33 It is certainly arguable that the Regulations provide a comprehensive code for regulating the conduct of participants in franchising towards other participants, and that the Regulations were an expression of the Commonwealth's intention to cover the field, leaving no room for the rights and liabilities of the parties to be varied by the operation of State laws such as s 106 of the Industrial Relations Act. The critical question to be addressed here, however, is that even if it were accepted the Regulations did, relevantly, cover the field when the Regulations were made in 1998, what effect, if any, did s 51AEA have on that situation when that section was introduced into the TPA in 2001?
34 There was no issue that the Regulations, being delegated or subordinated legislation, were validly made in 1998. We will proceed, therefore, on the basis the Regulations were validly made.
35 The making of the Regulations was authorised under s 51AE in Pt IVB of the TPA. Part IVB was assented to on 22 April 1998 and the Regulations commenced on 1 July 1998. Part IVB was amended in 2001 by, inter alia, the introduction of s 51AEA. That section commenced on the 28th day after the day on which it received the Royal Assent, that is, 28 days after 28 June 2001.
36 Assuming, as we have, that the Commonwealth intended that Pt IVB and the Regulations would cover the field in so far as regulating the relationship between franchisors and franchisees, s 51AEA could not operate to retrospectively alter that intention: The University of Wollongong v Metwally and Others (1984) 158 CLR 447. The issue still remains, however, given the agreement that is the subject of these proceedings, the unfairness alleged, and the action commenced, all post-date the enactment of s 51AEA, whether the section has the effect of preserving the unfair contract provisions of the Industrial Relations Act in light of the respondents' contention that irrespective of the insertion of s 51AEA into Part IVB of the TPA, the intention of the Regulations to cover the field in relation to the franchising sector, did not change.
37 In Metwally, Gibbs CJ observed at 456:
It is said in Butler v. Attorney-General (Vict.) (1961) 106 CLR 268 that "invalid" in s 109 of the Constitution means, not void, but "inoperative", so that if a State law, which was inconsistent with a law of the Commonwealth, was not repealed by the State legislature and remained on the statute book, the expiration or repeal of the Commonwealth law would have the result that the State law would come into force; in those circumstances the State law would have remained in abeyance during the time when the inconsistency existed and, when the inconsistency no longer existed, would cease to be inoperative: see at pp.274, 278, 282-283 and 286. It follows that if a Commonwealth statute which, on its proper construction, had revealed an intention to cover exclusively and exhaustively the subject matter with which it dealt, so that in consequence a State statute dealing with the same subject matter was rendered inoperative, were subsequently amended in such a way as to manifest an intention that it was not intended to exclude the operation of the State law, the operation of the State statute would thereupon revive.
38 It is clear, in our opinion, that if the Regulations were an integral part of the TPA, that is they were provisions of the statute itself, the respondent could not succeed in contending that upon s 51AEA commencing operation it was, nevertheless, intended that the relevant provisions of the TPA would continue to cover the field to the exclusion of State laws. Whilst an expression of intention in the Act will not be definitive (GMAC at 552 per Barwick CJ), as Gibbs CJ stated in Metwally at 456:
However, when there is no direct inconsistency between the two laws, the question is whether the State law is inconsistent with the Commonwealth law because the latter intends to cover the subject matter with which the State law deals, and an indication in the Commonwealth law of the intention of the Parliament in that regard would be material and in most cases decisive (see the discussion by Mason J. in Reg. v. Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545, at pp 562-564 and Palmdale-A.G.C.I. Ltd. v. Workers' Compensation Commission (N.S.W.) (1977) 140 CLR 236, at pp 243-244) (emphasis added).
39 In Majik Markets, all members of the Court of Appeal accepted that s 8 of the Petroleum Retail Marketing Franchise Act was an explicit statement that the Federal Parliament did not intend to make exhaustive or exclusive provision with respect to petrol marketing franchise agreements and, therefore, it had to be accepted that the Act was not intended to "cover the field".
40 We consider s 51AEA should be regarded in the same light as s 8 was by the Court of Appeal in Majik Markets. That is, s 51AEA is an explicit statement that the Commonwealth Parliament did not intend to make exhaustive or exclusive provision with respect to franchises and did not intend to cover the field.
41 This still leaves the respondents' contention that s 51AEA does not apply to the Regulations because they are a separate legislative instrument from the TPA and can be imputed to have individual legislative intent. We do not understand how, as a matter of statutory construction, this could be the case. The Regulations may be regarded as a law of the Commonwealth for the purpose of s 109 of the Constitution: Australian Constitutional Law, 7th edition, P Hanks, P Keyzer, J Clarke, LexisNexis Butterworths, 2004 at 514 and the cases referred to therein. The Regulations are made under Pt IVB of the TPA; more specifically under s 51AE. Section 51AEA, also to be found in Pt IVB, provides that the Parliament's intention is that a law of a State or Territory should be able to operate concurrently with Pt IVB unless the law is directly inconsistent with that Part.
42 The Regulations are not to be treated as separate from the TPA; they are to be interpreted in conjunction with the empowering provisions in the statute. The Regulations may not be repugnant to or inconsistent with the statute under which they are made and the general rule is that when delegated legislation has been made under a section of an Act and that section (or the Act itself) is repealed, the delegated legislation is also repealed unless the repealing Act includes a relevant savings clause or unless the court is satisfied there was an intention to keep the regulations afoot: see Delegated Legislation in Australia, 3rd edition, D Pearce and S Argument, LexisNexis Butterworths, 2005 at 308 and the cases referred to therein.
43 We do not accept the logic of the proposition that a provision of a statute empowering the Executive to make regulations for the purposes of the relevant part of the statute could operate concurrently with State laws, provided there is no direct inconsistency, but that the subordinate legislation - the regulations - made under the empowering provision, are to be taken as ousting the State laws.
44 Part IVB of the TPA is concerned exclusively with industry codes; it has no purpose other than to provide empowering provisions for the making and enforcement of regulations in respect of industry codes to regulate the conduct of participants in an industry towards other participants in the industry or towards consumers in the industry. It would produce an odd result if, upon the enactment of s 51AEA, Parliament's intention was to be construed as being that a law of a State or Territory should be able to operate concurrently with the skeletal statutory provisions in Pt IVB (unless the State or Territory law was directly inconsistent with that Part) but not the Regulations made under one of those provisions, such Regulations constituting the substance of what Part IVB is intended to achieve.