Williams v Law
[1987] TASSC 98
•19 June 1987
Serial No B28/1987
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Williams v Law [1987] TASSC 98; B28/1987
PARTIES: WILLIAMS
v
LAW
FILE NO/S: LCA 130/1986
DELIVERED ON: 19 June 1987
JUDGMENT OF: Nettlefold J
Judgment Number: B28/1987
Number of paragraphs: 24
Serial No B28/1987
File No LCA 130/1986
WILLIAMS v LAW
REASONS FOR JUDGMENT NETTLEFOLD J
19 June 1987
The respondent was charged on the following complaint:–
"Charge: Remain in area of State forest prohibited to public.
Breach of: Section 46A of the Forestry Act, 1920 as amended.
Particulars: You are charged that on the 13 March 1986, you did, without the authorization in writing of the Forestry Commission, remain in an area of State forest, namely the land district of Arthur in the vicinity of Picton River in Tasmania in respect of which a declaration under section 20B of the Forestry Act, 1920 is and was in force."
On 21 October 1986 that complaint was dismissed.
By notice to review dated 31 October 1986 the applicant challenges that decision. The grounds of appeal as finally amended are:–
"1That the Learned Magistrate erred in fact in holding that Registered Plan 840 was not readily accessible and available.
2That the Learned Magistrate erred in law in holding that ready legal access and availability to Registered Plan 840 was a condition of the validity of Statutory Rule No 21 of 1986.
3That the Learned Magistrate erred in fact and in law in holding Statutory Rule No 21 of 1986 to be invalid.
4That the Learned Magistrate erred in fact and in law in dismissing the complaint.
5The Learned Magistrate erred in fact and in law in holding that the failure to reproduce the plan as part of the notice given by Statutory Rule meant that the notice did not with sufficient certainly give to those to be affected by it sufficient information from which they could readily ascertain their obligations."
The relevant provisions, documents and facts are set out in the carefully prepared reasons of the learned magistrate. There is no point in repeating them here. A copy of those reasons is annexed to these reasons. In these reasons I shall refer only to such parts of that material as is necessary to explain the decision reached.
Section 20B of the Forestry Act provided:–
"The Minister may, on the recommendation of the Commission, by notice in the Gazette, declare an area of State forest to be an area into which persons may not enter and in which persons may not remain without the authorisation in writing of the Commission."
"The relevant notice pursuant to Section 20B is contained in Statutory Rule No 21 of 1986, which provides:–
'Pursuant to section 20B of the Forestry Act 1920, I, Raymond John Groom, being and as the Minister for the time being administering the Forest Act 1920, on the recommendation of the Forestry Commission, do, by this notice–
(a)rescind the notice published in the Gazette on 9th March 1986;
(b)rescind the notice notified in the Gazette on 10th March 1986 as Statutory Rules 1986, No 14; and
(c)declare that, on and from the day on which the making of this notice is notified in the Gazette, all that area of State forest situated in the Land District of Arthur in the vicinity of, and generally known as, Farmhouse Creek and more particularly described in the Schedule to this notice, to be an area into which persons may not enter and in which persons may not remain without the authorization in writing of the Forestry Commission.
Dated this 13th day of March 1986.
R J Groom, Minister for Forests.
_________________________
SCHEDULE 1
LAND DISTRICT OF ARTHUR
VICINITY OF PICTON RIVER
All that area of State forest shown bounded by a heavy black line on Plan 840 filed and registered in the office of the Forestry Commission in Hobart.
_________________________
I certify that the foregoing notice is in accordance with the law.
J M Bennett, Attorney–General.
_________________________
Printed and numbered in accordance with the Rules Publication Act 1953.
This notice is administered by the Forestry Commission. Notified in the Gazette on 13th March 1986.'
"The full text of the notice was published in the Gazette on the 13th March 1986, No 18848, and on the same day in the Gazette notice was given of the making of the statutory rule. That notice, No 18849, was in the following form:–
'Rules Publication Act 1953
NOTICE OF THE MAKING OF STATUTORY RULES
In accordance with the provisions of the Rules Publication Act 1953, notice is given of the making of the following Statutory Rules:–
New title of Act (if any) Number allotted to Title or subject
under which statutory statutory rules matter of statutory
rules made rules
Forestry Act 1920 SR 1986, No 21 Notice under section
20B of the Forestry
Act 1920
GENERAL PURPORT OR EFFECT OF THE ABOVEMENTIONED STATUTORY RULES
Notice under section 203 of the Forestry Act 1920
This notice–
(a)rescinds the notice published in the Gazette on 9 March 1986;
(b)rescinds the notice notified in the Gazette on 10 March 1986 as Statutory Rules 1986, No 14; and
(c)declares an area of State forest situated in the Land District of Arthur in the vicinity of, and generally known as, Farmhouse Creek to be an area into which persons may not enter and in which persons may not remain without the authorization in writing of the Forestry Commission.
Copies of the abovementioned statutory rules may be purchased at the Government Printing Office, 2 Salamanca Place. Hobart and the State Government Publications Centre, Henty House, 1 Civic Square, Launceston and Osborne House, 41 Wilmot Street, Burnie.
J M BENNETT Attorney–General.'
___________________________________________________
"By Proclamation dated the 12th March 1986 and notified in the Gazette on that day the Governor purported to dedicate as State forest pursuant to section 14 of the Forestry Act certain portions of Crown land described in the proclamation which were not already so dedicated. The proclamation provides:–
'THE FORESTRY ACT 1920
A Proclamation
IN pursuance of section 14 of the Forestry Act 1920, I the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, do, by this my Proclamation, dedicate as State forest, on and from the day of publication hereof in the Gazette, such portions of Crown land situate in the Land Districts of Buckingham, Kent, and Arthur and more particularly described in the Schedule hereto, as are not already dedicated as State forest.
Given under my hand this twelfth day of March 1986.
J PLIMSOLL, Governor
By His Excellency's Command,
R J GROOM Minister for Forests.
____________________________
Schedule
LAND DISTRICTS OF BUCKINGHAM, KENT
AND ARTHUR
All those areas of land shown hatched and surrounded by a heavy black line on Plans 850, 851, 852, 853 and 854 filed and registered in the office of the Forestry Commission at Hobart'."
Statutory Rule No 21 of 1986 clearly declared that, on and from the day on which the making of that notice was notified in the Gazette, which of course, was 13 March 1986, the "area of State forest … in the vicinity of, and generally known as, Farmhouse Creek and more particularly described in the Schedule to this notice" was "an area into which persons may not enter and in which persons may not remain without the authorization in writing of the Forestry Commission".
On the face of it, it would appear to be the case that, by s20B of the Forestry Act, Parliament specifically authorised the Minister to make declarations of the kind in question here. His grant of statutory power to that effect appears to be clear.
The challenge was that, although he had clear power to make declarations of this kind, there was something wrong with this particular one. The learned magistrate's conclusion, reduced to its essence, appears to be contained in his statement that "the statutory rule containing the notice is invalid as being uncertain and in the circumstances unreasonable".
I have underlined parts of the statutory rule to emphasise that the proposition it contains appears to be plain enough in its general terms. That proposition may be stated as, in the result, assuming this effect:–
"declare that on and from 13 March 1986 the area of State forest in the vicinity of and generally known as Farmhouse Creek, and more particularly described in the Schedule to this notice, is an area into which persons may not enter or remain without the authorisation in writing of the Forestry Commission."
The only uncertainty can be in relation to the more particular description in the schedule, or in other words, the boundaries of the area. The general location of the area of State forest in the vicinity of and generally known as Farmhouse Creek was a fact known to members of the public interested in such areas. And, at the relevant time, it was certainly known to the respondent because he had journeyed there and remained there.
On the face of it, it would appear that, on the admitted facts, s46A of the Act and the declaration combined to render the respondent guilty of the offence charged. Before his arrest he was told he was in the declared area. In the circumstances, there is no adequate reason for thinking that he doubted the accuracy of that advice. His presence in the area was not authorised in writing by the Forestry Commission and, before his arrest, he admitted the truth of that fact and the fact that he did not have any such authority to remain. A police officer required him to leave the area and he refused to comply with that requirement.
This analysis of the matter brings one to the position that the essential allegations which ground the alleged invalidity of the statutory rule appear to be:–
(1)the plan referred to in the schedule did not appear in the statutory rule – although a general description of the relevant area did – and, hence, the statutory rule is void for uncertainty; and
(2)because of that "uncertainty" the statutory rule was "unreasonable".
The learned magistrate, when explaining these allegations, made the following essential assertions:–
(a)the statutory rule declared the relevant area by reference to an area "bounded by a heavy black line on Plan 840 filed and registered in the office of the Forestry Commission in Hobart";
(b)there was no statutory scheme for the filing and registration of plans in that office nor was there any requirement that any plan which may be prepared by or in the possession of officers of the Commission be available for inspection by members of the public;
(c)as the respondent and others were in the area of Farmhouse Creek protesting against logging operations which were going on or about to commence in the area at the time of commencement of the statutory rule, "it was imperative that those persons affected by the notice and whose freedom of movement it was intended to curtail should be able to ascertain with certainty what their obligations were pursuant to it. The notice became effective on 13 March, being the day it was notified in the Gazette (see s38A(2)(d)(ii) of the Acts Interpretation Act 1931) and assuming that the defendant and the other protestors were able to obtain a copy of it on that day it would not assist them in determining the extent of the declared area. In order to ascertain that area they would need to travel to Hobart and rely upon the officers of the Forestry Commission allowing inspection of the plan referred to in the schedule to the notice, that plan itself only being registered on 13 March. If the plan was reproduced as part of the notice no objection could be taken. However, in the form in which the notice appears it does not with sufficient certainty give to those affected or who may be affected sufficient information from which they could readily ascertain their obligations and nor was the document from which that information could be ascertained readily and legally accessible and available. It is for these reasons that the statutory rule containing the notice is invalid as being uncertain and in the circumstances unreasonable."
The learned magistrate accepted that a procedure had developed in the office of the Forestry Commission for the filing and indexing of maps and plans. The procedure consisted of the map or plan being signed by a senior officer, usually the Chief Commissioner, being dated and filed in a drawer in a filing cabinet and an entry being made in an index. He appears to have accepted the evidence of the Chairman of the Forestry Commission that the Commission allowed access to members of the public who wished to inspect "the register of plans". There was evidence that a member of the public who desired to obtain a photocopy of any plan registered at the Forestry Commission pursuant to s20B of the Forestry Act was provided with one free of charge. The relevant Plan 840 was available for inspection on and from 13 March 1986.
The relevant statutory rule contains a declaration the intention of which is quite certain. That intention is that "the area bounded by a heavy black line on Plan 840 filed and registered in the office of the Forestry Commission in Hobart" is to be a declared area with all the consequences which that entails. Plan 840 referred to in the statutory rule is an identifiable plan. There is no uncertainty as to which plan is referred to. There is a draft plan which was referred to in argument but that circumstance creates no uncertainty.
There is no uncertainty concerning what the Minister sought to achieve by the declaration. The statutory rule is not invalidated by the mere circumstance that the Plan 840 is merely referred to in the rule and is not copied into it. Access to the plan was available pursuant to the established practice of the Forestry Commission.
It is not correct to say that, in order to ascertain the relevant boundaries, the protesters would need to travel to Hobart. They would need to travel to Hobart to personally view the document containing the specified boundaries. But by far the greater part of the business of the world is conducted on hearsay.
The power to make this statutory rule was granted in the plainest terms. The intention to exercise that power appears in the plainest terms. The purpose sought to be achieved is stated in terms which are unambiguous. The relevant s of the Act and the statutory rule combined to state, with the aid of this accessible incorporated plan, what was the conduct which was prohibited. There is no valid basis for holding that the rule is uncertain consistently with the law stated in King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 194–196. See also Cann's Pty Ltd v The Commonwealth (1946) 71 CLR 210 at 227. When the rule and the plan are considered together certainty is achieved.
The general proposition that in no circumstances can a regulation incorporate by reference something not set forth in it is unsound (Wright v TIL Services Pty Ltd (1956) 56 SR(NSW) 413). That assertion is also applicable to a statutory rule. That being so, the question of uncertainty is to be determined simply by an examination of the content of the provision itself and of the incorporated material (Wright's case (supra)). I have indicated above the result of such an examination in this case. (See also Holland v Halpin [1939] VLR 253; Sobania v Nitsche & Anor (1969) 16 FLR 329; Medcraft v City of Box Hall [1959] VR 768).
McDevitt v McArthur (1919)15 Tas LR 6 is distinguishable as the ground of the decision is non–publication and not uncertainty (cf Pape J in Medcraft's case (supra) at p782). O'Keefe v City of Caufield [1945] VLR 227 is also a case of non–publication and is distinguishable on that basis.
Arnold v Hunt (1943) 67 CLR 429 turned on the construction of the provisions there under consideration as did McIver v Allan (1943) 43 SR(NSW) 266.
The evidence established that Plan 840 was available to persons interested in it. It is true that the statutory rule had to be obtained at one place and Plan 840 at another. But there is no basis for holding that the need to resort to two sources of supply is a ground of "uncertainty" and, hence, invalidity. It is inconvenient to have to resort to two sources of supply but, surely, that cannot be regarded as decisive of validity.
The point just mentioned might be entitled to some further consideration if "unreasonableness" was a ground of invalidity of this instrument additional to, and independent of, the question whether Parliament authorised the Minister to produce it. But that is not the case (Widgee Shire Council v Bonney (1907) 4 CLR 977 at 982–3, 989; King Gee Clothing Co Pty Ltd v The Commonwealth (supra) at 195–6; Williams v Melbourne Corporation (1933) 49 CLR 142 at pp 149–50, 155; Brunswick Corporation v Stewart (1941) 65 CLR 88 at 99; Minister of Education v Heuzenroeder [1967] SASR 357 at 364). See also Jones v Metropolitan Meat Industry (1925) 37 CLR 252; Victorian Chamber of Manufacturers v The Commonwealth (1941) 67 CLR 413 at 418. If the proposition just stated is slightly too wide (as to which see Pearce Delegated Legislation, p199) the excess is not material here. (See also Hotop "Principles of Australian Administrative Law", 6th edn, at p158).
For these reasons the appeal is allowed. I shall hear counsel as to what further orders, if any, should be made.
ANNEXURE
In the Court of Petty Sessions
held at Hobart.Magistrate M.A. Hannon
21st October 1986WILLIAMS v Geoffrey Michael LAW
The defendant is charged–
"that on the 13 March 1986, you did, without the authorization in writing of the Forestry Commission, remain in an area of State forest, namely the land district of Arthur in the vicinity of Picton River in Tasmania, in respect of which a declaration under section 20B of the Forestry Act 1920 is and was then in force."
The parties tendered a statement of agreed facts and that statement constituted an admission by the defendant of the facts stated therein pursuant to S 109 of the Evidence Act 1910. The agreed facts or admissions are as follows:–
"1That the Commission made a recommendation to the Minister within the meaning of Section 20B of the Forestry Act.
2That the Minister acted upon that recommendation.
3In consequence the Minister, by Notice No 18848 published in the Tasmanian Government Gazette on the 13th March 1986 declared an area specified in the Schedule to the Notice to be one into which persons could not enter or remain without the authorisation in writing of the Commission.
4That at all relevant times Andris Guntars Skuja of 503 Huon Road, South Hobart was Assistant Commissioner for Forests.
5That Law was in the area of land bounded by black lines on the map in the Schedule to the Notice made under Section 20B of the Forestry Act 1920 and numbered No 18848.
6That Law's presence in that area was not authorised in writing by the Forestry Commission.
7That Law was advised that he was in an area the subject of a Notice under Section 20B of the Forestry Act.
8That Law admitted to a police officer that he did not have the written authority of the Forestry Commission to remain in such area.
9That the police officer required Law to leave the area.
10That Law refused to comply with the requirement.
11That Law was then arrested.
The prosecution and the defence are agreed that for the purposes of this prosecution the point at which the defendant was arrested was not a roadway."
There was also before me by consent a transcript of the evidence of Henry William Michael Brookman and Andris Guntars Skuja, the Chairman of the Forestry Commission, given before Underwood J in the action Law v H M Attorney–General for the State of Tasmania (Unreported Judgment No 43/1986), the affidavits of Mr Brookman and Mr Skuja used in that action, together with annexures of all the documents that are relevant to this hearing. In addition oral evidence was given by Raymond Howard Thompson of the Department of Lands who gave evidence that the status of the land in the plan tendered as p2 and referred to as registered plan number 840 was that of State forest.
Section 20B of the Forestry Act provides:–
"The Minister may, on the recommendation of the Commission, by notice in the Gazette, declare an area of State forest to be an area into which persons may not enter and in which persons may not remain without the authorisation in writing of the Commission."
The relevant notice pursuant to Section 20B is contained in Statutory Rule No 21 of 1986, which provides:–
"Pursuant to section 20B of the Forestry Act 1920, I, Raymond John Groom, being and as the Minister for the time being administering the Forest Act 1920, on the recommendation of the Forestry Commission, do, by this notice–
(a)rescind the notice published in the Gazette on 9th March 1986:
(b)rescind the notice notified in the Gazette on 10th March 1986 as Statutory Rules 1986, No 14; and
(c)declare that, on and from the day on which the making of this notice is notified in the Gazette, all that area of State forest situated in the Land District of Arthur in the vicinity of, and generally known as, Farmhouse Creek and more particularly described in the Schedule to this notice, to be an area into which persons may not enter and in which persons may not remain without the authorization in writing of the Forestry Commission.
Dated this 13th day of March 1986.
R J Groom, Minister for Forests.
_________________________
SCHEDULE 1
LAND DISTRICT OF ARTHUR
VICINITY OF PICTON RIVER
All that area of State forest shown bounded by a heavy black line on Plan 840 filed and registered in the office of the Forestry Commission in Hobart.
_________________________
I certify that the foregoing notice is in accordance with the law.
J M Bennett, Attorney–General
_________________________
Printed and numbered in accordance with the Rules Publication Act 1953.
This notice is administered by the Forestry Commission.
Notified in the Gazette on 13th March 1986."
The full text of the notice was published in the Gazette on the 13th March 1986, No 18848, and on the same day in the Gazette notice was given of the making of the statutory rule. That notice, No 18849, was in the following form:–
"Rules Publication Act 1953
NOTICE OF THE MAKING OF STATUTORY RULESIn accordance with the provisions of the Rules Publication Act 1953, notice is given of the making of the following Statutory Rules:–
New Title of Act (if any) under Number allotted to Title or subject matter
which statutory rules made statutory rules of statutory rulesForestry Act 1920 SR 1986, No 21 Notice under section 20B
of the Forestry Act 1920GENERAL PURPORT OR EFFECT OF THE ABOVEMENTIONED STATUTORY RULES
Notice under section 20B of the Forestry Act 1920
This notice–
(a)rescinds he notice published in the Gazette on 9 March 1986;
(b)rescinds the notice notified in the Gazette on 10 March 1986 as Statutory Rules 1986, No 14; and
(c)declares an area of State forest situated in the Land District of Arthur in the vicinity of, and generally known as, Farmhouse Creek to be an area into which persons may not enter and in which persons may not remain without the authorization in writing of the Forestry Commission.
Copies of the abovementioned statutory rules may be purchased at the Government Printing Office, 2 Salamanca Place, Hobart and the State Government Publications Centre, Henty House, 1 Civic Square, Launceston and Osborne House, 41 Wilmot Street, Burnie.
J M BENNETT, Attorney–General."
________________________________________________________________
By Proclamation dated the 12th March 1986 and notified in the Gazette on that day the Governor purported to dedicate as State forest pursuant to section 14 of the Forestry Act certain portions of Crown land described in the proclamation which were not already so dedicated. The proclamation provides:–
"THE FORESTRY ACT 1920
A ProclamationIN pursuance of section 14 of the Forestry Act 1920, I the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia acting with the advice of the Executive Council do by this my Proclamation dedicate as State forest on and from the day of publication hereof in the Gazette such portions of Crown land situate in the Land Districts of Buckingham Kent and Arthur and more particularly described in the Schedule hereto as are not already dedicated as State forest.
Given under my band this twelfth day of March 1986.
J PLIMSOLL Governor.
By His Excellency's Command,
R J GROOM, Minister for Forests.
_________________________
Schedule
LAND DISTRICTS OF BUCKINGHAM, KENT
AND ARTHUR
All those areas of land shown hatched and surrounded by a heavy black line on Plans 850, 851, 852, 853 and 854 filed and registered in the office of the Forestry Commission at Hobart."
Counsel for the defendant challenges the validity of statutory rule No 21 of 1986 primarily on the ground that it does not contain a specific description which enables the prohibited area to be ascertained from the instrument itself but purports to define that area by incorporating by reference the "Plan 840 filed and registered in the office of the Forestry Commission in Hobart" and is therefore rendered invalid because of uncertainty, non–publication or unreasonableness.
The requirement of section 20B that the declaration be by notice in the Gazette does not mean that the declaration itself be published but only that it be notified in the Gazette (see Evans v Donaldson Unreported Decision No 54 of 1977) and section 5(2) of the Rules Publication Act provides the manner in which such notification may be given, namely by a notice in the Gazette of the statutory rule having been made and the place where copies can be obtained and containing a statement indicating the general purport or effect of the statutory rule. The notice in the Gazette, No 18849, is a purported compliance with this requirement but in addition to being notified the statutory rule containing the notice was published in full. The purpose of requiring that a statutory rule be notified in the Gazette is to provide to a person affected or who may be affected by it the means of knowing the terms of the law by which he is to be bound. Therefore in order to satisfy the statutory requirement that notice be given or the making of the statutory rule be notified in the Gazette what is published must be in terms that make clear the obligations that are created by that instrument and this is not done by merely publishing the instrument in full if the instrument itself does not provide sufficient information to enable its affect to be ascertained. However this does not mean that as a principle of law subordinate legislation cannot contain a reference to another law or document.
In McDevitt v McArthur [1919] Tas SR 6 the Full Court considered the validity of a by–law made under the Marine Boards Act 1889 which related to the rights and obligations of shipmasters but did not specify any directions to be followed except insofar as it incorporated by reference regulations made by the Sovereign in Council on 13 October 1910 pursuant to the Merchant Shipping Act 1894. The Marine Boards Act provided that the by–laws shall be of no effect until a copy thereof has been published in the Gazette The by–law was held to be void.
Nichols CJ, after stating that he was in some doubt as to whether the question was one of non–publication or uncertainty, said at p7:–
"The statute provides that before by–laws shall bind the people, they shall be published. I believe this to mean that they shall be published to all the people of the State, in such a manner that the average intelligent citizen can, by reading them, learn what duties and restrictions they impose upon him. In this case the by–law published says, in effect, that all persons navigating vessels in certain places shall refer to certain British regulations and shall conform to the provisions of those regulations. If a man, who was about to take a vessel up the Derwent, bought a copy of the by–laws and proceeded on his voyage, looking them up as he went, he would find it necessary to return to Hobart and get the British regulations (if he was able to get them) before he could ascertain to what the Hobart by–laws really bound him. The effect of the by–law really is 'we refer you to the British regulations'. No–one by looking at the by–law, as the Board published it in the Gazette, can get from it a statement of his duty in steering a boat upon the Upper Derwent. So far, therefore, as the by–law has been published in the Gazette it is uncertain.
It seems to me, after making sure that one's facts up to this point are correct, only necessary to say further that the by–laws, to be valid, must be published in the Gazette and must not be uncertain.
There seems to me to be no doubt that we must look at The Tasmanian Gazette to find out what it is that the Marine Board has published If we do so we find a most palpable uncertainty, for none of the details of this by–law are there.
I am prepared to lay down that, when by–laws are to be published in the Gazette, then what is there published must be sufficiently complete to leave a reader, who can and will understand ordinary English, free from uncertainty as to any enacting part of the by–law.
If the publication in the Gazette does not go this far then the by–law is either uncertain or has not been published. This is equivalent to saying that this by–law is void, either for uncertainty or for non–publication. I do not think that there is any object in working out which it is."
Ewing J was of the same opinion. He said at p9:–
"In this case the publication in the Gazette of the legislation of the subordinate body is one of the most important conditions as to the legality of such legislation, I am of opinion that publication there means publication in the Gazette of the actual legislation, such that all persons in the community may see the matters which they are called upon to obey. I do not think that there is any publication in this case of the regulation in question and that reference to certain rules or regulations under the English Act of Parliament did not comply with the provisions of the Act (ie, Marine Board Act)."
Mr Slicer submits that McDevitt v McArthur is binding upon me and decisive of the present matter. However I do not regard that case as being authority for the proposition that under no circumstances can subordinate legislation be valid which seeks to create obligations by the incorporation by reference to other regulations, Acts or documents. In my opinion, it is a decision on the validity of the particular by–law then under discussion but is authority for the general principle developed in more recent decisions that for subordinate legislation to be valid it must be published in such form and in such terms that persons who may be affected by it can clearly identify their obligations pursuant to it. Whether a particular regulation, by–law or notice conforms with that principle can only be determined by an examination of the particular piece of subordinate legislation and of the document it incorporates.
In O'Keefe v City of Caulfield (1945) VLR Gavan Duffy J followed McDevitt v McArthur (supra) and held that a by–law made by the council which incorporated by reference a regulation of the council was void for non–publication on the ground that the requirement of the Local Government Act that a by–law must be published in full was not satisfied unless everything required was in the by–law itself or in a schedule to it.
Mr Slicer also relied upon Arnold v Hunt (1943) 67 CLR 429 where the High Court considered the validity of an order under the National Security (Prices) Regulations fixing the price of liquor by reference to a price list issued by the Victorian Associated Brewers. The relevant regulation empowered the Commissioner by order published in the Gazette to fix and declare the maximum price at which any such goods may be sold. Rich J, with whom the other members of the court agreed held that the order was invalid.
Rich J said at p432:–
"The regulation requires that the price shall be fixed and declared by an order which is published in the Gazette. The order published in the Gazette in the present case does not fix or declare any price. The price is fixed and declared by the list issued by the Victorian Associated Brewers. I consider that the price must be fixed and declared in the body of the order itself or in a schedule to the order and cannot be fixed by some extraneous document which is not part and parcel of the order."
The order there being considered is distinguishable from the statutory rule 21 of 1986 on the basis that the regulation contained in the National Security (Prices) Regulations required that the price not only be declared but that it also be fixed by the order.
In Wright v TIL Services Pty Ltd (1956) SR(NSW) 413, at pp421 and 422, Walsh J said:–
"The general proposition that in no circumstances can a regulation incorporate by reference something not set forth in it is, in my opinion, unsound. It is true that a regulation should indicate with sufficient certainty, to those upon whom it imposes a penalty for a breach of it, what is the extent of the obligation. Where a regulation contains a reference to some other document the question whether or not the requirement just stated is fulfilled must depend upon a consideration of the particular regulation and of the nature and contents of the incorporated document. If there is uncertainty as to what is the document to which reference is made, no doubt the regulation would be held invalid. Again, if such document is not readily accessible it may be, in some cases, that the regulation would be held to be bad, the true ground for doing so being that it is unreasonable rather than that it is uncertain.
. . . . . . . . . . . . . .
Subject to the considerations mentioned, I can see no reason for holding that any uncertainty is created by the mere fact that the incorporated document is not set out in terms in the regulation itself. Whether the instrument with which a court is concerned is a statutory regulation, or is an instrument of a different kind, such as a written contract or a will, in my opinion no uncertainty arises from the circumstance that it has incorporated in it, by reference, some other document, if that which is incorporated is clearly identified, and contains no ambiguity in its own terms In so far as the reasons given for the decision in McDevitt v McArthur [(1919) 15 Tas LR. 6] are not in accordance with what has been stated above I do not agree with them.
Once it is accepted – as, in my opinion, it should be – that there is no general rule invalidating what may be called "regulation by reference", the question of uncertainty must be determined simply by an examination of the content of the regulation itself and of the material therein incorporated. This was the approach to the matter adopted in Holland v Halpin [(1939) VLR 253] and, in my opinion, is the correct one."
The dicta of Walsh J was approved in Medcraft v City of Box Hill [1959] VR 768 and in Sobania v Nitsche (1969) 16 FLR 329 where Gibbs J, after referring to the passage from Wright v TIL Services Pty Ltd, which I have quoted, said at p342:–
"In my opinion, the reasoning of Walsh J in Wright v T I L Services Pty Ltd is applicable to the present case and is to be preferred to that in McDevitt v McArthur [(1919) 15 Tas LR 6] and O'Keefe v City of Caulfield [(1945) VLR 227] There is no general principle that a power to make regulations, rules or by–laws may not be exercised by referring to some other document and incorporating or applying it, provided that what is referred to is sufficiently certain In the present case the rules which were applied by reference, although no longer in force, were readily identifiable, since they had been published in the Commonwealth Gazette."
The authorities to which I have referred establish that there is no general principle of law that subordinate legislation which incorporates by reference other documents is invalid for uncertainty or for non–publication but the contents of each instrument must be examined together with the document it purports to incorporate to determine whether persons affected by the legislation can readily ascertain their duties and obligations Considerations are whether the document so incorporated is clearly identifiable and readily accessible to those to whom it applies Statutory rule No 21 of 1986 declares the area of land for the purpose of section 20B of the Forestry Act by reference to an area "bounded by a heavy black line on Plan 840 filed and registered in the office of the Forestry Commission in Hobart". There is no statutory scheme for the filing and registration of plans in that office nor is there any requirement that any plans which may be prepared by or in the possession of officers of the Commission are to be available for inspection by members of the public The only statutory obligation on the Commission in relation to the depositing and keeping of maps is that contained in section 20A of the Forestry Act, which provides:–
"20A(1) The Commission shall cause a map of every State forest and every timber reserve to be deposited in the office of the Surveyor–General.
(2) A map referred to in subsection (1) shall be open to public inspection at any reasonable time without payment of a fee."
The plan referred to in the statutory rule was not deposited pursuant to that section but even if it was the attention of the public was not directed by the rule to the office of the Surveyor–General but to the office of the Forestry Commission. In his affidavit sworn on the 24th June 1986 Mr Skuja deposed to the procedure for the keeping of plans in the office of the Commission. The relevant paragraphs of the affidavit are
"5The Forestry Commission maintains a register of plans relating to State Forests.
6The register of plans is a repository of information referred to in notices made pursuant to the Forestry Act 1920 and includes plans, maps and diagrams.
7Annexed hereto and marked "C" is a certified true copy of registered Plan number 840.
8The Forestry Commission allows access to all members of the public who wish to inspect the register of plans at its office at 199 Macquarie Street, Hobart.
9Any member of the public who desires to obtain a photocopy of any plan registered at the Forestry Commission pursuant to Section 20B of the Forestry Act 1920 is provided with a photocopy of the plan free of charge.
10Registered Plan number 840 was available for inspection by members of the public on and from the 13th March, 1986 at the office of the Forestry Commission, Hobart."
Mr Skuja elaborated on the contents of the affidavit in his oral evidence and it appears that there has been developed in the office of the Commission a procedure for the filing and indexing of maps and plans. This procedure consists of the map or plan being signed by a senior officer, usually the Chief Commissioner, being dated and filed in a drawer in a filing cabinet and an entry being made in an index. This is an internal office procedure which has no legal basis and there does not appear to be any entitlement for a member of the public to have access to the plans as there would be if the procedure under s20A was followed. Mr Skuja said in his affidavit that the Commission allows access to members of the public who wish to inspect the register of plans, but there is no legal right of inspection and if the Commission or one of its officers denied access to a person wishing to inspect the plan referred to in the notice that person would not have any redress available. In this way the plan referred to differs from a document, regulation or by–law which although incorporated by reference is itself published or notified in the Gazette or is available in a place to which the members of the public who may be affected by it have a right of access.
It is appropriate in determining the validity of the notice to have regard to the circumstances which led to its being made The recommendation made by the Forestry Commission to the Minister on 16 March sets out what the Commission perceived as being the need for the declaration of a prohibited area At that time a large number of persons were in the area of Farmhouse Creek in the south–west of Tasmania protesting against logging operations which were going on or about to commence in the area. The defendant was one of those persons and the very nature of the charge is that he was in that area in which the presence of unauthorised persons was prohibited on and from 13 March, being the day the Minister gave the notice and on which it became effective. Therefore it was imperative that those persons affected by the notice and whose freedom of movement it was intended to curtail should be able to ascertain with certainty what their obligations were pursuant to it. The notice became effective on 13 March, being the day it was notified in the Gazette (see s38A(2)(d)(ii) of the Acts Interpretation Act 1931) and assuming that the defendant and the other protestors were able to obtain a copy of it on that day it would not assist them in determining the extent of the declared area. In order to ascertain that area they would need to travel to Hobart and rely upon the officers of the Forestry Commission allowing inspection of the plan referred to in the schedule to the notice, that plan itself only being registered on 13 March. If the plan was reproduced as part of the notice no objection could be taken. However, in the form in which the notice appears it does not with sufficient certainty give to those affected or who may be affected sufficient information from which they could readily ascertain their obligations and nor was the document from which that information could be ascertained readily and legally accessible and available. It is for these reasons that the statutory rule containing the notice is invalid as being uncertain and in the circumstances unreasonable.
It was also submitted that the proclamation of 12 March 1986 pursuant to s14 of the Forestry Act dedicating as State forest certain areas not already dedicated was invalid for similar reasons advanced against the notice. However, I do not have to determine that question as the evidence of Mr Thompson satisfies me that the area contained in Plan 840 is part of the area dedicated as State forest by virtue of s5 of the Kermandie Wood–pulp and Paper Industry Act 1933.
The complaint is dismissed.
6
0