APPLICANT'S CASE
83Mr Larkin's basic submission is that the statutory scheme provides a " specific, detailed, particular mechanism for reservations of land for use as a public place " (ie identification of lands in the LEP, and/or authorisation for the dedication in a contributions plan). Such provisions must be construed having regard to the " entire scope, subject matter and objectives of the Act ", in accordance with the currently accepted principles of statutory construction - Project Blue Sky Inc v Australian Broadcasting Authority ('Blue Sky' ) [1998] HCA 28; 194 CLR 355. In that case the Full Federal Court had found an " irreconcilable conflict " between a special and a general provision of an Act and held that the special provision " must prevail " ([68]). The High Court (per McHugh, Gummow, Kirby and Hayne JJ) went on to say, under the heading " Conflicting statutory provisions should be reconciled so far as is possible ":
"69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute . The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" . In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed .
70 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume (1905) 2 CLR 405 Griffith CJ cited R v Berchet (1688) 1 Show KB 106 to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
84So construed, Mr Larkin submits, the general power to make subordinate instruments such as DCPs " should be seen implicitly as not permitting " the achievement of such a reservation " other than by use of the particular powers ". If there were in the statutory scheme only a general power to make a DCP, provisions such as those impugned in this case might be seen as " relevant, appropriate, reasonably incidental to the exercise of that power ", but the Act contains a particular power for the identification of appropriate lands for reservation and dedication. He accepts that if the laneway land had been indicated in the LEP, for reservation under s 26(1), s 74C(1) could be relied upon to make " more detailed provision " (T24.3.11, p46, LL17-23).
85His submissions rest primarily on a line of High Court authority - Anthony Hordern & Sons v Amalgamated Clothing & Allied Trades Union of Australia ('Hordern') (1932) 47 CLR 1, R v Wallis ('Wallis') (1949) 78 CLR 529, and Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom ('Nystrom') [2006] HCA 50; (2006) 228 CLR 566. Regrettably, it is necessary to include in this judgment some lengthy extracts from these cases.
86In Nystrom , Gummow and Hayne JJ summarised Hordern in these terms (at [55]):
"Anthony Hordern concerned the Commonwealth Conciliation and Arbitration Act 1904 (Cth) (the Conciliation and Arbitration Act) which apparently contained two powers for the making of an award with respect to union preferences. Section 40 empowered the Court of Conciliation and Arbitration by award to give preferential employment to members of unions over other persons, subject to certain conditions, including that such an award was to be made only "other things being equal". The power in s 40 was not expressly confined to the situation where there was an industrial dispute about preference. However a judge of the Court, acting under the general powers in ss 24(2) and 38(a) to hear and determine industrial disputes, made an order unconditionally requiring certain employers to give preference to union members in employing female workers. This Court by majority (Gavan
Duffy CJ and Dixon J, McTiernan J, Starke and Evatt JJ dissenting)held that those general powers did not authorise the judge to make an award which "ignored the exception[s]" contained in s 40.McTiernan J concluded as follows:
"Reading the Act as a whole, there does not appear to me to be any reason for holding that Parliament intended to give to the Court two powers, entirely different in scope, to order 'preference.' I do not think that the Legislature intended that, in a case in which preference was in dispute, the Court should be free to make any award it deemed fit and that the award might be entirely unconditional, whereas, in a case in which preference was not in dispute, the Court should be fettered and its award moulded by the provisions of s 40."
This is a rather more compendious expression of what was said by Gavan Duffy CJ and Dixon J in the passage set out earlier in these reasons. As a matter of construction (and not as one of implied repeal) there was only one power which could be relied upon to make awards giving preferential employment to union members."
87The short passage from the judgment of Gavan Duffy CJ and Dixon J in Hordern (at 7), to which reference is usually made, was quoted in Nystrom at [44]:
"When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power ." (emphasis added)
88In Wallis , Dixon J said, at 549-550:
The powers of a conciliation commissioner to make a binding award or order with respect to a question how far employment is to be available to persons who are not members of a particular organization are, as I think, conferred by s. 56 of the Commonwealth Conciliation and Arbitration Act 1904-1948 and do not go beyond the order or direction for preference which that section authorizes. That appears to me to be the true intention of the Act. The general power of a conciliation commissioner to make an order or award determining a dispute is to be found in s. 38. The power is expressed in abstract terms without specifying or indicating what the determination may cover or what the award or order shall or may provide. Upon matters with reference to which the Act does not elsewhere specify or indicate what may or shall be done by an award or order, this general power is properly interpreted as enabling the arbitrator to make any provision he thinks fit that is relevant, appropriate or reasonably incidental to the settlement of the real dispute before him.
But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s. 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.
This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction. In North Stafford Steel, Iron and Coal Co. (Burslem), Ltd. v. Ward (1808) LR 3 Ex 172, at p 177, Willes J. refers to "the ordinary rule, that if authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the Act authorized under other circumstances than those defined."
89In Nystrom , upon which the respondent also relies, Gleeson CJ said, at [2]:
"As to the issue concerning the effect, if any, upon s 501(2) of the Migration Act 1958 (Cth) of ss 200 and 201 of that Act, I would make the following comment. The contention that ss 200 and 201 give a person in the position of the respondent a protection or immunity from the exercise of the power conferred by s 501 is a statement of a conclusion, rather than an expression of a reason for reaching that conclusion. If there is such a reason, it must be found in a process of statutory construction. The provisions of s 501(2), on the one hand, and ss 200 and 201 on the other, are not repugnant, in the sense that they contain conflicting commands which cannot both be obeyed, or produce irreconcilable legal rights or obligations. They create two sources of power, by which a person in the position of the respondent may be exposed, by different processes, and in different circumstances, to similar practical consequences. There is nothing novel, or even particularly unusual, about that. It does not of itself mean that only one source of power is available. If, however, by reason of the apparent exhaustiveness with which one provision, or group of provisions, dealt with the position of a person such as the respondent, there were an incompatibility of a kind that required a conclusion that only one provision or group of provisions was intended to apply, then that would be a reason for accepting the respondent's contention. Again, if one provision, or group of provisions, were directed with particularity to the case of a person such as the respondent, and the other were merely of general application, the same could be said. As explained by Heydon and Crennan JJ, and also by Gummow and Hayne JJ, neither proposition can be made good when regard is had to the legislative history and context. In the result, the respondent's contention amounts to an assertion; a statement of an outcome that would be supportive of his freedom to remain in Australia, and in that sense protective of his interests, but without a convincing argument of statutory construction which sustains that outcome. Therefore, it fails."
90Later in Nystrom , Gummow and Hayne JJ said at [41]-[43], [52]-[54], [59], and [69]-[70]:
41. Nothing in the text of s 501 or s 501F provides any support for reading into s 501(2) a requirement to consider the possible effect of s 501F on the respondent. Nor do the extrinsic materials provide any support for this contention. The evident purpose of s 501F, at least in part and as Emmett J indicated in his dissenting judgment, is to ensure that a person who fails the character test is liable to be removed from Australia, notwithstanding any other permission that person might have to remain here.
42. The majority of the Full Court erred in concluding otherwise. Accordingly, subject only to the fifth issue (raised by the respondent's notice of contention), the Minister's appeal to this Court must be allowed.
Cancellation of a visa under s 501(2) and deportation under Pt 2, Div 9 of the Principal Act
43. Counsel for the respondent contended in the written submissions that, because the respondent was not liable to deportation by exercise of the power conferred on the Minister by ss 200 and 201 of the Principal Act, the power of visa cancellation conferred upon the Minister by s 501(2) could not be exercised in respect of his visa or visas. It was said s 201 conferred upon the respondent a "specific statutory protection from exclusion from Australia" and that "on ordinary principles" that protection could not "be impliedly repealed by the subsequent conferral of an additional and general method of exclusion in s 501".
...
52. If the respondent's case is understood as based upon Anthony Hordern, then it must fail also on that account.
53. However, something first should be said of Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400. There, the Full Court of the Federal Court rejected the argument that ss 200 and 201 limited s 501, saying:
" Sections 501 and 502 are quite separate sources of power. The criteria for the exercise of those respective powers are by no means co-extensive, although there is an overlap. The fortuitous circumstance that two separately-sourced powers might be exercised in respect of the same collocation of facts cannot affect the construction of the relevant statutory provisions, which must be given a meaning as at the time of their enactment."
The decision in Gunner has been affirmed both in the Federal Court and in this Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The respondent correctly submits that Jia and its endorsement in Gunner (both of which considered an antecedent version of s 501) do not preclude his argument, because there both powers were available, whereas in this case only s 501 was available. The earlier cases held that the availability of s 200 did not mean that the Minister could not have recourse to s 501. In this case, the respondent submits that the unavailability of s 200 affects the ambit of s 501.
54 Underlying Anthony Hordern and later cases is the notion "that affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise". This statement was made by Dixon CJ, McTiernan, Fullagar and Kitto JJ in R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 and applied to Ch III of the Constitution as a "very evident example". Counsel for the Minister, in oral argument, invoked the maxim expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded), and its affinity with the above statement will be apparent. But, whilst "rules" or principles of construction may offer reassurance, they are no substitute for consideration of the whole of the particular text, the construction of which is disputed, and of its subject, scope and purpose.
...
59. Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the "same power", or are with respect to the same subject-matter, or whether the general power encroaches upon the subject-matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.
...
69. Section 501(2) and ss 200 and 201 have different consequences for the status of individuals in the context of the Principal Act. Where a deportation order is made, the individual has the status of a lawful non-citizen who is subject to deportation. If an order under s 501(2) be made, the status of the individual changes to that of an unlawful non-citizen. The Principal Act attaches significance to each status.
70. Accordingly it is not open to characterise the powers as dealing with the same subject-matter in the sense of the Anthony Hordern line of cases. In the circumstances of this case, the inapplicability of s 200 (by reason of non-satisfaction of s 201(b)(i)) cannot deny the application of s 501(2) by reference to s 501(6)(a)."
91Later still in Nystrom , Heydon and Crennan JJ said, at [162]-[169]:
162. Mr Nystrom's argument that the power to deport and the power to cancel a visa, which will result in removal, deal with the same subject matter is wrong. The power under s 200, as restricted by s 201, to deport non-citizens is a power in respect of the continuing presence in Australia of non-citizens convicted of certain crimes. The power under s 501(2) to cancel a visa of a non-citizen on character grounds (based on a "substantial criminal record") and thereby remove that non-citizen is a much wider power, although it is also for the protection of the Australian community. The powers are distinct and cumulative.
163. Not only do the powers have different purposes, different criteria apply for their exercise. The criteria in respect of a person's criminal record in s 201(c) and s 501(7) are not co-extensive, although there is some overlap between s 201(c) and s 501(7)(a), (b) and (c). Criteria in s 501(7)(d) and (e) give s 501(2) a wider field of operation than that which is covered by s 201(c).
164. Moreover, it was not disputed that different consequences follow when the powers are exercised. A person who is subject to a deportation order is subject to discretionary rather than mandatory detention during any challenge (ss 253(8) and (9)), but will then be deported unless the Minister revokes the order. A person who has a visa cancelled is subject to mandatory detention and removal (s 189) but may apply for a protection visa (s 501E).
165. While the powers are different, with different criteria for their exercise and different consequences when exercised, they are both special powers. The power in s 501(2), construed as it must be, together with ss 501(6) and (7), is not a vague or general power. The line of authority beginning with Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia , upon which Mr Nystrom relied, has no application here as there is no repugnancy between the two powers. In fact, they are consonant with each other.
166. The provisions have a different legislative history and a different relationship to the constitutional sources of power in s 51(xix) and (xxvii) as already explained. The Act contains two separate but consonant statutory systems for deportation and removal which operate differently, although the final outcome of removal may be the same. Section 201 does not in terms, confer on an alien any "statutory protection" from removal, consequent upon the cancellation of a visa under s 501(2).
167. Here, s 200 has no application. To that extent, the facts here raise the issue of the interaction between s 200, as restricted by s 201, and s 501(2), more squarely than the facts in Jia Legeng . This distinction provides no reason to reconsider the statement in Jia Legeng that s 501 contains a separate statutory power. In fact, the distinction is an illustration of the discrete nature of the powers in question.
168. Further, there is nothing in the relevant legislative history, or the terms of the two provisions, which would warrant "reading down" the power in s 501(2), which rests on s 51(xix), by reference to s 201(b)(i) which, while it applies to "non-citizens", derived its language and purpose from the Act's former resting on s 51(xxvii).
169. Accordingly, the power conferred in s 501(2) is not restricted by the operation of ss 200 and 201 ."
92Mr Larkin submits that Conquest's position is more a Hordern or Wallis case, but that satisfaction of either limb of Gleeson CJ's test in Nystrom is sufficient for the applicant to succeed, and that both limbs are satisfied in this case. He acknowledges that the statutory scheme in this planning case is somewhat more complex than those involved in those three cases, if for no other reason than that the " competing powers " in those cases had the same " seniority " in terms of any hierarchy, whereas in this case the LEP, as an " environmental planning instrument ", which must be observed, is more " senior " than a DCP, which he says is a " subordinate " document setting out policies and principles which are matters for close consideration in development decision-making.
93Likewise, the relevant powers in the EPA Act are in a hierarchy - s 24 is a very " broad general power to make environmental planning instruments " (T24.3.11, p40, LL44-45); then s 26 (and its restriction in s 27) are a " very specific power ", or a " very particular power ", dealing with one particular species of " development " which is defined (in s 4) in very broad terms, of which the s 26 species is but one (p41, LL5-28); and then s 74C gives a very broad discretion to a decision-maker, namely a " general power " to prescribe in a DCP detail aimed at achieving in any development (as more broadly defined) the purpose of an environmental planning instrument. Mr Larkin submits that the broad power in s 74C is restricted by the Act dealing with the particular subject matter in ss 26 and 27.
94Carson v Department of Environment & Planning ('Carson') (1985) 3 NSWLR 99 concerned an earlier version of s 27, but decided that the term " reservation ", as used in s 26(1)(c), requires that land be " imprinted with a particular [and exclusive, future public] purpose " - per Samuels JA (and Priestley JA), at 103-4, with the general agreement of Mahoney JA, at 108.
95Here the DCP mandates in clear and specific terms that a public vehicular road is to be created over the relevant (laneway) land - that amounts, in Mr Larkin's submission, to imprinting the land with a particular purpose, and so deals with the same subject matter as ss 26 and 27. Mr Larkin submits that there is no statutory power to include such provisions in a DCP. Council can achieve the laneway, but, he submits, must do so using the correct route provided by the statutory scheme - provision and clear identification in the LEP and inclusion in a contributions plan. The LEP is made by the Minister and the DCP by the Council. Use of the DCP for this purpose enables the Council to avoid the compensation regime in the JTC Act .
96Alternative sources of power to require dedication and/or to acquire the relevant land - such as the LG Act s 186(2)(a), Roads Act, EPA Act , Part 4, Div 6 etc - all have restrictions or safeguards.
97Biscoe J noted in Castle Constructions Pty Ltd v North Sydney Council ('Castle') [2007] NSWLEC 459 (at [58]) that the DCP-making power in s 74c(1)(a):
"... is couched in terms of some generality. It is concerned with a precondition to the power of a planning authority to prepare a development control plan. It directs attention to the purpose of an applicable environmental planning instrument, not to the purpose of a particular provision or provisions of an applicable environmental planning instrument . It stands in contrast to s 74C(5)(b) which is concerned with inconsistency between particular provisions." (my emphasis).
98Mr Larkin submits that the s 74C(1)(a) power should be " subordinated " to ss 26(1) and 27, which deal specifically with dedication of land for public purposes. Here the land is first identified for dedication in the DCP, but Parliament could not have intended to empower Councils to " sidestep " the LEP/ss 26-27 regimes by relying on a broad or general power to prepare a DCP. Castle held that, if the power is exercised beyond s 74C's terms, the DCP is invalid.
99The applicant also relied upon the NSW Court of Appeal decision in Maitland City Council v Anambah Homes Pty Ltd ('Anambah ') [2005] NSWCA 455; (2005) 64 NSWLR 695 for a number of reasons, including the question of severability which would arise if the primary challenge succeeds.
100Mr Larkin conceded that Anambah was not strictly comparable with the present case, because it concerned the validity of a condition of consent requiring dedication of land free of cost. Nonetheless, he submits, it is a persuasive authority for this matter as it is not clouded by an interstate context, whereas some of the respondent's authorities (dealt with in the next section of this judgment) concern the scheme in Western Australia. The NSW scheme, he submits, clearly resolves, in s 27, the problem faced in those Western Australian cases as to when and how compensation is to be paid for dedicated land.
101The Court of Appeal, in upholding Pain J's finding of invalidity in Anambah , applied (at [15]) the rule in Hordern , as laid down by Gavan Duffy CJ and Dixon J (see [87] above), and held (at [151] per Tobias JA):
"In other words, notwithstanding that it could well be said, and the Council in effect so submitted, that the imposition of Condition 36 was clearly in the public interest in terms of providing public open space for the benefit of the occupants of the lots the subject of the Estate nonetheless the legislature had made clear that that of itself was insufficient to justify the imposition of a condition requiring the payment of a monetary contribution or the dedication of land free of cost. The latter could only be imposed pursuant to s 94 and only if it conformed to the requirements of s 94(11)."
(At the relevant time in Anambah , s 94 contained sub-section (11) which provided that " A council may impose a condition referred to in this section only if it is of a kind allowed by, and is determined in accordance with, a contributions plan approved under section 94B ").
102Mr Larkin submitted that such reasoning should inform this court's view on the power to make a DCP, and he also relied upon par [153] of Tobias JA's judgment:
"Fifthly, it is true that one of the objects of the EP&A Act referred to in s 5(a)(iv) was to encourage the provision of land for public purposes. That objective could be achieved in a number of ways such as the compulsory acquisition of land pursuant to s 9(1). Again, s 27(1) provided for the reservation by an environmental planning instrument of land for the purpose of open space provided that that instrument made provision for or with respect to the acquisition of that land by a public authority. In the present case there was no such reservation as a development control plan was not included in the definition of "environmental planning instrument". In both the above examples, the relevant land was acquired was for value."