Thorpe, G.R. v Minister for Aboriginal Affairs
[1990] FCA 717
•11 DECEMBER 1990
Re: GLENDA ROSE THORPE
And: MINISTER FOR ABORIGINAL AFFAIRS and OTHERS
No. V G319 of 1990
FED No. 717
Aboriginal and Torres Strait Islander Commission Act 1989
97 ALR 543
26 FCR 325
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney A.C.J.(1), Northrop(2) and Jenkinson(3) JJ.
CATCHWORDS
Aboriginal and Torres Strait Islander Commission Act 1989 - conduct of Regional Council elections - s.100 - rules in force at the beginning of the election period - effect of rules being laid before only the House of Representatives - therefore rules cease to have effect - cessation of effect after beginning of "election period".
HEARING
MELBOURNE
#DATE 11:12:1990
Counsel for the appellants: Mr A.R. Castan QC
Mr B.A. Keon-Cohen
Solicitors for the appellants: Holding Redldich
Counsel for the respondents: Mr N A Moshinsky QC
Dr R.R.S. Tracey
Solicitors for the respondents: Australian Government Solicitor
JUDGE1
The circumstances in which the question for decision in this case arises and the relevant provisions of the Aboriginal and Torres Strait Islander Commission Act 1989 ("the Act"), have been fully set out in the reasons for judgment of Northrop, J.
Section 100 of the Act reads as follows:
"100. Regional Council elections shall be conducted by the Australian Electoral Commission in accordance with:
(a) the provisions of this Act; and
(b) the Regional Council election rules in force at the beginning of the election period."
Pursuant to s.113 of the Act, the Minister on 9 July 1990 made Regional Council election rules which, in accordance with paragraph 48(1)(b)(iv) of the Acts Interpretation Act 1901, took effect from 18 July 1990, the date of their notification in the Government Gazette.
The definition Section of the Act, s.4, provides that the words "election period" in relation to a round of Regional Council elections, means the period-
"(a) starting on the day when the Minister fixes a day or days for the polling in accordance with subsection 104(2); and
(b) ending on the last day on which a poll is declared in relation to an election in that round of Regional Council elections."
On 29 August 1990 the Minister, pursuant to s.104, fixed Saturday 3 November 1990 as the day for the polling in the first round of Regional Council elections. Thus, for the purposes of s.100, 29 August 1990 marks the beginning of the election period.
The rules were laid before the House of Representatives only and not before the Senate and accordingly, under subsection 48(1) of the Acts Interpretation Act 1901, they ceased to have effect on 16 October 1990. It was upon this fact that the applicant based her claim before this Full Court that the first round of elections was unlawful, void and of no effect.
At first instance, Pincus J held that the rules made by the Minister "presently govern the manner in which Regional Council elections shall be conducted", notwithstanding the fact that they ceased to have effect on 16 October 1990.
When the election period began on 29 August 1990, the Australian Electoral Commission was required to obey the legislative command of s.100 of the Act to conduct the elections in accordance with the provisions of the Act and the Regional Council election rules then in force. On that date the rules made by the Minister, and those rules only, answered that description.
The Act did not provide that the elections should be conducted by the Commission in accordance with the Regional Council rules in force from time to time, or in accordance with those rules so long as they continued to have effect. In my opinion, the words of s.100, in their ordinary and natural meaning, required the Commission to conduct the elections from beginning to end in accordance with the rules in force at the beginning of the election period. The fact that the Rules ceased to have effect on 16 October 1990 does not affect the conclusion that they continued to answer the statutory description as "the rules in force at the beginning of the election period".
Reference was made to the terms of subsection 113(9) of the Act which reads as follows:
"(9) Section 48 of the Acts Interpretation Act 1901 applies in relation to rules made by the Minister under subsection (1), other than rules made for the purposes of the first round of Regional Council elections, as if paragraph (1)(b) of that section were omitted and the following paragraph were substituted: '(b) subject to this section, shall take effect on the first day on which the rules are no longer liable to be disallowed, or to be deemed to have been disallowed, under this section; and'".
The terms of this subsection, in my opinion, support the construction of s.100 set out above. The subsection exempted the rules here under consideration from the operation of the provision that rules made by the Minister under s.113 of the Act for the conduct of elections shall take effect on the first day on which the rules are no longer liable to be disallowed, or to be deemed to have been disallowed. Thus they took effect from 18 July 1990 the date of their notification in the Government Gazette and were in force at the beginning of the election period.
I would dismiss the appeal and direct that the parties bring in short minutes of orders to give effect to the reasons for judgment now published and would propose that the Court sit at 2 p.m. today to consider these minutes and any submissions in relation to costs. Pincus J ordered that the costs of the hearing before him should be costs in the proceedings.
JUDGE2
The question raised by this appeal is whether Regional Council elections currently being conducted by the Australian Electoral Commission under the Aboriginal and Torres Strait Islander Commission Act 1989 are valid. The relevant statutory provisions and the facts giving rise to the question are complex but can be stated in simple form. The answer gives rise to some difficulty.
The Aboriginal Torres Strait Islander Commission Act ("the Act") was assented to on 27 November 1989 and commenced on 5 March 1990, see s.2 and Gazette 1990 No. S48. Among other things, the Act created the Aboriginal and Torres Straight Islander Commission ("the Commission") a body corporate; s.6. Section 7 sets out the functions of the Commission. The functions are extensive but the essential function of the Commission is to formulate and implement programs for aboriginal persons and Torres Strait Islanders. Section 10 confers powers on the Commission to enable it to perform its functions. Under s.27, the Commission consists of a Chairperson and 19 other members two of whom are chosen by the Minister and the other 17 members are persons "elected under Division 7 of Part 3 to represent the several zones". Section 28 contains provisions providing for the membership of the Commission until the members are elected.
Part 3 of the Act, comprising sections 91 to 144, contains detailed provisions relating to regions and zones and the election of persons as members of Regional Councils and as Commissioners representing zones. Australia is divided into 60 regions; s.91; and a Regional Council is established for each region; s.92. Each Regional Council is a body corporate the functions of which are set out in s.94, the essential function being to formulate regional plans for improving the economic, social and cultural status of Aboriginal and Torres Strait Islander residents of the region. The powers of each Regional Council to enable it to perform its functions are set out in s.95. Under s.130, the regions are grouped into 17 zones and under s.131 the members of the Regional Councils of the regions included in a zone elect one of their number to represent the zone. The 17 persons so elected to represent the 17 zones are then appointed members of the Commission under s.27.
Under s.115 each Regional Council consists of the prescribed number of members elected in accordance with Division 4 of Part 3. The prescribed number varies between 10 and 20 depending upon the estimated population in the region; see s.4, definition of "prescribed number". Division 4 comprises section 100 to 114 and is headed "Regional Council elections". As mentioned at the beginning of these reasons, the question raised by this appeal concerns the Regional Council elections and in particular what are described in the Act as "the first round of Regional Elections" being the first elections being conducted under the Act for election to Regional Councils.
Section 100 and 104 are set out in full:-
"100. Regional Council elections shall be conducted by the Australian Electoral Commission in accordance with:
(a) the provisions of this Act; and
(b) the Regional Council election rules in force at the beginning of the election period." "104.(1) Regional Council elections shall, subject to this section, be held every 3 years during periods determined under the rules having regard to the day or days fixed for the polling in accordance with this section.
(2) The Minister shall, by notice in writing, fix a day or days for the polling in each round of Regional Council elections.
(3) The polling day, or the last of the polling days, for the fist round of Regional Council elections shall be no later than 8 months after the commencement of this Act.
(4) The polling day or days for each subsequent round of Regional Council elections shall be between 1 July and 31 December, inclusive, in the third calendar year after the immediately preceding round of Regional Council elections."
Some comments are made about these two sections. Under sub-section 104(2) the Minister is required to fix a day or days for the polling in each round of Regional Council elections. All polling days, after the polling days in the first round of Regional Council elections shall be between 1 July and 31 December in each third calendar year and the elections are to be conducted during periods determined having regard to the day or days fixed for the polling. Among other requirements, the Regional Council elections are to be conducted in accordance with "the Regional Council election rules in force at the beginning of the election period". Under s.4 and for the purposes of the Act, the words "election period", in relation to a round of Regional Council elections, means the period:-
"(a) starting on the day when the Minister fixes a day or days for the polling in accordance with sub- section 104(2); and
(b) ending on the last day on which a poll is declared in relation to an election in that round of Regional Council elections."
The Act contains no definition of "Regional Council election rules" but it was agreed by the parties before the Court, and it is correct to say, that the Regional Council election rules describe rules made by the Minister pursuant to s.113 of the Act. Sub-section 113(1) is set out:-
"113.(1) The Minister may, after consulting the Aboriginal and Torres Strait Islander Commission and the Electoral Commissioner, make rules, not inconsistent with this Act, prescribing:
(a) the manner in which Regional Council elections are to be conducted (including elections conducted because previous elections have been declared to be void); and
(b) the manner in which casual vacancies in Regional Councils are to be filled."
Sub-section 113(2) specifies a number of specific matters that may be included in the rules.
Sub-sections 113(8) and (9) are set out:-
"113.(8) Rules made by the Minister under subsection
(1) are a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(9) Section 48 of the Acts Interpretation Act 1901 applies in relation to rules made by the Minister under subsection (1), other than rules made for the purposes of the first round of Regional Council elections, as if paragraph (1)(b) of that section were omitted and the following paragraph were substituted: "(b) subject to this section, shall take effect on the first day on which the rules are no longer liable to be disallowed, or to be deemed to have been disallowed, under this section;"."
The effect of sub-section 113(8) is that the Regional Council election rules are to be treated as regulations and subject to sections 48 and 50, among other sections, of the Acts Interpretation Act 1901. Under sub-section 48(1) the rules had to be notified in the Gazette, took effect from the date of notification and were required to be laid before each House of the Parliament within 15 sitting days of that House after the making of the regulations. Sub-section 48(3) provides that if any regulations are not laid before each House of the Parliament in accordance with the provisions of sub-section 48(1) "they cease to have effect." Other provisions of s.48 empower either House of Parliament to pass a resolution disallowing regulations so laid before the House whereupon the regulations cease to have effect. Complementary provisions are set out also which have the same effect if notice is given of a motion to disallow the regulations and the motion is not dealt with. The provisions of sub-sections 48(1) and (3) applied with respect to Regional Council election rules in force at the beginning of the election period for the first round of Regional Council elections, but thereafter, Regional Election rules do not take effect from the date of notification in the Gazette but take effect on the first day on which the rules are no longer liable to be disallowed or to be deemed to have been disallowed under s.48. This follows from sub-section 113(9) of the Act.
In the light of this rather complex statutory background, the simple facts are set out. On 9 July 1990, the Minister made Regional Council election rules. Under sub-section 48(1) of the Acts Interpretation Act those rules had to be laid before each House of the Parliament within 15 sitting days of that House after 19 July 1990. The Rules were notified in the Gazette on 18 July 1990 and therefore took effect as from that date. Once they took effect, the rules were "in force" for the purposes of s.100 of the Act from 18 July 1990 but the rules could cease to have effect from a future date pursuant to the provisions of s.48 of the Acts Interpretation Act. On 29 August 1990 the Minister, pursuant to s.104 of the Act, fixed Saturday, 3 November 1990 as the day for the polling in the first round of Regional Council elections. Thus, 29 August 1990 was the beginning of the election period under s.100 of the Act for the first round of Regional Council elections and the Election Council rules which had been notified in the Gazette on 18 July 1990 were the rules in force at the beginning of that election period namely 29 August 1990.
Under paragraph 48(1)(c) of the Acts Interpretation Act the Regional Council election rules had to be laid before each House of the Parliament within 15 sitting days of that House after the making of the rules on 7 July 1990. The rules were laid before the House of Representatives in conformity with that requirement. In breach of that requirement, the rules were not laid before the Senate. The fifteenth sitting day of the Senate after 7 July 1990 was 15 October 1990 but at the end of that day, the Regional Council election rules had not been laid before the Senate. Thus, on 16 October 1990, pursuant to sub-section 48(3) of the Acts Interpretation Act, those rules ceased to have effect. The fact that rules are in force between the time they take effect under sub-section 48(1) of the Acts Interpretation Act and the time they cease to have effect under sub-section (3) is illustrated by a reference to s.50. Under sub-section 48(6), where a rule ceases to have effect by virtue of the operation of sub-section (3), that cessation has the same effect as a repeal of the rule. Under s.50, the repeal of a rule does not, unless the contrary intention appears, affect any right, privilege, obligation or liability acquired, accrued or incurred under the rule so repealed. In the present case, there is no contrary intention. Thus during the period 18 July 1990 to 16 October 1990 the Regional Council election rules were in force but were repealed on 16 October 1990.
On 24 October 1990, Glenda Rose Thorpe, as applicant, on her own behalf and on behalf of a large number of other persons described as "the disenfranchised group" commenced proceedings against the Minister, the Australian Electoral Commission, the Commonwealth Electoral Commissioner and the Commonwealth of Australia. The applicant sought orders to the effect that the first round of Regional Council elections were unlawful, void and of no effect since the Regional Council election rules had ceased to have effect and thus were no longer in force, and sought interlocutory injunctions to prevent the poll proceeding on 3 November 1990. The claims were based upon jurisdiction conferred upon the Federal Court by s.39B of the Judiciary Act 1903. Another claim for interlocutory relief was based upon separate ground being the fact that the Minister had failed to make rules under sub-section 113(3) of the Act.
On 30 October 1990 the Federal Court constituted by Pincus J. refused to grant any interlocutory relief based upon the absence of rules under s.113(3) of the Act. There is no appeal from that part of His Honour's judgment. At the same time His Honour, with the consent of the parties, treated the hearing of the claim based upon the fact that the Regional Council election rules had ceased to have effect, as a final hearing. In an oral judgment given immediately after the hearing, his Honour refused the claim by the applicant and made the following order:-
"The rules made by the respondent Minister on 9 July 1990 under s.113 of the Aboriginal and Torres Strait Islander Commission Act 1989 presently govern the manner in which Regional Council elections shall be conducted by the Australian Electoral Commission notwithstanding the effect of s.113(8) of the said Act."
It should be noted that none of the parties had sought a declaration in that form. Indeed, none of the respondents had made a cross claim seeking relief of the kind set out in the declaration. At the same time as the Court made that order, if granted leave, in so far as it may have been necessary, to appeal from that declaration.
On 1 November 1990, Glenda Thorpe, the appellant, appealed from the orders made seeking to have the declaration set aside and the granting of an injunction preventing the poll which was to take place on 3 November 1990. As a matter of urgency, the appeal came on for hearing on 2 November 1990 before a Full Court constituted by Sweeney, Northrop and Ryan JJ. After hearing preliminary submissions and ascertaining that the holding of the poll would not, of itself, prevent the Full Court making an order that the Regional Council elections were void, if such was the case, the Court said:-
"For the reasons which we have indicated in the course of the helpful discussions we have had with counsel, the Court is of the opinion that it could not do justice to the interests of the parties, or to the public interest, by now entering upon the hearing of the matter with a view to judgment being given today. The question raised in this appeal arises in what the appellant has rightly described as a difficult and sensitive area of administration. In our opinion the matter should be heard as soon as practicable by a Full Court, not necessarily constituted as at present. We make it plain that we do not regard the appeal as being part heard before us. We believe that the proper discharge of the judicial function, requires that we should not attempt today to hear and determine this appeal in circumstances which would make it difficult to be satisfied that the case had received the full consideration and reflection that it merits."
The hearing of the appeal was then adjourned and was heard on 19 November 1990 by a Full Court as presently constituted.
It is accepted that the question raised by the appeal is very narrow, namely whether the fact that the Regional Council election rules which had been in force at the beginning of an election period referred to in s.100 of the Act, namely 29 August 1990, but which ceased to have effect on 16 October 1990 being a date before the ending of the election period, makes the Regional Council elections void and of no effect. This is made clear by a reference to the form of order sought by the appellant. During the course of the hearing, the Court granted leave to the appellant to claim the following order:-
"A Declaration that the Regional Council elections notified in the Government Gazette of 29 August 1990 are absolutely void."
Before considering this question, some general comments are made. The provisions of s.48 of the Acts Interpretation Act give effect to the policy of the Parliament that it maintains supervisory control of sub-ordinate or delegated legislation made by the Executive pursuant to powers conferred by the Parliament. The importance of this policy to the Parliament and of the policy itself is clearly stated by Stephen J. in Watson v Lee (1979) 144 CLR 374 at pp 393- 396, a lengthy passage that should be read in full. The policy is given greater application with respect to second and subsequent rounds of Regional Council elections by sub-section 113(9) of the Aboriginal and Torres Strait Islander Commission Act. By that provision, Regional Council election rules do not take effect, that is, do not come into force, until "the first day on which the rules are no longer liable to be disallowed, or to be deemed to have been disallowed" under s.48 of the Acts Interpretation Act. It is not disputed that if that provision had applied to the first round of Regional Council elections, there would have been no Regional Council election rules in force at the beginning of the election period under s.104 of the Act, namely on 29 August 1990.
There is no material before the Court explaining why the Regional Council election rules were not laid before the Senate in conformity with the requirements of s.48 of the Acts Interpretation Act. Nevertheless, this failure illustrates an arrogance by the Executive which borders on contempt for the Parliament. The failure is very serious. It is to be condemned. It cannot be condoned. It is a fact which has occurred but it is not for this Court to investigate why it occurred. The Court must look at the effect which results therefrom namely the repeal of the election rules, and to determine whether that effect results in the Regional Council elections being void. There is no doubt that if the Regional Council elections are void, it will be necessary for the Parliament to pass new legislation to give effect to its policy of creating the Commission. The time constraints contained in the Act could not be kept since, under sub- section 100(3) of the Act, the latest polling date had to be 5 November 1990. If the elections are void, much confusion would arise and millions of dollars wasted. This however cannot affect the legal position. The Court is required to apply the law. Arguments based on inconvenience or cost cannot be used to condone the results of a failure by the Executive to comply with the law.
A common feature of elections generally is that provision is made for the determination of disputes arising during the course of the election. This is illustrated by a reference to paragraph 113(1)(a) of the Act which empowers the Minister to make rules prescribing the manner in which Regional Council elections are to be conducted "including elections conducted because previous elections have been declared void". This appears to be an express reference to the provisions of the Act relating to disputed elections. Those provisions are referred to in s.140 of the Act which provides that the provisions of Schedule 4 apply where there is a dispute in relation to a Regional Council election or a zone election. Schedule 4 is headed "Disputes About Electoral Matters" and contains a code making provision for election disputes to be heard and determined by the Federal Court. One of the powers conferred upon the Court by s.10 of Schedule 4 is the power "to declare an election absolutely void". This procedure does not apply to this case but it is apparent that a power to declare an election "absolutely void" is not foreign to the policies expressed in the Act.
It is clearly a desirable principle that any election should be conducted under rules which remain constant during the whole of the election period however defined. Section 100 of the Act gives effect to this principle. Paragraph 100(b) identifies rules which are to be applied in conducting any Regional Council election namely, the Regional Council election rules in force at the beginning of the election period. Once those rules have been identified, those rules must apply. It appeared to be accepted by all parties that the effect of this provision was that any amendments made to those rules which came into effect during the election period, would not apply to the election being conducted during that election period. This seems sensible. It would prevent the rules for the election being varied during an election to the possible advantage of some and the disadvantage of others. Implicit in this proposition, however, is the possibility that amendments might include the repeal of some rules. Despite the repeal, of necessity the repealed rules would continue to have effect for the purpose of conducting the election since they were in force at the beginning of the election period.
What has just been said is, in reality, the essence of the submissions made on behalf of the respondents to the appeal. The purpose of paragraph 100(b) of the Act is to identify a set of rules under which the Regional Council elections are to be conducted. At the beginning of the election period, namely 29 August 1990, the Regional Council election rules which had taken effect on 18 July 1990 were in force within the meaning of paragraph 100(b) of the Act and thus became the rules which were to be applied by the Australian Electoral Commission in conducting the first round of Regional Council elections. The fact that those rules ceased to have effect on 16 October 1990 did not change the position. They remained the rules which had been in force on 29 August 1990 and thus had to be applied in the conduct of the election.
The essence of the submissions made on behalf of the appellant was that the reference in paragraph 100(b) to Regional Council election rules in force at the beginning of the election period referred to valid rules having effect at that time and remaining to have effect during the whole of the election period. This submission is not accepted since the policy of paragraph 100(b) is to identify a set of rules pursuant to which the election is to be conducted. The rules so identified continue to apply. The paragraph is not directed to whether these rules remain in force or in effect during the whole of the election period. The use of the words "in force" in contrast to the words used in s.48 of the Acts Interpretation Act namely having "effect" supports the view that paragraph 100(b) is designed to identify particular rules and is not concerned with the validity or effect of those rules during the whole of the election period.
During submissions reference was made to what consideration, if any, should be given to the provisions in sub-section 113(9) of the Act. As was said earlier, these provisions illustrate the importance the Parliament gave to approving Council Election rules for the second and subsequent rounds of Council Elections. Those provisions do not assist in the resolution of the question raised by this appeal.
In the result, the appeal must fail on the basis that the appellant has not shown that, on the material before the Full Court, the first round of Regional Council elections are void. Thus the appeal must fail. Nevertheless the declaration made by the trial Judge should not be permitted to stand since it was not sought and was not the subject of any claim. Counsel for the respondents did not dispute that the declaration should be set aside. Accordingly, the appeal should be dismissed but the orders made by the trial Judge should be varied as follows namely that the declaration made should be set aside and in lieu thereof it should be ordered that the application in so far as it is based upon the fact that the Regional Council election rules which took effect on 18 July 1980 ceased to have effect on 16 October 1980, be dismissed.
JUDGE3
Appeal against a declaratory order made by a judge of the Court.
The terms of the order and the circumstances which attended its pronouncement, as well as the circumstances relevant to this Court's decision of the appeal, are disclosed be the reasons for judgment of Northrop J., which I have had the advantage of reading.
The problem which the parties raise by their opposed submission is one of statutory construction. In considering the problem one has to consider the operation of the legislative provisions which give rise to the problem during periods of the time each of which it is within the Minister's power to define, provided that he keeps eithin certain statutorily ordained limits. Thus s.4(1) of the Aboriginal and Torres Strait Islander Commission Act 1989 provides that, in the Act, unless the contrary intention appears "'election period', in relation to a round of Regional Council elections, means the period:
(a) starting on the day when the Minister fixes a day or days for the polling in accordance with subsection 104(2); and
(b) ending on the last day on which a poll is declared in relation to an election in that round of Regional Council elections."
The Minister is by s.104 required to fix, by notice in writing, a day or day for the polling in each round of Regional Council elections. His choice of an election period is constrained by a requirement, in s.104(3), that the last of the polling days for the first round be no later than 8 months after the commencement, on 5 March 1990, of the Act, and by a requirement, in s.104(4), that the polling days for each subsequent round be between 1 July and 31 December, inclusive, in the third calender year after the immediately preceding round. According to the submission of counsel for the appellant the Act imposes on the Minister an obligation to exercise the power conferred on him by s.113(1)(a) to make what in s.100(b) are called Regional Council election rules, and an obligation so to exercise that power that at the beginning of any election period there be in force Regional Council election rules. If that submission be correct, those obligations would impose the Minister's choice a further constraint. Those constraints aside, his choice, both as to the duration and the time of commencement of an election period, is unfettered by any legal requirement. In those circumstances a legislative intention can in my opinion be discerned, in ss. 100(b) and 113(9), to ensure that, except in the case of the first round of Regional Council elections, no rule made in exercise of power conferred by s.100 would have effect in relation to such an election unless before the beginning of the election period in relation to that round of elections each House of the Parliament had enjoyed the opportunity of considering the rule which Part XII of the Acts Interpretation Act 1901 contemplates that it will have. Effect is given to that intention by defining the rules in accordance with which the election is to be conducted as those in force at the commencement of the election period and by depriving the Minister of the power which he would, but for the substitution of s.48(1)(b) effected by s.113(9), have had to cause a rule to take effect before the expiration of the period contemplated by Part XII for consideration by the legislature.
So clear was the legislative intention that no rule should have effect in relation to a Regional Council election unless it has received, and had survived, the consideration of each house of the Parliament that a construction was, it was submitted on behalf of the appellant, to be adopted which would give effect to that intention in relation to the first round of those elections. The construction proposed was, first, to treat ss.113 and 100(b) as imposing on the Minister a duty, not as merely conferring a discretionary power, to make rules prescribing the manner in which Regional Council elections are to be conducted; to understand s.100(b) as expressing a command to conduct such elections in accordance with rules which have effect throughout the relevant election preiod and therefore as prohibiting the Minister from making a rule which would take effect during that period, but after it had begun; and, third, to understand the requirement of s.100 that Regional Council elections be conducted by the Australian Electoral Commission as incapable of fulfilment when rules in force at the beginning of an election period cease to have effect before the end of that period.
It is perhaps understandable that counsel for the appellant would submit that an oblication is cast on the Minister to make rules which shall be in force at the beginning of each election period, bacause if the Act is to be understood as contemplating the conduct of an election in relation to which no rule is at any relevant time in force there is less reason to resile from a construction which admits the possibility that the conduct of an election may begin, when the election period begins, in accordance with such rules and may conclude, after those rules have ceased to have effect, without regard to the requirement of any rule, or from a construction which admits the possibility that the conduct of an election may be throughout an election period in accordance with rules which are in force at the beginning of the period, but which cease to have other effect before the end of the period. The first submission seems difficult to sustain in the face of s.33(2A) of the Acts Interpretation Act 1901, but it is unnecessary to express a concluded opinion on it. It was submitted that the imperative mood of the verb in s.100 required the conclusion that among the commands expressed by the section was one that there be election rules in force at the beginning of the election period. I cannot accept the submission, which seems to me to have no grammatical justification. If the power conferred by s.113(1)(a) had been reposed in the Australian Electoral Commission the submission might have been justified.
It was submitted that the court could perceive, upon a consideration of the Act and the rules which were in force at the beginning of the election period here in question, that an election could not be conducted, or at least could not be satisfactorily conducted, without provisions governing its conduct of a kind which the rules supplied. By that means also the court would, it was submitted, be led to the conclusion that the Act required the making of rules which should be in force at the beginning of each election period. But I am not able tp perceive that the provisions of the Act alone are insufficient.
I cannot accept the second and third submissions, that only such a rule as has effect as a rule throughout the election period falls within the meaning of the word "rules" in s.100(b). It is true that the verb of the sentence of which s.100 consists contemplates, and operates throughout, the whole of the period. It is true also that difficulties and incongruities may result from a construction which reqires the Australian Electoral Commission to observe throughout an election period normative provisions from compliance with which other persons to whom the provisions are directed may freed before that period has ended. Provisions creating offences provide an example. But in my opinion the language of s.100(b) indicates a clear legislative recognition that rules may suffer alteration, whether by repeal or amendment or mechanisms precribed by s.48 of the Acts Interpretation Act 1901, during an election period, and a plain legislative command to carry out the duty imposed by the section in accordance with a set of rules as they are found to be in force on a particular date, regardless of subsequent alterations during the election period. The language is in my opinion so plainly determinative of a question so obviously recognised by the legislature that neither the inconveniences and difficulties suggested by counsel for the appellant nor the indications of legislative policy which is said to be subverted by the construction I would adopt ought to displace that construction, in my opinion.
For the foregoing reasons I consider that the declaration made by the learned primary judge was correct. There was no claim for such a declaration, but his Honour had stated in the reasons for his conclusions, which he published before pronouncing the declaration, his understanding that a declaration would be acceptable to the parties and his wllingness to hear counsel concerning the appropriate order. I would dismiss the appeal.
During the hearing of the appeal the Court gave the appellant leave to amend the origination by adding a claim for a declaration that the round of Regional Council elections for the polling in which 3 November 1990 was fixed be a notice in writing published in the Commonwealth of Australian Gazette on 29 August 1990 was absolutely void. That was done with the consent of the respondents. That claim should be ordered to be dismissed, in my opinion. I agree that the parties should be heard on the question of costs and as to what other orders should be made.
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