Pfeiffer v Stevens [2001] HCA 71 13 December 2001 B40/2001
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of Queensland
Representation:
R A Ingham-Myers with A C Harding for the appellant (instructed by Gall Standfield and Smith)
G J Gibson QC with S M Ure for the respondent (instructed by King & Company)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Pfeiffer v Stevens
Statutes – Construction – By-laws and Regulations – Validity – Procedure for making interim local laws – Whether Minister's power to extend interim local law limited so as to preclude multiple extensions – Whether power to extend interim local law contrary to requirements of sunset provision – Where statute conferred power on Minister to extend interim local law for "longer period" – Whether interim local law had ceased to have effect at relevant time.
Local Government – By-laws and Regulations – Validity – Power of extension of interim local law.
Constitutional law (Cth) – "law of a State" – Constitutional presumptions and penal laws – Contextual implications of limited delegation – Whether multiple extensions of an interim local law that imposes penal sanctions results in uncertain validity.
Words and phrases – "sunset provision", "a longer period", "interim local law".
GLEESON CJ AND HAYNE J. The appellant was prosecuted by the respondent, an officer of the Gold Coast City Council, for damaging protected vegetation contrary to s 5(1) of Interim Local Law No 6 (Vegetation Management). The complaint was dismissed by a magistrate (Magistrate Webber) on the ground that, at the time of the alleged offence, the interim local law had ceased to have effect. An appeal to a District Court judge succeeded, the judge (Hanger DCJ) deciding that the interim local law remained in force at the relevant time. The Court of Appeal of Queensland (McPherson JA, Moynihan SJA, and Atkinson J) dismissed an application for leave to appeal, concluding that the decision of the District Court judge was correct.
The issue as to whether the interim local law was still in force at the time of the alleged offence turns upon the power of the Minister to extend a period the subject of a sunset provision in the interim local law. It is accepted that the Minister had the power to extend the period once. But the Minister purported to extend it twice, and it was during the period of the second extension that the alleged destruction of vegetation occurred. There is no challenge to the Minister's action on any ground other than that the power to make a second extension did not exist. There is, in particular, no suggestion that there was an abuse of power.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Pfeiffer v Stevens [2001] HCA 71
Case
[2001] HCA 71
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia from the Court of Appeal of the Supreme Court of Queensland. The dispute arose from a prosecution for damaging protected vegetation under Interim Local Law No 6 (Vegetation Management) enacted by the Gold Coast City Council. The appellant, Mr Pfeiffer, had a complaint dismissed by a stipendiary magistrate on the grounds that the interim local law had expired. The respondent, the Chief Executive Officer of the Council, appealed this decision.
The central legal issue before the High Court was whether the Minister possessed the power to extend the sunset period of an interim local law more than once. The Interim Local Law itself stipulated that it would expire six months after commencement or at the end of a longer period gazetted by the Minister. The Minister had, in fact, extended the operation of the law on two occasions. The appellant argued that the Minister's power to extend was limited to a single extension, thereby rendering the law invalid at the time of the alleged offence.
The High Court, by majority, held that the Minister had the power to extend the sunset period of an interim local law on multiple occasions. The Court reasoned that Section 23 of the Acts Interpretation Act authorised the Minister to extend the period "as occasion requires" for the purpose of carrying out the objects of Division 3 of Chapter 12 of the Local Government Act 1993 (Q). The Court found that the legislative scheme, which allowed for interim local laws to be made in circumstances requiring expedition, implicitly conferred the power for multiple extensions where the initial six-month period proved insufficient for the completion of the law-making process.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
The issue in this appeal, brought against an order of the Court of Appeal of the Supreme Court of Queensland[4], is whether the Minister may extend the sunset period of an interim local law only once. The Court of Appeal held that the Minister could do so more than once. In my opinion, it was correct in so holding. Section 23 of the Acts Interpretation Act authorises the Minister to extend the sunset period of an interim local law beyond six months whenever the circumstances of the case require it to be done provided the Minister does so for the purpose of carrying out the objects of Div 3. [4]Pfeiffer v Stevens (2000) 106 LGERA 461.Background In March 1997, Gold Coast City Council ("the Council"), which is a "local government" within the meaning of the Act[5], enacted Interim Local Law No 6 (Vegetation Management) ("the Interim Vegetation Law"). Section 22 of the Interim Vegetation Law, headed "Expiry", declared:"This local law expires six (6) months after it commences or at the end of a longer period gazetted by the Minister."[5]Section 3 of the Act states that "'local government' means a local government established under this Act". The Minister extended the period for which the Interim Vegetation Law operated on two separate occasions: the first extension was to 14 March 1998, the second extension was to 14 September 1998. Towards the end of the second extension period, the respondent, who is the chief executive officer of the Council, filed a complaint against the appellant under s 5(1) of the Interim Vegetation Law. That section made it an offence to damage protected vegetation. Subsequently, a stipendiary magistrate dismissed the complaint on the ground that the interim local law was no longer in force. The District Court upheld an appeal by the respondent, holding that the Act permits the Minister to make more than one extension of the sunset period. The Court of Appeal dismissed an appeal against the judgment of the District Court.The legislative scheme In 1993, the Queensland legislature overhauled its local government laws by replacing them with a new and innovative Local Government Act. The Act contains some unique provisions including those in issue in this appeal. Section 2 declares that the objects of the Act include:"(a)providing a legal framework for an effective, efficient and accountable system of local government; and...(c)providing for community participation in the local government system;..." Chapter 12 of the Act deals with "Local Laws and Local Law Policies". It provides for local governments to make three types of laws: local laws, model local laws and interim local laws. It also provides for the making of local law policies. A "local law" is defined as "a law made by a local government"[6]. An "interim local law" is defined as "a local law that the local government and Minister agree may be made using the process stated in part 2 … division 2 ... because of the nature of the law"[7].[6]Section 850.[7]Section 852. Division 3 of Pt 2 of Ch 12 sets up a process which "must be used to make a local law (other than a model local law or interim local law)."[8] The process involves nine mandatory steps:[8]Section 865(1).. Step 1 – propose a law. Step 2 – ensure proposed law satisfactorily deals with any State interest. Step 3 – consult with public about proposed law . Step 4 – give public access to proposed law. Step 5 – accept and consider all submissions. Step 6 – decide whether to proceed with making proposed law. Step 7 – again ensure proposed law satisfactorily deals with any State interest. Step 8 – make proposed law. Step 9 – give public notice of law.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
HAYNE J
HUGH J
GUMMOW J
KIRBY J
Surprisingly, the local law was not enacted for more than two years after the Council first passed it as an interim law. It makes me wonder whether the local law making process was carried out with the expedition that the Act requires and whether the Minister always exercised his power of extension upon grounds that were consistent with the objects and purposes of the Act. But the parties have not litigated these issues. There is no evidence before this Court as to the reasons for the delay and the extensions. The issue that the parties have litigated is whether the Minister had power to extend the period of the sunset clause more than once. In my opinion, he had that power.Conclusion The Act impliedly confers power on the Minister to extend the sunset period for those hopefully rare cases where the six-month period is insufficient to carry out the making of the local law process. Section 23 of the Acts Interpretation Act authorises the exercise of such a power "as occasion requires". In combination, the Act and s 23 authorise the Minister to extend the period of the sunset clause when the occasion requires that it be exercised. The arguments of the appellant must be rejected. The appeal must be dismissed. The respondent, Mr Stevens, is Chief Executive Officer to the Gold Coast City Council ("the Council"). This litigation concerns the law-making powers conferred by statute upon the Council. Chapter 2 (ss 15‑60) of the Local Government Act 1993 (Q) ("the Local Government Act") is headed "THE LOCAL GOVERNMENT SYSTEM". The Council is "a local government" and a body corporate as provided in s 35 of the Act. Section 20 states that in exercising its jurisdiction of local government such a body has "a law-making role for local laws". Chapter 12 (ss 848‑899) is headed "LOCAL LAWS AND LOCAL LAW POLICIES". Section 848 declares that Ch 12 "provides a common law-making process for all laws made by local governments", as well as providing for "local law policies to assist the detailed implementation of a local law's objects". Section 896 of the Act states:"On commencement, a local law made by a local government has the force of law."A local law or other statutory instrument made by a local government is placed by s 9(2) of the Statutory Instruments Act 1992 (Q) ("the Statutory Instruments Act") outside the definition in s 9(1) of "subordinate legislation". The result is that, whilst s 49 of the Statutory Instruments Act requires the tabling in the Queensland Legislative Assembly of subordinate legislation within 14 sitting days after it has been notified in the Gazette, there is no such requirement for a local law. However, a local law, given force by s 896 of the Local Government Act, may create offences for contravention of its provisions. The respondent made a complaint under the Justices Act 1886 (Q) ("the Justices Act") that the appellant, Mr Pfeiffer, damaged protected vegetation contrary to s 5(1) of Interim Local Law No 6 (Vegetation Management) ("Interim Local Law No 6"). That law had been made by the Council in reliance upon the process set out in Div 2 of Pt 2 of Ch 12 of the Local Government Act. Section 5(1) provides:"A person must not damage protected vegetation."