Shop Distributive and Allied Employees v Min for Industrial Affairs

[1994] HCATrans 96

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Adelaide         No A43 of 1994

B e t w e e n -

SHOP DISTRIBUTIVE AND ALLIED
  EMPLOYEES ASSOCIATION

Applicant

and

MINISTER FOR INDUSTRIAL AFFAIRS

Respondent

Application for special leave
  to appeal

MASON CJ
BRENNAN J
DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 NOVEMBER 1994, AT 9.56 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 T.D. BOURNE, for the applicant.  (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)

MR WELLS:   If the Court pleases.  There are, we submit, four principal issues revealed in this case which warrant the attention of this Court, bearing as they do upon the exercise of executive power, if the Court pleases, and its supervision by the judicial arm of government.

The four issues are these:  first, whether an executive power of exemption from the general law can be lawfully used as an instrument of law making;  second, what is the relationship between policy, that is, a policy pursued by government and used as a guide for executive discretion and authorised purposes;  third, whether the constitutionally implied freedom of political communication can be called in aid of statutory construction;  and, fourth, if the Court pleases, whether the decision, as we submit it does, reflects a judicial approach in South Australia to the exercise of executive power which is less than the rule of law requires.

I wonder if I can take Your Honours, in support of those four matters, to the reasons for judgment in the Full Court and, in particular, to these passages in the principal reasons for judgments of the majority, that is, in Justice Olsson’s reasons, in the application book at page 14.  There are three passages which when linked together reveal, we submit, the issues and indeed, we submit, reveal the respects in which the majority in the Full Court went wrong.  The first of those passages, as I say, is to be found at page 14 line 40 where His Honour says:

the processes of orderly public administration inherently require a Minister, in considering exemption applications, to adopt and apply some clear, specific (and, hopefully, consistent) policy as to the basis upon which exemptions will be granted.

In the instant case it seems to me that the Minister in making such public pronouncements as have been attributed to him, has done no more than indicate what that policy will be.  He need not, of course, have done so.  There is no attempt to do other than indicate that shopkeepers must make individual application for exemption.

His Honour then refers to the policy of rejuvenation.  Page 16, line 29, where His Honour goes on:

The point must also be made that section 5 -

which Your Honours will recall is the exempting power -

does not, in any sense, set out to impose fetters on the absolute discretion of the Minister to grant exemptions as he may see fit, nor, for that matter, does the definition of “exempt shop”.  The situation is left at large and, in exercising his discretion, the Minister is constrained only by his ultimate political accountability.

And I invite Your Honours to note that in the next sentence:

In the instant case he has both formulated and publicly announced his policy - a step which he was not required to do.  That announcement cannot be utilised to impugn what he could otherwise have achieved on an application by application basis.

And then finally, page 17, line 34:

In articulating policy it is no less than a counsel of commonsense for the Minister to recognise that, in granting certain specific exemptions, he will logically have to pursue a similar line with such other shopkeepers as also desire to avail themselves of the facility -

In other words, a principle of equal treatment once one exemption is granted.  If I could just add to that, if the Court pleases, page 19, line 20 in the short reasons of His Honour Justice Mohr, agreeing with the reasons of Justice Olsson, His Honour said:

I find compelling the fact that what was attacked in the plaintiff’s argument was the exercise of a Ministerial discretion and as Olsson J pointed out the Minister is constrained in the exercise by his ultimate political accountability.

MASON CJ:   I would have thought the problem with all that was that those passages seem to proceed according to an assumption that the discretion is unfettered.  The real question is:  what are the limitations, if any, on the discretion, having regard to the context in which the provision appears and the scope and purpose of the statute?

MR WELLS:   That is our submission, Your Honour.  In particular, turning to the first issue that we have identified, this is a special example, if I may put it that way, of the exercise of a discretion and a consideration of what are the limitations on the discretion, because it is dealing with an exemption from the general law, and as will be evident from our statement in support and our submissions, if the Court pleases, what we say happened here was that there was a misuse of an exemption.  It was misused because it was applied, and is being applied and used, in support of a stated policy of allowing in this case Sunday trading, but one could think of any other example - the Sunday trading itself is just the example - in a way which actually varies the general rule and will have the effect of varying the general rule.

BRENNAN J:   In a particular area is the general rule applicable throughout the State?

MR WELLS:   Your Honour, under section 13 the general rule is applicable from shopping district to shopping district.  In other words, section 13 sets up a mechanism for establishing a general rule for each shopping district.  What we are concerned with here is the general rule for the central shopping district, and under section 13(1) that is not only set out but in section 13 there is set out the means of varying it and this, Your Honours, is what we say is the critical section because there is only, we say, one method of varying the general rule in a shopping district, and that is by following the procedure in section 13 and, in particular, the procedure which requires before a proclamation, that is a general rule-making

proclamation can be made, a procedure which requires the support of interested persons as defined.

“Interested persons” as defined includes residents, shopkeepers and shop assistants.  We have referred in our outline of argument, if the Court pleases, to this notion of certification which is section 13(7), the proclamation which would vary the general rule in the central shopping district, cannot be made unless the Minister certifies that he is satisfied.

I notice that my learned friend, in his submissions, suggests that that means it is not really a democratic process because it is dependent upon the opinion of the Minister but, of course, the opinion of the Minister is reviewable.  In other words, if it can be said that the Minister ought not to have been satisfied, then it cannot be said that he was, in the terms of the section, so satisfied.

That is, perhaps, beside the point.  The point is that a majority of interested persons must desire the proposed change.  But what has happened here is that by the exercise of an executive power of individual exemption there has been established not only a policy but the policy has been followed for the purpose of varying that rule.  And our submission is that is an abuse of power ‑ put perhaps bluntly, but as simply as that.  What has been said is that it is perfectly natural to have a policy and that is, in fact, an important part of the process of proper administration, to have a policy.

MASON CJ:   Mr Wells, I think I can say to you we have heard enough from you at this stage.  That is not to say we will not be calling upon you again later, but I think we would profit from hearing the Solicitor at this stage.

MR WELLS:   If the Court pleases.

MASON CJ:   Yes, Mr Solicitor.

MR DOYLE:   If the Court pleases.  There are a number of reasons why, in our submission, no point of general importance arises.  Perhaps if I could just run through them briefly, although I think we covered them in the written submission.  There is no equivalent legislation in any other State, we would submit, although in the light of the fact that I was invited to my feet so early I will perhaps have to come back to this, but there is no point of general principle involved in the interpretation of this Act.

DAWSON J:   When you say that, do you mean no precisely similar?  There must be other statutes which give power to grant exemptions of one sort or another.

MR DOYLE:   I would not deny there are statutes giving powers to grant exemptions.  What I meant was no statute, so far as we are aware, in the area of shop trading hours, that raises, I suppose, an issue in a similar context.  I certainly do not deny there are statutes which contain powers.

DAWSON J:   Raise a similar problem.

MR DOYLE:   I suppose it depends how you categorise the problem, Your Honour.  If you say the problem is:  can the exemption be used to erode a rule, then I suppose in a sense every statute with a power of exemption would raise that problem.

MASON CJ:   But that in a sense is an important general problem, the extent to which statutory powers of exemption exercisable by a minister or the executive can be availed upon to erode a general legislative rule.

MR DOYLE:   Yes.  Perhaps, Your Honours, could I just stay for a moment on that point.  The general rule here is said to be in section 13(1).  That, as I understand my friend, is the general rule which is being eroded.  Starting there, Your Honours will see that closing hours are specified for week days other than Friday, Friday and then Saturday.  Of necessity, the process of exemption takes a shop outside that scheme of hours.  Therefore, the very process which is used here only has meaning as a process which takes a shop out of that scheme.  So one cannot say first of all that this is a process which in some sense should not erode that scheme of hours.  That is what it is all about.  Exempting a shop has no meaning other than taking it outside that scheme.

DAWSON J:   One can take something outside a scheme.  It is another thing to replace the scheme.

MASON CJ:   To “swallow it up”, to use the words of the authority, the Scottish case.

MR DOYLE:   Your Honour, our respectful submission is that that is a somewhat circular process of reasoning because, if that is the process, namely exemption of necessity takes you outside the rule, step two ‑ and this is an illustration we gave in our written submission ‑ David Jones applies for an exemption and the Minister says, “Yes, you’ve made out a good case”.  John Martin comes along and say, “Well, if they’re going to be open on a Sunday, in fairness let us open on a Sunday”.  He says, “Yes”.  Adelaide has only got about three big stores; the other one applies and gets an exemption.  So then the little ones say, “Well, just a minute.  We’ll either lose trade or we want to pick up trade, and so give us an exemption”.

In our respectful submission, it is not to say the Minister could not resist that process but, in our submission, it is difficult to say that that process is a process not contemplated by the Act.  What my friend is really saying here is, as we would argue, that if that came about, as it were, at the end of the day and the Minister said, “How did I get to here?”, and he is told by his advisers, “You got there because you gave David Jones an exemption”, that is all right on my friend’s argument because that is not pursuant to a policy, although the rule is equally eroded.  But if the Minister says at the outset, “I am disposed to grant exemptions that will produce this result”, then he is in bother on my friend’s argument.

In our respectful submission, common sense suggests that cannot be so, and so all the Minister has done here is really in a sense recognise that in an Act which proper administration would require him to consider the interests of other shopkeepers, if he is minded to grant exemptions in respect of Sundays he cannot possibly say, “I am just going to give it to one or two.”  He has to have a general policy.

So, in our submission, first of all the section 5 exemption does take you outside the regime.  Secondly, in our submission, one could not say that the Minister could not have a policy in relation to its use.  Indeed, if he did not he would be acting inconsistently and unfairly.

DAWSON J:   You cannot have a policy which is inconsistent with the policy of the Act, which is to impose a restricted hours shopping regime.

MR DOYLE:   Your Honour, of course he cannot have a policy which is inconsistent with the Act, but what is the policy of the Act?  One cannot say, “The policy of the Act is that section 5 does not take shops outside trading hours” because that is all it does.

BRENNAN J:   Why is the policy of the Act not this:  first, in relation to general shopping districts the hours are to be specified under subsection (1) and not otherwise;  second, that the power under section (5) is to be exercised having regard to circumstances peculiar to the applicant’s shop, and in the light of the provisions of subsection (1) which prescribes the general hours;  and any exercise of the power under section (5) which does not have regard to the policy of subsection (1) is therefore outside the Act?

MR DOYLE:   Your Honour, in our respectful submission, what Your Honour is putting is not inconsistent with what I put because the Minister who grants an exemption to David Jones in respect of Sunday trading ‑ as I understand it, Your Honour is not suggesting that would be outside the reach of the Minister’s discretion ‑ ‑ ‑

BRENNAN J:   It depends.  If the Minister exercises his power to grant it to David Jones confident of the domino effect to affect the overall policy of destroying subsection (1), then it would be.

MR DOYLE:   Well, I cannot obviously at this stage, we are only dealing with special leave.  Our submission is that all the Minister is doing is recognising a potential domino effect and saying, “So that everyone understands what I am doing, I am prepared, if people come forward on an individual basis, to grant an exemption” and, in effect, “to avoid causing panic among the shopkeepers, here is the basis upon which I am prepared to act”.  In our respectful submission, it is a basis to which he could so easily be driven because a Minister who focuses rather narrowly could think, “Well David Jones want it, I will give them one”, and not foresee that others could successfully, working on the precedent effect, seek a similar exemption.

So we submit there is not a policy in the Act or manifest by the Act or that section to which this use of section 5 is contrary.  My friend also tends to argue, in our submission, by implication, that the rule has been eroded whereas in fact when you look at the rule in section 13(1) all that has happened is that for some six hours on a Sunday trading is permitted and so the rest of the rule is there.  It is not as if the rule is wholly gone and so, in our respectful submission, it is only in the sense that as to one part of the week the statutory trading hours are displaced, that one can say the rule is eroded.

The other line underlying my friend’s argument seems to be that there is a special process for changing the hours in section 13.  In other words that if you want to change the hours in section 13(1) you have to use either subsections (6), (9) or (12).  Again, in our respectful submission when you look at the scheme of this Act there are sufficient differences between those particular means of altering trading hours for one to say that there is no particular sanctity about any one and in particular, section 5 which the Minister has used does enable him to deal with particular shops and, if he thinks appropriate, to revoke or vary a particular exemption, whereas under section 13(6), the so-called democratic process, he can only deal with a district as a whole.

So again there are differences which, in our respectful submission, would lead to the conclusion that section 5 is an alternative means.

Your Honours, in our respectful submission, even if one says, contrary to what we have been putting, that there is a cloud over the reasoning of the majority, and that the Minister has used the power in a fashion not authorised by the Act, we would still submit that a decision in relation to this section, or this particular provision, is unlikely to be of any general application, that the principle which my friend espouses is not a principle which we would dispute.  But clearly, the power under section 5, as we ourselves

formulated at the outset of our summary of argument - perhaps not there, I think a little later on - we accepted that it cannot be used in a manner contrary to any implication properly drawn from the Act.  The only issue in this case is what particular implication in relation to section 5 is to be drawn from other provisions of this particular Act.  So, we come back to arguments about the extent to which section 13 manifests a general rule - and we would submit it does so to a very limited extent - and then whether the particular use of section 5 is contrary to an implication to be drawn from that.  In our submission, it is difficult to see that any broader or more general conclusion would be drawn from this case.

My friend did not develop, in any detail, the point about freedom of political communication, and so I will leave that for perhaps what may be another opportunity.  I do not think there is anything further I can usefully add, if the Court pleases.

MASON CJ:   Court need not trouble you, Mr Wells.  There will be a grant of special leave to appeal in this case.

AT 10.17 AM THE MATTER WAS ADJOURNED SINE DIE