Thorpe, G.R. v The Honourable Robert Tickner
[1990] FCA 622
•30 OCTOBER 1990
Re: GLENDA ROSE THORPE who brings this action on her own behalf, and on behalf
of the persons mentioned in Schedule A annexed to the Statement of Claim
herein (hereinafter described as "the disenfranchised group")
And: THE HONOURABLE ROBERT TICKNER; MINISTER FOR ABORIGINAL AFFAIRS; THE
AUSTRALIAN ELECTORAL COMMISSION; BRIAN COX, THE COMMONWEALTH ELECTORAL
COMMISSIONER and THE COMMONWEALTH OF AUSTRALIA
No. V G311 of 1990
FED No. 622
Parliament - Aboriginals - Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)
CATCHWORDS
Parliament - obligation to lay rules before both Houses considered - effect of non-compliance - whether literal reading of statute prevails so that rules kept in force during specified period.
Aboriginals - elections for Regional Councils under Aboriginal and Torres Strait Islander Commission Act 1989 - question whether rules governing such elections in force.
Administrative Law - mandamus or mandatory injunction sought - claim to have ministerial discretion exercised in particular way - whether serious question to be tried.
HEARING
BRISBANE
#DATE 30:10:1990
Counsel for the Applicant: Mr. A.R. Castan and Mr.
B.A. Keon-Cohen
Solicitors for the Applicant: Holding Redlich
Counsel for the Respondents: Mr. N. Moshinsky QC and
Mr. R.R. Tracey
Solicitors for the Respondents: Australian Government Solicitor
ORDER
The Court declares that 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.
The Court orders that the application for interlocutory relief be refused.
The costs of and incidental to this hearing be costs in the proceedings.
The applicant be given leave to appeal against the orders made refusing interlocutory relief, and against the declaration.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application under s.39B of the Judiciary Act 1903. The applicant, suing on behalf of herself and others, has, at the hearing conducted yesterday and today, sought interlocutory relief and, as to one aspect of the matter, final relief. The application raises questions concerning the legality of currently proceeding elections of members of what are called in the relevant statute "Regional Councils". Those Councils are established under the Aboriginal and Torres Strait Island Commission Act 1989, which is called here "the ATSIC Act or simply the Act", and which came into force on 5 March 1990. The general intention of the Act is well explained in the applicant's affidavit, which was filed on 24 October. It is unnecessary to set that out in full, but I should refer to part of it.
The legislation, the respondent says, provides for the establishment and functioning of a significant new administrative structure for the administration of Aboriginal and Torres Strait Islander programmes, and the expenditure of Commonwealth moneys in respect of such programmes throughout Australia. Currently, the deponent believes, five interim Commissioners are appointed by the Minister (who is the first respondent) to administer ATSIC. The deponent believes that ATSIC, when fully established, will assume the roles of the former Commonwealth Department of Aboriginal Affairs and the former Commonwealth Aboriginal Development Commission, and will be administered by 17 elected Commissioners plus three Ministerially appointed Commissioners. The elected Commissioners are to be, in turn, elected by 60 Regional Councils throughout Australia. Such Regional Councils are to be comprised of elected Aboriginal persons.
Because of the terms of s.104(3) of the Act, no polling for the elections in question can be held later than eight months after the commencement of the Act - that is, after 5 November 1990, which is next Monday. The current elections are the first round of elections for the Regional Councils. Polling days for subsequent rounds of such elections (held every 3 years), under s.104(4) are related to the date of the immediately preceding round. It was suggested from the bar table and it may well be that, unless an election is effectively held under the current statute by next Monday, then no Regional Council may ever lawfully be elected, without an amendment of the Act. The consequence of that would be that the Commission, the establishment of which appears to be the principal purpose of the Act, would not continue in existence. The interim Commission (referred to above; see s.28), would cease to exist, under s.28(1), at the latest 12 months after the commencement of the Act - that is, in March 1991.
It follows, as it appears to me, that the questions raised require to be dealt with promptly. Urgency is added by the circumstance that some $2,000,000 has been spent so far on this first round of Regional Council elections and the poll is to be held next Saturday. For that reason, counsel agreed that a purely legal point which arises should, if possible, be decided in a final way, rather than confining my consideration to the question whether there is a serious question to be tried on that aspect. That legal point is as to the effect of s.100(b) of the Act.
By the application, the applicant who, as I have mentioned, sues on behalf of herself and a number of other persons, claims various declarations, an injunction restraining the holding of the elections which I have mentioned, and, most importantly, claims:
"Orders, mandatory in effect, requiring the first Respondent to make the Additional Rules pursuant to s.113 of the Act".
Although the application itself does not define the expression "Additional Rules," it was explained to me by Mr Castan QC, who led Mr Keon-Cohen for the applicant, that a definition is to be found in paragraph 15 of the statement of claim. This alleges, in effect, that the first respondent, the responsible Minister, has a duty to make rules to "enable Aboriginal persons to be a candidate in, and/or to vote in", the Regional Council elections without enrolling on the Electoral Roll. That claim is made because of the statutory qualifications for a candidate. Under s.101, a person is entitled to vote at an election for the members of a Regional Council if, and only if:
"(a) the person is an Aboriginal person or a Torres Strait Islander; and
(b) either:
(i) the person's name is on the Commonwealth Electoral Roll and the person's place of living as shown on that Roll is within the region for which the Regional Council is established; or
(ii) the person is entitled to vote at the election pursuant to rules made under subsection 113(3).
Then s.102 goes on to prescribe the qualifications to stand for election, and they include being entitled to vote at an election. The consequence is that, prima facie, unless an Aboriginal person or Torres Strait Islander is on the Commonwealth Electoral Roll, he or she is neither entitled to vote nor to stand for election. That Roll is of course kept under the Commonwealth Electoral Act 1918. It should be noted that s.101(b)(ii), quoted above, contemplates that rules may be made under s.113(3), and I will come to that in more detail later.
The principal relief ultimately sought by the proceedings is an order requiring the Minister to make rules having the effect just mentioned, that is, having the effect of enabling persons to be candidates in and/or vote in the Regional Council elections without being on the Commonwealth Electoral Roll. It was argued by counsel for the applicant that there is a serious question to be tried as to the right of the applicant to that relief, that is, to an order requiring the Minister to make these additional rules, and it was also argued by that counsel that the balance of convenience favours the granting of interlocutory relief restraining any further steps in the conduct of the elections for the Regional Councils. It appears to me convenient to deal with the case in the order in which the hearing proceeded. For that reason, I shall come first to the final relief which is claimed.
By an amendment to the statement of claim filed on 26 October it is alleged that there are "no lawful rules in existence pursuant to which Regional Council elections may be held". The point made requires some preliminary explanation of provisions of the Act.
One provision on which Mr Castan placed considerable stress is s.3 which provides, among other things, that the objects of the Act are "to ensure maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them". Section 100 provides for the conduct of Regional Council elections by the Australian Electoral Commission, and the persons elected for the Regional Council under Division 7 of Part 3 to vote for the membership of the Commission itself. As I have already explained, there is what might be called an interim Commission, an appointed Commission, in office at the moment. The provisions of s.100 require that:
"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".
The expression "election period" is defined in s.4 to mean, in relation to a round of Regional Council elections such as that currently in progress, the period:
"(a) starting on the day when a 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 day on which the Minister fixed a date for polling in the first round of elections was 28 August 1990. That was, therefore, the beginning of the election period.
There were already in existence, on that date, election rules of the kind mentioned in s.100. They were made on 9 July 1990. It will be noted that under s.100 the elections are to be conducted in accordance with the Act, and in accordance with those Rules.
It was contended by Mr Castan on behalf of the applicant that s.100 should, as I understood it, be read down to accommodate the requirements of s.113.
Section 113(1) entitles the Minister, after consultation, to make rules not inconsistent with the Act providing inter alia the manner in which Regional Council elections are to be conducted. Subsection (2) sets out the matters that are to be dealt with in the rules, including use of a roll or cards to establish an entitlement to vote, nominations, ballot papers, postal voting and the like. Subsection (3), which is the critical one for the purpose of the applicant's arguments, reads as follows:
"The rules may make provisions entitling Aboriginal persons and Torres Strait Islanders to vote at Regional Council elections even if those persons would not be entitled so to vote pursuant to subparagraph 101(b)(i) and, without limiting the generality of the foregoing, may make provision in relation to the following matters:
(a) the determination of the Regional Council election at which a person is entitled to vote if:
(i) the person's name is on the Commonwealth Electoral Roll; but
(ii) pursuant to a provision of the Commonwealth Electoral Act 1918, the person's place of living or address is not shown on the Commonwealth Electoral Roll;
(b) how a vote cast by a person is to be dealt with where:
(i) the person was entitled to have his or her name on the Commonwealth Electoral Roll; but
(ii) the person's name was not on that Roll because of a mistake by a person exercising powers or performing functions under the Commonwealth Electoral Act 1918;
(c) the casting of a provisional vote by a person whose name does not, on the polling day, appear to be on the Commonwealth Electoral Roll;
(d) the circumstances in which a provisional vote cast pursuant to rules made under paragraph (c) is to be accepted".
The contention which Mr Castan advanced was that the Minister should have, but has not, made rules under s.113(3). More importantly for present purposes, Mr Castan contended that the operation of s.100, which I have set out above, is affected by s.113(8) which reads as follows:
"Rules made by the Minister under subsection (1) are a disallowable instrument for the purposes of s. 46A of the Acts Interpretation Act 1901".
I shall call the Act just mentioned the "Interpretation Act". Section 113(9) is as follows:
"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'."
Section 46A of the Interpretation Act, as appears above, is brought into operation in relation to the rules by s.113(8) of the ATSIC Act. Section 46A has the effect that where a provision of a law expressly provides that an instrument is to be a disallowable instrument for the purpose of that section, certain provisions of the Interpretation Act apply; in particular, s.48 applies. The effect, then, of s.113(8) of the ATSIC Act is to cause rules made by the Minister under s.113(1) to fall within s.48 of the Interpretation Act.
Section 48 of the Interpretation Act, among other things, requires the regulations dealt with by it, and by the effect of s.113(8) of the ATSIC Act require these rules, to be laid before Parliament. It is unnecessary to set out s.48 in full, but some account of its provisions must be given. It requires that regulations to which it applies shall be laid before each House of Parliament within 15 sitting days of that House after the making of the regulations (sub-s.(1)(c)). Then sub-s.3 says:
"If any regulations are not laid before each House of the Parliament in accordance with the provisions of subs-section (1), they cease to have effect".
There is also a provision (sub-s.(4)) dealing with the instances in which regulations are laid before Parliament and disallowed; they also cease to have effect. Section 48(6) of the Interpretation Act says:
"Where a regulation is disallowed, or is deemed to be disallowed, under this section or ceases to have effect by virtue of the operation of subsection (3), the disallowance of the regulation or the operation of subsection (3) in relation to the regulation, as the case may be, has the same effect as a repeal of the regulation".
Through what is said by Mr Moshinsky, QC, who led Mr. Tracey on behalf of the respondents, to have been a "mistake", the rules which should have been laid before Parliament were laid before the House of Representatives only, not the Senate. The failure to lay them before the Senate produced the result that they "ceased to have effect", under s.48(3) of the Interpretation Act. The qualification or explanation of that, which is contained in s.48(6), gives it the same effect as a repeal.
The essential problem in this aspect of the case, is to reconcile the effect of the provisions of s.113(8) of the ATSIC Act with the provisions of s.100 of that Act.
The contention which was made by Mr Castan on behalf of the applicant is that the importance of the provisions requiring the rules to be laid before Parliament (which is the effect of s.113(8)) is such that the requirement of s.100, that the regulations be conducted by the rules in force at the beginning of the election period, must be read subject to the effect of disallowance.
The result, so Mr Castan contended, was that the rules, not having been laid before the Senate, were taken to be repealed and had no further effect, no matter what s.100 said. The fifteenth Senate sitting day, it is admitted, was 15 October 1990 and the consequence was that the "regulations", to use the word in the Interpretation Act (or "the rules", to use the word in the ATSIC Act) then ceased to have effect, not having been laid before the Parliament by that day. The consequence was that they were, as I would put it, deemed to have been repealed.
Section 100(b), as I have already explained more than once, requires the Regional Council elections to be held in accordance with both the Act and the rules in force at the beginning of the election period. There is no doubt about the identification of the latter. They are the rules which are before me, which were made by the Minister on 9 July 1990, and gazetted on 18 July 1990.
The intention of s.100(b) appears to be to restrict the effect of changes in the rules made during the election period. If any rule is repealed or amended during the period, then s.100(b) requires the election to be conducted in accordance with rules including the repealed rule or unamended rule - that is, in accordance with the original rules, ignoring the change or changes. To read s.100(b) as having such an effect is not to treat a repeal or amendment of a rule during the election period as a nullity; what s.100(b) achieves is that the repeal or amendment has no effect on the election currently being held, not that it is totally devoid of effect. The repeal or amendment would affect future elections.
Section 113 which, as I have explained, gives power to make rules for the conduct of Regional Council elections, requires that they be not inconsistent with the Act. Section 100(b) may be thought of as a qualification of the rule-making power in s.113. Its effect may be thought of as similar to that of a provision under which s.113 was made subject to a qualification requiring that no change in the rules with respect to Regional Council elections during an election period should affect the conduct of the election being held during that period.
I see no reason to doubt the validity of Parliament's restricting the rule-making power in such a fashion as that. It was entitled to empower the Minister to make rules about elections and entitled to provide that the effect of the rules should have such an effect as s.100(b) requires.
The critical question, on this aspect of the case is, however, whether s.100(b) operates to require rules repealed during an election period to continue to be applied to that election, when not one or some but all of the rules have been repealed, and when the repeal has been effected pursuant to s.48(6) of the Interpretation Act.
It may be thought that Parliament is unlikely to have contemplated such an application of s.100(b). Parliament must have expected that the set of rules in force at the beginning of the election period might be changed during that period; that was the reason for the requirement that the rules in force at the beginning of the period continue to have effect. But it might be thought that Parliament would not have assumed that such rules might be altogether repealed during the election period. In that sense, it appears to me that the effect of s.100(b) contended for by Mr Moshinsky may be beyond the likely contemplation of the legislators. However, it has to be admitted (as it seems to me) that the effect for which Mr Moshinsky contends is not an absurd one, nor, even in the circumstances here, obviously inconvenient. It appears also, reasonably to flow from the language used.
I had been, at one stage of the argument, much impressed with a contention made by Mr Castan, to the effect that reading 100(b) literally (or perhaps one could put it, simplistically) pays scant respect to the role of the Parliament as the supervisor of subordinate legislation. However, Parliament has precisely identified the rules to be applied to the conduct of each election; they are those in force at the beginning of the election period. Just as Parliament could, if it chose, have provided for the making of rules once and for all, not subject to amendment or repeal otherwise than by statute, it can enact that rules, when made, will last for a particular period and for a particular purpose, and that has been done. I find it difficult to see any sufficient justification for reading down or qualifying the statutory language where some of the rules, or all of them, are repealed during the election period. It has to be kept in mind that s.100(b) and s.113(8) are in the same statute and should, if possible, be read so as to give effect to both. It is also, as it seems to me, significant that s.113(9), which is quoted above, is a specific provision about the rules governing the first round of Regional Council elections. The effect of s.113(9) is that with the exception of those rules - that is, those made for the purpose of the first round of Regional Council elections - election rules do not even come into effect until they are no longer liable to be disallowed, or deemed to have been disallowed. That is a stringent provision about such rules, from which rules for the first round of elections are excepted.
It does not seem inconceivable that Parliament appreciated fully the effect of s.100, that it would keep a constant set of rules in force for the first round of elections whatever either House of the Parliament or the Minister did with them, subject of course to any statutory amendment. However that may be, it seems to me wrong to speculate (as tended to occur during argument) as to what various members of Parliament may have thought. It is my opinion, in accordance with Mr Moshinsky's contention, that it would be doing too much violence to the language which the legislature has actually chosen to read s.100(b) down as suggested by the applicant or to add to it a qualification which Parliament has not chosen to express.
I should add that I do not see any reason why s.100(b) should be read as having an effect different from its normal effect, where one is dealing with the repeal of what might be described as the deemed kind under s.48 of the Interpretation Act. It is true that s.48(3) says that such regulations as I am presently concerned with cease to have effect. But the meaning of that expression appears to be comprehensively laid out in s.48(6); for all purposes, as it seems to me, regulations not laid before Parliament as the law requires are to be taken as repealed. Such repealed regulations may produce continuing consequences after repeal, as contemplated by s.50(c) of the Interpretation Act; regulations which "cease to have effect" may or may not be thought to do so. If one faithfully applies the language used by the legislature, requiring the regulations to be treated as if they had been repealed, then it seems to me to follow that s.100(b) applies to that deemed repeal. The consequence is that I accept the contention of Mr Moshinsky as to the effect of s.100(b) and I am of the opinion that the respondents should succeed on that point. There is no need, then, to discuss the important further question (which was debated) whether a valid election would be held if there were no rules.
I had taken it that if I were in favour of the applicant an appropriate declaration should be made, and that if I were in favour of the respondents an appropriate declaration should be made. Subject to anything counsel may say, what I have in mind is to make a declaration in these terms: "It is declared that 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". I shall hear counsel in due course on that, if they wish to be heard.
The application for interlocutory relief now requires to be examined. It should be mentioned that the real complaint which the applicant makes is that she and, she says, many others similarly minded who do not wish to be, or for some other reason are not, on the Commonwealth Electoral Roll are "disenfranchised" by the current position. The explanation which is given by the applicant for this state of affairs need not be set out in full, but it seems to me desirable to mention it in part. Speaking of the persons, numerous in Ms Thorpe's opinion, who are Aboriginals or Islanders but not on the Electoral Roll, she says:
"I further believe that the reasons why their names are not currently recorded vary in these electoral regions, depending upon each individual, local circumstances, and other factors. However, I believe that one important reason arises from a long held fear of Aborigines about providing information to Governments about themselves (such as electoral or census information), which, Aboriginal people fear, may be used against their interests by various Government agencies. Further reasons include a lack of information about, or ignorance of, the requirement that their names must be recorded on the said roll in order to entitle them to vote; isolation from organised community groups, especially in remote rural areas or in situations where Aboriginal families do not have close contact with local Aboriginal organisations; widespread opposition to the introduction, structures, and powers of ATSIC; a failure by the Respondents or some of them to advise those persons adequately or at all of the requirement that their names must be recorded on the roll; and the failure by the Respondents to put in place procedures to assist Aboriginal people to enrol in time to participate in the elections".
The applicant explains in her affidavit that she has nominated but her nomination has been refused, and there is also evidence to show that the first respondent has been asked to make rules as desired by the applicant and those she represents but has declined to do so. One of the points which is taken by the counsel for the applicants is that the terms in which, at one stage, the respondent Minister declined to do so suggested that he did not perhaps fully understand that the effect of the ATSIC statute was to leave him with a discretion as to whether or not the matter should be left where the statute had left it, namely, that a person could not vote and could not be elected for a Regional Council unless on the Commonwealth Electoral Roll. It was suggested by Mr Castan, it seems to me with some force, that the evidence placed before me gives at least strong ground for suspicion that at one stage the Minister, who explained he was then new in the post, did not fully comprehend the extent of his discretion. However, the point upon which the interlocutory application must be judged, as it seems to me, depends initially upon the relief which is ultimately sought.
The basis of the attack upon what the Minister has done in relation to the rules is that he has acted, so it is said, unreasonably or otherwise unlawfully in failing to make such rules as contemplated by s.113(3). Assuming that to be so, then attention must nevertheless be focused upon what it is that the Court would be asked to do in the event of the applicant succeeding at the trial. It is one thing to contend that a failure to make any rules at all, dealing with the problem which is spoken of by the applicant in her affidavit and intended to be dealt with under s.113(3) is unlawful, and it is quite another to say that the Minister is legally obliged to make rules having a particular effect; the Act gives him a discretion.
The problem which the applicant and those whom she represents wish to have resolved is that the many people who might wish to vote or to nominate are not on the Electoral Roll. It is no doubt for that reason that the applicant's counsel has gone so far as to contend that a mandamus could ultimately be issued (or else a mandatory injunction) requiring the Minister to make such rules as would give the vote to persons not on the Electoral Roll but otherwise entitled to vote.
No explanation was given, as it seemed to me, by senior counsel for the applicant of the basis of that claim, but in reply it was submitted that any other exercise of the discretion given by s.113(3) would be unreasonable.
Here, one has a statute, quite recently proclaimed, which on its face gives a discretion to deal with the problem. As Mr Moshinsky pointed out, it uses the word "may"; s.33(2A) of the Interpretation Act says:
"Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word 'may' is used, the Act or thing may be done at the discretion of the person, court or body".
The ATSIC Act is such an Act as is referred to in s.33(2A) of the Interpretation Act.
It is not suggested by counsel for the applicants or in any of the material that since the ATSIC Act came into force the facts with which it was intended to deal have changed in any fundamental way. It must have been known to the legislature that there was a potential problem with people who might be interested in voting in these elections, but were not on the Electoral Roll. Nevertheless, the Act made the provision which I have mentioned giving the Minister a discretion to make rules about it - a discretion, as it seems to me, of considerable width.
I appreciate the point put forward by Mr Castan QC and Mr Keon-Cohen that the law requires the Minister to act reasonably (in the Wednesbury sense) and requires that he take into account relevant considerations, and that he be aware of the extent of the discretion which the statute gives him. Accepting all that, it seems to me that the contention that there is a serious question to be tried as to whether or not the Minister could be ordered to exercise his discretion in the particular way sought in the application is very difficult to maintain.
I should add that a notice of motion was filed which reinforces the point which I have just made, that is, that the ultimate purpose of the applicant is to obtain an order requiring the discretion to be exercised in the precise way I have mentioned. It is perhaps worthwhile reading out paragraph 3 of the notice of motion. It seeks:
"An order, mandatory in effect, requiring the Respondents and each of them, their servants or agents to :-
(a) take such steps as are necessary to entitle Aboriginal persons throughout Australia to vote in the ATSIC Regional Council elections to be held on 3rd November 1990, whether or not their names are currently recorded on the Commonwealth Electoral Roll.
(b) take such steps as are necessary to entitle the Applicant to be a candidate in the elections for the ATSIC Melbourne Regional Council, to be held on 3rd November 1990, whether or not her name appears on the Commonwealth Electoral Roll".
It seems to me that the Court would be quite unlikely to grant such relief, and the application for interlocutory relief to enable that claim to be pursued is not in my opinion one which is tenable. It might well be arguable that the Minister should properly have made some provision of the kind exemplified by paragraphs (a), (b), (c) and (d) of s.113(3) of the ATSIC Act, that he has not done so and that his failure to do so is in some way attackable, on an administrative law basis. But an order simply requiring him to do that - that is, for example, enabling him to exercise his s.113(3) discretion in some way - would not, it appears to me, be of use to the applicant. More importantly, such an order is not claimed.
Other matters should be mentioned. It was stressed by counsel for the applicant that the provisions requiring subordinate legislation of certain kinds to be laid before Parliament are of central importance, and I think suggested that a decision on the s.100(b) point adverse to his client's interests might amount to flouting that system. Although no evidence is called to explain what seems to have been a lamentable failure to comply with the requirement which flows from s.113(8), the legal point which is raised is not one of a general kind concerning the effect of s.48 of the Interpretation Act. Section 100(b) is an unusual provision, at least in my experience of Australian legislation, and its relationship with s.113(8) is a particular problem which, while of great importance in the present case, is not one of basic principle, but a specific problem of construction of provisions which may be thought to be potentially conflicting in effect.
It is also argued on behalf of the applicant that, for various practical reasons, it is desirable that the franchise with respect to those voting for the Regional Councils be as wide as possible. I express no view upon that. It does not seem to me to fall for decision, or indeed to be relevant, here. The question of the width of the franchise is one which is for Parliament, and to be determined in accordance with the provisions Parliament has made. It seems to me undesirable, in general, to express opinions about such policy matters, unnecessary for the decision of the case.
The consequence will be that there will be a declaration along the lines which I have mentioned; the application for interlocutory relief will be refused. The costs will be costs in the proceedings.
I give the applicant leave to appeal against the orders which I have made refusing interlocutory relief and against the declaration.
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