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 the RTA, of the Regulations under the RTA, and of other relevant legislation, in anticipation of their replacement by the proposed Rules, and by conferring power on the Governor to make rules. That is, the proposed Rules were to be brought into force as subordinate legislation. These things were done by the Amendment Act.
The issue in this Case Stated by a Magistrate is whether the power conferred on the Governor to make rules authorised the making, some years later, of a regulation that fixed a speed limit of 50 kph in built up areas, despite the fact that the effect of r 25(2) of the rules made by the Governor (which rule was not repealed) was that in the same circumstances the speed limit would be 60 kph. In other words, the regulation purported to amend r 25(2) of the rules made by the Governor.
The issue can be expressed more generally. It is whether the Governor, once the Governor had exercised the power to make rules, had power to effect the amendment or implied repeal of one of those rules by making an inconsistent regulation, or more precisely, an inconsistent regulation the making of which was not itself permitted or apparently contemplated by the rules.
The Legislation, the Australian Road Rules and the Regulations
The Amendment Act came into force on 1 December 1999.
Apart from repealing and amending various provisions of the RTA, the Amendment Act inserted a new Division 8 into Part 3 of the RTA as follows:
Division 8 Australian Road Rules and ancillary or miscellaneous regulations
80    Australian Road Rules and ancillary or miscellaneous regulations
The Governor may make—
(a)     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; and
(b)     regulations to deal with matters ancillary to this Part and the Australian Road Rules and to make miscellaneous provisions relating to matters of a kind referred to in paragraph (a).
The Amendment Act inserted into s 5(1) of the RTA a definition as follows:
Australian Road Rules – see section 80.
The Amendment Act does nothing more than this to identify the rules that the Governor is empowered to make, or the subject matter of those rules.
On 11 November 1999 the Governor (in Executive Council) made rules to be cited as “the Australian Road Rules” (“the ARR”). The ARR were to come into operation on 1 December 1999.
The ARR comprised a substantial and detailed set of rules (351 in all). The ARR govern or regulate the use of roads by vehicles and road users. Rule 3 states:
The object of the Australian Road Rules is to provide road rules in this jurisdiction that are uniform with road rules elsewhere in Australia.
Rule 25 of the ARR was as follows (it followed a rule specifying a speed limit in particular circumstances):
25    Speed-limit elsewhere
(1)     If a speed-limit sign does not apply to a length of road and the length of road is not in a speed-limited area, school zone or shared zone, the speed-limit applying to a driver for the length of road is the default speed-limit.
(2)     The default speed-limit applying to a driver for a length of road in a built-up area is 60 kilometres per hour.
(3)     The default speed-limit applying to a driver for any other length of road is:
(a)for a driver driving a bus with a GVM over 5 tonnes, or another vehicle with a GVM over 12 tonnes – 100 kilometres per hour; or
(b)for any other driver - 100 kilometres per hour or as otherwise provided under another law of this jurisdiction.
I have omitted from the Rule the Notes to each sub-rule. They are explanatory, and are not part of the ARR: see r 8.
On 1 November 1999 the Governor in Council also made regulations to be cited as the Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999 (“the Regulations”). The Regulations were to commence on 1 December 1999.
The Regulations contained 52 separate regulations. Some of the regulations dealt with matters contemplated by provisions of the RTA. For example, s 35(2) of the RTA, dealing with inspectors under the Act, provides that an authorised person is to be an inspector “for the purposes of enforcing prescribed provisions of this Act”. Regulation 6 prescribes provisions of the RTA for that purpose. Other regulations make provisions of a kind contemplated by particular rules of the ARR. For example, r 163(3) of the ARR provides that the speed at which a driver may drive past a stopped tram may be a speed other than the speed specified in r 163(3) “… if another law of this jurisdiction provides for another speed”. Regulation 11 provides for another speed.
Other regulations appear to amend a provision of the ARR. For example, r 221 of the ARR prohibits the use of hazard lights except in circumstances specified in that rule. But reg 23(A) (added in 2001) provides that despite anything in r 221 “hazard warning lights fitted to a vehicle may be used as part of the operation of an alcohol interlock fitted to the vehicle …”. Such a provision does not appear to be contemplated by r 221, and appears to have the effect of amending its operation.
On 30 January 2003 the Governor in Council made the Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Variation Regulations 2003. These were to come into operation on 1 March 2003. They amended the Regulations.
Relevantly, these regulations inserted into the Regulations a new reg 9B which provided as follows:
9B Speed-limit applying in built-up areas
(1) Despite anything in Part 3 of the Rules (Speed-limits), a driver must not drive a vehicle on any length of road in a built-up area at a speed exceeding 50 kilometres per hour unless a speed-limit sign indicating a number higher than 50 applies to that length of road.
Maximum penalty: $1 250.
(2) Nothing in subregulation (1) authorises the driving of a vehicle on a length of road at a speed exceeding any lower speed-limit applying to the driver of the vehicle on that length of road by virtue of the Rules or another law of the State.
The effect of reg 9B, if valid, is that although r 25(2) of the ARR specified a default speed of 60 kph for built-up areas, the default speed was thereafter to be 50 kph. Rule 25(2) had not been revoked.
On 4 November 2004 the Governor made further rules entitled “Australian Road Rules Variation Rules 2004”. These Rules amended or varied a number of the provisions of the ARR. In particular, r 4 varied r 25(2) by deleting “60” and by substituting “50”. On the same day, by regulation, the Governor varied the Regulations to delete reg 9B.
The effect of this, if valid, was that the default speed was 50 kph, but now by virtue of r 25(2) of the ARR rather than by virtue of reg 9B of the Regulations.
The issue on appeal
Mr Williams was charged on complaint with an offence under s 79B(2) of the RTA. Evidence of the offence was obtained using a photographic detection device. I can ignore the complications that that feature of the situation raises. The charge was that he exceeded 50 kph on a road in a built-up area, no speed limit sign indicating a number higher than 50 as applying to the length of road in question. The alleged offence was committed on 28 August 2004, at a time when the default speed limit was purportedly fixed at 50 kph by reg 9B.
Mr Williams pleaded not guilty. He submitted that reg 9B was invalid. Whether that gave him a defence to the charge might be open to doubt, because it was alleged that he was travelling at a speed in excess of 60 kph, and if reg 9B was invalid, it may be that he was in any event in breach of r 25(2). If reg 9B was invalid, s 25(2) would continue to operate. However, that point was not the subject of submissions before the Court.
The Magistrate stated a case for the opinion of this Court, raising a question of law. The question is whether reg 9B is valid, and whether the speed limit at the time and place in question was 50 kph. It is convenient to decide the point, because even if it does not necessarily arise in this case, it will arise in another case.
Submissions on appeal
Dr Bleby, counsel for Mr Williams, submits that s 80(a) of the RTA confers a power to make rules, identified as Australian Road Rules. He submits that a reference to the second reading speech in Hansard on the Bill to enact s 80 discloses that the proposed Rules were an existing set of rules, agreed to by State and Territory Governments, intended to provide a set of uniform and consistent traffic rules throughout Australia by being made law in each State and Territory.
The only power conferred on the Governor was to make those particular rules law in the form of subordinate legislation. No power was conferred to make some other set of rules. No power was conferred to depart from the proposed Rules. Parliament, of course, could do this by an enactment, but the Governor could not. Nor could the Governor revoke the rules, once they were made.
In other words, the addition of the words “Australian Road Rules” in parenthesis in s 80(a) made the power not a power to enact rules to regulate traffic movement, and the other matters specified, but a power to enact a particular set of rules, the proposed Rules, on those matters.
Accordingly, Dr Bleby submits that reg 9B is not supported by s 80(a). That power was spent by making the ARR. In any event, the power did not authorise the Governor to make a rule or regulation that departs from or changes the ARR, except (perhaps) if that was contemplated by a rule of the ARR. The regulation contradicts r 25(2), and so falls outside s 80(a).
Dr Bleby further submits that s 80(b) does not support reg 9B. The regulation does not deal with “matters ancillary” to the ARR. A matter would be ancillary to those Rules if it was in some way subordinate to the making of the ARR as a national set of rules, and this would not extend to a departure from the uniform scheme. To read this part of s 80(b) otherwise would be to contradict the effect of s 80(a), which was to empower the making of the proposed Rules only. As I understood his submissions, Mr Kourakis QC SG, appearing for the Police, did not attempt to support reg 9B on this basis.
Dr Bleby further submitted that the regulation was not a miscellaneous provision “relating to matters of a kind referred to in s 80(a)”. Regulation 9B did not make a provision contemplated by the ARR, or fill out a detail left uncovered by the ARR. He submits that s 80(b) empowers the making of regulations of the kind that I gave as illustrations of regulations making provisions that the ARR contemplated would be made other than by the ARR themselves.
Dr Bleby submits that there is no other power in the RTA that could support reg 9B. In particular, s 176, which previously had authorised the making of regulations on a wide range of matters, no longer contains a head of power that could support reg 9B. As I understood his submissions, Mr Kourakis did not dispute that submission.
For those reasons Dr Bleby submits that reg 9B is beyond power. The change it made is a change that required legislation to effect it. Only Parliament could depart in this manner from the national scheme.
Mr Kourakis submits that the power conferred by s 80(a) is simply to make road rules. The reference in parenthesis to “Australian Road Rules” does not limit the reach of the power to the making of rules that repeat the rules found in the agreed national scheme, the proposed Rules. He accepts that Parliament’s reference to “Australian Road Rules” in s 80(a) reflects an expectation that the proposed Rules would by and large be adopted in South Australia. However, he argues that it does not follow that Parliament intended to limit the Governor’s power to the making of the ARR, leaving it to Parliament itself to deal with any departure from those rules.
In other words, as I understand his submission, it was that the Governor had been given power to make road rules, the power being conferred in light of the fact that a national scheme of road rules had been devised, but without limiting the power to the replication of that national scheme by making only the proposed Rules. The effect of Mr Kourakis’s submission is that the Governor had a degree of latitude (the limits of which were not explored) in the making of rules.
Mr Kourakis further submits that in any event the national scheme contemplates local variations being implemented. That was not disputed by Dr Bleby. In this connection it is unnecessary to go into the rather complex inter-governmental agreements and arrangements that lay behind the proposed Rules and the ARR. On the basis of the material put before the Court, it appears that the proposed Rules and the ARR came into being by a process that was not envisaged by those agreements and arrangements. However, Mr Kourakis did demonstrate that the agreements envisaged the making of a set of uniform national rules, with scope for authorised local variations. He also provided to the Court a copy of a letter from the National Road Transport Commission of 27 February 2003 indicating that Ministers had “endorsed the proposals to exempt South Australia and the Australian Capital Territory from subrule 25(2) of the Australian Road Rules”. It is fair to say that, assuming this matter is relevant, the arrangements under which the proposed Rules and the ARR came into being contemplated the making of local variations, and that reg 9B was an approved departure from the national scheme.
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.

But, as I have said, there are considerations that point towards the power conferred on the Governor being a wider and more flexible power.
First of all, in implementing a national scheme for uniform laws it could be anticipated that there would be good reason to have some flexibility, because the need might arise for some sensible and reasonable departure from the national scheme. That consideration supports the conclusion that Parliament would have intended to authorise the Governor to depart from the proposed Rules to the extent that the Governor considered appropriate.
One would not ordinarily expect Parliament to limit the power of the Governor as tightly and as closely as is suggested by Dr Bleby, even when the local implementation of a uniform national scheme is under contemplation. I do not suggest that this is a decisive consideration. It is one matter that I take into account.
Another matter supporting the wider meaning is this. If the intention was to limit the Governor’s power as suggested, to the making of rules that replicated precisely the proposed Rules, I would have expected Parliament to identify those rules quite carefully, and in some detail. The Minister’s second reading speech frequently refers to the proposed Rules as draft rules. This suggests that they might not have been in their final form when the Amendment Act was before Parliament. But quite apart from that, if the power of the Governor was restricted to the enactment of a particular set of rules, one would expect Parliament to identify them by reference to a particular text or source, to avoid later arguments over whether the rules made were the rules contemplated by Parliament. For example, the power could have referred to rules approved under a particular ministerial agreement, or to rules contained in a particular document, or, as is sometimes done, to a set of rules already enacted by a particular legislature. None of these things were done. That also suggests, to my mind, that Parliament intended that the Governor would have the power to depart from the proposed Rules.
On Dr Bleby’s approach, only Parliament could extricate the State from the national scheme. On his approach the Governor lacks the power to revoke the rules, or to revoke particular rules, except (possibly) to replace them with newly agreed national rules. On Dr Bleby’s approach the power to make rules was spent and exhausted once the Governor implemented the proposed Rules by making the ARR. On his approach not only would Parliament have to enact legislation to revoke the rules were South Australia to abandon the scheme, but, it seems, legislation would also be necessary should it become desirable to revoke or change an individual rule. I mean here the revoking or changing of the rule, other than in a manner contemplated by the rules themselves. This also is a consideration that supports the conclusion that the Governor was intended to have power to depart from the proposed Rules, although this point is one that links to the provisions of the Acts Interpretation Act 1915, to which I will come in a moment. Another difficulty with Dr Bleby’s approach is that it does not easily accommodate the local implementation of changes to the national scheme. If the power conferred by s 80(a) of the RTA was spent and exhausted on the making of the ARR, where does one find the power to implement changes to the national scheme? On Dr Bleby’s approach that power might be found in s 80(b), but I am not sure that he was prepared to make this concession. The difficulty for his argument is that if the concession is made, and the ARR can be changed by exercising the power under s 80(b), then unless that power is also limited to the making of changes that are part of the national scheme, the power under s 80(b) would support the making of reg 9B.
It is also necessary to consider the impact of s 39 of the Acts Interpretation Act 1915 (SA), which at the relevant time provided as follows:
39Power given by any Act to make regulations, rules, or by-laws, shall be deemed to include power from time to time –
(a)     to revoke the same absolutely, in whole or in part, or
(b)     to revoke the same in whole or in part, and substitute other regulations, rules, or by-laws respectively for those which have been so revoked, or
(c)     to vary the same, or any of them,
unless the terms used in conferring the power, or the nature of the subject matter or the objects of the power, indicate that it is intended to be exercised, either finally in the first instance, or only subject to certain restrictions.
A new s 39 was substituted in 2005. It is to the same effect.
Unless there is an indication to the contrary in the RTA, the power to make rules conferred by s 80(a) includes the power to revoke rules, wholly or in part, and to substitute other rules.
A consideration of the relevance of s 39 raises the same issue as that already canvassed. Dr Bleby argues that Parliament has indicated an intention to exclude the operation of s 39, because it has indicated an intention to confer a power on the Governor that is spent once the proposed Rules were implemented by making the ARR.
But the presence of s 39 is a reminder of the well-established principle that a power to make subordinate legislation is usually to be taken as carrying with it the power to revoke the subordinate legislation, and to amend it.
There is no particular reason to think that when Parliament conferred power to make rules, it intended to exclude the power conferred by s 39 of the Acts Interpretation Act. The conferral of that power would enable the Governor to make changes to the ARR as and when seemed appropriate, either in the light of local circumstances, or in the light of changes to the national scheme. To my mind it is unlikely that Parliament would have intended to deal with any such matters by legislation, bearing in mind that they might well be of a mundane and detailed nature.
Dr Bleby’s argument acquires some of its force from the fact that s 80(a) refers only to the making of rules. That gives rise to the suggestion that it does not provide for the revoking or varying of the rules. But to reason this way, even in a preliminary fashion, is to ignore the fact that the effect of s 39 of the Acts Interpretation Act is that the power to make rules is taken to include the power to revoke rules and to vary the rules, unless Parliament has indicated otherwise. In the end, the argument that it has indicated otherwise rests entirely on the words “Australian Road Rules” in parenthesis in s 80(a) of the RTA. On Dr Bleby’s submission those words refer to a text which is the text to be enacted, and carry with them an implication that the usual power to revoke or vary rules after they are made is to be excluded. To so reason is to give a lot of weight to those words.
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”.
DUGGAN J. 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.
This section was inserted in the Act by the Road Traffic (Road Rules) Amendment Act 1999 (SA) (“the amending Act”). The amending Act also amended s 176 of the Act. Prior to the amendments, s 176 was the main regulation-making power in the Act and the amendments to it substantially reduced the scope of the matters upon which regulations and rules could be made under that section. It appears that one of the main reasons for limiting the scope of s 176 was because of the range of topics which could be dealt with under the rule-making power in s 80 following the amendment of that section.
The wording of s 80(a) reveals the broad scope of the rules which can be made under the section. This is further illustrated by the 351 rules which were made by the Governor in Council pursuant to that power on 11 November 1999. These rules demonstrate the minutiae of detail necessary for the regulation of road traffic.
Furthermore, in view of the myriad of matters dealt with by the first set of Australian Road Rules made pursuant to s 80(a), it is to be expected that they will need frequent amendment. The court was also told that the making of rules by the Statutes inconsistent with the Australian Road Rules was contemplated by the intergovernmental agreement and that the rule which is the subject of the present case was an approved exception.
In these circumstances, it would be surprising if Parliament, when enacting s 80, intended that, after the original set of Australian Road Rules came into operation, the only way in which they could be amended would be by way of legislation. This would be quite contrary to established practice and would result in a cumbersome and unwieldy method of amendment.
The unique nature of the Australian Road Rules must be acknowledged. However, it is my view that a departure from the logical and understandable reliance on subordinate legislation in this area would call for a clear indication in the legislation.
I do not accept that the parenthetical reference to “(Australian Road Rules)” in s 80(a) justifies the reading of the section in the restricted manner suggested by Dr Bleby, for Mr Williams.
As I have said, it would be expected that this set of rules would be amended frequently. Presumably, the rules would continue to be referred to as the “Australian Road Rules”. I can see no reason why the description in parenthesis in s 80(a) should not be read in such a way as to include amendments to those rules. In my view, it would be artificial to confine the expression to the first set of rules made under the rule-making power.
I would answer “yes” to both questions in the case stated.
ANDERSON J: I have read the draft reasons of Doyle CJ and Duggan J and I agree with their reasons. I also agree that the questions of law and fact should be answered as proposed by the Chief Justice.