Wagner, Ex parte- Re Dingjan

[1995] HCATrans 9

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
             Melbourne      No M103 of 1993

In the matter of -

An application for a writ of prohibition and a writ of certiorari against THE HONOURABLE PAUL MUNRO, Senior Deputy President of the Australian Industrial Relations Commission, and THE AUSTRALIAN INDUSTRIAL COMMISSION

First Respondents

and

A.J. & S.L. DINGJAN

Second and Third Respondents

and

M.K. & M.U. RYAN

Fourth and Fifth Respondents

and

TRANSPORT WORKERS’ UNION OF AUSTRALIA

Sixth Respondent

Ex parte -

D.R. & V.M. WAGNER

Prosecutors

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 14 FEBRUARY 1995, AT 10.19 AM

(Continued from 2/2/94)

Copyright in the High Court of Australia

__________________

MR D.F.JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR R.J. BUCHANAN, QC and MR P.M. KITE, for the prosecutors.  (instructed by Blake Dawson Waldron)

MR A.M. NORTH, QC:   May it please the Court, I appear in this matter with MR C.M. MAXWELL, for the second to sixth named respondents.  (instructed by Ryan Carlisle Thomas)

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria:   May it please the Court, I appear with my learned friend, DR C. HOWARD, for the Attorney‑General of the State of Victoria, intervening in support of the prosecutors.  (instructed by the Victorian Government Solicitor)

MR E. WILLHEIM:   May it please the Court, I appear with my learned friend, MISS H.M. MANSON, for the Attorney‑General of the Commonwealth, intervening in the interests of the respondents.  (instructed by the Australian Government Solicitor)

MASON CJ:   Mr Jackson.

MR JACKSON:   Your Honours, we have agreed I should go first.

MASON CJ:   Yes.

MR JACKSON:   Your Honours, as is apparent from the written submissions on behalf of the prosecutors in relation to section 7A, the potential application of that provision gives rise to a number of questions which are set out in paragraph 3 of those submissions.  We would invite your Honours to note that it is necessary to resolve questions 1 to 3 against the prosecutors before one gets to the question of validity of section 7A.

I do not want to dwell for long on the first three questions because our submissions set out our contentions relatively fully and we are conscious of the limited time available.  May I just mention a few matters in the light of the submissions made in response.  The first concerns the question which we have described as question 1.  Your Honours will see at the bottom of page 3 of our written submissions, to put it shortly:  has a contrary intention been shown one way or the other? 

Your Honours, we would simply seek to say this, if your Honours were to look at section 127C(1), that in that provision Parliament has mapped out, in quite precise terms, the contracts in relation to which sections 127A and 127B are to apply.  Your Honours will see them set out in subparagraphs 1 to 6.  It has emphasised that approach by the use of the words “only as follows” in the opening phrase of section 127C(1).  The provision is, in our submission, prima facie, self‑contained, and has its own criteria of operation.

Turning to section 7A(1), it is a provision of a later statute.  It is prefaced by the words, “Unless the contrary intention appears”, and in our submission there is no particular reason why those words in section 7A(1) should not be given their full meaning.

Might I turn then, your Honours, to the second aspect of what we have described as question 1, and that concerns section 7A(2)(a).  If your Honours look at the terms of section 7A(2)(a), your Honours will see that the provision is not to have a particular valid application if:

it is clear, taking into account

et cetera -

that the provision was intended to have that valid application only if every invalidation, or a particular invalid application,.....had been within the Commonwealth’s legislative power.

Now, your Honours, if one looks to the presence of the words “only as follows” in the opening words of section 127C, that demonstrates in our submission, that the mode of operation of section 127C(1)(b) was to be as it is stated, that is, in accordance with its terms or, in our submission, not at all.

Could I turn then, your Honours, to the question which we have set out as question No 2, and it is dealt with in paragraphs 15 and following of our written submissions.  Your Honours, this was an issue with which we dealt in our oral submissions at the earlier hearing and the Court, your Honours will recall, particularly the submissions which we made, which are now to be seen in paragraphs 15(a), 15(b) and 16 of our written submissions.  Your Honours, it is important, with respect, to bear in mind that for section 7A to have any application relevant to the present case there must be, in terms of section 7A itself, a relevant valid application and, your Honours, as we submit in paragraph 15(c), the material does not go so far.

Your Honours, as to the third point, namely that section 7A(4) is not in any relevant respect retrospective, we do not wish to add anything to what is in paragraphs 17 and 18 of our written submissions.  Your Honours, could I come then to the fourth issue; the validity of section 7A itself.  In dealing with that question might we first say something in relation to the circumstances in which section 7A operates.

Your Honours, in the ordinary course of events in a section 51(xx) case, if I could so describe it, the issue is whether the relevant law is a law with respect to corporations of the kind that are described in section 51(xx), and the position there is as set out in paragraph numbered 20 of our written submissions, in our submission and, your Honours, in such a case section 15A - and that is a case of the nature we have referred to in paragraph 20 - in a case of that kind section 15A would not assist in any reading down because section 15A requires that there be some principle or standard or test which can be applied in order to read the law down.

Your Honours, a short statement of the fact that that is required may be seen in Re Nolan; Ex Parte Young.  I will give your Honours the reference in just a moment.  Could I say that we have handed to the Court copies of this document which has, for the purpose of expedition perhaps, extracts from a number of cases and your Honours will see that the particular reference to Re Nolan is behind tab 3. 

The passage to which I wish to refer is at the page numbered 485 in the joint reasons of your Honours Justices Brennan and Toohey.  Commencing half-way down the page your Honours refer in the first sentence to the fact that:

Where a law operates distributively and, on a literal construction, embraces cases which are beyond legislative power, s. 15A can restrict its operation to cases which are within power provided certain conditions are met.

Your Honours will there see stated what I was saying a moment ago, that:

First, it is necessary that “the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law”.

That quotation, your Honours, is from Pidoto and your Honours then go on to quote another relevant passage from that case.  We would invite your Honours to read that and may I refer particularly to two aspects of it.

The first is in the third line, in effect:

there should be a partial operation of the law based upon some particular standard criterion or test can be discovered from the terms of the law itself or from the nature of the subject matter.....it can be read down -

And, your Honours, the penultimate sentence about six lines from the bottom of the page commencing:

But if a law can be reduced to validity by adopting any one or more of a number of several possible limitations, and no reason based upon the law itself can be stated for selecting one limitation rather than another, the law should be held to be invalid.

Now, your Honours, section 7A goes beyond setting out a criterion or standard or test.  In fact, it provides no criterion of operation, no standard or no test for its application, except that it says that if the enactment, if it be applied to particular facts only, could be valid, then the Act is, to that extent, valid.

Could I invite your Honours to note two further features of section 7A at this point.  The first is that the matters which are encompassed within the concept of application for the purpose of that provision may be seen in the definition of that term in subsection (5) and your Honours will see that the matters that are encompassed within the concept of application could not be more widely expressed; the provision could not have a more distributive operation.  Your Honours, that is the first point we would invite your Honours to note. 

The second point is this, that your Honours, if one looks at the terms “invalid application” and “valid application”, each again defined again defined in subsection (5), what your Honours will see is that the expression used is “exceeds” or “would be within”, respectively, “the Commonwealth’s legislative power”.  Your Honours, the expression “Commonwealth’s legislative power” is not in any way restricted to a particular head of power.  It would include, presumably, any power, section 51, 52, 122, whatever else there may be, applications, your Honours, in relation to lighthouses.

Your Honours, a valid application would be any if it were treated as being the provision’s only application, if it is within, for one reason or another, the Commonwealth’s legislative power. There is not, if I could just put it slightly differently, in terms, any limitation upon the range of legislative powers in question but the respondents, and indeed the Commonwealth’s submissions, suggest that section 127C(1)(b) is to be read as confined by the corporations power in relation to the application of section 7A.

Your Honours, that is obvious enough, namely that 127C(1)(b) is to be read as confined by the corporations power, if one leaves aside section 7A, because one sees the reference to the constitutional corporations in 127(1)(b) and, presumably, that is the relevant constitutional power.        But if one comes to section 7A, how does one read its application down to achieve that rather benign effect, because section 7A looks at the provision and says, “Apply, in effect, any Commonwealth legislative power”. 

The argument on behalf of the respondents and the Commonwealth, really, appears to suggest that if one is able to look at section 127C(1)(b) and say, “That, in isolation, is something that would relate only to the corporations power”, therefore, it is said, “Section 7A only applies in relation to the corporations power”. But if the hypothesis from which one works is that section 127C(1)(b) goes beyond what could be encompassed by the corporations power and cannot itself be regarded as a law with respect to corporations, which is the starting point, then, your Honours, how does one read down the operation of section 7A, because there is nothing in section 7A itself which provides any criterion by which its own operation is to be compressed.

But, your Honours, there is, in our submission, a more significant objection to a provision such as section 7A. I should add perhaps in parenthesis that section 7A does not really stand alone. A provision in the same terms is to be found in section 208 of the Native Title Act 1993, if that enactment is valid of course, and it may be in other enactments.

Your Honours, if I could return then to the greater objection, as we put it, it is this:  that is that the legislature by a provision such as section 7A is attempting to cast on the Court or place on the Court a function which, in our submission, is legislative rather than judicial.  In our submission, the decisions of the Court, both early and recent, recognise that there is a line beyond which the attempt by a court to read down, as it were, legislation goes impermissibly beyond the judicial function.  What such a provision does in cases where the Parliament itself has provided no criterion of operation is to require the Court to participate in the legislative process by the Court itself selecting what the criterion of operation of the law is to be.

Your Honours, may I go to the decisions, and I will do it as briefly as I can.  If I can go to the early ones first, the first one is Rex v Burgess; Ex parte Henry.  It is set out behind tab 1 of the document we have given your Honours.  Justices Evatt and McTiernan at page 676 rejected a suggested application of section 15A of the Acts Interpretation Act on the ground that to do so would be in essence legislative rather than judicial.  Your Honours will see the passage at page 676, half‑way down the page, the passage commencing, “The difficulty which sometimes attends”.  Your Honours will see particularly, about three‑quarters of the way down the page:

In our opinion sec 15A cannot be applied so as to perform this feat which is in essence legislative not judicial.

The feat suggested, your Honours, was to read down the provision to apply to circumstances where it might have what section 7A would call a valid application.

The second case is Pidoto v Victoria, which is behind tab 2.  That was concerned with the validity of regulations rather than Acts of Parliaments.  The provision of the Acts Interpretation Act in question was section 46B rather than 15A, but the terms were similar.  At page 108, about point 6, Chief Justice Latham had earlier referred to the two types of case to which one would see section 15A applying, the two broad classes.  He then dealt with an argument which appears to reflect the thinking which underlies section 7A.  Your Honours, if I could go then to page 108, about point 6, where he says:

opposing view, for which the applicants contend -

Your Honours, the passage is a relatively lengthy one.  It goes throug,h for immediately relevant purposes, from point 6 on page 108 through to the top of the next page, about point 3, the sentence concluding with the words:

valid and applicable to the person who was on that particular occasion charged with an offence.

Having there described the operation that he was contemplating for the purpose of the view which he was about to express, his Honour then said on page 109, about point 3:

If this question could be answered in the affirmative, it is said that the effect of the Acts Interpretation Act is that the statute must be held to be valid in its operation in relation to that person.  It would be left to the Court to discover and prescribe an appropriate limitation as various cases presented themselves.

Your Honours will see his Honour deals with that to the bottom of that paragraph, and then dismisses it by saying in the next paragraph:

Such an application if the Acts Interpretation Act appears to me to require the Court to perform a feat which is in essence “legislative and not judicial” (R v Burgess; Ex parte Henry.  To recur to the illustration the view suggested should, in my opinion be rejected.

Your Honours will see then through that paragraph, his Honour refers to there being:

a hotch-potch of irregularly and partially operating law with respect to larceny -

for example.  Then, your Honours, at the bottom of the page in a passage which goes on to the top of the next page, his Honour refers to the situation being different where the law itself indicates a “standard or test”.  That is the passage I think to which I have referred your Honours earlier, when dealing with Nolan; Ex parte Young.  That goes over to the end of that paragraph.  Then, your Honours, what one sees in the next paragraph is the situation which obtains in the absence of there being any standard or test.  Your Honours will see that paragraph commencing, “But in the absence of any indication in a law”,et cetera. His Honour says it is “left to guess-work.”

The passage goes through then to the end of that paragraph and your Honours will see that his Honour regards such a law as one which is inappropriate to treat as valid.

Your Honours, could I invite your Honours to note particularly two things, the first at page 109 at about point 7, the reference to R v Burgess Ex parte Henry, to which I referred earlier, and then, your Honours, at page 110 at about point 8, the reference to the Court’s function then being to, in effect, promulgate the law under the guise of ascertaining it.  At page 115 Justice Rich agreed with the Chief Justice and then at page 132 Justice Williams, towards the top of the page, about six lines from the top, said that the reading down would:

“be re-writing the regulations and would in effect be engaging in legislation.”

DEANE J:   Mr Jackson, could I just take you back a little bit.  How do you see 7A as working?  I mean, the relevance of the intention of the Parliament is that one construes a provision looking for the intention of the Parliament which enacted the provision, that being, as it were, a principle of construction to be applied.  In terms what this says is, in a case such as this, it is the intention of the subsequent Parliament that a provision should be construed in this way.

Now, one would think or, I do not know, perhaps one construes that as saying the enactment of the previous Parliament is to be construed on the basis that it was the intention of that previous Parliament that, though that is not what the section says and it is not even close to what the section says as a matter of words, but are there any conceptual difficulties in one Parliament purporting to legislate what the intention of the enacting Parliament was?  Well, what I really ask you, how do you see it as working?

MR JACKSON:   Well, your Honour, may I say two things.  The first is that this issue was dealt with - and the reference has eluded me for just a moment, but I will see if it can be found - the issue was adverted to by Chief Justice Barwick in one of the cases dealing with this broad area - can I give your Honour the reference in just a moment - but, your Honour, there is a difficulty, the nature of which your Honour has indicated broadly, but what seems to be intended by the amendment - and, your Honour, 7A comes about by an Act which is an amending Act, so that one does have, as I suppose with all statutes, a statute which, when made, is intended to speak for the future, whatever happens to be the Parliament or whoever happened to be the members of Parliament from time to time and the governments after each three years and so on.  Now, it does then, one suspects, become really purely a question of interpreting the Act as amended from time to time.

Your Honour, the enactment of provisions such as - and I am speaking generically rather than in relation to section 7A - section 15A, for example, can probably be treated as being either, in some applications, part of the content of the specific legislative power or else 51(xxxix), your Honour, perhaps as always seems to be the case, is not really necessary to resolve which it is, but having said that one then has a situation that the Act in its original form being in existence, you then have the later Parliament or a Parliament amending it and the Act one treats then prima facie as a whole.  Your Honour, later amendments, of course, or later purported amendments, can result in invalidity of the Act in a larger form sometimes, as well as their invalidity in their own way.

McHUGH J:   What is the effect of section 7A(4)?  Is it intended to mean that 127C  had this particular validity from its enactment, or is subsection (4) only intended to operate prospectively?

MR JACKSON:   Your Honour, in our submission - this is where there is a difference of view - section 7A(4) is intended to operate prospectively in the sense that from the enactment of section 7A the provisions have to be read together, in effect, but that is an issue which we have dealt with, I think, in relation to the third question. What we would submit in relation to the particular case, your Honour, is that one simply had a situation where, if we are otherwise correct, section 127C(1)(b) was not valid; the case was brought and decided on the basis of a provision that was not valid and it would require, assuming the power to legislate relevantly retrospectively, it would require words much more clear and specific than those contained in 7A(4), to treat the Act as in some way operating retrospectively and that then might well give rise to the question that was referred to in passing by your Honour Justice Brennan at the earlier hearing, but not in the end necessary to decide, your Honour, namely the question of perhaps there being a section 51(xxxi) acquisition of property, because your Honours will recall that one of the orders was for payment of money.

Your Honours, the reference is in Strickland v Rocla Pipes Ltd - it is not in the extracts, your Honours - (1971) 124 CLR 468, the relevant passage is the paragraph commencing about point 3 on page 492. The exact passage is at the end of that paragraph, about point 6 or point 7 on the page:

or, where retrospective legislation is permissible ‑

That might not quite answer what your Honour was putting to me but it seems to be the closest, I think, in the decisions. 

DEANE J:   I am still not quite clear how you suggest the section should be applied in the context that - I mean, if one wanted to be difficult, you would look at 7A and say, “Well, this Parliament has said that its intention is this, but so what?  What is relevant is the intention of the Parliament which enacted the legislation”.  Is what you say that you think it should be read as if it says, in effect, “All of the relevant sections of the Act are amended and to be treated as having been enacted by this Parliament by reference to this Parliament’s intention?

MR JACKSON:   Yes, your Honour, I should distinguish between - what your Honour has put to me makes me think that perhaps I did not express myself terribly clearly before because there really are two distinct situations.  If one is speaking prospectively, that is as from now, in effect, in relation to events which occurred after the enactment of section 7A ‑ ‑ ‑

DEANE J:   I follow what you say about prospective in terms of events that have occurred in applications in the past but that is not what I am asking you.

MR JACKSON:   No, your Honour.  Your Honour is speaking, I take it, about events occurring after the enactment of 7A?

DEANE J:   No, I am just trying to work out how one should construe this so that what reads as an intention of a Parliament which did not pass the legislation becomes relevant to the interpretation of that legislation.

MR JACKSON:   Your Honour, can I indicate the way in which it does become relevant.  The terms of section 7A have in effect a second stage operation.  The first stage is a stage at which one is looking at the relevant enactment absent section 7A because, unless one looks at the enactment leaving aside section 7A, then it is impossible to identify what are valid and invalid applications.  So that one has to look to see what the position is were it not for section 7A.

If one arrives at a situation where, in terms of the Act, leaving aside section 7A, you have a situation where the provision is invalid as, in a case like this, containing one set of words but going too far, and in particular in a case like this going too far because the range of the provision is such that it cannot be identified as being a law with respect to corporations, your Honours, that is the stage at which one then brings into play section 7A.

What section 7A would require in a case like that is to say even though the law by itself might not be capable of being regarded as a law with respect to corporations, the proscription or prescription of the law is one which can be applied to a variety of fact situations, some of which would and some of which would not have been within power if a law had been made which dealt in specific terms with that fact situation.  That is the way in which section 7A, if it is to have any operation, is to be applied.

Your Honours, could I just add one further thing to it, and this is the point where section 7A goes beyond what has been treated as making section 15A valid.  It is this, that section 15A has been treated as a provision which is valid because it operates in circumstances where the Parliament’s intention in relation to the manner of operation of the Act can be discerned from the provisions of the Act itself.  There is some principle, some standard, some test which the Parliament has indicated.  Your Honours, it is only if one cannot see the existence of any such principle or standard or test that one needs to go to section 7A, or that section 7A has an operation that goes beyond the operation which section 15A would have.

So that one then has a situation where, absent any criterion provided for, any criterion by reference to subject matter provided for by the Parliament, there is then the direction given to courts and to the people of the land that, whenever the Act might have had a valid application by the operation, any legislative power of the Commonwealth, it is to be treated as having that.  Your Honour, I do not know that I can put it differently from that.

DEANE J:   Thank you, Mr Jackson.

MR JACKSON:   Your Honours, could I say that I am conscious that - Your Honours, I wish to say something if I may in relation to time.  An hour was allocated by the Court ‑ ‑ ‑

MASON CJ:   Yes.

MR JACKSON:   ‑ ‑ ‑ we had agreed that our side would take half an hour and the other side would take half an hour.  I have gone beyond that already, your Honours.

MASON CJ:   That is not entirely your fault, Mr Jackson.

MR JACKSON:   This is, if I may say so with respect, an important point and I wondered if I might perhaps have five or ten more minutes on it?

MASON CJ:   Yes.

MR JACKSON:   Your Honours, I had just taken you I think to Justice Williams in Pidoto v Victoria, and that was at page 132 where his Honour also referred, about point 2 on the page, to the distinction between legislating and reading down, and your Honours, if one goes then to the Bank Case, Bank of New South Wales v Commonwealth, which is behind tab 4, there are two passages of some relevance.  The relevant provision, which was there in question was section 6 of the Banking Act and it is set out, your Honours, at page 163 immediately under the heading Part II.  It does not go as far as section 7A.  Now, your Honours, the first of the observations concerning the provision appears in the judgment of Chief Justice Latham at page 164 and, your Honours, at about point 3 on the page his Honour said:

The Court cannot re-write a statute and so assume the functions of the legislature.

And, your Honours, again, his Honour’s observation recognises the existence of some line between legislative and judicial function.  Your Honours, a fuller discussion is to be seen in the reasons for judgment of Justice Dixon and his Honour’s reasons, which commence relevantly at page 368 about point 9, also militate, in our submission, against the validity of a provision like section 7A.  Your Honours will see at the bottom of page 368 about point 9, a general discussion of the operation of provisions like section 15A; that goes through to about point 8 on page 369, and after discussing the operation of section 15A, his Honour says at the bottom of page 371 about point 9, that he thought that section 6 did not do anything more than section 15A did.  That goes through to the top of the next page, 372, where his Honour said:

The Court has gone very far as a result of section 15A -

but he doubted whether section 6 did any more.  Then, your Honours, on the same page, 372, your Honours will see at  about point 2, he referred to a “task of reframing” the Act “from the fragments”, and then said:

But a closer examination of the paragraph shows that it does not attempt an inadmissible delegation to the Court of the legislative task -

as he described it -

of making a new law from the constitutionally unobjectionable parts of the old.

And, your Honours, if we could interpolate just this that, how else, in our submission, could there be an inadmissible delegation other than by a provision like section 7A, because what section 7A says is, whenever the law could be valid, it is valid, and it is for the court to work it out.

I referred your Honours to the breadth of the term “application” in section 7A(5) and it requires the law to be treated as valid whenever it could apply to any circumstance.

Your Honours, I will not take your Honours to any references in it but Strickland v Rocla Concrete Pipes Ltd 124 CLR 468, if I can just give your Honours two references: Chief Justice Barwick, at page 493 about point 5, emphasised that the Court could not be required to legislate and, at page 494 about point 4, adopted what had been said by Sir Owen Dixon in Bank of New South Wales v. The Commonwealth in the pages 369 to 372, and could I refer your Honours to Justice Menzies in Strickland v Rocla Concrete Pipes at page 506 point 4, where what his Honour said was that Parliament could not, if I can use his Honours words:

direct courts to reconstruct out of the ruins of one invalid law of general application a number of valid laws of particular application.

Your Honours, that might perhaps go a little too far in dealing with provisions such as section 6 of the Trade Practices Act and so on.  Parliament can require the court to do that if it provides some basis or principle by which the task is to be carried out.

The next case to which I would wish to refer is that behind tab 6 which is Russell v Russell and I simply wanted to refer to an observation of your Honour the Chief Justice at page 541 at the bottom of the page where your Honour referred to Pidoto v Victoria and said - the passage goes over the top of the next page, page 542.  Your Honour recognised the distinction again.  If I could just say, your Honours, if one looks at the paragraph on page 542 which commences about point 4 where your Honour says, “Here, as it seems to me”, what your Honour was doing in that paragraph illustrates the potential practical problems caused by provisions like section 7A because there were two powers that were potentially relevant there, the marriage power and the matrimonial causes power, to put it shortly.  The provisions had to be read to give them a particular meaning.  The question was, in a sense, which provision was the one that was more apposite.  Your Honours, section 7A would seem prima facie to require that all situations be treated as valid.

In case number 7, Re F; Ex parte F at page 385 point 3, Chief Justice Gibbs immediately after the reference to Vacuum Oil referred to the legislative task, et cetera, and the quotation from Bank of NSW v The Commonwealth, and the last case to which I would take your Honours is Nationwide News Pty Ltd v Wills which is behind tab 8.  A number of members of the Court refused to read down the provision impugned in that case by reference to the fact that it was not the Court’s function to legislate.  At page 61, your Honour Justice Brennan - your Honours will see the heading “Severance” and then the second paragraph under that heading on page 61, your Honour referred to the need to:

define conditions limiting the operation of the provision to unwarranted attacks.

Your Honour said that was:

a function of legislation.....To apply s 15A.....would require the Court to remould the provision according to its own notion of the desirable criteria by which to describe unwarranted attacks falling within the prohibition.  That is a function for the Parliament to perform.

Turning over to the next extracted page, page 80, your Honours Justices Deane and Toohey, commencing at about point 6 on the page after referring to section 15A - the passage goes through to the top of the next page, but your Honours will see again a reference at the bottom of page 80 to what would be required would be - I am sorry, your Honours,
may I start again.

Your Honours will see that your Honours referred to invalidity for the reason that it would have constituted an inadmissible delegation to the Court of a legislative task and then your Honour Justice McHugh at page 105, about point 3 or 4 on the page:

It is not possible to hold the paragraph valid by any process of severance -

et cetera -

To do so would require this Court to engage in the legislative process which is the domain of Parliament.

Your Honours, could I just say finally that the need for there to be Commonwealth laws whose application is discernible by a reference to some criteria of operation, some criterion or standard or mode of

reference or test provided for by the Parliament, that need is emphasised, in our submission, by the operation given to Commonwealth laws by section 5 of the Constitution Act and by section 109 of the Constitution.

The laws of the Commonwealth contemplated by those provisions, in our submission, are laws referrable, ultimately, to identifiable powers because the Commonwealth is, in the end, a government whose powers are, in terms of subject matter, limited.  Your Honours, if it is suggested that Commonwealth laws go beyond power, it is possible then to look to see what principle is capable of application to read them down, but, your Honours, the approach taken by section 7A, as it is put so well, if I may say so with respect, by the Solicitor-General for Victoria in paragraph 7 of Victoria’s written submissions gives rise to a wilderness of instances and, in our submission, it goes beyond a valid provision.  Your Honours, those are our submissions.

MASON CJ:   Thank you, Mr Jackson.  Mr Solicitor for Victoria.

MR GRAHAM:   May it please the Court, if I can just take a few more minutes.  In further response to your Honour Justice Deane’s question, it is perhaps worth noting that when section 15A was first enacted it was expressed to operate in terms in relation to every Act whether passed before or after the commencement of this section.  In fact the section was proclaimed to come into operation in the middle of the argument in the Australian Railways Union Case 44 CLR 319 and that becomes apparent at page 385. It is interesting to note that the problem which troubled your Honour did not arise for consideration. The Court held that the section was not applicable in the circumstances of that case.

As presently cast, the section does not refer expressly to Acts passed before or after the enactment of section 15A. If I can add just one or two words in relation to section 127C(1)(b) of the Industrial Relations Act 1988 to which perhaps not much attention has been directed in the context of the consideration of section 7A. It is to be noticed that paragraph (b) is cast in very, very wide terms. It uses the expression “in relation to”; it uses the expression “relating to” and it uses the expression “business”. It is well established that the word “business” is one of the widest possible import. I can simply give the Court two references in support of that view. Firstly, Smith v Anderson (1880) 25 ChD 247, the relevant passage being in the judgment of Sir George Jessel. At page 258 his Lordship said:

Now “business” itself is a word of large and indefinite import.

Later on his Lordship said, “Therefore the Legislature”, in using that word, “could not well have used a larger word.”

That case has been frequently cited with approval.  That passage was referred to in Actors and Announcers Equity Association v Fontana Films which was referred to in the earlier hearing of this case, 150 CLR 169, and the passage from Sir George Jessel’s judgment was referred to by Chief Justice Gibbs, at page 184, by your Honour the Chief Justice at page 203, and your Honour Justice Brennan at page 221.

If I can just make this observation: it is obvious enough that section 127C(1)(b) would have a valid application in each of the two sets of circumstances covered by section 127C(1)(a) and (c). But that, of course, takes one nowhere because it leaves paragraph (b) with no work to do. Then, the Commonwealth might say, and the respondents might say, “Well, perhaps a valid application, apart from paragraph (a) and paragraph (c), cannot readily be postulated but nevertheless a set of circumstances might arise in which the paragraph could have a valid application, to use the terms of section 7A(1)(b).”

But we would say that that is not sufficient to attract the operation of section 7A which is no more than an interpretation section and it only operates where the relevant provision of the Act which is under scrutiny shows by its own terms that it has a valid application.  We say it is not for the Court to speculate or, as it were, to conjure up a valid application when seeking to construe a provision in an Act in order to sustain its possible validity.  Those

are the additional observations which we desire to make, if the Court pleases.

MASON CJ:   Thank you, Mr Solicitor.  Mr North.

MR NORTH:   Thank you, your Honour.  Can I hand to the Court an outline of our further oral submissions? 

MASON CJ:   Yes.

MR NORTH:   Thank you, your Honour.  Your Honours, I want to use those written submissions as a starting point and then just answer very briefly a number of the points made by our learned friend.  It is our submission that, by reference to paragraph 2 of the outline, in relation to section 15A of the Acts Interpretation Act no question of its constitutional validity has arisen in respect of its scope of operation because it has been interpreted consistently with the extract from Pidoto there that it is dependent upon the specification of criteria in the Act being interpreted. 

It is our submission that section 7A works in exactly the same way.  We are at a loss to see that there is any difference in substance between 15A and 7A, at least for the purposes of this case.  I say that because we contend that 7A goes no further than the enunciation of the operation of section 15A by the Court ‑ ‑ ‑

McHUGH J:   That does not seem to be the view of the Parliament.  There is a new section 15AA in terms of 7A going through Parliament at the moment.

MR NORTH:   That may be so, your Honour, but it is still up to the reader of the section to determine whether there is any difference in substance.  I mean, it may be that the new 15AA is an attempt to say in more words nothing much more than is in 15A.  The only proviso we say is in relation to 7A(2)(a), that is the reference to underlying objects, context and purpose.  From our researches there has been no decision of the court that utilises the principle in those terms.  Apart from that, what section 7A does, is, we say with respect, and with the greatest of respect to Parliament, no different to what 15A does.

BRENNAN J:   Did he mean that we do not really need to trouble about 7A?

MR NORTH:   In essence, that is the submission, yes.  What we say is that all of the learning applicable to 15A is directly applicable to 7A.  So that, for instance, the criticism that our learned friends make of an absence in 7A of criteria of applicability is quite misconceived.  The discussion about criteria of applicability such as in Pidoto and the other cases that have referred to it on page 3 are concerned with criteria in the Act being construed.  So, when one comes to apply 15A or 7A for that matter, they will both only have application if there are criteria in the subject Act which allows them operation.

BRENNAN J:   Is that quite fair to the Parliament?  When 7A(1) is intended to give to the Act with which we are here concerned a valid application - that is, the facts could fall within constitutional power - therefore, an Act which is broad enough to encompass those facts is within constitutional power.  It matters not what the text of the Act says, it is concerned only with whether it applies to a fact situation that could be within constitutional power.

MR NORTH:   The provision is to have application, not necessarily the entirety of the Act.

BRENNAN J:   The provision is the Act.

MR NORTH:   Yes.  A section ‑ ‑ ‑

BRENNAN J:   In this case, 127C(1)(b).

MR NORTH:   Yes.

BRENNAN J:   If 127C(1)(b) can apply, for example - to take Mr Graham’s example - the situation covered by 127C(1)(a) or (c) but not to anything else to be valid, then how does one operate 7A(1)?  Here is a case which falls within 127C(1)(a); we want to apply to it 127C(1)(b).  We read down 127C(1)(b) so as to accord with the same text as 127C(1)(a) or do we look simply at the facts.
MR NORTH:   I must say I do not follow your Honour.  This is a case about (1)(b) and one looks to see whether the facts relevantly fit within (b) and, if so, (b) applies.

BRENNAN J:   Then let me make it clearer.  We have a contract here to which a constitutional corporation is a party.

MR NORTH:   Is not a party?

BRENNAN J:   Is a party.  Let us assume that we have a case to which a constitutional corporation is a party.  That, one might say, lies within constitutional power.

MR NORTH:   Yes.

BRENNAN J:   We now have another situation where the parties to the contract are not constitutional corporations.  Let us assume for the purposes of argument that that lies outside constitutional power.  Both are covered by paragraph (b).  Is the paragraph valid or not valid?

MR NORTH:   It is not valid, your Honour, in so far as it applies to that fact situation.

BRENNAN J:   That is the problem.  One looks to the facts and not to the law to determine validity.

MR NORTH:   No, your Honour, that is the question of the specification of criteria in section 127(1)(b).  That has been argued and we say there is within the accepted doctrine sufficient criteria to make (b) operate constitutionally and validly in respect to this fact situation.  That is a debate that we have had, but whether or not there are criteria in (b) does not go to the validity of 7A, in our submission.

Similarly, our learned friend’s proposition that the scope of 7A requires an upholding of validity if any constitutional power or foundation is available in the subject legislation, that is to say it requires the Court to roam around without guidance and in effect deliver advisory opinions or conduct its own efforts to determine validity, that is said to derive from the definition of valid application and the reference in that definition to an application that, if it were the provisions only application, would be within the Commonwealth’s legislative power.

Now, in our submission, that verbiage as well as the concept is to be found in section 15A where it provides that:

Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth.

That has not been held to require the Court to search around for every possible constitutional backing.  The search is for that head of power which has been relied upon by the Parliament, obviously and clearly.  Re F was a case where the constitutional bases were exposed; this is a case in which the constitutional basis was exposed and the concept is, in our submission, identical.  It was not good enough to invalidate section 15A, and it is not good enough, in our submission, to invalidate 7A.

If the Court pleases, I do not propose to take the Court in detail though the cases on page 3, which are examples which we say best support our proposition that in this case there exists in 127C(1)(b) the necessary criteria.  As I say, that is an argument that has been had, but we set out those cases for convenience.  In our submission, the fundamental misconception or difference between us is that the prosecutor’s position puts 7A into an entirely different category to section 15A.  In our submission, there is no difference in principle, although a difference in words, between the two sections, and consequently the absence of criteria in 7A is no barrier to its constitutional validity, just the same as it was not in relation to section 15A.  If the Court pleases, those are the submissions.

MASON CJ:   Thank you.  Mr Willheim.

MR WILLHEIM:   May it please the Court, I wish to deal with three matters that have been agitated before your Honours this morning: the first is the question of possible retrospectivity; the second is the question whether, in its application to section 127C(1)(b), section 7A operates only in relation to the corporations power or whether it applies to every available power; and the third is the question that has just been discussed and that is the relationship between section 7A and 15A of the Acts Interpretation Act and the validity of section 7A in its application to section 127C(1)(b).

Your Honours, I begin with the question of retrospectivity and your Honours have been referred to section 7A(4).  In our submission, subsection (4) identifies the provisions to which section 7A applies; it applies to provisions enacted before the commencement of the section, but section 7A(4) does not, in our submission, replace the normal rules relating to retrospective operation. 

Now these proceedings, your Honours, are review proceedings instituted by way of prerogative writ.  The question before the Court is whether the Commission had jurisdiction at the time of the proceedings before the Commission and on this basis section 7A does not have direct application to these proceedings.  But section 7A would, in our submission, apply to any fresh proceedings, so if the matter were remitted with the Commission or to the Court for reconsideration, section 7A would not apply.

So, assuming that it were the Court’s view that without section 7A the commission lacked jurisdiction but with section 7A the commission or the court would have jurisdiction, then in our view that would be relevant to the discretion of the Court whether to grant relief.

I come to the question, your Honours, whether section 7A applies only in relation to the corporations power or whether it applies in respect of every valid application of every available constitutional power.  It is our submission that where it is apparent that Parliament has relied on a particular power ‑ and in this case it is apparent that Parliament has relied on the corporations power and only that power - section 7A applies in respect of every valid application of that identified power.  We submit it does not purport to save other applications that might have been valid pursuant to other constitutional powers had Parliament chosen to rely on those other powers.  In other words, we submit that 7A applies in respect of every valid application of the corporations power.

In support of this, we submit that 7A is to be construed as a savings provisions or a reading down provision.  It is not a provision that seeks to extend the application of the law.  The purpose of section 7A is to protect a provision which might otherwise fail.  It preserves a valid operation of the provision.  It is not the purpose of 7A to extend ‑ ‑ ‑

McHUGH J:   What exactly is meant by the operation in relation to that valid application?  Take a case like Nationwide and assume 7A was applied in that context and assume that you took the view that the section involved in that case would be valid if a defence of justification, a defence of truth or a defence of fair comment had been available; would paragraph 7A(2)(b) require the upholding of the validity of that law in that situation?

MR WILLHEIM:   I find it easier, your Honour, to answer it in the context of the provision here where we clearly have the Parliament focusing on a particular law.  We are really only looking at 7A in the context of this particular law.

McHUGH J:   Let me give you an illustration from this situation.  Supposing you took the view that paragraph (b) was in terms invalid but that the section would be valid in a factual situation where, for example, a constitutional corporation was required to approve a contract between non‑constitutional corporations.  Is that saved by 7A?

MR WILLHEIM:   Yes, your Honour.  We would say that in a particular situation if the Court finds that there is a sufficient connection between the fact situation and the corporations power, then that is enough to save the application of the law to that situation that is before the Court.

McHUGH J:   Even though paragraph (b) would then only apply to contracts in respect of which the constitutional corporations had approved, which would be quite different from their invalid operations.

MR WILLHEIM:   Well, in my argument on the validity of section 7A, your Honour, I will be submitting that the key distinction between 7A and 15A in its application is that in applying 7A it is not necessary for the Court to actually lay down the criteria or lay down the outer perimeter or the limits of the operation of the law.  It is sufficient to find that it operates in the particular circumstances.

McHUGH J:   That means - I am probably interrupting you or an argument that you are going to put, but does that mean the Court has got to search out for a valid application.  Have you got to exercise the mind to see what valid applications, if any, you can find?

MR WILLHEIM:   In applying any law to any particular situation, the Court has to ask whether that is a valid application and it has to in relation to a particular application.  It is my submission that having reached the view that the particular application is within power, the Court is not required by 7A to fix the outer perimeters of the power.

McHUGH J:   Well this seems to mean that the Court could never declare a law invalid.  Is that what it means?  Supposing I took the view, or a judge took the view that (b) in terms was invalid and did not apply to the facts of this particular case, can I make a declaration that (b) is invalid or have I got to search my mind to see if I can think of some valid application?

MR WILLHEIM:   Your Honour could make a declaration that (b) was invalid if your Honour was satisfied that there was no valid application of (b).

McHUGH J:   That means that I have got to search for a valid application ‑ ‑ ‑

MR WILLHEIM:   But if your Honour was satisfied that (b) did not apply to the facts before the Court, then your Honour could make a declaration that (b) did not validly apply to those facts.

McHUGH J:   I could not declare (b) invalid unless I could think that it had no valid application.

MR WILLHEIM:   Your Honour may be able to take the view that it had no possible application but if your Honour took the view that it was possible that it had a valid application, then your Honour would not make that kind of declaration.

BRENNAN J:   But one cannot come to that view by reference to the text of the statute.

MR WILLHEIM:   Well, one comes to the view by applying the text to the facts, your Honour.

BRENNAN J:   That is right.  How can the Parliament express its intention by reference to a function which is peculiar to a judicial branch of government?  In other words, here is a provision which is too broad.  The Court can decide whether there is any valid application for these two broad provisions.  It is the Parliament’s intention that it shall be valid to the extent to which the Court finds that it is not too broad.  Is that the definition of a law or is it a definition of a law by reference to a court’s finding?

MR WILLHEIM:   Well, the crucial result, your Honour, is that it is the Court which determines the validity of the application.  It is not the Parliament. 

BRENNAN J:   But it is the application, not the law.  It is an application of a law, not a definition of what the law is.

MR WILLHEIM:   Well, my submission would be that it is the Parliament which enacts the law and declares how it wishes the law to apply and the Court determines whether the law validly applies in the particular case and that is at the heart of the judicial function.

McHUGH J:   Well, that seems a long way removed from the nature of judicial power determining the rights of parties.  You are not determining the rights of parties.  You are being asked to see whether the law may have some valid application in respect of some set of facts which you are asked to imagine.

MR WILLHEIM:   Well, with respect, your Honour, you would determine whether it has an application in relation to the facts before the Court which is at the heart of the judicial function.

McHUGH J:   I have no problem with that.

DAWSON J:   Well, it is not really because what you are doing is attempting to construe the section and the one thing you could say about this is that it is not a reading down provision.  In one sense it is a reading up.  So that in the end you are not left with any particular construction of the section and of course it is the Court’s function to construe the section.

MR WILLHEIM:   Well, it is the Court’s function, your Honour, with respect, to apply the law to the circumstances of the case that is before the Court.

DAWSON J:   No, it is the Court’s function in the particular exercise to decide the validity of the law and it may be able to decide it is valid with a limited application because it can read it down, but that is not the function which this section requires the Court to perform.

MR WILLHEIM:   With respect, your Honour, it reads it down by reference to its valid application to the proceedings.

DAWSON J:   It does not read it down.  At the end of the day the Court cannot say what the section means.

MR WILLHEIM:   But it can determine the rights and obligations of the parties ‑ ‑ ‑

DAWSON J:   Or valids - - -

MR WILLHEIM:   ‑ ‑ ‑ in the proceedings before the Court by reference to the law which the Court is applying and construing.

DAWSON J:   That is not the function of the Court in this particular exercise.  It is to decide the validity of the law.

MR WILLHEIM:   I cannot put it any higher than that, except to say that it is my submission that the Court’s function is to determine the rights and obligations of the parties in the proceedings before the Court.  Some cases may lend themselves to a general declaration of validity or invalidity, and others may not; but that it is no objection to the constitutional validity of the law that it gives rise to situations where courts decide matters on a case-by-case basis rather than on a general application basis.

BRENNAN J:   Mr Willheim, could I delay you for just a little longer.  The text of section 7A(1):  do the words, “it is the Parliament’s intention that”, add anything to its meaning?

MR WILLHEIM:   Your Honour, they indicate that this is a provision declaratory of the intention of the Parliament.  I am not sure whether I have understood the purport of your Honour’s question further.

BRENNAN J:   It seems to me that if that is it, it misunderstands the judicial function of interpretation which is to discover the intention of the Parliament from the language which the Parliament uses.  One looks at the text of the statute and not to anything else for the purpose of determining interpretation subject, perhaps, to section 15AA.

MR WILLHEIM:   Your Honour, I think it is common for Parliament to seek to record in its enactments, objects or intentions and for the courts to seek to construe legislation in accordance with such declarations.  In a sense, this is no different from an objects clause in an Act, and the courts have construed objects clauses as governing the interpretation of an Act.  This is an intention of the Parliament.  It is my submission that it can also be given effect to by the Court.

DAWSON J:   In one sense, you could never find under section 7A an Act invalid because it was never the intention of the Parliament that it should have an invalid application.

MR WILLHEIM:   The intention may fail, your Honour.

DAWSON J:   No, the point is that it has never had any application in an invalid way.

McHUGH J:   I must say, at the moment I do not see how under this section a court could ever declare a section invalid because there may be some set of facts out there in the real world where the Act could validly apply.  Unless a court was confident it can envisage ever possible application, I do not see how you could declare a section invalid.  You can do no more than say, “Well, it does not apply to this set of facts”.

MR WILLHEIM:   It would be my submission in response, your Honour, that there is no fundamental difficulty with that, but if an Act is capable of valid application, then there is no inherent need to make a general declaration of invalidity simply because it is incapable of applying in particular circumstances.  The Court can, as I submitted earlier, declare that the law is incapable of applying to the circumstances before the Court.  So there is no inhibition here on a declaration of the rights and obligations of the parties in the proceedings before the Court.  It was my submission that that is really at the heart of the judicial method to determine the rights and obligations of the parties and the operation of the law on a case by case basis.

DEANE J:   But if you look at the definition of “valid application”, are you not really reversing the process that the legislature is talking about?  What 7A says is in effect, “If the application of the provision to the circumstances of the case would be within the Commonwealth’s legislative power, if that were the provisions only application, then you don’t have to worry about anything else”.

MR WILLHEIM:   That is so, your Honour, yes.

DEANE J:   Then query whether that is within constitutional power to say that you take a general section or provision, you apply it to the particular circumstances which are involved in the case.  You then say, “If that was all the provision did and it was in terms directed to this case, it would have been valid”.  You do not worry about looking at the generality of the provision but you say that is it.  It would be a convenient way of proceeding, but it has got some problems, has it not?  Certainly, to go back to what you began by saying, it bears almost no relationship whatsoever to the way the current provisions for reading down operate.  As Justice Dawson put to you, it is a reading up provision to deal with the particular case.

MR WILLHEIM:   In my submission, your Honour, it is still a reading down in the sense that it is a focusing on the facts of the particular case.

DEANE J:   But you never face the question of reading down.  You say, “If the provision were framed so this was its only application, it would have been valid, therefore this section says it is valid in so far as that application is concerned in the absence of a contrary intention, and that’s all I have to worry about”.

MR WILLHEIM:   There are two requirements, your Honour, the requirement that your Honour has addressed and the requirement that is expressed too widely, so the Court also has to come to the view that the law is expressed too widely.  It is my submission, your Honour, that reading down is an accepted technique and one the Court has applied in many circumstances.  We of course initially submitted in this case that section 15A was sufficient if the Court found against us that paragraph (b) was too wide, that section 15A was sufficient.

It is sufficient because here there is no question of legislation.  The Parliament has indicated the criterion or the test or the principle and the criterion or the test or the principle is the corporations power.  There are numerous instances where the Court has read down a provision simply by reference to a particular head of power.  The Court has been referred to Chief Justice Latham in Pidoto.  Your Honour the Chief Justice I think cited that provision in Russell v Russell.

So our basic argument in our first round of written submissions is that 15A is enough in this case.  Where section 7A of this Act seems to go further is that in its application to the particular circumstances, it is not necessary to, as it were, define the outer perimeters of the law.  In that sense it is out submission that it does not fall foul of the legislation test because it is not necessary to define the outer perimeters of the law.  There is no requirement, in our submission, for the Court to exercise what was called a “legislative function” by Justice Dixon in the Banking Case and the other cases to which your Honours have been referred.

May I say in this context that reference was made by my learned friend, Mr Jackson, to Justice Dixon in the Banking Case and of course in that case, Justice

Dixon and the other members of the Court were unable to apply section 6 of the Banking Act to save the relevant provisions, but none of the members of the Court cast any doubt on the validity of section 6 of the Banking Act.

Your Honours, I think in response to your Honours’ questions I have in fact covered the submissions I wish to make, so those are my submissions.

MASON CJ:   Thank you, Mr Willheim, Mr Jackson.

MR JACKSON:   Your Honours, may I deal with two matters by way of reply.  The first concerns what was said about retrospectivity.  In the present case the appropriate result, in our submission, would simply be that the Court would quash the decision made below and the case would not be referred anywhere at all.  It would simply be a case where the decisions were made in purported exercise of powers given by a statute, the provisions being invalid.  So there would be nothing further to be done other than quash the decisions.  Your Honours that is the first point.

The second point is this:  if one looks at the breadth of the definition of the term “application” which, your Honours, it is clear requires one to look at every possible circumstance or each possible circumstance.  One then goes to the definition of “valid application”, one sees from that definition that one is to identify, as your Honour Justice Deane was saying, the particular circumstances look at the provision, look at the circumstances, if that provision in its application to those circumstances were the only provision of the Act, would it be valid.

The fact that the Act requires one to do that gives the lie in our submission to the proposition that one looks only, for example, at corporations power or this power or the other power, because the particular circumstances are to be looked at in isolation and that is why the position is, under section 7A, that one has to look to see whatever constitutional power there might have been to make it.  Your Honours, that is where one gets back to what was said by Chief Justice Latham in Pidoto v Victoria.  If I could just take your Honours back to that for a moment, behind tab 2 in the document we gave your Honours, your Honours will see in the passage that is at page 108, commencing at point 6, the commencing words being, “The opposing view”, and, your Honours, that paragraph which goes right through to about point 5 or 6 on the next page represents exactly the philosophy underlying section 7A and it represents, your Honours, our learned friend’s argument.

Now, your Honours, that proposition was rejected then, as your Honours will see, in the next paragraph by the observation of the Chief Justice that:

Such an application -

meaning the Commonwealth’s argument -

requires the Court to perform a feat which is in essence “legislative and not judicial”.

Your Honours, at the heart of legislative power is the enactment of laws which themselves contain prescriptions as to the manner and circumstances of their operation, a matter made more necessary in a federation by the need to operate provisions such as section 109.  Then, if one goes to the last paragraph on page 109, your Honours will see the distinction between a provision such as section 15A as interpreted and a provision like section 7A.

Your Honours, in relation to section 7A may I say one final thing.  It is this:  if your Honours go to the terms of section 7A(2), they provide some indication as to the legislative intention.  It is true to say that subsection (2) is qualified by subsection (3), but having said that, subsection (2) is presumably to be given some operation and, your Honours, what it says is - your Honours will see the two tests:  one, it is clear, and because of the negatives, I suppose that means not unclear, and, your Honours, if one looks at paragraph (b), differ in a substantial respect.  Finally, all that is relevant to section 7A(1), which declares the intention to be that the Act is to have every, as defined, valid application.  Your Honours, those are our submissions.

MASON CJ:   Thank you, Mr Jackson.  There is one thing I should mention before we conclude and that is that we have received a written submission from New South Wales

and South Australia and I take it that the Solicitors‑General for New South Wales and South Australia elected not to follow up with oral submission.  They were content to rely on their written submissions, but I think those submissions have been covered anyhow during the course of oral argument.

MR JACKSON:   Yes, your Honour.  Your Honour, I have spoken to both those gentlemen, each of whom indicated as your Honour has said.

MASON CJ:   Yes, thank you.  The Court will continue its consideration of this matter in the light of the submissions heard today. 

AT 11.53 AM THE MATTER WAS ADJOURNED SINE DIE