Police v Williams - [2006] SASC 98

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v WILLIAMS
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Anderson)
11 April 2006
STATUTES - BY-LAWS AND REGULATIONS - VALIDITY - PARTICULAR POWERS AND WORDS AND PHRASES CONFERRING POWER
Case Stated by Magistrate - whether reg 9B(1) of the Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 (SA) was validly made at 28 August 2004 - whether the Governor validly exercised the power to make regulations pursuant to s 80(a) of the Road Traffic Act 1961 (SA) - whether the Governor has power to make regulations beyond the "Australian Road Rules" to which s 80(a) refers - Governor's power extends beyond regulations contemplated by the "Australian Road Rules" - reg 9B(1) of the Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 (SA) was validly made at 28 August 2004.
Road Traffic Act 1961 (SA) s 5(1), s 79B(2), s 80(a), s 80(b), s 176; Road Traffic (Road Rules) Amendment Act 1999 (SA); Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 reg 3, reg 6, reg 8, reg 11, reg 25, reg 35(2), reg 80, reg 163(3), reg 221; Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Variation Regulations 2003 (SA) reg 9B, reg 25(2); Acts Interpretation Act 1915 (SA) s 39, referred to.
Owen v South Australia (1996) 66 SASR 251, applied.

POLICE v WILLIAMS
[2006] SASC 98
Full Court: Doyle CJ, Duggan and Anderson JJ

DOYLE CJ: For some time the governments of the Australian States and Territories had been developing uniform road rules, regulating the conduct of all road users (not just the drivers of motor vehicles). The aim was to achieve national consistency so far as possible in relation to road rules, while still making some allowance for local circumstances.
In 1995 draft rules were circulated for public comment. By 1999 a set of agreed draft rules had been prepared. It was proposed that they come into effect in South Australia from 1 December 1999, by which time it was anticipated that they would be in effect in the other States and in the Territories.
Most of the rules covered the same ground as was covered by provisions in the Road Traffic Act 1961 (SA) (“the RTA”) and by regulations made under the RTA. Some of the rules covered ground found in other legislative provisions.
This summary is taken from the second reading speech on the Bill that became the Road Traffic (Road Rules) Amendment Act 1999 (SA) (“the Amendment Act”): Hansard, House of Assembly, 8 July 1999, pp 1831-1832.
The Minister referred to the draft rules as the Australian Road Rules. This is apparently how they were generally known. I will refer to the proposed national rules as “the proposed Rules”, to distinguish the proposed Rules from the rules later enacted. Their implementation in South Australia was achieved by repealing provisions of…

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.

Continue reading Police v Williams

Details

AGLC: Police v Williams [2006] SASC 98
Case: [2006] SASC 98
Decision Date: 11 April 2006

CaseChat Overview and Summary

In Police v Williams, the central issue was whether regulation 9B(1) of the Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 (SA) was validly made as of 28 August 2004. This matter was brought before the court due to a dispute over the speed limit on a specific section of Peacock Road in Adelaide. The key legal questions involved whether the Governor validly exercised the power to make regulations under section 80(a) of the Road Traffic Act 1961 (SA), and whether this power extended beyond the "Australian Road Rules" to which section 80(a) refers.

The court examined the scope of the Governor's regulatory power under section 80(a) of the Act, which allows the Governor to make rules to regulate traffic movement, flows, and conditions, among other things. It was debated whether this power was limited to adopting the "Australian Road Rules" without modification or if it included the ability to vary or revoke these rules. The court concluded that section 80(a) conferred a broader power, enabling the Governor not only to make rules but also to revoke, substitute, or vary them. The regulation in question, regulation 9B(1), was found to be validly made as it pertained to a miscellaneous provision relating to traffic movement, flows, and conditions.

The court ultimately held that regulation 9B(1) was validly made under section 80(b) of the Road Traffic Act 1961, even though it varied rule 25 of the Australian Road Rules. This decision was based on the interpretation that the Governor's power to make regulations was not restricted to merely replicating the proposed Rules but included the ability to make miscellaneous provisions that regulate the specified matters. Consequently, the court answered both questions in the affirmative, affirming the validity of regulation 9B(1) and confirming that the speed limit on the relevant portion of Peacock Road was 50 kilometres per hour as of 28 August 2004.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DUGGAN J

It may be that Dr Bleby’s submission can be accepted in part. It may be that the power conferred by s 80(a) is limited to the making of the proposed Rules. But even if it is so limited, I am not persuaded that the reference to “Australian Road Rules” in s 80(a) should be read as excluding the usual power to revoke or to vary those rules as the Governor might see fit, and whether or not the changes that are made reflect changes to the uniform national scheme.Conclusion For those reasons I do not accept that the power conferred by s 80(a) of the RTA is limited as suggested. I consider that s 80(a) confers a power to make rules that need not replicate the proposed Rules. It also confers the power to revoke those rules, to substitute other rules, and to vary the rules. To be valid all that is required is that the rules “regulate traffic movement, flows and conditions, vehicle parking, the use of roads and any aspect of driver, passenger or pedestrian conduct”, although of course provisions of the RTA and other legislation might limit the permissible reach of rules. Even if it was necessary that the rules replicate the proposed Rules, there is no suggestion that when first made they did not do that. And even if that was required, I do not accept that Parliament denied the Governor the power, otherwise conferred by s 39 of the Acts Interpretation Act, subsequently to depart from the national scheme. If that is so, it follows that there is no reason to read s 80(b) as not permitting the making of regulations that have the effect of varying or revoking a provision of the rules. It follows, in my opinion, that although the Governor could have amended r 25 of the ARR rather than making reg 9B, reg 9B was validly made under s 80(b) even though it had the effect of varying r 25 of the ARR. Regulation 9B was a regulation that made a miscellaneous provision relating to “matters of a kind referred to in paragraph (a)”, the miscellaneous provision being the particular change made to the default speed limit. The first question of law in the Case Stated is:(1)As at 28 August 2004, was regulation 9B(1) of the Road Traffic (Road Rules – Auxiliary and Miscellaneous Provisions) Regulations 1999 validly made under section 80 of the Road Traffic Act 1961?I would answer that question “Yes”. The second question in the Case Stated is:(2)As at 28 August 2004, was the speed limit on the relevant portion of Peacock Road, Adelaide 50 kilometres per hour?Although that question raises an issue of fact and law, the Magistrate has found certain facts proved which enable that question to be answered. Accordingly, I would answer question (2) “Yes”. I agree with the views expressed by the Chief Justice. I add some comments of my own. Section 80(a) of the Road Traffic Act 1961 (SA)(“the Act”) provides that the Governor may make:rules (Australian Road Rules) to regulate traffic movement, flows and conditions, vehicle parking, the use of roads, and any aspect of driver, passenger or pedestrian conduct.

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J

In the alternative, Mr Kourakis submits that reg 9B was a miscellaneous provision contemplated by s 80(b). He submits that “miscellaneous” is not a word of limitation. To the contrary, he submits that it is a word of wide meaning, referring to diverse and uncategorized matters. He submits that provision for a speed limit, or a change of speed limit, in a built-up area, was a miscellaneous provision relating to matters referred to in s 80(a), that is “traffic movement, flows and conditions …”.Consideration of submission The use of the expression “Australian Road Rules” in s 80(a) of the RTA suggests that Parliament contemplated a known set of rules, and was not using the expression to identify a subject matter (road rules) on which the Governor could make rules. That would be an unusual way of conferring a power to make subordinate legislation. It is permissible to refer to Hansard to identify the purpose of a legislative provision, or the mischief it was intended to remedy, even though in South Australia there is no legislative provision empowering and regulating reference to parliamentary material to interpret legislation: Owen v South Australia (1996) 66 SASR 251 at 255-256 Cox J, at 257 Prior J, at 262 Olsson J. Accordingly, I accept that it is permissible to refer to Hansard to explain the origin of the reference to Australian Road Rules in s 80(a), and to identify the rules referred to. But it does not follow that Parliament intended to empower the Governor to do no more than make rules that replicated the proposed Rules. Of course, it might have so intended. Section 80(a) may be intended to mean that the Governor’s power is limited to making rules adopting or implementing the proposed Rules. But s 80(a) can be read another way. It can be read as meaning that the Governor may make rules to regulate traffic movement, and to deal with the other matters referred to, and that these rules are to be called Australian Road Rules, and that the Governor can adopt the proposed rules to the extent that it seems appropriate and convenient. On the former reading the reference to “Australian Road Rules” has the effect of confining the power of the Government to the making of a known and existing set of rules. That is all the Governor can do. On the latter reading the power is, in effect, a power of the normal kind to make rules on a given topic, the reference to “Australian Road Rules” reflecting an expectation that the rules the Governor makes will be based on or drawn from the proposed Rules. The issue is, which of those meanings is correct? I consider that the latter meaning is the meaning. The provision is not well drafted, and I accept that others might come to a different conclusion. However, I consider that there are a number of matters supporting the wider meaning. I begin by acknowledging the force of the point that underlay Dr Bleby’s submissions. It is that Parliament referred to a particular package of rules, the proposed Rules. These rules reflected a scheme for uniform national road rules. In that context, Dr Bleby submits, Parliament would have intended to permit the Governor to implement only, and nothing other than, that package of uniform national rules. Parliament would have reserved to itself the power to control any departure from those rules, and would not have intended to empower the Governor to depart from the proposed Rules.