Fisk v Chief of the Defence Force

Federal Court of Australia|2017-12-08|Before: Perry J

THE COURT ORDERS THAT:

The application is dismissed.
Costs are reserved. THE COURT NOTES THAT:
In the event that orders as to costs are not agreed: (a) on or before 4pm on Friday 15 December 2017 the legal representatives for the parties are to advise the associate to Justice Perry of a proposed timetable, agreed if possible, for the filing of short written submissions on the issue of costs; and (b) the issue of costs will be determined on the papers.
The parties are to liaise with respect to the orders otherwise necessary to give effect to these reasons and in particular paragraph [4]. The parties are to provide a draft minute of consent orders, if agreed, or alternatively the orders that each party requests be made, to the Associate to Justice Perry by 4pm on 15 December 2017. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRY J: 1 INTRODUCTION [1] 2 EVIDENCE [6] 3 THE POWER TO TERMINATE AN OFFICER'S SERVICE UNDER REGULATION 85, PERSONNEL REGULATIONS [8] 4 RELEVANT FACTUAL CIRCUMSTANCES [14] 4.1 The termination notice and completion of the ROG process [14] 4.2 The Delegation dated 12 December 2013 [20] 5 VALIDITY OF THE TERMINATION NOTICE [25] 5.1 The applicant's submissions [25] 5.2 The delegation and therefore the termination notice are valid [27] 6 CONCLUSION [42]

INTRODUCTION 1 The applicant, Captain Shaun Michael Fisk, has served for over fifteen years in the Australian Defence Force (ADF), including on numerous deployments. 2 By an amended originating application filed on 12 October 2016, the applicant seeks a declaration that the termination notice issued to him on 21 October 2015 (the termination notice) purportedly pursuant to reg 85(2) of the Defence (Personnel) Regulations 2002 (Cth) (now repealed) (Personnel Regulations) is invalid. Specifically, the applicant alleges that the termination notice was issued by Colonel Garraway without a valid delegation to him by the Governor General under reg 119(1) of the Personnel Regulations. Regulation 119(1) provides that: The Governor-General may delegate any of the Governor-General's power (other than this power of delegation) to the following officers: (a) an officer of the Navy who holds the substantive rank of Commander or a higher rank; (b) an officer of the Army who holds the substantive rank of Lieutenant-Colonel or a higher rank; (c) an officer of the Air Force who holds the substantive rank of Wing Commander or a higher rank. 3 For the reasons set out below, the applicant has not established that the instrument of delegation and therefore the termination notice are invalid. The application must therefore be dismissed. 4 I further note that the applicant initially sought an injunction restraining the respondent, the Chief of Defence Force, or his delegate from terminating the applicant's service in the ADF until all redress of grievance (ROG) procedures had been finalised, including referrals of the complaint to the Chief of Army and the Chief of Defence Force by the applicant under Part 15 of the Defence Force Regulations 1952 (Cth) (Defence Force Regulations). However, on the second day of the hearing, the respondent consented on a "without-admission" basis to the continuation of an interim injunction directed to the Chief of Defence Force to the same effect as that made by Wigney J on 18 July 2016, thereby allowing the ROG to "run its course" and be determined by the respondent. As a result, the applicant did not press his claim for final injunctive relief and the bulk of the written submissions and evidence filed by the parties was ultimately unnecessary. On 16 August 2017, the Court was advised that the respondent had decided on 8 August 2017 not to uphold the applicant's ROG. The applicant was notified of this decision on 11 August 2017. Orders should therefore be made lifting the interim injunction as and from a date sufficient to enable the applicant to obtain legal advice and consider his legal position following delivery of these reasons. 5 Finally, I note that following the decision by the Chief of Defence Force on the applicant's ROG, the Court was requested to defer delivery of judgment. Following unsuccessful attempts to resolve the matter, the applicant applied to re-open and further amend his originating application to raise a new issue. For reasons separately published in Fisk v Chief of Defence Force [2017] FCA 1489, that application was refused.

EVIDENCE 6 The respondent relied upon the following affidavits which were read without objection: (1) paragraphs 1 to 6 of the affidavit of COL Michael Edward Garraway affirmed 19 July 2016, including Annexures 1, 2 and 3; (2) paragraphs 1 to 6 of the affidavit of COL Garraway affirmed 16 September 2016, including the Annexures thereto; and (3) paragraphs 1 to 11 of the affidavit of COL Garraway affirmed 28 September 2016, including Annexures thereto. 7 No evidence was ultimately led by applicant save for the Formal Instrument of Delegation given by the Governor-General dated 12 December 2013 (Exhibit A1) (the delegation).

THE POWER TO TERMINATE AN OFFICER'S SERVICE UNDER REGULATION 85, PERSONNEL REGULATIONS 8 While the Personnel Regulations and the Defence Force Regulations were repealed with effect from 1 October 2016 by the Defence Regulation 2016 (Cth), reg 85 of the Defence Regulation 2016 provides that the Personnel Regulations and the Defence Force Regulations "continue to apply in relation to an application made, or a process begun, under those regulations before their repeal". 9 Under Reg 85(1) of the Personnel Regulations, the service in the Defence Force of an officer may be terminated in accordance with reg 85 for any of the reasons specified in subreg (aa)-(g), including that: (d) the Chief of the officer's Service is satisfied that the retention of the officer is not in the interest of: (i) the Defence Force; or (ii) the Chief's Service; 10 Sub-regulation 85(2) conferring power on the Governor-General to give the officer a termination notice is in the following terms: (2) The Governor-General may give the officer a termination notice: (a) stating that it is proposed to terminate the officer's service in the Defence Force; and (b) stating the reason for terminating the service; and (c) setting out particulars of the facts and circumstances relating to the reason for terminating the service that is sufficient to allow the officer to prepare a statement of reasons why the service should not be terminated; and (d) inviting the officer to give the Governor-General a written statement of reasons why the server should not be terminated; and (e) specifying a period of at least 28 days after the date of the notice as the period in which the officer may give the statement of reasons. 11 As such, in line with the requirements of procedural fairness, sub-reg 85(2) provides a means by which an officer is notified of the proposal to terminate her or his service in the Defence Force, is advised of the reasons why that is proposed, and is afforded an opportunity to be heard on why her or his service should not be terminated by a statement of reasons. When no statement of reasons is given by the officer within the specified period and the Governor-General considers that there has not been any change in circumstances since the termination notice was given, sub-reg 85(3) requires the Governor-General to terminate the officer's service in the Defence Force. On the other hand, where a statement of reasons is given by the officer, the Governor-General must terminate the officer's service in the Defence Force only if, having considered the officer's statement, the Governor-General considers that the reason for terminating the officer's services has been established and there has been no change in circumstances: sub-reg 85(4). 12 A delegate may give a termination notice to an officer but where the notice is given by the delegate, reg 85(6) provides that "the delegate must not himself or herself terminate the officer's service under this regulation." 13 Regulation 85(5) provides that the Governor-General must not terminate the officer's service under reg 85 in any other circumstances. It is therefore apparent that reg 85 provides a self-contained mechanism by which termination may occur and that the first step in that process is the giving of a termination notice by the Governor-General or her or his delegate to the officer under reg 85(2). As such and as earlier mentioned, it was not in issue that the validity of any termination under reg 85 was dependent upon the giving of a valid termination notice under that regulation.

4.1 The termination notice and completion of the ROG process 14 In light of the fact that the claim for final injunctive relief was not pressed, the background relevant to determining the matters in issue can be summarised briefly. 15 At the time of issuing the termination notice, COL Garraway was a Colonel in the Australian Army and the sole officer appointed to the position of the Director of Officer Career Management-Army (DOCM-A). 16 On 21 October 2015, COL Garraway issued the termination notice to the applicant in his stated capacity as "Director of Officer Career Management - Army, a Delegate of the Governor-General and Chief of Army for the purposes of Regulations and [sic] 85(1)(d), 85(1A) and 85(2) of the Defence (Personnel) Regulations 2002". The termination notice stated that the reason for the proposed termination "is pursuant to reg 85(1)(d)(i) of the Personnel Regulations on the grounds that: the Chief of the officer's service is satisfied that the retention of the officer is not in the interest of the Defence Force". The termination notice set out in detail the facts and circumstances on which the proposal to terminate the applicant's appointment as an officer was based and invited the applicant to submit a response as to why his service in the Defence Force should not be terminated in accordance with reg 85(2). 17 The applicant provided a detailed response to the termination notice on 20 November 2015, comprising a statement of reasons for the purposes of reg 85(2) and (4). 18 On 11 May 2016, Brigadier Stothard, in his stated capacity as Director General Career Management-Army (DGCM-A) and as a delegate of the Governor-General and Chief of Army, issued reasons for the decision to terminate the applicant's appointment as an officer in the Australian Army pursuant to reg 85 of the Personnel Regulations. The Governor General's and Chief of Army's delegations to him were annexed. The applicant was notified that he had 14 calendar days from acknowledging the termination decision within which to submit a redress of grievance. On 13 May 2016, the applicant signed an acknowledgement of receipt of the decision to terminate his appointment. 19 As earlier noted, the applicant submitted a ROG. That process culminated recently in the decision of the Chief of Defence Force on 8 August 2017 not to uphold the ROG.

4.2 The Delegation dated 12 December 2013 20 The Delegation of the Governor-General dated 12 December 2013 provided that: I, Quentin Bryce AC CVO, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under subregulation 119(1) of the Defence (Personnel) Regulations 2002: … (b) delegate my powers and functions as described in the second and third columns of Schedule A hereto, in respect of the Australian Navy, to those persons for the time being holding or performing the duties of the offices described in abbreviated form in the fourth column of Schedule A (the abbreviations being explained in Schedule AA hereto), subject to the limitations as to the maximum rank level to which the delegate may exercise the powers as set out in the sixth column of Schedule A, and subject also to any further limitations or directions are set out in the fifth column of Schedule A; (c) delegate my powers and functions as described in the second and third columns of Schedule B hereto, in respect of the Australian Army, to those persons for the time being holding or performing the duties of the offices described in abbreviated form in the fourth column of Schedule B (the abbreviations being explained in Schedule BB hereto), subject to the limitations as to the maximum rank level to which the delegate may exercise the powers as set out in the sixth column of Schedule B, and subject also to any further limitations or directions as set out in the fifth column of Schedule B; and (d) delegate my powers and functions as described in the second and third columns of Schedule C hereto in respect of the Australian Air Force, to those persons for the time being holding or performing the duties of the offices described in abbreviated form in the fourth column of Schedule C (the abbreviations being explained in Schedule CC hereto), subject to the limitations as to the maximum rank level to which the delegate may exercise the powers are set out in the fifth column of Schedule C and subject also to any further limitations or directions as set out in the sixth column of Schedule C. 21 Item 22 of Schedule B to the Delegation regarding the delegation of the power to give a notice of termination to an officer in the Australian Army in turn provided that: Item Regulation(s) Description of Power Delegated Delegate Maximum Rank level to which the Delegate may exercise power Delegation and any Limitations or Directions Delegates, including any officer temporarily performing the duties of a delegate, must be of the rank indicated in this column 22 85(2) To give a termination notice to an officer for any of the reasons specified in paragraph 85(1)(c),(d),(e) or (f) or (g) CDF, CA MAJGEN Issuing and Termination authority for this regulation must not be the same person. A person holding or occupying the position of an SO1(E) in CM-A must not exercise the power or function unless they are of the rank of LTCOL or above. DCA, DGCM-A COL DOCM-A LTCOL SO1 in DOCM-A MAJ Director of a CM-A reserve directorate, SO1(E) in a CM-A reserve directorate MAJ (Reserve Members Only[)]

(emphasis added) 22 For reasons which will become apparent, the applicant placed weight on the fact that the first cell of the final column required only that delegates must "of the rank" indicated in that column whereas the equivalent cell for Navy in Schedule A and Air Force in Schedule C expressly required that delegates "must be of the substantive rank indicated in this column" (emphasis added). 23 Schedule BB to the Instrument of Delegation defines the abbreviations for the Army relevantly as follows: Ranks LTGEN Lieutenant General MAJGEN Major General BRIG Brigadier COL Colonel LTCOL Lieutenant Colonel MAJ Major CAPT Captain OCDT Officer Cadet … Offices and positions CDF Chief of the Defence Force CA Chief of Army DCA Deputy Chief of Army DOCM-A Director General Career Management Army … SO1 in DOCM-A Staff Officer Grade 1 in the Directorate of Officer Career Management - Army (must not be below the rank of LTCOL) Director of a Career Management - Army reserve directorate SO1(E) in a Career Management - Army reserve directorate (must not be below the rank of LTCOL) 24 I note that the ranks as set out above are in hierarchical order with the highest rank at the top of the list.

5.1 The applicant's submissions 25 The applicant's submissions essentially reduce to following propositions. (1) Regulation 119(1)(b) of the Personnel Regulations empowers the Governor-General to delegate any of her or his powers to an officer of the Army who holds the substantive rank of Lieutenant-Colonel or higher. (2) By paragraph (b) and item 22 of Schedule B of the Delegation, the Governor-General purported to delegate simply to "DOCM-A", her powers to issue a termination notice under reg 85(2) of the Personal Regulations to an officer up to the rank of Lieutenant-Colonel. (3) As no limitation was specified in the delegation as to the rank which the delegate holding or performing the duties of DOCM-A must hold, the delegation purported to empower any person to exercise the power under reg 85(2) regardless of whether that person held the substantive rank of Lieutenant-Colonel. That omission must be regarded as intentional given that, by contrast, the equivalent items for the Navy and Air Force (item 21 of Schedule A and item 20 of Schedule C respectively) expressly identify the rank which the delegate must hold and specify that the delegate must be hold that substantive rank. As such, the delegation by item 22 of Schedule B is contrary to the requirements of reg 119(1) of the Personnel Regulations and beyond power. 26 On this basis, the applicant contended that it was irrelevant that in this particular case COL Garraway held a rank that complied with the requirements of reg 119(1)(b). While the applicant accepted that COL Garraway held a substantive rank higher than LTCOL, he submitted that the statutory limitation in reg 119(1) applies to the act of delegation and not only to the exercise of the delegated power. Accordingly, in the applicant's submission: …if the purported act of delegation by the Governor-General was contrary to DPR reg 119(1) in that it purported to delegate the relevant powers to any person performing the duties of the position of DOCM-A, regardless of their substantive rank, the purported act of delegation was invalid.

5.2 The delegation and therefore the termination notice are valid 27 In my view, notwithstanding the careful arguments of his counsel, the applicant has not established that the delegation and notice of termination are invalid. 28 First, the applicant submitted that delegations should be construed strictly literally, particularly where, as here, the power which is the subject of the delegation can be exercised so as to affect adversely the rights of individuals. It followed, in the applicant's submission, that the delegation was invalid as item 22 of Schedule B to the instrument of delegation provided only that the power to issue a termination notice may be delegated relevantly to a DOCM-A who may or may not hold the substantive rank of Lieutenant Colonel or a higher rank. In support of this approach, the applicant relied upon the decisions in Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue (1994) 119 FLR 38 (Perpetual Trustee), followed by the Administrative Appeals Tribunal in Parks Holdings Pty Ltd v Chief Executive Officer of Customs [2001] AATA 562 (Parks Holdings (AAT)) at [46]. 29 I agree with the respondent, however, that instruments of delegation must be construed in line with ordinary principles of statutory construction, including applicable statutory provisions. Contrary to the applicant's submissions, the decisions in Perpetual Trustee and Parks Holdings do not stand as authority for the proposition that a separate and distinct rule of construction applies to instruments of delegation to the effect for which the applicant contends. To the contrary, Goldberg J in Parks Holdings Pty Ltd (t/as Gladston Chemicals) v Chief Executive Officer of Customs [2004] FCA 820; (2004) 81 ALD 365 held that: 87. Of course, an instrument of delegation is not legislation but, in principle, the manner in which it is construed is guided by the authorities regarding statutes. There is no reason to construe an instrument of delegation more strictly. 30 In turn, in Perpetual Trustee, Miles CJ held that, as the power to compel the provision of information is a power whose exercise is likely to affect the individual's rights adversely, an instrument which delegates such a power "should not be construed loosely" (at 45). Accordingly, Miles CJ held at 45 that "the instrument of delegation which delegates the power to 'request' further information under s 18 cannot be construed as a delegation by the Commissioner to the respondent of the power under s 18(2) of the Taxation (Administration) Act to require a person to attend to answer questions." As such, the decision in Perpetual Trustee does no more than apply the principle of legality which is generally applicable to statutory construction, to the construction of the instruments of delegation, namely, that it is presumed that the Parliament does not intend to interfere with fundamental rights, freedoms and immunities save by "unmistakeable and unambiguous language": Coco v The Queen (1994) 179 CLR 427 at 436-437 (Mason CJ, Brennan, Gaudron and McHugh JJ); see also e.g. Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40 at [21] (Gleeson CJ). 31 Secondly, the delegation is limited to officers holding particular positions. There is no requirement under reg 119 to nominate or name a specific person to whom the powers are delegated. That being so, there is no reason why the instrument of delegation could not validly delegate the exercise of power to an unnamed person or persons identified by reference to the particular office that they may occupy from time to time, subject to the requirement in reg 119 that the person also hold the rank of LTCOL or higher: Owendale Pty Limited v Anthony (1966) 117 CLR 539 (Owendale) at 563-564 (Windeyer J) at 587 and 598 (Taylor J (with whose reasons Barwick CJ relevantly agreed at 569)) and 611 (Owen J) applying Noble v Commonwealth (1943) 17 ALJ 184 (Noble) at 185 (Starke J). 32 Thirdly, the fact that the delegation is not expressly limited to officers holding the requisite rank does not mean that the delegation seeks impermissibly to authorise an officer holding a lower rank to exercise the power to issue a notice of termination, or even a person who is not an officer. The question remains one of construction. That question must be resolved by ordinary principles of construction which require that the delegation be read in context including by reference to the legislation pursuant to which it was made and with which it must be consistent (see by analogy Master Education Services Pty Limited v Ketchell [2008] HCA 38; (2008) 236 CLR 101 at [19] (Gummow A-CJ, Kirby, Hayne, Crennan and Kiefel JJ)). Subject therefore to a specific indication to the contrary, the delegation should be read in a way that promotes its purpose (One.Tel Limited v Australian Communications Authority (2000) 110 FCR 125 at [64] (Hill J) by analogy). That purpose would not be served by reading the delegation divorced from its context and the regulations pursuant to which it is made in line with the applicant's strictly literal approach. 33 The constructional choice posed therefore by the width of the language used in the delegation is resolved by reading the delegation in line with these principles as necessarily or implicitly limited by the requirement that the delegate hold an office consistent with reg 119 and not merely the position of (relevantly) DOCM-A. By analogy in Owendale, Windeyer J rejected the plaintiff's contention that the power to delegate should have been expressly exempted from the delegation in question because the statutory power to delegate contained that exemption. Rather Windeyer J held that "the extent of the delegation is necessarily limited by the extent of the power to delegate, and I can see no reason why the Minister should say expressly delegata potestas non potest delegari." Another way of reaching the same result is to read the delegation subject to the enabling legislation and so as not to exceed the power to delegate in reg 119 in line with s 46(1)(c) of the Legislation Act and equivalent common law principles. 34 Importantly in this regard, the delegation does not purport to authorise a person holding a lower rank than LTCOL to exercise the power to issue a notice of termination contrary to reg 119(1). To the contrary, since the delegation came into effect, only an officer holding a substantive rank of LTCOL or higher could hold the position of DOCMA under the requirements for that position: see below at [37(2)]. As such, the terms of the instrument of delegation do not exclude the drawing of this implication. This is not therefore a case like Parks Holding (FCA) where the instrument of delegation in clear and unequivocal terms identified the wrong power as being the subject of the delegation. Nor, contrary to the applicant's submissions, does the failure by the delegation in Schedule B (Army) to refer expressly to the requirements of reg 119 as to rank in contrast to the delegations adopted in Schedules A and C (Navy and Air Force) provide a sound basis for inferring an intention to authorise Army officers holding a lower rank to exercise the power. That being so, there is no reason in my view why the instrument of delegation cannot and should not be read compatibly with reg 119. 35 In the fourth place, even if the delegation could be construed as authorising a person outside the limits of reg 119(1) to exercise the power, in this case the power to issue the termination notice was exercised by COL Garraway as the delegate of the Governor-General within the lawful boundaries of the statutory power. As Brennan J explained, sitting as President of the Administrative Appeals Tribunal in Re Reference Under Section 11 of Ombudsman Act 1976 for an Advisory Opinion; ex parte Director-General of Social Services (1979) 2 ALD 86 at 93 in a passage on which the respondent placed particular weight: Whenever the validity of an act is in question, it is necessary to distinguish between the act and the effect which the law attributes to it. "Validity" is concerned with the legal effect of an act, with the correspondence between the effect which an act is proposed to have and the effect which the law attributes to it. When the law attributes to an act the same effect as the effect which an act is proposed to have, the act is said to be valid for the purpose of achieving that effect. … An act done in purported exercise of the statutory power is valid if the act falls within the statutory provision which confers the power. Prima facie an act will not fall within the statute unless it be done by the person in whom the statute reposes the power (whom I shall call "the authority"). Validity is thus dependent upon the identity of the authority and the doer of the act. 36 Those principles apply in the present case, as the respondent contends. Here the act is the giving of the termination notice by COL Garraway in his alleged capacity as a delegate of the Governor-General. Specifically, it is not in issue that: (1) the delegation relevantly delegated to "DOCM-A" the power pursuant to reg 85(2) of the Personnel Regulations to issue a termination notice to an officer to the rank of CAPT; (2) the termination notice was issued to the applicant who held the rank of CAPT; and (3) at the time that the termination notice was issued, COL Garraway held the position of DOCM-A and the substantive rank of LTCOL or higher, the rank of COL being higher than LTCOL. 37 As such, in the particular case the termination notice was issued by a person holding a position in line with the requirements of the delegation and a rank in line with the requirements of reg 119(1)(b) of the Personnel Regulations. Furthermore, the evidence establishes that since the delegation came into effect on 12 December 2013: (1) each of the positions to which the power to issue a termination notice under reg 85(2) of the Personnel Regulations has been delegated (i.e. CDF, CA, DCA, DGCM-A, DOCM-A and SO1 in DOCM-A) has been occupied by an officer of a substantive rank of LTCOL or higher; (2) each of the positions to which the power to issue a termination notice under reg 85(2) of the Personnel Regulations has been delegated could have been occupied only by an officer of a substantive rank of Lieutenant Colonel or higher because the position requirements for each of these positions required that the officer hold a substantive rank of LTCOL or higher; and (3) all officers temporarily acting in the positions of DGCM-A and DOCM-A have held the substantive rank of Lieutenant Colonel or higher. 38 Finally, the respondent submitted that, in any event the delegation should be read down within power pursuant to s 46(2) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act). That section provides that: If any instrument so made would, but for this subsection, be construed as being in excess of the authority's power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power. 39 Section 13 of the Legislative Instruments Act 2003 (Cth) (Legislation Act 2003) applies the same principles to legislative instruments. In this regard the respondent contended that the delegation is not a legislative instrument within the meaning of s 8 of the Legislation Act 2003 (Cth) (formerly titled the Legislative Instruments Act 2003 (Cth)), referring to s 8(6) and reg 6, item 1, of the Legislation (Exemptions and Other Matters) Regulation 2015 (Cth) providing that an instrument of delegation, including any instructions to the delegate, is a class of instrument that is not a "legislative instrument". Nor, the respondent contended, is the delegation a "notifiable instrument" within the meaning of s 10 of the Legislation Act 2003. 40 With respect, however, those submissions appear to have overlooked that when the delegation was made on 12 December 2013, a "legislative instrument" was defined in s 5 of the then Legislative Instruments Act: the provisions defining a "legislative instrument" on which the respondent relies were enacted by the Acts and Instruments (Framework Reform) Act 2015 (Cth) (the Framework Reform Act) which commenced only on 5 March 2016. Transitional clause 168 of Part 7 of Schedule 1 to the Framework Reform Act provides that an instrument made before the commencement date which was a legislative instrument under the Legislative Instruments Act is taken to continue to be such despite the amendments and vice versa. As such, the question of whether the delegation constituted a legislative instrument would seem to be determined by reference to the Legislative Instruments Act prior to the amendments in 2016, to which no argument was directed. The Legislative Instruments Act operated in relation to instruments that were "of a legislative character" and were made in the exercise of power delegated by the Parliament (s 5(1)), with an instrument being taken to be of a legislative character if it determined the law or altered its content rather than applying the law in a particular case, and had the direct or indirect effect of effecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right. That question is not necessarily a straightforward one and indeed concerns about difficulties in applying the definition of a legislative instrument led to the enactment of the new definition in s 8(4) of the Legislation Act: Explanatory Memorandum to the Acts and Instruments (Framework Reform) Bill 2014 at p. 10 (pointing to the circularity of the then definition). 41 In circumstances where these issues were not the subject of argument, it would not be appropriate for me to endeavour to resolve them. Nor, for the reasons already given, do I consider that it is necessary to read down the delegation in reliance upon s 46(2) of the Acts Interpretation Act. However, as the respondent pointed out, in any event s 46 of the Acts Interpretation Act "is essentially a statutory invocation of the common law principles of severance and reading down which the court would still apply to the construction of the delegation even if it considered that s 46 did not apply to construction of the delegation": see for example, Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 180 (Isaacs J). As such, if the delegation were construed as intended to confer power in excess of that permitted by reg 119, it suffices to say that the delegation could be read down by s 46(2) of the Acts Interpretation Act or alternatively at common law.

CONCLUSION 42 For the reasons set out above, the application is dismissed. 43 I will hear the parties as to costs. Subject to considering any objection by the parties, the issue of costs should be determined on the papers. On the issue of costs, I note that the costs of the second day of hearing on 19 October 2016 were reserved by consent. I also note that, while the second respondent's agreement (without admission) to the continuation of the interim injunction made by Wigney J on 18 July 2016 rendered the hearing of the application for final injunctive relief pending the final outcome of the ROG process otiose, that agreement was given only on the second day of the hearing after the parties had filed detailed written submissions addressing the claim for final injunctive relief. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

Acts and Instruments (Framework Reform) Act 2015(Cth)

Legislative Instruments Act 2003(Cth)s 5

Legislation Act 2003(Cth)ss 8, 10, 46

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