR 493
Australian Securities Commission v Aust‑Home Investments Ltd (1993) 44 FCR 194
Boyce v Paddington Borough Council [1903] 1 Ch 109
Brown v West (1990) 169 CLR 195
City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Combet v Commonwealth (2005) 224 CLR 494
Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188
Robinson v South East Queensland Indigenous Regional Council of the Aboriginal and Torres Strait Islander Commission (1996) 70 FCR 212
Victorian Chamber of Manufactures v Commonwealth (1943) 67 CLR 347Date of hearing: 7 August 2015 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 42 Counsel for the Applicants: Mr S Keim SC, Dr J Brasch QC and Ms K Hillard Solicitor for the Applicants: Maurice Blackburn Lawyers Counsel for the Respondent: Mr R Lancaster SC and Mr G Del Villar Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 613 of 2015
BETWEEN: GRAHAM DOUGLAS PERRETT
First ApplicantCLAIRE MARY MOORE
Second ApplicantGREG DAVIES
Third ApplicantKAREN BATES
Fourth ApplicantTING WEI
Fifth ApplicantAND: GEORGE HENRY BRANDIS, ATTORNEY‑GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE:
DOWSETT J
DATE:
13 AUGUST 2015
PLACE:
BRISBANE
REASONS FOR JUDGMENT
BACKGROUND
The original applicants in these proceedings were Graham Douglas Perrett and Claire Mary Moore. At the hearing of the matter I ordered that Greg Davies, Karen Bates and Ting Wei be joined as third, fourth and fifth applicants respectively. Mr Perrett is a member of the House of Representatives, representing the electorate of Moreton. He is the Shadow Parliamentary Secretary to the Shadow Attorney‑General, and a member of many parliamentary standing committees, including the Standing Committee on Social Policy and Legal Affairs. Within the Opposition he has primary responsibility for family law, including marriage. Senator Moore is a Senator for Queensland. Senator Moore currently serves as the Shadow Minister for Women, Communities and Carers and is the Manager of Opposition Business in the Senate. Mr Davies, Ms Bates and Ms Wei have either commenced proceedings for divorce in the Family Court, or propose to do so. The respondent, (the “Attorney-General”) challenges Mr Perrett and Senator Moore’s standing in these proceedings. Mr Davies, Ms Bates and Ms Wei were joined in order to avoid the consequences in the event that the Attorney‑General’s submission is successful.
Section 125 of the Family Law Act 1975 (Cth) (the “Family Law Act”) provides that the Governor‑General may make regulations not inconsistent with the Act prescribing, amongst other things, fees payable in respect of proceedings under that Act. From time to time regulations have been made, providing for such fees. Immediately prior to 28 May 2015 the relevant measure was the Family Law (Fees) Regulation 2012 (Cth) (the “2012 Regulations”). On that date the Governor‑General made a regulation described as the Federal Courts Legislation Amendment (Fees) Regulation 2015 (Cth) (the “First Regulation”). The First Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (Cth) (the “Legislative Instruments Act”). In the First Regulation itself, it is described as a “select legislative instrument”. The word “select” has no present relevance. Section 24 of the Legislative Instruments Act requires that a legislative instrument be registered. The First Regulation was registered on 19 May 2015. Pursuant to s 38 the Parliamentary Counsel must arrange for a copy of each registered legislative instrument to be delivered to each House of Parliament so that it may be laid before each House within six sitting days after registration. Section 39 provides as follows:
39 Additional material to be tabled with the legislative instrument:
(1)If a rule-maker lodges an explanatory statement relating to a legislative instrument:
(a)at the time of lodging the legislative instrument for registration; or
(b)at a later time before a copy of the legislative instrument is delivered to each House of the Parliament to be laid before it;
the Office of Parliamentary Counsel must also arrange for the delivery to that House, to be laid before it, with the copy of that legislative instrument, a copy of that explanatory statement.
(2)If a rule-maker fails to lodge an explanatory statement relating to a legislative instrument with the Office of Parliamentary Counsel before the Office arranges for a copy of the legislative instrument to be delivered to a particular House of the Parliament, the rule-maker must, as soon as possible, deliver to that House, to be laid before it:
(a) a copy of the explanatory statement; and
(b)a written statement why the explanatory statement was not provided to the Office in time to be delivered to the House with the legislative instrument.
Section 41 provides:
41 Incorporated material may be required to be made available:
A House of the Parliament may, at any time while a legislative instrument is subject to disallowance, require any document incorporated by reference in the instrument to be made available for inspection by that House:
(a) at a place acceptable to the House; and
(b) at a time specified by the House.
Section 42 provides:
42 Disallowance of legislative instruments
(1) If:
(a)notice of a motion to disallow a legislative instrument or a provision of a legislative instrument is given in a House of the Parliament within 15 sitting days of that House after a copy of the instrument was laid before that House; and
(b)within 15 sitting days of that House after the giving of that notice, the House passes a resolution, in pursuance of the motion, disallowing the instrument or provision;
the instrument or provision so disallowed then ceases to have effect.
(2) If:
(a)notice of a motion to disallow a legislative instrument or a provision of a legislative instrument is given in a House of the Parliament within 15 sitting days of that House after a copy of the instrument was laid before that House; and
(b)at the end of 15 sitting days of that House after the giving of that notice of motion:
(i)the notice has not been withdrawn and the motion has not been called on; or
(ii)the motion has been called on, moved and (where relevant) seconded and has not been withdrawn or otherwise disposed of;
the instrument or provision specified in the motion is then taken to have been disallowed and ceases at that time to have effect.
(3) If:
(a)notice of a motion to disallow a legislative instrument or a provision of a legislative instrument is given in a House of the Parliament within 15 sitting days of that House after a copy of the instrument was laid before that House; and
(b)before the end of 15 sitting days of that House after the giving of that notice of motion, the House of Representatives is dissolved or expires, or the Parliament is prorogued; and
(c)at the time of the dissolution, expiry or prorogation, as the case may be:
(i)the notice has not been withdrawn and the motion has not been called on; or
(ii)the motion has been called on, moved and (where relevant) seconded and has not been withdrawn or otherwise disposed of;
the legislative instrument is taken, for the purposes of subsections (1) and (2), to have been laid before the first mentioned House on the first sitting day of that first mentioned House after the dissolution, expiry or prorogation, as the case may be.
Sections 45, 46, 47 and 48 provide:
45 Effect of a legislative instrument ceasing to have effect:
(1)If a legislative instrument (the affected instrument), or a provision of a legislative instrument (the affected provision), ceases, at a particular time, to have effect under subsection 38(3) or 42(1) or (2), the operation of that subsection in relation to the affected instrument or provision has the same effect as if the affected instrument or provision had been repealed with effect from that time.
(2) If:
(a)a legislative instrument (the repealing instrument) or a provision (the repealing provision) of a legislative instrument either:
(i)ceases under subsection 38(3) or section 42 to have effect at a particular time (the cessation time); or
(ii)would so cease to have effect then if it had not already been repealed by section 48A or 48C; and
(b)the repealing instrument or repealing provision wholly or partly repealed another legislative instrument or law, or a provision of another legislative instrument or law, that was in force immediately before the repealing instrument or repealing provision commenced;
the repealed instrument, law or provision revives from the cessation time as if the repealing instrument or repealing provision had not been made.
(3)Subsection (2) does not have the effect of reviving a legislative instrument, law or provision if, before the date when it would have been revived, Part 6 would have repealed it had it not already been repealed by the repealing instrument or the repealing provision.
46 Legislative instruments not to be remade while required to be tabled
(1)If a legislative instrument (the original legislative instrument) has been registered, no legislative instrument the same in substance as the original legislative instrument is to be made during the period defined by subsection (2) unless both Houses of the Parliament by resolution approve the making of an instrument the same in substance as the original legislative instrument.
(2)The period referred to in subsection (1) is the period starting on the day on which the original legislative instrument was registered and ending at the end of 7 days after:
(a)if the original legislative instrument has been laid, in accordance with subsection 38(1), before both Houses of the Parliament on the same day—that day; or
(b)if the original legislative instrument was so laid before both Houses on different days—the later of those days; or
(c)if the original legislative instrument has not been so laid before both Houses—the last day on which subsection 38(1) could have been complied with.
(3) An instrument made in contravention of this section has no effect.
47 Legislative instruments not to be remade while subject to disallowance
(1)If notice of a motion to disallow a legislative instrument, or a provision of a legislative instrument, has been given in a House of the Parliament within 15 sitting days after the instrument has been laid before that House, a legislative instrument, or a provision of a legislative instrument, that is the same in substance as the first-mentioned instrument or provision, must not be made unless:
(a)the notice has been withdrawn; or
(b)the instrument or provision is taken to have been disallowed under subsection 42(2); or
(c)the motion has been withdrawn or otherwise disposed of; or
(d)subsection 42(3) has applied in relation to the instrument.
(2) If:
(a)because of subsection 42(3), a legislative instrument is taken to have been laid before a House of the Parliament on a particular day; and
(b)notice of a motion to disallow the instrument or a provision of the instrument has been given in that House within 15 sitting days after that day;
a legislative instrument, or a provision of a legislative instrument, that is the same in substance as the first-mentioned instrument or provision must not be made unless:
(c)the notice has been withdrawn; or
(d)the first mentioned instrument or provision is taken to have been disallowed under subsection 42(2); or
(e)the motion has been withdrawn or otherwise disposed of; or
(f)subsection 42(3) has applied again in relation to the first mentioned instrument.
(3)A legislative instrument or a provision of a legislative instrument made in contravention of this section has no effect.
(4) This section does not limit the operation of section 46 or 48.
48Disallowed legislative instruments not to be remade unless disallowance resolution rescinded or House approves
(1)If, under section 42, a legislative instrument or a provision of a legislative instrument is disallowed, or is taken to have been disallowed, a legislative instrument, or a provision of a legislative instrument, that is the same in substance as the first-mentioned instrument or provision, must not be made within 6 months after the day on which the first-mentioned instrument or provision was disallowed or was taken to have been disallowed, unless:
(a)if the first mentioned instrument or provision was disallowed by resolution—the resolution has been rescinded by the House of the Parliament by which it was passed; or
(b)if the first mentioned instrument or provision was taken to have been disallowed—the House of the Parliament in which notice of the motion to disallow the instrument or provision was given by resolution approves the making of a legislative instrument or provision the same in substance as the first mentioned instrument or provision.
(2)Any legislative instrument or provision made in contravention of this section has no effect.
On 25 June 2015 the Senate disallowed the First Regulation. On 9 July 2015 the Governor‑General made select legislative instrument No 114, 2015 headed “Family Law (Fees) Amendment (2015 Measures No. 1) Regulation 2015” (the “Second Regulation”). It was registered on 12 July 2015. On 24 July 2015 Mr Perrett and Senator Moore made application to this Court for declaratory and injunctive relief. They seek to establish that the making of the Second Regulation was contrary to the provisions of s 48 of the Legislative Instruments Act upon the basis that it was, “the same in substance”, as the First Regulation which had been disallowed. The Attorney‑General accepts that he is the appropriate respondent in these proceedings.
At a directions hearing held on 29 July 2015 counsel for the Attorney‑General indicated that he would submit that Mr Perrett and Senator Moore had no standing sufficient to justify their making of this application. In the course of that hearing it was suggested that other persons might be joined as applicants, being persons who had applied to the Family Court for divorce, and thereby incurred liability to pay the fees prescribed by the Second Regulation. Each of Mr Davies and Ms Bates presently proposes to seek a divorce. Prior to the hearing of this matter, but after the filing of the original application, Ms Wei caused an application for divorce to be delivered to the Family Court Registry. In the course of the hearing I was informed that her application had been accepted for filing. Ms Wei has therefore become liable to pay the fee fixed pursuant to the Second Regulation. Ms Brain’s affidavit discloses that the fee has been charged to Ms Wei’s credit card.
As I understand it, the Attorney-General does not challenge the standing of Mr Davies, Ms Bates or Ms Wei to bring these proceedings. His challenge to Mr Perrett and Senator Moore’s standing remains. It may only be necessary to resolve that question in connection with any order as to costs, subject always to the considerations discussed by Hill J in Australian Securities Commission v Aust‑Home Investments Ltd (1993) 44 FCR 194. The other issues which remain outstanding between the parties are:
·the admissibility of the matters dealt with in the affidavit of Virginia Louise Wilson filed on 4 August 2015;
·whether or not the Second Regulation is the same in substance as the First Regulation; and
·in the event that the applicants succeed, the appropriate relief.
THE EVIDENCE
The evidence is quite limited. I have already set out much of Mr Perrett’s evidence. He has consulted with family law practitioners. They have expressed concern about proposed increases in Family Court filing fees. He exhibits a number of documents to which I shall refer if necessary. Senator Moore has also sworn an affidavit deposing to her position in the Senate and her associated responsibilities. She explains the process by which the First Regulation was disallowed. It is not necessary that I refer to that matter in any detail as the fact of disallowance has been proven by reference to the Journals of the Senate. Senator Moore has also exhibited various documents to which I shall refer if necessary. Mr Matthew Littlejohn is a solicitor in the employ of the applicants’ solicitors. He has sworn four affidavits, exhibiting numerous documents and providing information concerning the disallowance of the First Regulation. Mr Davies, Ms Bates and Ms Wei have all sworn affidavits. I have already referred to Ms Brain’s affidavit.
Ms Wilson is a principal legal officer in the Courts, Tribunals and Justice Policy Branch of the Attorney‑General’s Department and was authorized to make her affidavit on behalf of the Attorney‑General. In effect her affidavit addresses the amounts of revenue likely to be derived by the Government from the First and Second Regulations respectively. Ms Wilson sets out the method by which such calculations were done and the results. The additional revenue projected as a result of the First Regulation is $63,866,918 for the period from 1 July 2015 to 30 July 2019. Pursuant to the Second Regulation the additional revenue for the same period would be $66,061,867 showing an increase of $2,194,949. The applicants object to the receipt of Ms Wilson’s evidence on the ground of relevance. That objection reflects the approach which the applicants submit I should take in determining the “same in substance” point. The Attorney‑General also objects to much of the applicants’ evidence, primarily on the basis that it is irrelevant to that same question, although his objection was not expressly related to any particular aspect of the evidence. These objections will be resolved by my eventual conclusion as to the proper approach to the “same in substance” point.
THE PARTIES’ SUBMISSIONS
Insofar as the case concerns s 48 of the Legislative Instruments Act the parties’ submissions focus very much upon the decision of the High Court in Victorian Chamber of Manufactures v Commonwealth (1943) 67 CLR 347 (the “Women’s Employment Case”). In that case the High Court considered a number of important issues, including the capacity of the Parliament to delegate legislative power and the extent of the defence power of the Commonwealth. Those matters are of no present relevance. However questions also arose concerning the operation of s 49 of the Acts Interpretation Act 1901‑1941 (Cth) (the “Acts Interpretation Act 1941”). That section provided:
(1)Where, in pursuance of the last preceding section, either House of the Parliament disallows any regulation, … no regulation, being the same in substance as the regulation so disallowed, … shall be made within six months after the date of the disallowance, unless … the resolution has been rescinded by the House of the Parliament by which it was passed.
(2)Any regulation made in contravention of this section shall be void and of no effect.
Section 48 (the “last preceding section” referred to in s 49(1)) dealt with the disallowance of a regulation by either House of Parliament. Insofar as concerns s 49 of the Acts Interpretation Act 1941 the High Court, in the Women’s Employment Case, appears to have been primarily concerned with two aspects of that provision, namely:
·where numerous regulations are part of the one “statutory rule”, whether a global approach should be taken to the assessment of “identity” or “sameness”, or whether each regulation should be considered individually; and
·the meaning of the term “the same in substance”.
The applicants submit that I should adopt the reasoning of Latham CJ in that case. They also submit that I should consider whether the Second Regulation is the same in substance as the First Regulation. They then point to individual similarities and differences, concluding that they vary, “only very slightly and in respect of detail only”. In effect, each of the two Regulations substitutes a new schedule of fees for that which appeared in the 2012 Regulations. In each, the schedule identifies various services which may be provided, or documents which may be filed or generated in Family Court proceedings. Each identifies a fee for each event or document. The events or documents identified in the First and Second Regulations appear to be the same. The major difference between the two Regulations is that most of the fees prescribed by the Second Regulation are $5 higher than those prescribed by the First Regulation. The applicants submit that the question of whether the Second Regulation is the same in substance as the First Regulation involves an assessment of the extent to which the various fees have been increased. They submit that:
… an increase from $845 to $1,195 and then $1,200 for divorce applications and an increase from $55 (subpoena) to $120 then $125, along with no changes to other forms of application costs, does not constitute the kind of substantial difference which would exclude the application of s 48 of the Legislative Instruments Act. Rather, it is the kind of minor change in details which was held invalid in the [Women’s Employment Case].
The Attorney‑General submits that the Women’s Employment Case:
… does not lay down a single approach for determining whether a legislative instrument is the ‘same in substance’ as a previously disallowed instrument. All that one can glean from the decision is that there must be a comparison of the disallowed legislative instrument and the impugned legislative instrument to determine whether, as a matter of substance and not form, the two instruments are so alike that they can be called the same.
The Attorney‑General submits that in dealing with legislative instruments which set fees, “differences in the level of fees will ordinarily go to substance, not form”. He submits that where a regulation fixes a fee, the relevant question pursuant to s 48 cannot be determined by an intuitive assessment of whether the amount of any proposed increase may be characterized as a change of a “substantial nature”. Rather the Attorney‑General submits that the concept of “substance” is used in contradistinction to the concept of “form”. I should add that the parties submit that I should take a global approach to any comparison of the First and Second Regulations, as opposed to an “item by item” approach.
THE WOMEN’S EMPLOYMENT CASE
Given the way in which the parties have conducted the matter, its resolution depends upon a proper understanding of the decision of the High Court in the Women’s Employment Case. In argument the parties focussed upon the judgment of Latham CJ. However there is no reason to believe that the other members of the Court adopted his Honour’s reasoning. The facts of the case appear in the introductory paragraphs of the Chief Justice’s reasons at 355‑356. During 1942, the Governor‑General had made regulations, purportedly pursuant to the National Security Act 1939‑1940 (Cth), presumably legislation relating to the defence of the Commonwealth. The regulations were disallowed pursuant to s 48(4) of the Acts Interpretation Act 1941. The Government’s response was to introduce the Women’s Employment Act 1942 (Cth) (the “Women’s Employment Act”). Scheduled to that Act were regulations (the “Women’s Employment Regulations”) which corresponded with the regulations which had previously been made and disallowed. In those proceedings the plaintiffs sought to establish that the Women’s Employment Act was beyond the power of the Commonwealth and therefore void.
The Act provided for the making of regulations. On 22 December 1942 regulations were made. On 16 March 1943 those regulations were disallowed by the Senate. On 25 March and 8 April 1943, new regulations were made. The plaintiffs asserted that such regulations were the same in substance as the regulations which had been disallowed, and were therefore invalid. For present purposes it is the High Court’s consideration of the validity of the regulations made on 23 March and 8 April 1943 which is relevant. The consideration of that question commences at 358 in the judgment of Latham CJ. I should say that the present case has been conducted upon the basis that there is no material difference between s 49 of the Acts Interpretation Act 1941 and s 48 of the Legislative Instruments Act.
At 359‑363, Latham CJ set out his understanding of the relevant sections as follows:
A statute is made by both Houses of Parliament. Regulations under a statute are made by the Governor‑General. The Acts Interpretation Act has at all times since 1904 contained provisions providing for the disallowance by either House of the Parliament of regulations made under a statute. It was found, however, that these provisions were ineffective to prevent the immediate or early re-introduction of a new regulation which produced the same legal effect as the disallowed regulation. A regulation could be disallowed by a House and could be immediately promulgated again even in the same terms. Thus a regulation, though disallowed, could, as Starke J. pointed in Dignan v. Australian Steamships Pty Ltd [(1931) 45 CLR 188 at p. 202] be kept in perpetual operation, notwithstanding even repeated disallowance. … These cases provided examples of regulations being disallowed and then re-enacted in terms which had, as Stark J. said, “substantially the same effect”. These cases were decided in 1931.
…
It should be observed that ss. 48 and 49 deal with regulations contained in statutory rules. A statutory rule frequently consists of a number of regulations, and either House may disallow a single regulation or a number of regulations or all the regulations in a statutory rule. … Both plaintiffs and defendants in the present case contended that the sections should be so interpreted, and that, for the purpose of applying s. 48(4), regulation could be compared with regulation, and not necessarily statutory rule with statutory rule. I agree that regulation may be compared with regulation, but in my opinion this proposition should not be adopted as an exhaustive statement of the manner in which s. 49 may be applied. A particular new regulation may, it is true, be compared with a particular disallowed regulation for the purpose of determining whether those particular regulations are the same in substance. But I see nothing to prevent the comparison of a new set of regulations, as a whole, with a disallowed set of regulations, for the same purpose. In such a case it might appear that no single one of the new regulations was the same in substance as any particular disallowed regulation, and yet the effect of the new re-drafted and re-arranged regulations, taken as a whole, might be the same in substance as that of the regulations which had been disallowed. In such a case, it should, in my opinion, be held that the new regulations were void if they were passed within six months of the disallowance.
Further, a new set of regulations may be so drafted as to deal in the same way with cases covered by disallowed regulations but so as also to deal with other cases to which the disallowed regulations did not apply. Such new regulations would have the same operation as the previous regulations, but would have an additional operation as well. Such a re-enactment of old regulations with additions should, in my opinion, be held to be ineffectual to escape the operation of s. 49. To hold otherwise would be to reduce the section to a complete futility. If it should happen that the objection of a House to the old regulations was that they were not sufficiently extensive in their operation, s. 49 provides a method which will enable the Government to procure the re-enactment of the old regulations, but with an addition which would give effect to the objection which had brought about their disallowance. The House which had disallowed the regulations could in that case rescind the resolution of disallowance, and there would then be no obstacle in the way of making the new regulations (s. 49(1)(a)). Similar considerations apply to any case where the ground of disallowance is an objection that the regulations are too extensive in their operation.
When a regulation has been disallowed more than one course is open if it should be desired by Parliament, by the House of the Parliament which has disallowed the regulation, or by the Government, to enact provisions applying to the matters to which the disallowed regulation related. In the first place Parliament may itself legislate upon the matter. Parliament may, if it thinks proper, incorporate in a statute all the provisions of the disallowed regulations, and no question can arise as to their validity under s. 49, because that section applies only to the re-enactment of regulations being the same in substance as disallowed regulations, and not to statutes. This course was adopted when, after the disallowance of certain regulations, the Women's Employment Act was passed.
In the second place (as already stated) the House which has disallowed a regulation may, if it thinks proper, rescind the resolution of disallowance. In such a case s. 49 has no application and regulations may then properly be enacted forthwith even though they are the same in substance as the disallowed regulations.
In the third place, if the Government desires to re-enact a regulation which is the same in substance as the regulation disallowed and cannot persuade the disallowing House to rescind its resolution, it may, after waiting six months from the date of the disallowance, move the Governor‑General to make such a regulation, and s. 49 will not be applicable to the new regulation.
In the fourth place, regulations relating to the same subject matter may be made immediately after the disallowance and notwithstanding the disallowance, provided that they are not the same in substance as the regulation disallowed.
But, finally, it is not open to the Governor‑General, acting upon the advice of the Government of the day, to re-enact within six months of disallowance any regulation which is the same in substance as the regulation disallowed.
This provision must be applied by the court without any knowledge of the reasons which prompted a House of the Parliament in disallowing a regulation. No statement of reasons is required in the resolution of disallowance. The Regulations in question in the present case may have been disallowed for many reasons. … In the absence of a statement of reasons in a resolution of disallowance, reasons for disallowance could be ascertained, with more or less accuracy, only by an examination of such speeches as might have been made in support of the resolution for disallowance. But such a resolution might be carried without any speeches, and in most cases some members would have voted for it without speaking. The court must apply the section independently of any knowledge or any speculation as to the reasons which prompted disallowance. It is left to the court to determine whether a new regulation is the same in substance as a disallowed regulation by applying such tests as the court may think proper. The court can have no basis for saying that a regulation was disallowed only because it was objectionable in some particular characteristic, so that a new regulation which has omitted that characteristic would for that reason necessarily be not the same in substance as the disallowed regulation. The court must do its best to determine in each case whether such differences as exist between the disallowed regulation and the new regulation are differences in substance.
The statutory provision preventing the re-enactment of a disallowed regulation within six months of disallowance is plainly intended to give effective parliamentary control over such subordinate legislation as Parliament has authorized the Governor‑General, upon the advice of the Government of the day, to enact. That authority is given by a statute passed by both Houses. The principle introduced in ss. 48 and 49 of the Acts Interpretation Act taken together is that if either House objects to the substance of a regulation made in pursuance of that authority the regulation shall be of no force or effect, so that no Government can exercise a legislative power against an objection of either House.
The court should not, in my opinion, hesitate to give the fullest operation and effect to such legislation. The question whether a new regulation is the same—not identically in all particulars, but “in substance”—as a disallowed regulation will often be a question of degree, upon which opinions may reasonably differ. But, if the intention of the disallowing House has been misunderstood by the court, that House can easily put the matter right by rescinding the resolution of disallowance and so making possible the immediate re-enactment of the substituted regulation. No decision of the court that one regulation is the same in substance as another regulation can prevent the disallowing House from giving effect to a contrary opinion if it wishes to do so.
The Chief Justice noted that the words “same in substance” and similar expressions had a long history, dating back to 1 June 1610 when the House of Commons agreed upon a rule that, “ … no Bill of the same substance be brought in the same session”. His Honour noted that similar rules applied in both the House of Lords and the House of Commons, and in the Senate and the House of Representatives. That is still the case. In Erskine May’s, Treatise on The Law, Privileges, Proceedings and Usage of Parliament (24th ed, Sir Malcolm Jack KCB PhD (ed)) the practice in the House of Commons is discussed at p 543 to p 545. It is for the Speaker to apply the rule, although such application is subject to any contrary vote by the House. Erkine May provides a list of occasions on which the rule has been applied in the Commons. One example has some similarity to the present case. Erskine May states:
In Session 1976‑77, the Reduction of Redundancy Rebates Bill provided for a reduction expressed in percentage terms in the rebate payable under previous Acts; but the question ‘That the bill be now read a second time’ was negatived on division. A second bill was drafted, but the Speaker ruled privately that it could not be presented since it contained provisions which would achieve the same object as that of the original bill. The Redundancy Rebates Bill, which gave power to vary the rebates within wide limits by order, was then introduced, and proceeded without objection.
In the House of Representatives the so‑called “same motion rule” may be found in standing order 114B. In the House of Representatives Practice (6th ed) at p 298 it is said that the application of the rule is “totally at the Chair’s discretion”. Presumably, the term “Chair” includes the Speaker, Deputy Speaker and chairs of committees. The author suggests that the rule should not restrict or prevent, “the House from debating important matters, particularly during a long session, which may be of two to three years’ duration”. It seems that the rule has rarely been applied. See also pp 357 and 358. A similar rule appears as standing order 86 in the Senate. See Odgers’ Australian Senate Practice (12th ed, Harry Evans (ed)) at pp 182, 334 and 342. Again, it seems that the rule is seldom applied. In particular, at p 182, the author states:
This rule, known as the same question rule, is seldom applied, because it seldom occurs that a motion is exactly the same as a motion moved previously. A motion moved in a different context, for example, as part of a different “package” of proposals, is not the same motion even if identical in terms to one already moved … . Even if the terms of a motion are the same as one previously determined, because of a lapse of time it almost invariably has a different effect because of changed circumstances and therefore is not the same motion. There may also be different grounds for moving the same motion again.
Of course, standing orders, and the ways in which each House habitually applies them can have no relevance for present purposes.
Latham CJ then observed that s 49 of the Acts Interpretation Act 1941 could have two possible meanings. Either:
·the provision was intended only to prevent the re‑enactment of regulations which were identical in substance with a disallowed regulation, varying only in form from that regulation; or
·as such interpretation would, in practice, deprive the legislation of all effect, and in order to give any real effect to the legislation, it should be interpreted as preventing the re‑enactment within six months of any regulation which is “substantially the same” as any disallowed regulation, and that regulations should be held to be substantially the same not only if they differ only in form, but also if their material provisions, as in fact operative, produce the same substantial result as a disallowed regulation, even if there be differences in details.
At 364 his Honour said:
Upon the first view suggested, the distinction upon which s. 49 is based is a distinction between substance and form. Upon the second view the relevant distinction is the distinction between substance and detail—between essential characteristics and immaterial features.
The Chief Justice considered that both views were open, but concluded that the first approach would not resolve the situation which, following the decision in Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188, had led to the adoption of the provision. At 364 his Honour said:
In my opinion, in order to give any practical effect to the section, it should be construed in the second of the senses above stated: that is to say, the section prevents the re‑enactment by action of the Governor‑General, within six months of disallowance, of any regulation which is substantially the same as the disallowed regulation in the sense that it produces substantially, that is, in large measure, though not in all details, the same effect as the disallowed regulation. The adoption of this view prevents the result that a variation in the new regulation which is real, but quite immaterial in relation to the substantial object of the legislation, would exclude the application of s. 49.
Rich J said at 377:
The words “in substance” indicate that in making the necessary comparison form should be disregarded.
In other words, his Honour adopted the first of the approaches suggested by the Chief Justice. Starke J did not deal with the question. McTiernan J dealt with it at 388‑390. At 389 his Honour said:
Where either House disallows one regulation the intention of s. 49 is to prohibit the Executive, subject to the conditions imposed by the section, from making any regulation or regulations the same in substance as the disallowed regulation; or if either House disallows a series of regulations from making any regulation or regulations the same in substance as the disallowed regulations. The expression “the same in substance” does not fix precisely the limits of the prohibition imposed on the Executive. In my opinion a new regulation would be the “same in substance” as a disallowed regulation if, irrespective of form or expression, it were so much like the disallowed regulation in its general legal operation that it could be fairly said to be the same law as the disallowed regulation.
Superficially this statement might appear to be somewhat equivocal. However, in my view, it is closer to the position adopted by Rich J than to that adopted by Latham CJ. First, McTiernan J focussed upon the distinction between form and substance. Secondly, his Honour’s approach required that in order that a later measure be the same in substance as a previously disallowed measure, the later measure must, in its general legal operation, be such that it could fairly be said to be the “same law” as the disallowed measure.
Concerning the present question Williams J said at 405‑406:
The section refers to a regulation which is the same in substance as a regulation which has been disallowed. It therefore requires that each regulation forming part of a set of regulations which has been disallowed shall be contrasted with the regulation which replaces it. The meaning of a regulation must be ascertained in the context of the whole set of regulations of which it forms a part just as a section must be construed in the context of the whole Act. It requires the court to go behind the mere form of regulations and ascertain their real purpose and effect. If this is in substance the same the subsequent regulation is void. It is impossible to define the meaning of the section with any precision. As the Privy Council said in another connection, each case must be determined as it arises, “for no general test applicable to all cases can safely be laid down” … .
In his Honour’s subsequent consideration of the various regulations at 406, he was clearly distinguishing between form and substance. Hence I conclude that three members of the Court, Rich, McTiernan and Williams JJ, all understood s 49 as distinguishing between form, on the one hand, and substance, on the other. Latham CJ seems to have taken a somewhat different approach, considering that notwithstanding differences in the “detail”, the two measures might be the same in substance. Such an approach requires that there be criteria for determining whether a difference is, or is not, as to detail.
I am not convinced that his Honour’s approach provides any real support for the applicants’ case. At 364 his Honour distinguished between “substance and detail—between essential characteristics and immaterial features”. It may be that the distinction goes beyond that between form and substance, but if so, not by much, at least for present purposes. I find it difficult, in considering the First and Second Regulations, both of which impose fees, to accept that any increase in a fee, or in the level of any proposed increase, can be described as “detail” or an “immaterial feature” of the measure in question. The amount of the fee or the proposed increase is at the heart of each measure.
DICTIONARY DEFINITIONS
The Oxford English Dictionary (2nd ed) defines the term, “in substance”, as meaning “in reality”. According to the same source the expression, “in reality”, means “really, actually, in fact”. The word “substantial” is relevantly defined as, “relating to or proceeding from the essence of a thing; essential”, “that is, constitutes, or involves an essential part, point or feature; essential, material”, “that is such in the main; real or true for the most part” or “the things belonging to or constituting the substance; the essential parts or elements; the essentials”. The Macquarie Dictionary (5th ed) defines “substance” relevantly as, “the actual matter of a thing, as opposed to the appearance or shadow; reality”, and the expression “in substance” to mean “substantially” or “actually; really”. According to that dictionary the word “real” means “true (rather than merely ostensible, nominal, or apparent)”. The word “substantial” means “being such with respect to essentials”, “relating to the substance, matter or material of a thing” or “of or relating to the essence of a thing; essential, material or important”.
The Chambers Dictionary (11th ed) defines the word “substance” relevantly as, “something in which qualities or attributes exist, the existence to which qualities belong; that which makes anything what it is; the principal part; gist, subject matter, body, matter, material; a kind of matter … ”. The word “substantial” is defined as “of or having substance; being of substance; essential; actually existing; real; corporal; material; solid; stable”. The Collins Australian Dictionary (7th ed) defines “substance” relevantly as “the essence, meaning, etc, of a written or spoken thought”, “solid or meaningful quality”, and the term “in substance” as “with regard to the salient points”. The word “substantial” means “real; actual; true”, “of or relating to the basic or fundamental substance or aspects of a thing”.
The applicants’ submissions seem tacitly to treat the term “the same in substance” as meaning “substantially similar”. Such an approach involves abandonment of the actual wording of the relevant section. If the phrase “substantially the same” means something different from “the same in substance”, the actual wording of the section must prevail.
The Oxford English Dictionary (2nd ed) defines the word “same” as “not numerically different from an object indicated or implied; identical” or “identical with what is indicated in the following context”. The word “similar” is relevantly defined as “having a marked resemblance or likeness; of a like nature or kind”, “a thing or person similar to or resembling another; a counterpart”. The Macquarie Dictionary (5th ed) defines the word “same” as “identical with what is about to be or has just been mentioned”, “being one or identical, though having different names, aspects, etc.”, “agreeing in kind, amount, etc.; corresponding, unchanged in character, condition, etc.” or “the same person or thing”. The word “similar” is defined as, “having likeness or resemblance, especially in a general way”. The Collins Australian Dictionary (7th Australian ed) defines “same” as “being the very one”, “being the one previously referred to”, “identical in kind, quantity, etc”, unchanged in character or nature” or “in an identical manner”. The word “similar” is described as “showing resemblance in qualities, characteristics or appearance; alike but not identical”. The Chambers Dictionary (11th ed) defines “same” as “identical”, “not different; unchanged; unvaried; an identical thing”. The same reference work defines the word “similar” as “like; resembling”.
These definitions seem to suggest that the word “same” is used to identify the very thing which is the subject of a relevant comparison, whilst the word “similar” may denote something different which nonetheless resembles the thing against which comparison is to be made. In the case of the word “same”, the definitions disclose a strong sense of identity or sameness. In the case of the word “similar”, they seem to contemplate a degree of divergence. This distinction is, I think, consistent with common usage. The applicants do not, in their submissions, expressly suggest that the test should be as to substantial similarity (rather than sameness in substance). However their approach reflects a search for similarity rather than for identity or sameness. It is difficult to avoid the conclusion that the word “same” in s 48 should be construed as requiring that the two measures be identical in effect, and in their means of achieving that effect.
Another way of looking at the problem is to focus upon the inter‑relationship between the words “same” and “substance” in s 48. The expression, “the same in substance”, strongly suggests that in matters of substance, complete identity is required. Thus one must identify the substance of the measure disallowed and look to see if it is reflected in the later measure. In the phrase, “substantially the same”, the adverb of degree “substantially” qualifies the adjective “same” (as in “the same thing”). The effect of an adverb of degree is inevitably to qualify the meaning of the qualified adjective by, in effect, introducing the concept of “degree”. By recasting the phrase, “the same in substance”, as the phrase, “substantially the same”, the applicants (and perhaps Latham CJ) removed the requirement that the substance of the disallowed measure be replicated in the later measure. They substituted for that requirement, a requirement that the later measure replicate the disallowed measure to a substantial degree.
In my view s 48 should be construed as requiring that, in order that a legislative instrument be invalid, it be, in substance or legal effect, identical to the previously disallowed measure. Differences in form will be of no consequence. In the Women’s Employment Case, Rich, McTiernan and Williams JJ seem to have adopted that position. Although Latham CJ took a slightly different approach, his Honour’s reasoning does not go as far as the applicants submit. Further, the dictionary definitions suggest that the word “same” should not be used in a way which tends towards the meaning of the word “similar”. The word “same” requires virtual identity (or sameness) between the objects of the comparison. Another consideration militates in favour of this approach. The task conferred upon the Court by s 48 concerns the intersection of the legislative, executive and judicial functions. Whilst it may be true, as Latham CJ said, that the Court should not hesitate to give the fullest operation and effect to legislation of this kind, the courts generally seek to avoid involvement in matters of political judgment. Disputes about whether a $5 increase in a fee is an essential characteristic or an immaterial feature, or as to whether the result of such increase is substantial or otherwise, may lead to such involvement.
ADMISSIBILITY OF MS WILSON’S AFFIDAVIT
On the approach which I have taken this question is of no real significance. Nonetheless, given the way in which the applicants have conducted the case, it seems to me that the affidavit is relevant to the matters in question. The applicants submit that the “same in substance” question can be determined simply by comparing the quantum of the increase under the Second Regulation with that imposed by the First Regulation. They submit that I should infer that increases of $5 in various items do not effect a difference in substance. The argument seems to be that $5 is not a substantial amount of money. Whilst it may be a small amount, it is not insubstantial. The applicants’ approach looks at the increase only from the point of view of the person paying the fee. There can be little doubt that the proposed increases under both the First and Second Regulations were, and are, motivated by the need to generate more revenue. Ms Wilson’s affidavit demonstrates that the increase in revenue to be derived pursuant to the Second Regulation is substantially greater than that to be derived pursuant to the First Regulation. In that sense Ms Wilson effectively responds to the submission that the increase of $5 should be treated as being insubstantial. In the absence of Ms Wilson’s affidavit, the Court would be forced to speculate as to the extent to which each measure would increase revenue. Her affidavit does no more than give a quantitative assessment of an effect which could otherwise only be described in qualitative terms. On that basis I shall admit the affidavit. Of course, as I have said, I have not relied upon it in reaching my conclusion on the substantive issue.
STANDING
The general rule as to standing appears in the judgment of Gibbs J (as his Honour then was) in Australian Conservation Foundation Inc v Commonwealth (1978‑1980) 146 CLR 493 at 526‑527. His Honour there adopted the following passage from the judgment of Buckley J in Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114:
A plaintiff can sue without joining the Attorney‑General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with … ; and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.
At 530‑531 Gibbs J said:
However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.
Stephen J similarly approved that extract from the judgment of Buckley J in Boyce. At 539 his Honour observed:
An individual does not suffer such damage as gives rise to standing to sue merely because he voices a particular concern and regards the actions of another as injurious to the object of that concern. … Even so, the appellant clearly enough fails to establish standing to sue on the basis of damage suffered by itself. For it to succeed upon this particular ground the law must be that any person with genuinely held convictions upon a topic of public concern thereby acquires standing to enforce a public right to breach of which it takes exception. That is not the current state of the law. To hold otherwise would be radically to alter the existing law as it now stands.
Mason J (as his Honour then was) agreed with the reasons of Gibbs J and, at 547, said:
… apart from cases of constitutional validity which I shall mention later, a person, whether a private citizen or a corporation, who has no special interest in the subject matter of the action over and above that enjoyed by the public generally, has no locus standi to seek a declaration or injunction to prevent the violation of a public right or to enforce the performance of a public duty.
Depending on the nature of the relief which he seeks, a plaintiff will in general have a locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests … and perhaps to his social or political interests.
The applicants seek support for their submission as to Mr Perrett and Senator Moore’s standing by reference to the decision of Gaudron J in City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [57]. However I do not understand her Honour to be there discussing questions of standing, but rather the proposition that relief in equity should be limited by considerations of the kind applicable to the grant of prerogative writs.
The applicants also refer to Brown v West (1990) 169 CLR 195. In that case a member of the House of Representatives brought proceedings against the Minister for Administrative Services and the Commonwealth, challenging the Minister’s decision to increase the postage entitlement for Members of Parliament beyond the amount determined by the Remuneration Tribunal. The Court dealt briefly with the question of standing at 212 where it said:
Although the plaintiff has an interest in knowing whether or not he is entitled to a supplementary allowance, there may be other persons who are not parties to these proceedings whose rights or liabilities would be affected by the making of the declarations sought by the plaintiff … .
It seems that Mr Brown’s interest was not as a Member of Parliament per se, but as a Member of Parliament who was, or might have been entitled to a particular allowance.
The applicants also refer to the decision in Combet v Commonwealth (2005) 224 CLR 494. That case concerned a challenge to the validity of proposed expenditure by the Government on a national advertising campaign, promoting proposed reforms in the workplace relations area. The secretary of the Australian Council of Trade Unions and Ms Roxon, a Member of Parliament, commenced proceedings, contending that such advertising expenditure was not authorized by legislation. The majority (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) concluded that such advertising was authorized. In those circumstances it was not necessary that they consider the question of standing (per Gleeson CJ at [31] and per Gummow, Hayne, Callinan and Heydon JJ at [164]). McHugh and Kirby JJ separately considered the question. Ms Roxon was the Shadow Attorney‑General. She claimed that this position gave her the necessary standing. At [96]‑[98] McHugh J said:
96The defendants contended that neither plaintiff has standing to obtain a declaration concerning the validity of the payments or an injunction to restrain the third defendant from issuing drawing rights to authorise the payment of public money for the advertising campaign. The first plaintiff is the Secretary of the ACTU. In British Medical Association v The Commonwealth, Dixon J doubted that the Federal Council of the British Medical Association in Australia, one of whose objects was to advance the general interests of the medical profession in Australia, had standing to challenge federal legislation that imposed a form of civil conscription within the meaning of s 51(xxiiiA) of the Constitution. … It is not necessary, however, to determine whether the first plaintiff has standing. In my opinion, the second plaintiff as the shadow Attorney‑General of the Commonwealth has sufficient interest in the proceedings to give her standing to bring these proceedings.
97The second plaintiff is a member of the House of Representatives. Her status as a member is expressly recognised by the Constitution … . She voted for or against or could have voted for or against Act No 1. She has a special interest in ensuring that public moneys are not expended inconsistently with the terms of Act No 1 passed by the Parliament of which she is a member. Furthermore, she is seeking an injunction to restrain an officer of the Commonwealth from acting in contravention of the law and s 83 of the Constitution. Her action is brought under s 75(v) of the Constitution. The remedy of injunction available under that paragraph of s 75 is one of three remedies that the paragraph makes available against officers of the Commonwealth. Another remedy under that paragraph is “prohibition”, a remedy that even under the general law is available, subject to exercise of the Court's discretion, to a stranger to the issue. If a stranger can obtain a writ of prohibition under s 75(v), it is difficult to see why, subject to the Court's discretion, a stranger cannot obtain an injunction under that paragraph. In many cases to which s 75(v) applies, the distinction between a writ of prohibition and a writ of injunction will be elusive.
98Accordingly, the second plaintiff has standing to bring these proceedings.
(Footnotes omitted.)
The basis upon which his Honour concluded that Ms Roxon had standing is not entirely clear. It may be that the conclusion was based on:
·her position as Shadow Attorney‑General;
·her position as a Member of Parliament; and/or
·the analogy with standing for the purpose of obtaining a prerogative writ.
Kirby J considered the matter at [308]‑[310]. His Honour considered that a member of Parliament had a, “particular interest in ensuring obedience by the Executive Government to the requirements prescribed by the Constitution and by federal law”. See [308]. His Honour also considered that Ms Roxon had something more than a, “vexatious or purely hypothetical interest in the resolution of the issue”.
There are, no doubt, advantages in the approaches taken by McHugh and Kirby JJ. There are also arguments against them. Firstly, the two Houses of Parliament, in conjunction with the Governor‑General, make the law. Individual parliamentarians do not. Secondly, enforcement of the law is a matter for the Executive, not the Parliament or parliamentarians. Further, parliamentary supervision of the Executive depends upon constitutional and legislative arrangements. One can imagine many difficulties emerging if individual Members of Parliament were generally permitted to seek to enforce the law. With all respect to McHugh and Kirby JJ, they have not identified any principled basis for conferring such a right upon legislators, whether such legislators have relevant special responsibilities or not. As I have observed, in Australian Conservation Foundation, at 547 Mason J said that “perhaps” a social or political interest might be sufficient to give standing. However neither McHugh J nor Kirby J suggested that Ms Roxon’s political interest gave her standing. Rather, it was her position as a member of the House of Representatives and Shadow Attorney‑General which did so. It seems unlikely that either political interest or membership of the House of Representatives or Senate would be sufficient to satisfy the requirements for standing identified by the majority of the Court in the cases to which I have referred.
I note also that in Robinson v South East Queensland Indigenous Regional Council of the Aboriginal and Torres Strait Islander Commission (1996) 70 FCR 212, Drummond J considered whether the applicant was “a person aggrieved” for the purposes of the Administrative Decisions (Judicial Review) Act1977 (Cth). The applicant was a commissioner of the Aboriginal and Torres Strait Islander Commission, having been elected to that position under the relevant legislation. He had responsibility for the approval and administration of funding allocated to the Commission for certain purposes. He also had responsibility for ensuring compliance with any terms or conditions laid down with respect to such grants. At 226 his Honour said:
An elected representative, be he a member of Parliament, a local councillor or an ATSIC Commissioner, is elected to represent in the Parliament, the council or the Commission the interests of those members of the public who make up his constituency. None of those members of the public, in the absence of being able to show a special interest in a matter touching on the activities of the elected body, has standing to raise that matter in the Court. I do not think that a person can derive standing from being the elected representative of an aggregation of members of the public, none of whom individually has standing to sue. The present state of the law, in my opinion, is that subject to a situation in which an elected representative can show a special interest of his own that has been affected by a decision or an activity of the elected body (or its delegate), the representative's membership of such a body is by itself insufficient to confer standing on him to challenge the actions of the body (or its delegate).
There is much to be said for this line of reasoning.
It is not necessary that I determine finally the question of standing as it concerns Mr Perrett and Senator Moore. However, if it were necessary to do so, I would conclude that they lacked the necessary standing.
ORDERS
In the circumstances the application will be dismissed. I shall receive submissions as to appropriate orders and as to costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 13 August 2015
0
5
9