Shop Distributive and Allied Employees Assn v Min for Indl Affairs

[1995] HCATrans 35

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A49 of 1994

B e t w e e n -

SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION

Appellant

and

MINISTER FOR INDUSTRIAL AFFAIRS

Respondent

BRENNAN J
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 MARCH 1995, AT 10.21 AM

Copyright in the High Court of Australia

MR W.J.N. WELLS, QC:   If the Court pleases, I appear with my learned friend, MR P.A. McNAMARA, for the appellant.  (instructed by Stanley & Partners)

MR J.J. DOYLE, QC, Solicitor-General for the State of South Australia:   If the Court pleases, I appear with DR N.A. MANETTA for the respondent.  (instructed by B.M. Selway, Crown Solicitor for South Australia)

BRENNAN J:   Yes, Mr Wells.

MR WELLS:   If the Court pleases, we have provided copies of the outline of argument for the Court.  The submission of the appellant is that the dissenting judgment of his Honour Justice Debelle in the Full Court was right and that the majority judgment was wrong in the following principal respects:  first, in our submission, their Honours failed to recognise that the Act, the Shop Trading Hours Act, represents a legislative regulation of trading hours and prescribes its own process of collective decision making for varying trading hours.

Second, in our submission, their Honours mistook section 5, which is the exempting power, as a power to regulate trading hours rather than truly as an exempting power by which a shop may be removed altogether from the legislative regulation of trading hours.  Thirdly, in our submission, their Honours failed to recognise that there are other inherent limitations in an exempting power.

We mention two.  It cannot be used, we submit, to subvert the very rule from which an exemption may be granted and it cannot be used as an instrument of rule-making itself.  We put the last two categories in the third submission, even upon the basis contrary to our submissions, that the exempting power can actually deal at all with conditions as to hours.  Your Honours, I think I should start, if the Court pleases, by making very brief mention of the actions of the Minister which are under challenge.  They appear in the appeal book first at page 71, which is the media release setting out the substance of a Ministerial statement made by the Minister in the house in which the Minister declared a governmental policy pursuant to which, in our submission, the Minister then proceeded to grant exemptions under section 5 of the Act.  At page 71, your Honours will see that it is headed, “Shop trading hour reforms announced”.  The first paragraph refers to the opening of Adelaide city centre for Sunday trading from 1 November.  I might say there is reference to other proposed reforms, but our focus, if the Court pleases, is on Sunday trading and they are identified as:

key elements of the State Government’s reforms to South Australian shopping laws.

And the Minister then goes on in the media release to outline what he had earlier informed the Parliament, second paragraph:

the Government had decided on responsible and moderate extensions in line with -

what he called -

moderate demand for more flexible shopping hours.

Third paragraph:

The State Government has rejected outright the total deregulation of shopping hours -

So, the suggestion seems to be some kind of partial deregulation.

Line 40 on that page, as part of the media release the Minister is reported as having said that:

The Government also accepts the principle that in shopping centres the decision to trade in core hours -

as it was called -

must be determined by a democratic vote of individual retail tenants.

That is a reference to what we have called the exclusive process provided under the Act for varying trading hours within a shopping district.  Over the page, page 72, your Honours will see in the middle of the page the Minister says, referring to -

the decision to open city shops on Sundays is a victory for commonsense.

“At the moment, the public can come into the city on Sundays to gamble at the Casino, or hotels, yet people can’t go shopping - that anomaly will be removed from November 1.”

And your Honours will see that it is all the time a statement of a policy having, according to that policy, general application within, in this case, the central shopping district, and thus it is in the second part of page 72 the Minister refers to what he calls “the full package of reforms”.  The penultimate dotted paragraph, line 52, refers to:

Sunday trading will be allowed in the Central shopping District (Adelaide city centre) between 11am and 5pm -

that is, on Sunday -

No new classes of businesses will be allowed Sunday trading extensions in metropolitan Adelaide.

Against that background, the Minister on page 73 at line 37 or thereabouts then announces the means by which these reforms will be effected:

The proposed changes to retail trading hours will be from November 1, 1994.  The Government has also resolved that reform to retail leasing laws will operate from November 1.

That was a separate reform undertaking undertaken in the package.  Then the Minister says:

Non-exempt retailers will be able to apply for and obtain Section 5 certificates of exemption to permit extended Sunday, late night and exempt retail trading in accordance with this announcement.

The Minister then refers to a practice which successive governments in the past had adopted of allowing Sunday trading in certain circumstances by means of certificates of exemption, and that method is the method which the appellant attacks in this case.

The affidavit evidence provides a sample of the certificate that ultimately came to be provided.  Now I should tell the Court, that at the time this action was commenced, it was sought to get a declaration before 1 November and it was not known at the time the action commenced whether any such certificates as were renounced in the media relief had been applied for and granted.  Subsequently, an affidavit was filed on behalf of the Minister, which indicated that as at the time of the swearing of the affidavit, some 40 such certificates had been applied for and granted.

If your Honours would turn to page 79 of the appeal book, your Honours will see there a sample as an exhibit to the affidavit of Mr Case, director of industrial relations in the Department, a sample of the certificate of exemption as it applied for Sunday trading in the central shopping district.  Your Honours will see there, that after reference to the premises in respect of which the exemption was to operate, it goes on in the operative words that those premises:

are exempted from the provisions of the said Act.

It does not stop there, it goes on.  It does not say wholly exempted from the provisions of the said Act, but:

exempted from the provisions of the said Act between the hours of 11am and 5pm on each Sunday (excluding Christmas Day and Easter Sunday) after 1 November 1994 -

subject to two conditions which there appear.  That was put forward in the affidavit as being a sample of the kind of certificate that had been granted on application for exemptions in accordance with the ministerial policy.

Could I next invite your Honours to look at the Act.  Copies of the Act have been provided to the Court.  This is the Shop Trading Hours Act, 1977.  I should tell your Honours that since the grant of special leave there has been a short amendment to this Act, which we will submit does not have any bearing on the substantive issues.  It is an amendment - copies of which we have also provided to the Court - No 81 of 1994, the effect of which was to remove from the Act the sale of red meat as a special case.  That was done simply by removing particular provisions that dealt specifically with the sale of red meat.  Up to a point, I will be in a position to indicate to your Honours in the structure of the Act where they appear.

Can I take a moment, if the Court pleases, to look generally at the structure of the Act, for this purpose in order to demonstrate the following propositions about the Act and its structure:  it is an Act which regulates trading hours, and regulates trading hours by criminal sanction; it is an Act which carries out that regulation by reference to shopping districts; designated interested persons, as defined, are intended to be an essential part of the regulation of hours, within a shopping district, and the Act allows some shops to stand wholly outside the regulated scheme of hours; and it does that by identifying such shops by category, or by an individual ministerial exception.  Those are the propositions that we would contend for as a review, if you like, of the Act as a whole. 

In that respect, can I take your Honours quickly through the Act for its structure.  The long title provides that it is:

An Act to provide for and regulate the closing times for shops ‑ - -

TOOHEY J:   And that is, in effect, what it does, Mr Wells, is it?  Does it regulate the opening the hours in any respect?

MR WELLS:   I think probably it is fair to say that it does because by regulating the closing times it specifies a period, in effect, during which a shop must be closed.  So, in that respect it also has an effect on opening hours.  But your Honour raises a point which we will come to because the essential scheme of the Act does differentiate between, on the one hand, extending trading hours and, on the other hand, restricting them.  In the case of extending trading hours, the Act is very particular about, in effect, either having the support of interested persons as defined, or ensuring that the extension is only for a limited time, a limited period, no more than a month.  On the other hand, it is not quite so sensitive when it comes to restricting closing hours;  in fact, making the closing hours less than is provided for in the Act.  That is the distinction which we come back to.

Can I invited the Court to move through the long definition section 4, which we will come back to, to section 6, headed, the Application of Act. Subsection (1)(a) has now been repealed, because that is part of the removal of red meat sales as a special case.  The Act is to apply generally to:

any shop situated within a shopping district.

“Shopping district” is defined in section 4 as meaning one of three kinds of shopping districts:

(a) the Central Shopping District ‑

which is the district with which this case is concerned ‑

(b) the Metropolitan Shopping District; or

(c) any Proclaimed Shopping district ‑

which means, in effect, that the regulation of trading hours is centred really, and mainly, upon the areas of greatest population, but there will be occasions where, further out, within the State, there will be a case made for having regulated trading hours, and then a proclaimed shopping district will be established.  I will take your Honours back to that.

The method by which proclaimed shopping districts are established  is provided for in sections 11 and 12 of the Act..  Your Honours will see that it provides there that:

the Governor may by proclamation -

do one of three things -

declare any area.....to be a Proclaimed Shopping District;

(b) vary the area.....or

(c) abolish -

it.  I will have occasion to refer to subsection (2) a little later, if the Court pleases, because it appears to be, in its present form, something of an oversight and a reference to a subsection which was in a form different from the form in which it now is.  But I will move on for the moment.

Your Honours will see that what we will call the central scheme of the Act is provided for in section 13 which is headed Closing times for shops and subsection (1) deals with:

the Central Shopping District, or any other shopping district.....to which this subsection applies by virtue of a proclamation -

and there sets out the closing times for a shop situated within the Central Shopping District -

6.00 pm on every weekday other than a Friday;

(b) 9.00 pm on a Friday; and

(c) 5.00 pm on a Saturday.

BRENNAN J:   So there is no time prescribed for closing on Sunday?

MR WELLS:   No, your Honour, there is not.  When we come to section 14 - perhaps I will wait until I come to section 14, if the Court pleases,  to develop, albeit very briefly, one thought about Sundays in the Act.  We will, if the Court pleases, have to come back to this but if we follow through section 13, will your Honours note that subsection (4), dealing with retail sale of meat is now repealed - so that, again, is a consequence of the more recent amendment.   Subsection (6), in effect, provides a method by which the closing times referred to in subsection (1) can be changed by proclamation and subsection (7) puts a condition upon that change; namely that:

A proclamation under subsection (6) cannot be made unless the Minister -

(a) is satisfied that a majority of interested persons desire that the proposed proclamation be made; and

(b) gives a certificate to that effect.

Subsection (8) deals with the definition of “interested persons” and includes:

shopkeepers and shop assistants who work in shops within that shopping district -

Subsections (9) to (11) deal with the temporary extension of hours.  If your Honours cast your eyes down to subsection (10)(c) it can be seen that a proclamation which effectively extends hours:

cannot operate in respect of a period greater than one month -

and your Honours will see that subsection (9) talks about a proclamation which authorises:

the opening of shops during hours.....when it would otherwise be unlawful -

Subsections (12) to (14) deal with the method which is not limited in point of time by which closing hours can be further restricted; that is, other than by amending subsection (1) of section 13.

I take your Honours on to section 14, “Shops to be closed at closing time”.  These provide a series of offences:

(1) Except as otherwise provided in this Act, every shopkeeper must cause the shop to be closed and fastened against the admission of the public by no later than the closing time on each day and for the remainder of that day after that closing time.

(3).....a shopkeeper must keep the shop closed and fastened.....for the whole of each Sunday, each other public holiday and during such other period that the shop is required by this Act to be closed.

A submission was put to the Full Court which was to the effect that section 14 itself places a blanket prohibition on, in effect, Sunday trading and identifies three categories:  “the whole of each Sunday”; “each other public holiday”; and then a broader category which it might be thought incorporates the processes for change, that is, “such other period that the shop is required by this Act to be closed.”.  That was a submission that was rejected by the majority.  We put it to this Court, but we do not put it as the foremost argument that we rely on.  Your Honours will see in subsection (5): 

a person must not sell.....any goods.....after the closing time ‑

Again, the three categories: 

on any Sunday or other public holiday or during any other period that the shop is required by this Act to be closed.

Then subsection (6) provides for criminal sanction, to be prosecuted summarily.  That is provided for later in the Act by section 18.

If I could take your Honours over the page to subsection (11), there is a defence.  It is provided that:

In any proceedings for an offence against this section, it is a defence for the defendant to prove that ‑

during a certain period the shop was an exempt shop.  Our submission about that is that it identifies a status.  The shop is either an exempt shop or it is not.  The defence does not purport to deal with the situation that arises under the certificates that we are dealing with where the exemption is partial only.  So that there are conditions attached to the exemption which allow different trading hours.  The question might arise:  what if that shop were trading contrary to the conditions imposed under the certificate?  It is still an exempt shop under subsection (11) and it has a defence, even though it is in breach of its conditions.  The question might be asked whether the Act ever intended that result.  That would be, we submit, the result if, as the majority in the Full Court concluded, an exemption can be granted which partially withdraws a shop from the regulation of the Act.

TOOHEY J:   But does that mean if you have a certificate of exemption, you have to wait for a week before you can open in accordance with the hours permitted by the certificate?

MR WELLS:   I think, your Honour, we can only echo the question.  It is not at all clear what the policy is behind that provision.  All we can say is that, in its original form in 1977, what was being dealt with there were not exempt shops but declared shops.  And declared shops were, in effect, shops in respect of which the Minister recognised that there was a continuing use, to borrow a planning phrase.  That is, shops were continuing to operate in a particular way according to a particular set of hours and, with respect to a certain category of those shops, the Minister had the power, under section 5 as it then was, not to exempt but to declare that shop to be a declared shop. 

And, one can perhaps understand that in those circumstances, when we are dealing about what I call loosely continuing use, one can understand that subsection (11) would be wanting to look at a period during which it is operating in that way.

It is more difficult to understand what its operation is here, where what we are talking about are exempt shops and the Minister has the power to exempt the shop from the operation of the Act.

TOOHEY J:   Well, we are not talking so much about exempt shops, but shops which are exempt by reason of a certificate of exemption.

MR WELLS:   It would appear that under subsection (11) there needs to be some sort of qualifying period.  But, we have grappled with this quite a bit and we have not found a satisfactory answer to the requirement that there be a period during which the shop is to trade as an exempt shop.  It may well be that what it means is that after the grant of a certificate of exemption, the shop may still have to trade within the hours prescribed by the Act for seven days before it can then trade according to its new hours.  That is ‑ and this is the point ‑ that is, if exemptions can ever apply new trading hours. 

And, one of our principal submissions in this case is that an exemption removes a shop completely, altogether, from the operation of the Act, at least so far as hours are concerned and there is no power in the Minister to prescribe different hours for what the Minister might call an exempt shop.  That comes back to the notion of what exemption means.  I am running ahead a little.

Now can I, with the Court’s leave, come back to examine a little more closely some of the principal sections in order to set the ground-work for the three propositions that we would wish to put to the Court.

Can I defer for a little longer a reference to section 4 itself and come back to proclaimed shopping districts, section 11.  It is not, of course, one of the shopping districts that we are concerned with here, but we would be inviting the Court to note certain features of it.  Section 12 provides for a procedure by which the proclamations referred to in section 11 can be made.  At the heart of it there is, for the most part, an application by council - that is in subsection (1) - to the Minister seeking a proclamation with respect to the various matters referred to in section 11.  Then section 12(6) provides that:

A council must not make an application to the Minister under this section unless it has first given interested persons an opportunity to express their views to the council on the proposal and has regard to the views expressed to it by interested persons.

Then there is a definition of “interested persons”, which is slightly different from the one in section 13, and, your Honours, in its original form subsection (6) was somewhat identical to section 13(7), namely, instead of an opportunity to express views and a duty to have regard to those views it was necessary for the Minister in effect to certify that interested persons desired the particular change and, hence, in section 11(2) there is a reference to the Minister’s certificate under section 12(6).  That now has no meaning because no certificate is required in relation to proclaimed shopping districts.

BRENNAN J:   How does this help us understand the scope of the discretion which was vested in the Minister?

MR WELLS:   I did not catch the first part of that, your Honour.

BRENNAN J:   How does this help us to understand the scope of the discretion that is vested in the Minister?

MR WELLS:   Because, your Honour, what we are focussing upon is a legislative scheme in which there is given a centrality to the desires of interested persons, and one of our principal submissions is that that being the central notion of the scheme, a Minister, having what appears on its face to be unfettered powers, nevertheless is limited in the exercise of those powers at least to the extent - we say more, but at least to the extent of not granting exemptions which have the effect of varying or regulating trading hours by variation without going through the central process which is provided in the Act in sections 11 to 13.

BRENNAN J:   I can understand that in relation to section 13.  As I understood it, your proposition was that the Sunday trading regime is fixed by section 14.

MR WELLS:   That is one of our propositions, yes, your Honour.  It is one of them, but not the one for which we principally contend.  Perhaps I should explain, your Honour  ‑ ‑ ‑

BRENNAN J:   Well do not let me delay you, you proceed with the order in which you wish to put your argument.

MR WELLS:   As your Honour pleases.  Section 13, can I invite the Court back to section 13.  Our contention put simply is that section 13 provides the sole process for varying the rule; that is, the regime of trading hours within a shopping district, but particularly, within the central shopping district.  There is no other provision in the Act - unless there are other rules laid down in section 14 - there are no other provisions in the Act by which the rule about trading hours can be varied.  Our contention is that one of the reasons why that conclusion must be reached is because the legislature has laid down specifically the necessity of being guided in any variation by the desire of interested persons; what we have called, collective decision making, in one part of our outline and in another part of our outline, a necessary democratic process by which the rule is to be changed.

Your Honours, if I can then go back to sections 4 and 5 in order to identify the operation of the exempting power.  Your Honours will see incidentally in section 4, that there is a definition of “central shopping district” and there is a long definition of “exempt shop”.  Can I take a moment just to very briefly summarise the categories that are referred to in “exempt shop”.  Your Honours will recall that the significance of an exempt shop arises right at the other end of the Act, in section 14(11).

Paragraph (a) deals with shops which are limited in area or personnel; what one might broadly call a small shop.  Paragraph (b) deals with retail shops of a specified kind, recognised by the legislature as not needing regulation as to trading hours, but they are specified by quite specific description.  By the operation of that paragraph and also section 4(2), it requires that the “exempt shop” must have an 80 per cent trade in the particular goods which are the subject matter of paragraph (b).

TOOHEY J:   Well where would a department store fit into that, like Myer or David Jones?

MR WELLS:   It would not.

TOOHEY J:   Why?  Because of the 80 per cent?

MR WELLS:   Yes, your Honour, that would be right.  The particular categories, (i) - (xii), might be said to belong to a department store, but it would be difficult to say that they satisfy the 80 per cent requirement.  That is provided in subsection (2):

The aggregate price of goods ‑

(a) comprised in a class or classes of goods referred to in any one or more of those paragraphs:

and

(b) sold at the shop during any period of seven consecutive trading days ‑

is not less than 80 per cent of the aggregate price of all goods sold at the shop during that period.

I think it is fair to say that department stores are not exempt shops, and they are, of course, the ones who are most interested in obtaining from the Minister a certificate of exemption with respect to Sunday trading.  Paragraph (c) is a hairdresser’s shop which is proprietor operated and no employees.  Paragraph (d) is a food shop of limited size, again, having to comply with the 80 per cent trade rule.  Paragraph (f) is a particular case of a sports shop within a sport centre, and paragraph (e) is the exempt shop:

a shop in relation to which a certificate of exemption, issued by the Minister, is in force.

We invite the Court to note that in none of the categories of exempt shop, putting aside for the moment paragraph (e), is there any reference to an exemption, or at least a qualification for an exemption, operating by reference to hours of trading.  The subject matter of exemption has to do with the nature of shop and the operation of the shop, but has nothing to do with hours, and it provides one of the indications, we respectfully submit, for the conclusion that section 5, which completes paragraph (e) of that definition, likewise has nothing to do with trading hours.  It has only one task to carry out and that is to provide an exemption from the Act altogether.  Subject to conditions and restrictions, our contention is restrictions or conditions that have ‑ and can have ‑ nothing to do with trading hours, that is the exclusive province of the Act itself and the process provided in the Act for any regulation of trading hours.

Your Honours, thus reviewed, we would contend for two things.  First, that the review seen in this way supports the conclusions that were reached by Justice Debelle in his judgement.  I do not take your Honours to it, but I give you the reference, appeal book pages 114 to 115; and contrast with the reasons of Justice Olsson, speaking for the majority, at these pages ‑ if I can give your Honours the reference ‑ in relation to his Honour’s view of section 5, at pages 92, line 39, 93 line 51, and 97 line 10.

And in relation to His Honour’s view of section 13, these page references, 92, line 49;  93, line 60;  98, line 5.  And if I can summarise those passages and our submission with respect to them in this way, that in our submission, His Honour, with respect, confuses two distinct processes:  the variation of trading hours on the one hand and exemption from the Act on the other.  His Honour, speaking for the majority, takes the view that they are the same process;  they are simply different ways of varying trading hours, a proposition that we contend to the contrary of.

Your Honours, our submission, on the basis of that view of the Act, is that the judgment of the majority, with respect, fails to recognise inherent limitations in an exempting power and in the use of an exempting power in three respects.  An exempting power cannot subvert the rule.

BRENNAN J:   But it does, of its nature.

MR WELLS:   Your Honour, that might involve a discussion about what subversion means, and I agree that that is loosely put in one sense.  But what I mean by subversion of the rule from which exemptions can be made is that an exemption, in its nature, cannot have such a large and general operation as to effectively within, in this case, a shopping district, replace the rule.

BRENNAN J:   And what is the authority for that proposition?

MR WELLS:   Well, your Honour, the authority that we rely principally on, really by way of illustration, is the case of Macbeth v Ashley and it is given on our list of authorities, if the Court pleases.

BRENNAN J:   If you would read the reference in for the purposes of the transcript.

MR WELLS:   (1874) LR 2 HL Sc 352.  We provided a copy of that case for the Court.  Could I take the Court to it.  It stands for, we submit, several propositions which are applicable in the case at bar.  In short, it concerned an order made by magistrates at Rothesay for closing public houses at 10, rather than at 11.  The power that the magistrates had in that respect to vary what the Act laid down is set out by the Lord Chancellor, Lord Cairns, at page 356 of the report.  It is expressed in the form of a proviso:

Provided always, that in any particular locality within any county, or district or burgh requiring other hours of opening and closing inns and hotels and public-houses than those specified in the forms of certificates in said schedule.....shall be lawful for such justices or magistrates.....to insert in such certificates such other hours, not being earlier than six of the clock or later than eight of the clock in the morning for opening, or earlier than nine of the clock or later than eleven of the clock in the evening for closing the same, as they shall think fit.

In purported exercise of that power, the magistrates made an order with respect to what they called a particular locality within a borough which they measured off as not constituting the whole of the borough but which as it happened contained all of the inns, hotels and public houses within that borough and made an order with respect to that part of the borough which contained all of the pubs for a 10 o’clock closing time.  That was challenged, if the Court pleases.  In the Inner House, first division ‑ I am looking at page 353 ‑ Lord President Inglis upheld the challenge.  I do not read this part but would invite the Court to.  He gave reasons on page 353, particularly the latter half of the cited reasons and continuing over onto the next page briefly, in which he described what the magistrates had done as being:

a mode of defeating the words of the Act of Parliament by an ingenious contrivance.

That was picked up not quite in those words by Lord Cairns in his speech.  I take the Court to page 355 in the middle of the page.  His Lordship says:

In this case the magistrates of Rothesay have made an order substituting an earlier hour for closing.....They have done so, not for the whole burgh in point of form, but for a portion of the burgh, so far as regards metes and bounds; but the portion for which their order has been made is admitted to contain all the hotels, inns, and public‑houses which exist in the burgh.....It was very properly assumed to be an order which practically did affect, and (what is more important) was meant to affect, the whole of the houses within the burgh which were to be licensed.

Then, your Honours, picking up in the speech at about point 8 of the next page, 356:

The subject of the general hours for opening and closing public‑houses is a matter, and has always been treated as being a matter, of great public moment.  It has been treated as a matter to be reserved for and determined by the consideration of the Imperial Parliament.  It has accordingly been a subject upon which Parliament has, in this Act, expressed its opinion with regard to what should be the general rule as to the hours mentioned in the certificate ‑

which your Honours will recall is in the schedule to the Act.

But then the Act takes notice that in any particular district over which the licensing authority shall exercise its power, there may be some reason why a portion of the district, or a locality within the district, should have applied to it a different rule from that which is to be the rule for the district at large; in other words, that there should be a power of making an exception from that which is to be the general rule.  But that is to be the form in which the discretion is to be exercised.  There is to be a general rule, and there may be an exception; but if the exception is to swallow up the rule it ceases of course to be an exception at all; and that which might fairly have been an exercise of discretion becomes no exercise of the kind of discretion mentioned in this Act of Parliament.

We would, with respect, adopt that analysis and apply it in the case at Bar.

TOOHEY J:   Is the argument in the present case, Mr Wells, that a certificate of exemption cannot prescribe opening and closing hours or that a series of certificates of exemption cannot do so such that a general policy appears to emerge?

MR WELLS:   Your Honour, our argument is both.  We put several submissions.  One is that a certificate of exemption cannot prescribe anything about hours at all because the Act does not provide for what we would call partial exemption, it provides for exemption.

TOOHEY J:   So far as that argument is concerned, you have to come to grips with, and no doubt will, section 5(2).

MR WELLS:   Yes, your Honour.

TOOHEY J:   Yes.  I will not divert you from that.

MR WELLS:   If your Honour pleases, but, again, perhaps I can just  say we found for both upon the centrality of section 13 and in particular the importance that the legislature attaches to the process of varying trading hours by reference to the will of the majority of interested persons.  So in effect there is a kind of referendum that must be undertaken and if that is to be effective then it cannot be the case, we submit, that at the same time it is open to the Minister by the exercise of a discretion to provide a different regulation of hours.  Now, that, we accept, applies principally to the use of an exemption to create a rule and does not apply with quite the same force to the notion that, as we put it, an exemption, whatever other conditions it can impose, cannot dabble in trading hours.

While I am with this case, if the Court pleases, can I take your Honours further on on page 357 to a second proposition which is a dictum in the speech of Lord Cairns but which, again, we respectfully adopt as a second prong of attack.  If I can just read on, his Lordship says:

In his very clear argument the Lord Advocate said:  “Here is a power, a discretion, given to the magistrates, to take a particular locality within their district, that is a discretion which they may exercise not only once but again and again; they may first take one locality and they may afterwards take another; and in that way they may traverse the whole of their district; why, therefore should they not take the whole of their district at once?”  Now, my Lords, I will assume, though it is not for your Lordships now to decide, as the question has not arisen, that this may be a discretion which may be exercised more than once - that may be so, and upon that I express no opinion; but of this I am quite certain, that if magistrates under the guise of exercising a discretion had taken portion after portion of their district, not with reference to the particular wants or requirements of each portion, but in order by degrees to take possession of the whole district, and under the pretence of exercising a discretion for each portion had virtually subverted the general rule laid down by the Legislature; if I say your Lordships were to find, which I cannot imagine or suppose you ever would find, magistrates adopting that course for the purpose of doing, what I must describe as evading, an Act of Parliament, your Lordships would not be prepared to sanction, but would discountenance and prevent the exercise of a power so used.

And that, if the Court pleases, is one way of giving expression to the principle that we have sought to express in our outline, which says that it is not exercising an exempting power for an authorised purpose, in effect, to undertake the exercise repeatedly and so many times, that eventually the rule is subverted and there is put in its place another rule which arises in this case by reference to conditions attached to the certificates of exemption themselves.  That, we submit, is not an authorised use of an exempting power and, indeed, is not consistent with the notion of exemption.

If I could in that respect invite your Honours to turn briefly again to the appeal book, and to page 95 of the appeal book which is in the judgment of his Honour Justice Olsson.  At line 39, his Honour says this:

In my opinion the fact that the Minister has chosen to adopt the section 5 technique rather than pursue other possible procedures contemplated by section 13 is not to the point.  The Act plainly erects a series of alternative processes; and there is no reason for concluding that Parliament intended to restrict the discretion of the Government to resort to whatever procedural strategy it considers most appropriate for giving effect to its concluded policy.

If the Court pleases, those phrases, “section 5 technique”, “procedural strategy”, really exposes, in our respectful submission, what is at heart the invalidity of the exercise of the discretion.  That is in fact what they are.  They are techniques and procedural strategies undertaken by the Minister.  We do not undertake any attack on his bona fides or anything like that, but simply the exercise is undertaken by the Minister in order to circumvent the section 13 procedure.  It has that purpose we submit, on its face, by reason of what comes from the media release and the announcement where, in fact, what we see is a Minister talking about legislative reform; the changing of a general rule in relation to Sunday trading in the central shopping district.  And yet, although that it the announced purpose, he undertakes it and avowedly undertakes it by reference to a series sequence of exemptions.  And that, in our submission, is not permissible for principally the reasons which have been articulated by Lord Cairns in Macbeth v Ashley.

The notion of repeated exercises of an individual discretion, as being capable of amounting to an abuse of power, is also adverted to by the Federal Court in Kurtovic’s Case which we have referred to in our outline.  I do not take your Honours to it in detail.  Your Honours, Macbeth’s Case, we submit, therefore stands as authority and a most useful statement of two principles.  One is what I have called the principle relating to subverting the rule, and the other is a principle which really focuses upon the evasion of a legislatively prescribed procedure for change.  In both respects, these exercises of discretion, in our respectful submission, miscarried.

Can I make mention of the third proposition which is a slightly more blunt proposition, adverted to by your Honour Justice Toohey, namely what is to be made of section 5(2), because our proposition in that respect is, even if you are looking at one exemption, and not looking at the whole series, that in this Act exemption does not mean regulation, and an exemption will regulate trading hours, if, even in relation to one certificate, it actually imposes conditions which refer to hours.

TOOHEY J:   But can you suggest within the context of an Act that is described as the Shop Trading Hours Act conditions and restrictions that relate to something other than hours?

MR WELLS:   Yes, certainly, your Honour.  If your Honour were to to turn to section 4; if we can perhaps take up the first category of exemption.  This is what I call a small shop which is identified as such by reference to floor area and personnel, effectively ‑ I have missed out one of the features of it, which is its not being adjacent to a building with:

floor area exceeding one‑half the floor area of the shop.

We can put that aside for the moment.  One could imagine individual circumstances where it might be that a particular shop, for a number of social reasons, justified being exempt from the trading hours regime, and a case was put to the Minister, but the difficulty was that the shop had a floor area which did exceed 200 square metres, or that it had more than three persons who were assisting in carrying on the business of the shop.  So then the question would arise, “Well, can the Minister given an exemption?”  The Minister, we would submit, might well feel himself able ‑ he certainly would have the power to grant an exemption in the particular case.  It would be different if the Minister decided that from henceforth all shops not exceeding 300 square metres could get an exemption, but if we just got the one shop and we are dealing with that, the Minister might think, “Well, yes, I am prepared to grant an exemption, but I will impose some conditions to make sure the shop does not move ‑ the shop does not, in its operation and growth, go outside the spirit of my exemption.  So I will say that the exemption applies provided that the floor area does never get beyond 300 square metres, or provided that the persons who are present for the purpose of carrying on, or assisting in carrying on the business of the shop, do not exceed more than five.”

There are ways in that respect in which the Minister can maintain the structure of the Act and the thrust of the Act by the imposition of conditions which have nothing to say at all about hours.  Indeed, we would submit that the notion of exemption, given section 13, would not touch that.  In that respect, we rely on not only the etymology of the word “exempt”, which we have made reference to in our outlines ‑ and we have provided to the Court a copy of an extract from an etymological dictionary which deals with the origins of the word “exempt”, which your Honours will see that its origins have the meaning and sense of “being taken out of” or “being freed from”.

That is the sense in which the word was understood and applied by Chief Justice Napier in In re Hawker, (1939) SASR 426. If I could take your Honours to that briefly. It involved the construction of a will. Your Honours will see that the part of the will which was to be construed was a condition attached to gifts to the university and St Mark’s, at page 428 of that report, about point 7 of the page, where the condition is set out, and it is a gift which is to be free and exempt from all duty. I have summarised it, your Honours; it goes further than that. Mr Justice Napier, as he then was, at page 430 of that part of the clause, said this at about point 2:

The condition is that the bequests, and the whole of the estate, and the beneficiaries under the will, are to be free and exempt from all duties in respect of such bequests.  I think that the natural meaning of the word “exempt” is that the bequest is, in some sense, “taken out” of or “set apart” from the general rule, in this case, from the general liability to duty.

His Honour then goes on to draw a distinction between “free” and “exempt”.  In the context of this Act, our submission is that the power of exemption lies there.  Given that it is a category of exempt shop ‑ paragraph (e) of section 4, definition of “exempt shop” ‑ it is there to take a shop out of the regulation of hours.  The Act is about regulating hours.  If a shop is going to be exempt, it is going to be removed from regulation.  That does not mean in other respects it cannot be placed under conditions, but that shop is deregulated.

BRENNAN J:   Does that mean, for example, if you have a holiday place, that you cannot have, for example, an exemption for, let us say, butcher shops at Victor Harbour on condition that on Sundays they should be open only from 11 until 3?

MR WELLS:   Our submission has the result, your Honour, that butcher shops in Victor Harbour could not, by means of an exemption, be permitted to trade at times other than would be allowed under a proclamation because Victor Harbour would be in a proclaimed shopping district, probably, other than that which is prescribed under section 11 and 12 procedure.  So, I think my answer to your Honour is, that means that the butcher shop would not be allowed, by means of an exemption, to trade on Sundays.

BRENNAN J:   What about an icecream vendor on the foreshore?

MR WELLS:   Your Honour, I think they are exempt, by category.

BRENNAN J:   And I was not thinking of a particular example.  I am thinking of something which, because of the special use that is made by the public of a particular area for a limited time, it is necessary to allow a shop to open.

MR WELLS:   Well, our contention, your Honour, is that if that is the view that is taken, for instance by the Minister, then the conclusion would be that that particular operator does not require regulation as to hours.  So, that operator could operate at any time at all.

GAUDRON J:   But you do not have to put your argument as highly as that, do you?

MR WELLS:   No, we do not, your Honour.

GAUDRON J:   All you have to do is say that the purpose has got to be within the confines of the Act.

MR WELLS:   That would be our principal contention, your Honour.  We do want to take the extra step and say, but in any event as a matter of construction, in the context of this Act, trading hours do not have any part to play in exemptions.  But, your Honour, with respect, is quite right:  we do not need to put our submission as far as that.  Can I make ‑ I think I am right in saying three more points before I sit down?

If your Honours would be good enough to turn back to the Act and to section 13, your Honours will recall that I mentioned in the general summary that subsections (9) to (11) of section 13 deal with the procedure laid down by the legislature for temporary extensions of trading hours.  And if your Honours can see that in subsection (10) of section 13, a proclamation that the governor may make operating in respect of a period no greater than one month, is a proclamation that may relate to shops generally, or to a specified shop.  So, a proclamation, under subsection (10), albeit limited in point of time to one month, may nevertheless apply with respect to a shop.  It supports the contention that we put that section 5, the exempting power, does not purport to deal with the subject matter of trading hours other than to regulate in accordance with the Act, or deregulate and nothing more.

Because, here is a method again prescribed by the legislature for extending or varying trading hours for a particular shop.  And subsections (12) to (14), the other side of the coin, also can relate to a specific shop but they operate by way of restricting closing hours and in that particular case, there is no need for sensitivity to shop assistants, shopkeepers or residents, according to the judgment of the legislature.  That is one point that we would invite your Honours to note.

The second of the three points that remain is section 14.  Your Honours, I have to say that in one sense I have been a little diffident in putting forward this quite separate proposition about section 14 because I accept and, indeed, the discussion in the Full Court identified this, that the language is not as conclusive or decisive as one might like it because the criminal sanctions that operate there are hedged around with phrases which need some particular interpretation.  For instance, in section 14 it starts with a phrase, “Except as otherwise provided in this Act”.  Does that refer to only the provisions of the Act or does it refer to proclamations that are made pursuant to the Act?  If it were not for that particular difficulty I would feel more confident in putting a submission that said section 14 itself provides a prohibition on Sunday trading, without more, because it identifies three mutually exclusive categories of non-trading, which are, as we see in subsections (3) and (5):

the whole of each Sunday, each other public holiday and such other period that the shop is required by this Act to be closed.

But the phrases that appear there and, indeed, in each of subsections (3) and (5) “as otherwise provided in this Act” and “required by this Act” do not provide any sure foundation for suggesting that these are mutually exclusive categories.  It is what we would want to contend, but it requires reading, for instance, “other period the shop is required by this Act to be closed” as meaning or including proclamations that have been made pursuant to the Act.

BRENNAN J:   But you have to rely on section 14, do you not?  Is that not the section and the only section that deals with closing hours or the closing of shops on Sunday?

MR WELLS:   Yes, it is the section that creates the obligation.

BRENNAN J:   And it is the exemption from the prohibition in section 14 which is the subject matter of contention.

MR WELLS:   In that respect, indeed, we do rely on it, your Honour, yes.  I am focussing more on whether, not so much the offence taken with the defence in subsection (11) yields an understanding of the structure of the Act, but whether subsections (3) and (5) internally put a blanket prohibition on Sunday trading ‑ ‑ ‑

BRENNAN J:   What that means is that you are submitting that section 5 exemptions cannot be granted to provide any exemption from the limitation  contained in section 14.

MR WELLS:   That is right.

BRENNAN J:   What is the situation with regard to exempt shops in section 14?  Those which are legitimately exempted on your argument, are they bound by section 14?

MR WELLS:   Your Honour, that will depend on whether the phrase “except as otherwise provided in this Act” refers to exempt shops.

BRENNAN J:   What is your submission?

MR WELLS:   Our submission, your Honour, is that it does not, that the phrase that  there appears refers to such provisions as section 13a, which is a true example of partial exemption, where a permit can be provided to a hardware shop to trade in hours other than the hours that exist according to proclamation.

TOOHEY J:   Well, how do you reconcile that then with subsection (11) which establishes a defence in the case of an exempt shop?  Leaving aside a shop that is exempt because it has been the subject of a certificate of exemption, can you reconcile them?

MR WELLS:   I think that is our difficulty.

TOOHEY J:   A bit more than a difficulty, is it not?

MR WELLS:   That is the difficulty that has plagued us all the way through in trying to develop any argument out of section 14 itself.  I put the submission, but as I said at the beginning, it sits at the very end of the order of priority of the submissions that we would want to make.  What we would say, however, it is exceedingly curious that in the very provisions which create the obligations, the subsections in each case specifically make reference to three categories:  Sundays, other public holidays and other periods required by the Act in which they are to be closed.

TOOHEY J:   Mr Wells, is there any significance in the legislative history of this statute?  I do not mean pre-1977 but in the way in which amendments were introduced. 

MR WELLS:   Your Honour, I think it would be difficult to say that there is significance in much of the way this Act has been put together by amendments.  It seems to have been very much dictated by pragmatic considerations, not always dictated by any clear and consistent policy even.  There are two amendments between 1977 and now; one in 1980 and another in 1990, I think I am right in saying.  Your Honours, in each case, apart from identifying the moments at which the present shape of the Act was given that shape, you cannot say that there is much to be derived from the history at all.

TOOHEY J:   Well, I was thinking particularly of section 5.  I take it there was a section 5 there from the outset, but not section 5 in its present form.

MR WELLS:   No.  Section 5 as it began, your Honour, was a section that dealt with shops that the Minister could declare as declared shops.  I cannot recall exactly the way that it was expressed, but it basically picked up on the shops that had been providing particular kind of retail sale at the time of the commencement of the Act.  I am obliged to my friend, he has provided me with a copy of the Act as it was originally and what it says at section 5 is this:

where the Minister is satisfied that -

(a) the business of a shop, being a business that is mainly or predominantly the retail sale of foodstuffs, was being carried on or before the commencement of this Act;

(b) after the commencement of this Act the business of that shop continued to be the same as or substantially similar to that business of that shop before that commencement; and

(c) by reason of the operation of this Act, the number of hours in a week during which the business of that shop was carried on during the period of one month immediately before that commencement was more than the number of hours in a week during which the business of that shop may lawfully be carried on after that commencement,

the Minister may, by notice......declare that shop to be a declared shop for the purposes of this Act.

Subsection (2) enables him to provide conditions, limitations or restrictions, and subsection (3) enables the Minister to revoke such a declaration.  In 14(11), your Honours, I think I am right in saying - there is one step to be taken before I get to that.  In the definition of “exempt shop” in paragraph (e), the category was  ‑ ‑ ‑

TOOHEY J:   That presumably came in at the same time as section 5 in its present form, is that right?

MR WELLS:   Yes, your Honour.  The new section 5 and the new category (e) in “exempt shop” came in at the same time.  So category (e) as it was was a “declared shop”.

TOOHEY J:   Yes, I appreciate that.

MR WELLS:   So a category of “exempt shop” was a “declared shop” and so subsection (11) operated in accordance with its terms.  It may be, as I said, because of section 5 as it then was that there is this period that is referred to in section 14(11).

TOOHEY J:   No, but I was really wondering whether in its original form section 14(11) spoke of an “exempt shop” at a time when section 5 did not exist in the form in which it now appears and in which paragraph (e) of the definition did not appear in its present form.  Whether that throws any light on it or not I do not know.

MR WELLS:   It spoke consistently, your Honour, of an “exempt shop”.  Section 5 dealt with a “declared shop”; section 4 provided that “a declared shop was an exempt shop”.

TOOHEY J:   Thank you.

MR WELLS:   There is one final submission that we put, if the Court pleases.  The submission was put on behalf of the Minister to their Honours in the Full Court that what was happening here was simply the pursuit of a policy, that there was an announced policy so everyone knew where they stood, and that people were then able to apply in order to take advantage of the policy.  The majority of their Honours in the Full Court not only acknowledged that to be the case but said in effect that the executive should not be disadvantaged because they have announced the policy in circumstances where, if they had not, it is difficult to see what would be wrong.

Their Honours had this notion in mind, that once the undeclared policy had been given effect to by an exemption specifying Sunday trading hours, others would come forward and say, “Well, if for this applicant, why not for us?”.  So that by means of a principle of consistent or equal treatment, there would be a domino effect anyway and it would be necessary for the Minister, in the proper exercise of the Minister’s powers, in fact to grant exemptions to others on those same terms.

What could be wrong with that?  Your Honours, what is wrong in part I have already made submissions on, but can I put this further submission.  It is in a sense trite, but there is nothing wrong with the pursuit of a policy.  That is perfectly legitimate, provided that it can be given effect to lawfully.  We would submit that the so‑called domino effect of successive exercises of individual discretions simply ignores the inherent limitations of this exempting power which, as I say, cannot, in the way that I have explained it, subvert the rule and cannot itself be the instrument of making a new rule.  In that respect, in our submission, the question of policy does not arise in this case.  If it is pressed, the answer is the one that we have proffered.  If the Court pleases.

BRENNAN J:   But it is central to your case, is it not, the question of policy?  In other words, as I read the relief that you are seeking, it is a declaration in respect of the purpose for which a power is exercised.

MR WELLS:   Your Honour, it is central in this sense, that by reason of the announcement of the policy, there is clear evidence of the purpose for which the exempting certificates purport to be granted.

BRENNAN J:   I would have thought that what you would have said was that the domino effect demonstrates the impermissibilityof the policy.

MR WELLS:   Well, your Honour, that is exactly what I am saying, because we would contend that that demonstrates, in the circumstances of an exempting power, why that policy, through a domino effect, cannot be given effect to lawfully.

BRENNAN J:   Is there any decision of this Court ‑ I rather thought there was ‑ relating to the impermissibility of a policy governing the exercise of a ministerial discretion?

MR WELLS:   Your Honour, there are decisions of this Court that would say that a policy cannot dictate the exercise of ta discretion; that it is permissible to have regard to an administrative policy in exercising an individual discretion, but that if the policy is given effect to, simply because it is the policy, without regard to particular considerations affecting the particular applicant, as it would be in this case ‑ ‑ ‑

BRENNAN J:   Yes, that is a question of the exercise of a discretion in the particular case.

MR WELLS:   Yes.

BRENNAN J:   I was thinking rather of the question of a policy which is confined, or which lies outside the scope of the discretion which is conferred by the statute; something akin to the case of Macbeth v Ashley. 

MR WELLS:   Yes.

BRENNAN J:   Has Macbeth v Ashley been considered in this Court that you know of?

MR WELLS:   Not that I am aware of, your Honour.  The case of Kurtovic, which is on our outline, is a case where the Full Federal Court has acknowledge in the context of extradition powers ‑ the exercise of powers with respect to extradition, that repeated administrative acts may be seen as constituting an abuse of the particular power, but that is as close as we have been able to find authority.  Those are our submissions, if the Court pleases.

BRENNAN J:   Thank you, Mr Wells.  Mr Solicitor.

MR DOYLE:   Your Honour’s have our outline of submissions?

BRENNAN J:   Yes, Mr Solicitor.

MR DOYLE:   Your Honours, there are probably two basic points that we have to make good; the first being that closing times, and I emphasise closing times under the Act, what I have called in the outline, I think, and will in the submissions, are a starting point only, which can, in fact, be entirely displaced by executive act, and the second basic point is that the discretion under section 5 can, to use a word that I know some of your Honours like to use, be enlivened, not just by individual circumstances, but also by general circumstances or something akin to a general policy.  In other words, to put it in simple terms, that section 5 is not simply about the consideration of particular circumstances of a particular shop, that it does not focus entirely on that.  So, I will come back to them, but it may be that in the end we have to make good those two basis points.

But, your Honours, it might be convenient if I started on the issue of standing which is dealt with first in our outline and I know, your Honours, it has become somewhat unfashionable, almost a bit non-..... to take standing points.  But, your Honours, in our respectful submission, this case really does raise the issue and that is why we have taken the point.

BRENNAN J:   If your point is right about standing, what would you say about the standing of an individual member of the union who is an employee of one of the shops affected?

MR DOYLE:   Well, we are content, as we indicate in the outline, your Honour, to argue it.  And we tried to make it clear we do not take the point that it is the union, not the shop assistants.  And so, to test the point, we are prepared to assume that my friends have found a particular worker who will stand as plaintiff and so will assume ‑ now, could your Honours be a bit clear about the particular person we are assuming, what are his or her characteristics?

BRENNAN J:   An employee of one of the shops affected.

MR DOYLE:   In the sense, your Honour, that it is one of the shops that will be allowed to be open on Sundays?

BRENNAN J:   Yes.

MR DOYLE:   Yes.  Well, we would submit the same applies, your Honour, that in this area the difficulty, I suppose, is not so much the statements of principle ‑ and we have referred to the cases in paragraph 5 of our outline ‑ but applying those principles to particular facts.  What we have here is the appellants are focusing not upon the decision itself.  What they focus upon is the impact of the decision upon employers and the way in which those employers may then react, which will, in turn, affect employees.  And the example your Honour gave me, I suppose, falls into the area of an employee working for a shop now able to be open on Sunday who is, I accept, under some kind of pressure, although it is voluntary to work on a Sunday because obviously, there may be a fear if the employee does not, the employee, if times get difficult, may lose his or her work. 

The other category the appellants focus on is people working in other shopping areas who may find that, as a result of Sunday trading in the central shopping district becoming popular, traders in other shopping districts suffer and then employ less people.  And then the other matter they mention is the increased use of casual employment.  That, perhaps, straddles both.

TOOHEY J:   Could you put - I am sorry.

MR DOYLE:   I was just going to say, in our respectful submission, they are focusing not upon the decision itself, not upon its immediate impact on shopkeepers.  For a start, they are focusing on what shopkeepers may do in response to that decision.  So, we have already got that one removed from the decision and we are into the area, in our respectful submission, which is referred to in a number of cases of the affection of various interests;  the ripple of affection that spreads out through the community as a result of a decision. 

And the only other broad point I want to make on that is shopkeepers are going to be affected in various ways.  Some, no doubt will like it, some will not;  some will make more money, some will make less.  Employees are going to be affected.  Some, perhaps, will quite like to work on Sundays and have other days off;  others will not.  Some will like to work more casual hours, some will not.  In some areas, I acknowledge, it is conceivable there will be less employment;  in other areas, more.  And then people who go to shops;  some, perhaps, will be pleased to be able to shop on Sundays;  others may be displeased to find that some shops they are used to finding open on a Monday are no longer open because the shopkeepers open on the Sunday and choose not to open on the Monday. 

Our point is that when you look at it all, there are all sorts of effects that will ripple or spread through the community and people who work in shops are merely part of the community who are affected in various ways, not by the decision, but by the response of shopkeepers and the effect is, to a considerable degree, speculative and variable.  And that when you come back to the fundamental notion of special interest ‑ that is, first of all, the aspect, something beyond other members of the public;  that seems not very clear here because all members of the public ‑ not all, but a wide range of the public ‑ are going to be affected in various ways.  If you focus on the notion of some definite and tangible interest in the outcome, well, again, it is really quite speculative.  No one really knows just what effects will flow from the decision on any particular individual.

TOOHEY J:   But I rather thought that the notion of standing might come in through the proposition that if the machinery of proclamation was employed then the views of interested persons had to be taken into account and those included persons working in the shops.  The argument is that section 5 is being used as a way of getting around the machinery of proclamation and, therefore, that gives the persons who are employed in the shops standing.

MR DOYLE:   Yes.  Well, that is a completely different approach taken to standing and it is one which my friend takes.  In our respectful submission, while at first that seems appealing, there really is no substance to it.  It would give them standing if the Minister was following the procedure under section 13(6) and the complaint was that he was not following it properly, but, in our respectful submission, the fact that one has standing or interest in a particular statutory procedure does not give you standing to challenge a different procedure using the argument that if we can succeed on that, the person will be forced back to the one we, as it were, have a foot in the door in.

McHUGH J:   But does not section 12 and section 13 constitute a legislative recognition that shop employees do have a real interest in trading hours generally and is that not a sufficient interest in this particular case?

MR DOYLE:   Your Honour, certainly the statute acknowledges their interest and there is no point in denying their general interest, but so do shopkeepers have a general interest and so do the whole community and, in our respectful submission, the provisions to which your Honour refers are to be seen as nothing more than provisions which are part of some particular statutory provisions which, in a particular situation, require them to be consulted and, in our submission, if I can put it this way, while your Honour is, first of all, undeniably right, one would hardly say that shopkeepers and the general public do not have an equal interest simply because it is not acknowledged by the Act to the same degree and, secondly, our point is that the Act acknowledges that interest by providing a particular procedure under which their views will be considered and that it is another thing to say that because of their general interest, as it were, they then have standing to challenge any other procedure on the basis, as I said, that if they can successfully challenge that, then the Minister will be forced to resort to the procedure in which they have a more definite interest.

McHUGH J:   But I suppose it is the case in South Australia, as in other parts of Australia of which I am perhaps more familiar, that this legislation is a compromise between a battle that has been going on for decades between those who say that shops should be open 24 hours a day and the trade unions who say that their members should be protected and that extended trading hours is to the detriment of members and that is why they have a real interest in this subject matter.

MR DOYLE:   But, your Honour, with respect, does not that simply illustrate the point that in that respect, they have the same interest as the whole community, because it is not the battle, as it were, between the unions and those who say shops should be open 24 hours; it is a battle, if one wants to put it this way, between groups which represent large shopkeepers, groups which represent small shopkeepers, the consumer interests and the unions and there may be other groups that I have forgotten as well, because there may be some who on religious grounds would say, well Sundays are out, and they would be a group who would come at it from a completely different angle.  In our respectful submission, it is a matter in which the whole community has pretty much the same interest.

McHUGH J:   Industrial regulation indicates, as well as one’s knowledge of social conditions, that there is something sacred to Australian workers about Sundays and Saturday afternoons and even night.  If they are required to work on Sundays, they get double-time.

MR DOYLE:   Well that is true as a matter of history, your Honour, but in our respectful submission, it is equally true that the whole community has an equal interest in the change and that the appellants here are simply pointing to what are somewhat speculative and variable affects of the decision.  It is not a decision which affects them directly, but one which affects their employers.  They then point either to variable and speculative consequences, or to the fact that in a particular respect the Act acknowledges their interests, and then say, well we really have an interest to challenge any decision under the Act, because if they are right, presumably on the same basis, they could challenge a use by the Minister of section 13(9) or (12) because they are other means by which trading times may be affected.

TOOHEY J:   But they would not have to, would they?  Their interest is spelt out in those sections.

MR DOYLE:   Not in relation to subsections (9) and (12), your Honour.  The only right of consultation, if I can call it that, is in relation to subsection (6).  So, your Honours, I do not think it is necessary for me to go to the cases because this is one of those points that is, to a considerable degree, a matter of impression, but the point we do make is that when what have been called commercial or business interests are involved, what the cases illustrate is that the courts have tended to look for fairly clear, tangible effects.  And here, in our submission, they are lacking if you are looking at effects and indeed the passages of the report to which we refer in our outline tend to contradict the assertions made by the plaintiffs and say that the fear of consequences will not flow.

If we look to subsection (6), all that does is establish an interest in a particular procedure under the Act, and cannot be used to support attacks on other procedures.  Then the other approach which the appellant takes is to say well, people such as shop staff may be prosecuted if the certificates are found to be invalid.  In our respectful submission, the answer to any prosecution would surely be a defence of honest and reasonable mistake.  So on those grounds, if the Court pleases, we would submit that standing is lacking.

Could I then turn to the merits.  Your Honours, it is convenient to begin with some brief submissions about the role or place of section 13 in this Act and especially subsections (1) to (8).  What I propose to do is to focus on subsections (1) and (6) because of their relevance to the central shopping district, although what I am putting is applicable, I think, to the whole group of subsections (1) through to (8).

The first point to note is that section 13(1) and (6) make provision for a regime of closing times.  Could I stress the point “closing times” again.  It is not a regime of trading hours; it is only closing times.  They are closing times for the central shopping district which are fixed under subsection (1) and may be varied under subsection (6).  As it happens, they are the only powers in the Act in relation to closing times.

DAWSON J:   Is there not a provision somewhere which says that, once closed, they have to remain closed for the rest of the day?

MR DOYLE:   Yes, your Honour, that is in section 14.

DAWSON J:   That means a little more than just closing times, does it not?

MR DOYLE:   Your Honour, it has that consequence, but our respectful submission is that they are not opening times, for a start; they are only closing times.  They are the only provisions relating specifically to closing times in (1) and (6).  What we go on to submit is that in this Act the regime of closing times is nothing more than a base point or a starting point.  It is something which gives content to the powers under subsections (9) and (12) and under section 5, because these are powers which when exercised allow a shop to be open when it would otherwise have to be closed because of the closing time and the effects of section 14.

But if your Honours would look at subsections (9) and (12), what we make about these subsections is that they enable the regime of closing times to be entirely displaced by executive Act ‑ admittedly, under subsection (9) for a maximum of one month, but there is no doubt that during that month the closing times can be entirely displaced, because the governor, acting under subsection (9), can fix times during which shops may be open throughout a whole shopping district or throughout the State as a whole.

TOOHEY J:   Is that by prescribing both opening hours and closing hours?

MR DOYLE:   Yes, in our respectful submission, that is the other feature of subsection (9), that it enables the governor to deal with both opening and closing hours.  So that is another difference between what I will call the closing times regime and other things.  Again, if I can just come at it slightly differently, under (1) and (6) we have as a starting point a regime of closing times which has certain consequences by the operation of section 14 that, once you have closed, you have to stay closed.

Then we find when we look at subsections (9) and (12) that by a simple executive act that regime can be entirely displaced because a proclamation under either of those sections can operate throughout a shopping district or throughout the State and, as your Honour Justice Toohey points out, under (9) it seems clear one can fix also an opening time as well as a closing time.

TOOHEY J:   Am I right in thinking it is only under subsection (9) that the limited period of one month applies?

MR DOYLE:   That is so, your Honour, yes.  Under subsection (12) there is no limit.  The other point, your Honours, which is interesting when we consider the scheme of this Act is the obvious one that neither subsection (9) nor (12) involve this process, which I think has been called consultation under (6) and (7), although strictly it is not even consultation.  The Minister merely has to be:

satisfied that a majority of interested persons desire -

et cetera, under (7), but the point is under (9) and (12) the Minister can displace entirely the closing times.  He can do it without having to be satisfied of anything in particular in relation to persons working in shops.  Under (9) he can do it by specifying an opening and a closing time.  What we find is that the combination of the two is that he can both extend hours for a maximum period of one month by any one proclamation or restrict hours indefinitely and, again, if you think of the interested persons, because interested persons, your Honours, are shopkeepers and shop assistants, shopkeepers get no right to be consulted if a proclamation is made under (12), but it could be a proclamation which restricts their trading hours throughout the whole State and indefinitely.

So the point which your Honours would probably appreciate I am working up to, and which I think we made in the outline, is that closing times have a rather unusual position under this Act.  Far from them being, as it were, as my friend would contend, the central feature of the Act, what we find is that the executive, going no further than section 13, has two powers which enable it to render closing times under subsections (1) through to (8) really ineffective and even that one month limit, your Honours, under subsection (9), it has to be borne in mind that it is conceivable that the Minister might make a proclamation under subsection (9) which covered say Christmas, summer sales, Easter, obviously - and I do not for a moment deny it - obviously there are limits to the repeated use of subsection (9), but on the other hand there is no doubt that subsection (9) can be used on more than one occasion and so the Minister could legitimately under subsection (9), from a practical point of view under certain circumstances, make proclamations which might mean that for the most important trading times of the year, again, the closing times under subsections (1) and (6) are rendered inapplicable.

So, your Honours, without wanting to labour that point unduly, we submit that you do have to be clear for a start that the first half of section 13 is about closing times and there are some special procedures under subsection (6) and (7) for changing closing times.

But the second half of the section gives the executive a very wide degree of latitude, and it gives it powers which would enable it to render the closing times, from a practical point of view, unimportant, and it is in that context, in our submission, that we have to approach the issue of the scope of the discretion under section 5.  In our respectful submission, the appellant’s submissions have largely ignored that distinction, the distinction between the two halves of the section and, indeed, if one looks at the appellant’s outline ‑ if your Honours would just glance at that for a moment - paragraph 3.4, where the appellants say:

The process of establishing or varying the regime of lawful trading hours in the Central shopping district requires, as a condition essential to validity, a certification ‑

et cetera.  Well, our point is that precisely misses the point.  The process of varying the regime of closing times requires that, but when one asks oneself, “What can be done in relation to trading hours?”, what one finds is that trading hours can be radically altered on a broadcast basis without any resort to this process of certification.

BRENNAN J:   Now, the wider you place the executive’s powers under section 13, an argument may go, the narrower is the scope of the power under section 5.

MR DOYLE:   Well, your Honour will probably have guessed I am reluctant to agree to that proposition.  In our submission, this is by no means a simple Act to construe, but the feature that emerges is that we have this starting point of closing times and, in our respectful submission, one should see section 5, and then subsections (9) and (12) as simply three different means by which, without ever touching closing times directly, they simply stay there.  Three different means by which the executive may, as we find, render the closing times under subsections (1) through to (8), largely or practically unimportant.; that section 5 is to be seen as really alongside subsections (9) and (12); there are just three different means, and that this is not an Act in which there is a neat pattern where each little bit of the Act, as it were, has its clearly allotted territory and none of them overlap.  This is an Act which is riddled with overlap in the key provisions, section (5) and section (13), which relate to the establishing of times at which one can trade, and so we would respectfully submit that this Act is not one of those in which a submission about the width of (9) and (12) leads, as it were, as a kind of reflex conclusion, to a conclusion about the narrowness of section 5.

BRENNAN J:   Why does one not construe section 12 as relating to the fixing of trading hours, and the exempting power in section 5 as relating to considerations to be given to particular shops which, by reason of their unique or peculiar characteristics, ought not to come within the regime?

MR DOYLE:   Yes, well in one sense, your Honour, it is clearly right that section 13 is the section about trading hours.  On the other hand, the first point to be made is that the process of exemption is in a sense necessarily about trading hours, because to be exempted is to be freed from the restriction as to closing times.  And so, it has meaning as it were, only as a freedom from the restriction as to closing time. 

So it really is about trading hours, it is just that it is about them in a different sense because it is a freedom from closing times.  And I said closing times, your Honours, because it may well be that an exempt shop is not free from a proclamation under subsection (12).  It clearly does not have to worry about, if I can put it that way, proclamation under subsection (9) because that is just a proclamation which gives extra hours.  But if you look at subsection (12), the power to limit the number of hours, and then if you look at subsection (14), there has got to be at least a good argument that even an exempt shop would be caught by a proclamation under subsection (12).

Now I do not know that anything much at the end of the day would turn on that, but my first point in answer to your Honour is that the process of exemption really is about trading hours, because it takes on meaning only in the sense that it is the acquisition of a freedom from them.  Your Honour may also have been picking up Mr Wells’ point that a certificate of exemption can say nothing about hours, and I will come back to that separately.  We submit that a certificate of exemption under the power to attach conditions can deal with hours and very briefly, we would really pick up what your Honour Justice Toohey I think was saying that in an Act about hours, surely that would be a prime candidate for conditions.

Then I think the other point your Honour Justice Brennan was making to me was that is not the discretion under section 5 a discretion in terms of the circumstances of a particular shop.  Now I do want to come to that in a moment, but in brief our submission is that that is too narrow a view of it and that when one thinks about the discretion, it is surely discretion which could properly be used on the basis there are lots of tourists roaming around central Adelaide of a Sunday.  They need coffee shops and I know that they want to buy local craft; they want to be able to go to craft shops. 

In my respectful submission, it is a discretion which can quite properly be exercised by reference to things that only loosely relate to particular shops.  It is not a discretion which can only be exercised on the basis, “this particular shop satisfies the exemption,” that is appropriate.  It can be exercised on the basis, “I am aware of circumstances that make it appropriate to grant an exemption to this sort of shop” and our submission is that, at the end of the day, all the Minister has said here is that there is a moderate demand for Sunday trading; it is appropriate to meet that demand in the central shopping district, and as distinct from him saying, “There is a demand from tourists for coffee shops and craft shops,” he is saying “There is a more generalised demand for Sunday trading which I think it appropriate to meet in the city centre.”  In the end the discretion cannot be expressed as one to be exercised only by reference to circumstances peculiar to a particular shop.

BRENNAN J:   Say, for example, a South Australian craft association applied for a proclamation under  section 13(9) in relation to 11 am to 4 pm on Sundays in Rundle Mall and that proclamation was granted and then, discovering that they would like to have it from 9 am on Sunday, they apply to the Minister for exemption, could the Minister exempt them?

MR DOYLE:   I am just not sure - does your Honour mean from 9 am until ‑ ‑ ‑

BRENNAN J:   4 pm, or 5 pm.

MR DOYLE:   Leaving the proclamation under section 9 standing?

BRENNAN J:   The proclamation stands.  Can it be out-flanked by the granting of an exemption?

MR DOYLE:   Yes, your Honour, in our respectful submission, it can, because this is an Act about overlaps.  I know that, in a sense, my answer seems an unattractive one because one would think it does not sound right but, in our submission, this is an Act with overlaps and an Act which provides different means of getting to the same end.  Because, one thing in our submission is beyond argument and that is that under subsections (9) and (12), the Minister can, for practical purposes, make closing times irrelevant.  In our submission, that is the clearest illustration of the fact that this is an Act about overlaps.

BRENNAN J:   But, so to say means that a decision which by the Act is reposed in one authority, to wit the Governor, can be overruled by an authority reposed not by a power reposed in another authority, to wit the Minister.

MR DOYLE:    Yes, your Honour.  But that is, in our submission, inescapable once one works through section 13 and sees how it starts with closing times and then has this separate regime which is built around subsections (9) and (12) and as is, in our submission, inescapable, it considers the results which can flow from the exercise of those powers.  Obviously, I can see the unattractive side to my submission because it means that the process of consultation under subsections (6) and (7) can be by-passed but, in our submission, that is an inescapable fact of subsections (9) and (12). 

It highlights the point that, in our submission, the appellants in this matter are giving quite undue prominence to subsection (6), a prominence which the Act does not itself support and, in a sense, much of their argument is, “Well, there is that process, that is the one which should be used.”  Our submission is the Act simply does not bear that out.  So, our submission, your Honours, then starts on the basis that closing times under subsections (1) and (6) are a very unusual sort of general rule if that is what they are.  They are really a base point under this Act which can be wholly or partly displaced by executive action which can operate across a whole shopping district. 

While you can, if you please, treat them as establishing a general rule, you have to fully appreciate the sort of general rule which they establish, one which can be entirely displaced.  We make the further point that closing times, as such, have no special sanctity;  they are merely a base point or a starting point.  So our submissions about section 13 conclude, just making these points that the emphasis on subsection (6) is wholly misplaced, including the reference to the democratic process, that a new general rule can be established, certainly under subsections (9) and (12).  So we start from the point that a new general rule can be established; the closing time general rule simply sits there. 

While these may seem points of detail, subsection (6) does not bear directly on what was done here because subsection (6) does not cover the specification of an opening and closing time, whereas the Minister has exercised his power here to control opening and closing.  Subsection (6) does not allow for the imposition of conditions and the Minister has used the power here to attach conditions.  This one, I must admit, I am less certain on, your Honours:  it may be that subsection (6) only envisages the use of that provision to create a complete new regime and not the alteration of just one part of the regime and what the Minister has done here is alter the regime only in respect of Sundays.

Could I go then, your Honours, to the discretion under section 5 to support the submission that the Minister has properly exercised that discretion, having started from that base point in our submissions.  Fundamentally that discretion is exercised to take a shop outside the Act because, if the shop is exempt, then, in our submission, by section 14(11) one has a defence in relation to a prosecution for being open when the shop should be closed.  There is that one caveat:  query the impact of a proclamation under section 13(12).  In our respectful submission, section 5 can also be used to take a shop outside the restrictions of the Act at certain times, as was done here.

But our submission is that the practical effect of the exercise of the power under section 5 is similar to and has to be considered in the context of the power under section 13(9) and (12) and that we have to see section 5 as a similar mechanism.  It is one which leaves closing times in place but does something to a shop or shops which may render those closing times unimportant.  When we come then to the criteria which may enliven the exercise of the discretion, it is our respectful submission that it is difficult to limit the range of matters by reference to which the Minister may make a decision to grant an exemption.  A wide range of criteria would be relevant.

Here what the Minister has acted on is a demand for more flexible hours and for some access to Sunday trading.  In our respectful submission, that criterion as such is a proper one.  I will come in a moment to the general way in which it has been used but, in our submission, in this Act as a starting point it would be within the Minister’s power to say not only that there is a demand for the services of a particular coffee shop and craft shop in the central shopping district on a Sunday, but also that there is a more generalised demand for craft shops and coffee shops in that district on a Sunday.

In our respectful submission, when we come to the case in hand, what we find is simply a variant of that.  The Minister is saying, “The demand which I see goes beyond two particular categories of shops; it is a more generalised demand”.  He, in our respectful submission, is entitled to say, “That is a matter which is relevant to the exercise of my discretion”.  So the discretion is not one which is confined to the circumstances of a particular shop.  It is a discretion which is exercisable by reference when appropriate to the needs or wishes of people who use shops and those needs or wishes are not necessarily needs or wishes which are expressed in relation to a single particular shop.

So we submit that the policy that is a demand or a need for shopping facilities at a particular time in a particular locality is a relevant one and that, when one analyses it, it cannot be said that that is a policy which can be expressed only in terms of a particular shop.  In our submission, it can be expressed more generally.

So we do submit that the discretion is enlivened not only by factors specific to a particular shopkeeper but also by factors which relate to the demand of people using shops in a particular locality at a particular time.  So we submit that if it is accepted that Sunday trading is something which would support an exemption in relation to a particular shop which could hardly be denied, if it is submitted that a demand for Sunday trading would support an exemption in relation to a particular type or class of shop, it likewise follows that if the demand is there, a demand for Sunday trading for a range of shops is a relevant policy, and that is what the Minister has found to exist in this case.

We submit that that is how one gets the conclusion that the policy which the Minister has pursued under this Act is a permissible policy for the purposes of section 5.  Your Honours, the appellants, as we understand them, meet that point by saying that the power under section 5 is being used to create a new general rule and that then takes one back to the starting point of our submissions about the place of subsections (1) to (8) in this Act and the particular status of closing times, and I do not think I need to go back over that ground.

So, your Honours, our submission, which really starts with section 13, is that a proper understanding of closing times in the scheme of this Act shows that they are a very special sort of general rule, that in that context section 5 is to be seen as one of three different means whereby that general rule can be displaced and that a consideration of the policy which may be relevant under section 5 causes one to see that it is not purely a policy peculiar to a particular shop; it is a policy which may be related to the demands of shoppers which may in turn move from classes of shops to a number of classes of shops.

Your Honours, could I then just deal with a few separate points that my learned friend made.  One point which he made just at the start of his submissions I am not in a position to deal with fully, but if your Honours would look at page 71, line 40.  My learned friend said that the reference there to a vote of retail tenants in shopping centres was a reference to section 13(6).  In our submission, that is not so.  It probably relates to provisions which are found in some shopping centre leases which provide for retail tenants to have a right of vote.  In our submission, it has nothing to do with section 13(6).  Could we also respectfully adopt the point your Honour Justice Toohey made when your Honour Justice Toohey said that subsections (1) to (6) are really about closing times, not about trading hours generally and opening hours.  I would simply wish to express our agreement with that.

My learned friend also put a submission that maybe trading on a Sunday was, as it were, absolutely barred by section 14.  Our respectful submission is that that cannot be right, that a proclamation under section 13(9) would, surely, permit trading on a Sunday, and likewise we submit that the exercise of the power under section 5 also must surely permit trading on a Sunday.  As to the argument that a certificate of exemption cannot say anything about hours; our respect submission is that in an Act which is so heavily related to ours, a power to impose conditions on the grant of an exemption should be read as including conditions relating to hours.  That is simply an obvious and natural reading of that provision.

One final point, your Honours, which might be made is, it may be said, “Well, surely the mere fact that under section 5 it is called a certificate

of exemption indicates that there must be a general rule which survives and from which an exemption is granted”. And we make two short points in answer to that: the first is the points we have already made about the impact upon closing times, proclamations under subsections (9) and (12), and the second point we make is: does it follow then, that if section 5, instead of referring to a certificate of exemption, referred to a certificate under which a shop became an unrestricted shop, or became a certified shop, but with the same consequences, that the position would be different.  In our respectful submission, any argument along those lines, that is, fastening on the use of the word “exemption”, puts too much weight upon the word “exemption”, and for those reasons, in our respectful submission, the appeal should be dismissed.

BRENNAN J:   Thank you, Mr Solicitor.  Yes, Mr Wells.

MR WELLS:   We have short outline, if the Court pleases, on the notice of contention;, the question of standing; I wonder if we can provide that to the Court.

BRENNAN J:   Yes, Mr Wells.

MR WELLS:   If the Court pleases.  The only matter on which we would wish to expand on the outline is in 1.5, statutory rights and interests.  The short point, your Honours, is that by reason of section 13 alone, we would claim to have the necessary interest for standing, whether the issue before the Court be an issue to do with whether the procedure is being followed correctly or whether the procedure is attempting to be circumvented.  There is a sense in which it would be rather strange if in the one case, that is if there were a question about whether the section 13 procedure were being followed correctly, one would have standing but if, as here, it is said that there is an attempt to avoid that procedure, one does not have standing.  Section 13, we submit, decisively establishes the standing of the members of the union individually so far as they come within the definition of “interested persons”, and that is the interest which the appellant is representing.

McHUGH J:   The only difficulty is that 13 is not concerned with.....hours, is it?  You have got to use section 13 in a broader way, do you not?

MR WELLS:   Sections 13 and 14, your Honour, together establish the regime of trading hours.

McHUGH J:   Yes.

MR WELLS:   The process under section 13 is the process by which that regime of trading hours, which is the result of a package, sections 13 and 14, might be changed.

BRENNAN J:   I take it there is no question that if that kind of interest is established on the part of the employees, that your client has standing for the purposes of this litigation?

MR WELLS:   We understand my learned friend has acknowledged that he does not take that point.  Your Honours may recall that in our outline on the merits, we made reference early on to a very recent English decision, Ex parte Fire Brigade Union, in which an application for judicial review had been brought in these circumstances.  The UK Parliament had passed an Act establishing a scheme for criminal injuries compensation and it replaced the old scheme which had been established in the 1960s under the prerogative.  The Secretary of State had under that Act the power to appoint a time for the commencement of the Act.  The Secretary of State never did that, but it was nevertheless an Act which had been passed.

What the Secretary of State did instead was to advise the exercise of the prerogative for the establishment of a scheme of criminal injuries compensation radically different from that which was established under the unoperative Act of Parliament.  The Court of Appeal held that that was an invalid exercise of power; that is in that case the prerogative power.  But the important thing from this point of view is that the applicants for judicial review were various groups, including the Fire Brigade Union, who claimed on behalf of their members that they stood specially vulnerable to injury through crime.

BRENNAN J:   That may be so, but from the point of view of this Court, we do not have to concern ourselves with it.  Is that the situation as between the parties?

MR WELLS:   Yes, your Honour.

BRENNAN J:   Because otherwise it may be a big question.

MR WELLS:   Indeed, your Honour, but we understand my learned friend does not take the point.  In other words, just so we are clear, my learned friend does not take the point that the union does not have standing as distinct from a relevant member of the union.

TOOHEY J:   Well, if all the members of the union who are shop assistants working in the relevant area were substituted as plaintiffs in the action, then the respondent would take the same objection to standing, no more and no less.

MR WELLS:   Yes, your Honour, that is right and we indicated to the Full Court that we were in a position if needs be to apply to add a plaintiff who had those particular features. 

Your Honours, could I just make brief reference to the Australian Conservation Foundation Cases that are referred to in 1.5.2, but in particular the decision of the South Australian Full Court, Australian Conservation Foundation Inc  v South Australia 53 SASR 349. That case itself makes reference to the decision of this Court in the Australian Conservation Foundation Inc v Commonwealth, 53 SASR 349, but we pick up from that case what we submit is a closely analogous principle, where the question of standing was raised in a planning context where the question of standing was associated with the extent to which, if at all, the plaintiffs could raise objections. In the judgment of Chief Justice King at page 353 his Honour recorded the three grounds upon which it was contended that there was a special interest:

(1) diminution of use and enjoyment of the national park; (2) threat to the second defendant’s “commercial interest in the area”; (3) deprivation of the plaintiffs’ rights pursuant to s 53 of the Planning Act by reason of non‑observance of the Planning Act procedures.

Closely analogous, we submit, to the kind of deprivation which we say establishes the standing here, and his Honour deals with that at the bottom of page 353:

The plaintiffs’ rights under s 53 of the Planning Act remain to be considered as a basis of locus standi.  Section 53 confers rights on third parties.

His Honour sets out the provision.  Then on the next page in the middle of the second paragraph his Honour records that:

A person who is opposed to a proposed development may exercise those rights in opposition to it and, if his representations or arguments on appeal prevail, will defeat the proposal.  Such rights are effective only if the person undertaking development applies for planning authorisation.

Then if your Honours go to the next paragraph:

The threatened deprivation of such statutory rights would unquestionably, in my view, amount to a special interest sufficient to found standing to bring an action to prevent the unlawful development, if the rights existed in but a limited class of persons.

And further down that same page, page 354, last paragraph:

The special interest in such a case arises not from the impact which the proposed development will have on the plaintiff but from the threatened deprivation of the right to oppose by representations and appeal, which right is conferred upon him by statute, irrespective of the impact -

And there referring to the decision of Australian Conservation Foundation Inc v Commonwealth in this Court.  I do not take your Honours to that case except to invite your Honours to note in that respect in that case these two page references, that is 146 CLR, judgment of Mr Justice Gibbs as he then was, pages 527 and 531.  On the question of standing we, otherwise, are content to rely on the outline itself, if it pleases. 

Can I make a brief reply to my learned friend’s submissions on the merits and invite your Honours to turn to the Act, section 13.  My learned friend has submitted that section 13 ‑ I admit it is not his words ‑ but effectively, provides a kind of smorgasbord of powers that can be used as the executive judges.  And your Honours will understand that we have contended for a slightly different characterisation of section 13. 

In that respect, we would submit that it is of considerable significance that, in relation to subsections (9) to (11) ‑ that is, what I have called extension of hours ‑ not only by the method of proclamation and in the absence of participation by interested persons, is there a clear limit on time.  That is, it is only one month and one can imagine that in those circumstances, the interested persons might well be content to accept an imposition of extended hours for a limited period like that, which is, perhaps, why it is expressed in that way.

Not only is that the case but also the proclamation can cover exactly the same territory as my learned friend suggested section 5 could cover.  That is, it can be a proclamation with respect to either a specified shop or specified classes of shops.

That being so, the legislature has said, “Nevertheless, we are putting a time limit on this, one month”.  My learned friend suggests that any number of conditions could be attached to the exercise of the exempting power.  If one were to suppose that one of those conditions was the imposition of a one month period for different trading hours, then you would find an exact duplication.  In those circumstances one is left to ask whether that was really the way the legislature intended to establish the structure of the Act.  We would say this, and I detected just a hint of this proposition in my learned friend’s submission, it would not be a valid exercise of the powers under subsections (9) to (11) to institute a succession of proclamations end on end, so that at the end of one month another proclamation was made for another month.  We would contend that that could not be regarded as a valid exercise of the power under those subsections. 

We would make simply one further response to my learned friend, and that is, subsections (12) to (14) are of a different kind and quality altogether.  We would, with respect, agree that there is every reason to suppose that where, by proclamation, hours our restricted under subsections (12) to (14), that they, in fact, can operate, and would operate, with respect to all shops whether exempt or not.  It is an exceptional power, and cannot be regarded simply as part of a smorgasbord.  The kind of circumstance one might imagine when a power of that kind would be exercised, that is, the Governor, by a proclamation, requiring shops to be closed at times which would otherwise be lawful, that is all shops, might be where there is some kind of State emergency which might require, say, rationing, might require some kind of action to prevent looting, that kind of circumstance might activate the exercise of those powers there, and in those circumstances everybody, whether exempt or not, is going to be affected by such a proclamation.

It is not possible, we submit, to suggest that that stands, as it were, as just one other example of the smorgasbord.  It is very exceptional, subsection (14) making it, we would contend, reasonably clear that it is intended to apply to all shops, whether exempt or not.  When there is any question of extending powers beyond what section 13 and section 14 together achieve, then the legislature is very cautious about how that should operate outside the process of consultation, and one month is the limit.  Those are our submissions in reply.

TOOHEY J:   Mr Wells, just before you sit down, could I just ask you about the relief sought in the event that the appeal should succeed.  I am looking at page 133 of the appeal book where declaratory and injunctive relief are sought.  In each case, there is a component built in which I wonder if it may not prove to be contentious or give rise to difficulties if relief were granted in those terms.  I am referring to the words:

for the purpose of establishing general Sunday trading in the Central Shopping District in accordance with the Ministerial Statement of 9th August 1994.

MR WELLS:   Your Honour, we have given some thought to that.  Our submission would be that it is sufficiently clear, both as a declaration and an injunction, given that it has as its base the ministerial media release statement which beyond any question announces a reform package by this means.  So the identification of the certificates that would be affected would, we submit, not be troublesome.  But in case that does not commend itself to the Court - we would hope it does, because there is a sense in which that would be much simpler - we have given thought to some alternatives and I wonder if we can make those available to the Court.

BRENNAN J:   That would take it outside the terms of your summons.

MR WELLS:   Well, it might, your Honour.

BRENNAN J:   There is a correspondence, is there not, between the orders that you seek and the summons on page 2?

MR WELLS:   Yes.

BRENNAN J:   Are you now seeking relief different from that which you have sought in the course of the litigation?

MR WELLS:   No, your Honour.  It is only the question of formulation that presents any question.  It may be that I am overreacting to what your Honour Justice Toohey has raised.

TOOHEY J:   Or it also may be that if Mr Doyle raises no objection to relief in that form if the appeal were to succeed, that that might be a sufficient indication to this Court.

MR WELLS:   I would be happy to go in that way, your Honours.  There is a sense in which it is necessary to make some reference to purpose since that lies at the heart of the invalid nature of the certificates.  I think that is the way we would put it.  But if the Court is concerned about the exact formulation, it is not a matter of different relief, but the exact formulation, then there are some alternatives that could be substituted.  I do not know if your Honour is suggesting my friend should give some indication in that respect.

TOOHEY J:   Well, I might be a lone voice in all of this.

BRENNAN J:   We will be calling on the Solicitor, anyhow, to see if he wishes to reply to your submissions in relation to standing, and no doubt he will give an indication then of anything he wishes to say.

MR WELLS:   If the Court pleases.

BRENNAN J:   Mr Solicitor.

MR DOYLE:   If the Court pleases, there is nothing more we wish to say on standing.  As to the form of the orders sought, I must admit this has perhaps been a little overlooked.  It was a matter of contention in the Full Court because part of our argument there was that the uncertainty of the scope of the relief sought was a problem, but unfortunately since then the matter has not received further attention by either me or perhaps my friend.  It may well be that an order in that form would be sufficient.  Would it be convenient to the Court, perhaps, if my friend and I undertook, in the next week or so, either to inform the Court that an order in that form would be acceptable; or alternatively to provide to the Court a form of order which, if the appeal were to be allowed, would be acceptable to the parties.  In other words we will either inform the Court that there will be no difficulty, should the appeal be allowed, in the Court expressing its decision in terms of an order in terms of paragraph 6.1, because I do not think 6.2 would be needed.  Or if, on reflection we find there is a difficulty, we will provide the Court, by agreement with my friend, with some alternative form of order which will be acceptable.

BRENNAN J:   Yes, thank you.

MR DOYLE:   Your Honours, I wonder if I might have leave just to touch very briefly on one point which just slipped my mind.  Could I have leave to deal with the short point by way of supplement to my argument.  I will indicate the point.  My friend argued that if a certificate is granted under section 5 you could not have a certificate in respect of one part of the week only.  It had to be the whole week, or not at all.  Although I think I touched on that along the way, I do not think I put any particular submission on it.  If given leave, I would like just to make a two or three minute point on it.

BRENNAN J:   Yes, two or three minutes, Mr Solicitor.

MR DOYLE:   If the Court pleases.  Of course, our first point is that you can issue a certificate in the form the Minister did; but our second point is that if you cannot, the point is one of form only, because, if in all other

respects what the Minister did is valid, then that point could be met by him issuing a general certificate of exemption, but then attaching conditions to the effect that on Monday you will close at such and such a time; on Tuesday you will close at such and such a time; and on Sunday you will be open from 11 to 5.  So, our point is that in the end that becomes an issue of form if that is the only obstacle which the Minister faces.  If the Court pleases.

BRENNAN J:   Thank you.  Do you wish to say anything on that, Mr Wells?

MR WELLS:   No, your Honour; it is a matter of substance not form, I think, is our response.

BRENNAN J:   The Court will consider its decision in this matter and will adjourn.

AT 12.46 PM THE MATTER WAS ADJOURNED