Aidon v Minister for Aboriginal Affairs of New South Wales & Anor

5 The applicant, Mr Damein Aidon, is a member of the Darkinjung Local Aboriginal Council, and is thus entitled to vote at an election for a councillor on the NSWALC. Mr Aidon seeks: (1) a declaration that the Minister's determination of 19 May 2007 as the date for fresh elections of councillors is invalid; (2) an order quashing or setting aside the determination; and (3) an order requiring a fresh date for elections as soon as possible but no more than three months from the date of the order. 6 The issues for determination are:

(a) Whether the disallowance of the Amendment Regulation 2005 also invalidates the Minister's determination of an election date of 19 May 2007; and

(b) If so, whether the Court should exercise its discretion by granting the relief sought.

The effect of the disallowance 7 Mr A Robertson SC, appearing with Mr A Izzo for the applicant, submits that on the passing of the resolution for its disallowance in the Legislative Council, the Amendment Regulation 2005 ceased to have effect. The effect of the disallowance was to restore or revive cl 99 of the ALR Regulation 2002 to the form it took immediately before the Amendment Regulation 2005 had taken effect, and the restoration or revival took effect on the day on which the Amendment Regulation 2005 ceased to have effect - that is, on 12 October 2005. 8 Mr Robertson relies upon the maxim that the law takes no notice of fractions of a day. It is well established that an Act or statutory instrument which comes into operation on a given day becomes law as soon as the day commences. Mr Robertson relies upon a number of authorities in support of the submission, including In re Flavel [1916] SALR 47, Ex parte Tooheys Ltd; Re Butler (1934) 34 SR (NSW) 277, Dean v Attorney-General of Queensland [1971] Qd R 391; and Cram v Bellambi Coal Co Ltd [1964-5] NSWR 897. The principle is given statutory force by the Interpretation Act 1987: ss 24 and 41(4) and (5). It thus follows, it is submitted, that the Minister's determination of 19 May 2007 as the date for fresh elections is invalid. 9 For reasons which I will now explain, however, I do not accept the submission. 10 The authorities on which Mr Robertson relies are all cases about the commencement of an act or statutory instrument. In Re Flavel, the Commonwealth Estate Duty Act 1914 provided that estate duty shall be levied and paid upon the value of the estates of persons dying after the commencement of the Act. A testator died at about 8:00 am on the day on which the Act received the assent of the Governor-General. That assent was given at 10:00 am. It was held that the Act took effect from the first moment of the day. 11 In Ex parte Tooheys Ltd; Re Butler, the Landlord and Tenant (Amendment) Act 1932, Pt III, had come into operation on 31 December 1932. It provided that an application for determination of the annual rent of a lease shall be made within three months of its commencement. On 31 March 1933 an application was made for the determination of rent. Jordan CJ referred to the maxim that the law takes no notice of fractions of a day, except inter alia where there are conflicting rights between subjects. Jordan CJ held (at 285) that the Act became operative from the first moment of the 31st December 1932 by virtue of the fact that it commenced on that day. Accordingly, the application was out of time. 12 In Dean v Attorney General of Queensland, the Governor in Council declared that a state of emergency existed in the State, by Proclamation dated 14 July 1971. I do not find that this case particularly helpful because it was held, in that case, that the situation was governed by s 15(2) of the Acts Interpretation Act 1954 (Qld), a deeming provision by virtue of which the Proclamation took effect from midnight of the preceding day. 13 In Cram v Bellambi Coal Co Ltd, certain land was proclaimed "private lands" for the purposes of Pt IV of the Mining Act 1906. On the same day an application was made for a lease of a portion of the land. Walsh J applied Ex parte Tooheys Ltd; Re Butler in holding that the proclamation was operative from the commencement of the day on which the proclamation was made, so that the making of the application on the same day was warranted. 14 The principle for which these authorities are cited is now embodied in s 24 of the Interpretation Act: If an Act or statutory rule provides that it shall commence, or be deemed to have commenced, on a particular day, it shall commence, or be deemed to have commenced, at the beginning of that day. 15 Neither s 24 of the Interpretation Act, nor any of the authorities upon which Mr Robertson relies, deal with a situation where a statutory rule is disallowed by either House of Parliament. There is some force in the submission of Dr M J Leeming, appearing for the Minister, that a disallowed regulation is not disallowed ab initio, but only from the passing of the resolution by the chamber. This appears to be true of Commonwealth regulations: Trimbole v The Commonwealth (1984) 155 CLR 186 at 191, and Meakes v Dignan (1931) 46 CLR 73 at 104 -106. Meakes v Dignan shows that a disallowance has the same effect as a repeal. In that case the Court upheld, on appeal, convictions under a regulation entered before the disallowance of the regulation, on the ground that the convictions were in accordance with the law then existing. 16 In my opinion, however, the position is governed by the express language of the relevant legislation. Section 223(1) of the ALR Act states that the Minister may appoint an administrator of the New South Wales Aboriginal Land Council. Section 226(2) provides that on the appointment of an administrator, the councillors are removed from office and fresh elections to fill the vacancies are to be held at the time and in the manner specified in the regulations. Clause 99 of the Regulation 2002 specifies the period within which fresh elections for councillors must take place. 17 Section 41 of the Interpretation Act relates to the disallowance of statutory rules. Sub-section (1) states that either House of Parliament may pass a resolution disallowing a statutory rule. Sub-sections (2) and (3) state: (2) On the passing of a resolution disallowing a statutory rule, the rule shall cease to have effect.

(3) The disallowance of a statutory rule has the same effect as a repeal of the rule. 18 Sub-section (4) states that a disallowance has the effect of restoring or reviving the Act or statutory rule that was in force immediately before the disallowed rule was made as if the disallowed rule had not been made.

Sub-section (5) states: (5) The restoration or revival of an Act or statutory rule pursuant to subsection (4) takes effect on the day on which the statutory rule by which it was amened or repealed ceases to have effect.

Section 41(5) is consistent with s 30(1) of the Interpretation Act , which states: (1) The amendment or repeal of an Act or statutory rule does not… (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule… 19 The ordinary and grammatical meaning of section 41(2) is unambiguous - the disallowed regulation ceases to have effect "on the passing of a resolution" to that effect; that is, when the resolution is carried. At that time, which is "on the day" within the meaning of sub-s (5), the former regulation is restored or revived. To construe the section otherwise would deprive s 41(3) and s 30(1)(b) of their intended effect; that is, to preserve the validity of acts done pursuant to a regulation which is later disallowed. 20 That is, whilst sub-s 41(2) and (3) are consistent with s 30(1)(b), they are not consistent with s 24. I conclude, therefore, that s 24 is limited in its application to commencement of an Act or statutory rule and has no application to the disallowance of a statutory rule. The specific provisions of s 41 relate to the time at which the disallowed rule ceases to have effect and the restoration or revival of the former rule occurs, and preserve the validity of acts done under the statutory rule before its disallowance. 21 I observe that if the legislature had intended that a disallowed statutory rule should cease to have effect at the beginning of the day, then it could have easily said so, as it has done in s 24 for the commencement of an Act or statutory rule. The language of s 41(2), however, is contrary to the maxim that the law takes no notice of fractions of a day; and that statutory language must be given effect according to its tenor. 22 I conclude, therefore, that the Minister's determination of 19 May 2007 as the date for the next elections of councillors is valid, such determination having been made before the passing of the resolution of the Upper House disallowing the Amendment Regulation 2005. The fact that a regulation is subsequently disallowed does not affect acts done in accordance with the law existing prior to such disallowance: Meakes v Dignan.

Discretionary considerations 23 The above conclusion means that Mr Aidon's claims for relief must fail. It is thus not strictly necessary to resolve the question of the exercise of the Court's discretion, particularly since the question is of no consequence: Wade v Burns (1966) 115 CLR 537 at 555, 562-563 and 568. In deference to the argument put by counsel on the question, however, it is appropriate that I state my views. 24 By his originating process, Mr Aidon sought an order requiring the Minister to determine a fresh date for the election of councillors to the New South Wales Aboriginal Land Council as soon as possible and in any event being no more than three months from the date of the order. 25 The revival of the Amendment Regulation 2004 would mean that the election ought to have taken place by 20 November 2005. The question is whether, that date having passed, it is now open to the Minister to set a fresh date for the election beyond the time allowed by that regulation. That is, the question is whether the time prescribed by the regulation is mandatory or declaratory. 26 Mr Robertson SC referred to a number of cases in support of his submission that cl 99(2) of the Regulation should be interpreted as declaratory: Woods v Bate (1986) 7 NSWLR 560, R v Ingall (1876) 2 QBD 199, Caldow v Pixell (1877) 2 CPD 562 and Clayton v Heffron (1960) 105 CLR 214. 27 In Clayton v Heffron in particular, the High Court (Dixon CJ, McTiernan, Taylor and Windeyer JJ) drew a distinction between statutory provisions which confer public duties and those which create private rights (at 247). The Court went on to hold that: …the fact that to treat a deviation in the former case from the conditions or directions laid down as meaning complete invalidity would work inconvenience or worse on a section of the public is treated as a powerful consideration against doing so.

28 In the present case, cl 99(2) of the Amendment Regulation 2004 belongs to the former category of statutory instruments. Substantial, but not strict, compliance with the clause would be valid: Scurr v Brisbane City Council (1973) 133 CLR 242 at 256. It would thus be open to the Court to make an order requiring the Minister to determine forthwith a fresh date for elections pursuant to cl 99(2) of the Amendment Regulation 2004. 29 Dr Leeming nevertheless made the following submissions.

(a) Mr Aidon is the only person to have come forward to challenge the Minister's determination.

(b) The setting of a date for an election within three months is impractical for a number of reasons: (i) there are about 10,000 persons whose status on the roll is questionable - a review of the roll is currently under way and is expected to take about three months to complete; (ii) thereafter, as I understand it, a series of minimum periods prescribed by the ALR Regulation 2002 for the taking of steps is called for in the election process and would involve a further eight or nine weeks; and (iii) according to the evidence of Mr R E Pearson, an officer of the Department of Aboriginal Affairs, an election could thus not be held before September 2006.

(c) An election would be costly - about $300,000 - and may be superseded by a prospective legislative change to the constitution of the NSWALC.

(d) The New South Wales Government has been conducting a major review of the Act and the proposed changes include a reduction in the number of councillors from 13 to 6, and a reduction in the number of Local Aboriginal Land Councils resulting in a change in constituencies electing councillors to the NSWALC. 30 I am not persuaded by Dr Leeming's submissions. Firstly, Mr Aidon has standing to bring these proceedings and that, in my opinion is enough reason for him to assert his rights. Secondly, even if the practical difficulties mean that an election could not be held until September 2006, that would nevertheless be substantial compliance with the Amendment Regulation 2004. Thirdly, the evidence shows that the budget of the NSWALC for the year 2004-2005 included an allowance of $300,000 for holding the anticipated elections. Although this was removed in the 2005-2006 budget, the money remains unspent and, according to Mr Pearson, could be easily reinstated. Fourthly, the authorities support the principle that the court must act in accordance with the law as it is now, and not what it might be in the future. 31 The principle stated in the fourth point above was reviewed and explained by the Court of Appeal in Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527, in which the court held that in the exercise of a discretion to grant a contested application for an adjournment, it is not proper for the court to take account as a controlling factor the prospect of a substantive amendment which would accrue to the benefit of one party. Mason P referred, inter alia, to Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230 at 253, quoting Starke J at 253:

Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future. 32 In Warranunda Village Inc v Pryde (2002) 116 FCR 58 Finkelstein J followed Meggitt Overseas Ltd v Grdovic (at [59]) and held that it would work an injustice to deny a party the right to have her or his case determined in accordance with the current state of the law. 33 In the present case, the evidence of Mr Pearson shows that the Government is yet to determine its response to the review of the ALR Act. There is no draft amending Act in preparation. It cannot be said with any certainty whether and, if so, when any legislative change is likely to occur. In National Trust of Australia (NSW) v Heritage Council of New South Wales [1999] NSWLR 104, Bignold J accepted the general principle but noted a discretionary element to the application of the principle where the passage of legislation is actually occurring. That is not the case here. The Court will not wait around for Parliament to act. The Court's discretion should be exercised in a way that requires the election to proceed under the law as it presently stands. 34 In the present case, however, for the reasons given in pars [7] to [22] above, Mr Aidon does not have a cause of action. It follows that his application for relief must necessarily fail.

(1) The application is dismissed. (2) The question of costs is reserved. (3) The exhibits may be returned.

I hereby certify that the preceding 35 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.