BETWEEN : MESSAGES ON HOLD AUSTRALIA PTY LTD (ACN 009 438 528)

Statutes - Local laws - Principles of construction - Validity - Severance and reading down

Courts and judges - Standing - Declaration - Whether appropriate or whether question hypothetical

1 BEECH J: In 2005 the defendant (the City) enacted, as a local law pursuant to the Local Government Act 1995 (WA), a local law entitled the Signs Local Law 2005. By this action, the plaintiff seeks a declaration of invalidity of the Signs Local Law.

2 The facts are not in dispute. The following were the agreed facts for the purposes of the trial of this action:

1. The plaintiff, Messages on Hold Australia Pty Ltd (ACN 009 438 528) engages in the provision of professional quality audio recording that promotes its client's goods or services, that are played over the telephone when calls to the client are placed 'on hold'.

1. The defendant is a body corporate created pursuant to section 2.5 of the Local Government Act 1995 (Act) and is responsible for the local governance of the district of Perth, which pursuant to section 2.1 of the Act has been declared a city.

1. On 15 November 2005, the defendant resolved to make the Signs Local Law 2005 (Law). The Law was promulgated in the Government Gazette on 12 December 2005 ...

1. At approximately 11.00 am on 15 December 2006, Damien Lane was observed on the footpath outside the Western Australian Cricket Association grounds at Hay Street, Perth, being a location within the municipality of the City of Perth, carrying a sign advertising 'Messages on Hold' (the sign).
2. The sign was a life size cut out picture of Shane Warne displaying the 'Messages on Hold' logo ...
3. At all material times whilst carrying the sign Mr Lane was acting on behalf of and in the course of his employment with the plaintiff.
4. The City of Perth had not issued either the plaintiff or Mr Lane a licence to display the sign under the Law.
5. Mr Lane was issued with Infringement Notice No 3303216 (Infringement Notice).
6. The Infringement Notice specified the offence as '2.1(a) Displaying a sign without a licence' and imposed a modified penalty of $100.00.
7. The Infringement Notice has not been paid.
8. The defendant has never categorised advertising or symbols on clothing, carry bags or vehicles driven by the Municipality of the City of Perth as signs for the purposes of the Law and has never issued an infringement notice under the Law in relation to advertising or symbols on those items.

3 The statement of claim pleads, as the sole basis of the claim of invalidity, that the Signs Local Law purports to regulate, inter alia, the inclusion of advertising or symbols on clothing, carry bags or vehicles driven within the municipality of the City and is thereby ultra vires the legislative power of the City pursuant to the Local Government Act. The City denies that the Signs Local Law purports to regulate those matters and denies that it is thereby ultra vires.

4 The City also pleads that the plaintiff does not have sufficient interest in the validity of the Signs Local Law to have standing.

5 Next, it pleads that, if necessary, the Signs Local Law should, to the extent that it purports to apply to matters beyond its power, be 'read down'. The source and extent of the power of the court to 'read down' an invalid provision will be discussed later in these reasons.

6 Further, the City pleads that any issue as to the validity of the Signs Local Law should be dealt with at a criminal trial of Mr Lane, the plaintiff's employee, for the offence alleged in the infringement notice issued to him by the City.

7 Finally, the City pleads that the question of whether the Signs Local Law purports to regulate the inclusion of advertising signs or symbols on clothing, carry bags or vehicles driven within the municipality of the City is hypothetical because the City has never attempted to regulate the inclusion of advertising signs or symbols on those items.

8 The issues arising from the pleadings may be summarised as follows:

(b) Does the Signs Local Law purport to regulate the inclusion of advertising or symbols on clothing, carry bags or vehicles driven within the municipality of the City of Perth?

(c) If so, is the Signs Local Law, or any part of it, thereby ultra vires?

(d) If so, can the Signs Local Law, or a part of it, be 'read down' so as not to apply to those matters, but only to apply to matters falling within power?

(e) Is it appropriate that a declaration be made, or is the question merely hypothetical?

9 As the argument at trial developed, it emerged that there is no substantial issue in respect of validity as a separate issue. Rather the issue is as to the proper construction of the provisions of the Signs Local Law. The City accepts that if the provisions are to be construed as the plaintiff contends, then they are invalid.

10 The plaintiff argues that three clauses of the Signs Local Law have the purported effect referred to in subpar (b) of par [8] of these reasons: cl 2.1, cl 5.1(i) and cl 5.1(m). I will set out these and other relevant provisions of the local law later in these reasons.

11 I turn to the first issue, namely whether the plaintiff has standing.

12 A plaintiff has no standing if he (or she) has no interest in the subject matter of the action beyond that of any other member of the public, so that, if no private right of his is interfered with, he has standing to sue only if he has a special interest in the subject matter of the action: Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 526 - 527, 538, 547. A person is not, generally at least, interested within the meaning of the rule unless likely to gain some advantage, other than the satisfaction of upholding a principle or winning a contest, if the action succeeds, or to suffer some disadvantage, other than a sense of grievance or a liability for costs, if the action fails: Australian Conservation Foundation Inc, 530.

13 The plaintiff claims that each of cl 2.1, cl 5.1(i) and cl 5.1(m) is invalid on the basis that it purports to regulate the matters identified in par [3] of these reasons.

14 An employee of the plaintiff, acting in the course of his employment with the plaintiff, has been served with an infringement notice alleging contravention of cl 2.1 of the Signs Local Law. It is accepted by the City that in those circumstances the plaintiff is or may well be liable to indemnify its employee in respect of any fine imposed in consequence of the infringement notice issued to the plaintiff's employee.

15 The circumstances set out in the preceding paragraph of these reasons satisfy me that the plaintiff has standing to seek a declaration of invalidity of cl 2.1 the Signs Local Law.

16 As will be developed later in these reasons, the plaintiff submits that, on its proper construction, cl 5.1(m) applies to Mr Lane's conduct the subject of the infringement notice. I am satisfied that the plaintiff has standing in respect of the claim that cl 5.1(m) is invalid.

17 The plaintiff also contends that cl 5.1(i) is invalid. That clause regulates the erection, maintenance and display of signs on vehicles. Subject to one qualification, there is nothing in the material before me to support a conclusion that the plaintiff has an interest in the validity of cl 5.1(i) that is different from the interest of any person living in or doing business in the municipality of the City. The qualification arises from the fact that the plaintiff has an interest in the validity of cl 2.1 and cl 5.1(m) of the Signs Local Law. If and to the extent that the validity of cl 5.1(i) affected the validity of either of cl 2.1 or cl 5.1(m), the plaintiffs would thereby be interested in the validity of cl 5.1(i).

18 However, for the reasons given later, under the heading 'reading down or severance', any invalidity of cl 5.1(i) would not, in my opinion, affect the validity of cl 2.1 or cl 5.1(m).

19 In supplementary submissions filed (with leave) after the trial, the plaintiff submitted that the fact that the 'everyday business' of the plaintiff is affected by the operation of the Signs Local Law gives its standing in relation to the validity of the Signs Local Law. It is admitted on the pleadings that the plaintiff carries on business, inter alia, within the municipality of the City. However, on the very limited facts before me, the only evidence of the business of the plaintiff is what is in par [1] and what can be inferred from pars [4] - [6] of the statement of agreed facts. Paragraph [1] does not assist the plaintiff. Paragraphs [4] - [6] support the conclusions, already drawn, of an interest in the validity of cl 2.1 and cl 5.1(m), but provide no support in relation to cl 5.1(i).

20 The plaintiff also submits that standing is a threshold issue and does not require separate determination in relation to each argument in respect of each provision. However, in my opinion establishing an interest in the validity of one provision of a statute does not thereby establish an interest in the validity of all other provisions of the statute, except to the extent that provisions may stand or fall together. I do not accept that the plaintiff's interest in cl 2.1 and cl 5.1(m) 'opens the door' to any attack, by the plaintiff, on the validity of other independent clauses of the Signs Local Law.

21 Accordingly, I find that the plaintiff does not have standing in relation to a claim that cl 5.1(i) is invalid.

The proper construction of the relevant provisions of the Signs Local Law

22 Whenever subordinate legislation made under a statute is challenged on the grounds that it is beyond the power granted in the enabling Act, one of the steps to be taken is to construe the relevant provisions of the subordinate legislation: see, for example, McEldowney v Forde [1971] AC 632, 658; Vanstone v Clark [2005] FCAFC 189; (2005) 147 FCR 299 [103]. For a discussion of general principles applicable to the judicial review of the validity of delegated legislation, see Vanstone [99] - [118].

23 In this case, it is an essential integer of the plaintiff's case that the Signs Local Law purports to regulate the inclusion of advertising or symbols on clothing, carry bags or vehicles driven within the municipality of the City. Thus, the proper construction of the Signs Local Law is of paramount significance to this action.

24 It is convenient to set out the central provisions of the Signs Local Law, and then some principles as to the construction of statutes, before turning to the specific issues of construction which arise in this case.

25 Relevant provisions of the Signs Local Law include the following:

Purpose and intent

1.3 (1) The purpose of this local law is to provide for the regulation, control and management of signs within the district, in support of the city planning scheme provisions.

(2) The effect of this local law is to establish the requirements with which any person seeking to erect a sign within the district, must comply and the means of enforcing those requirements.

Definitions

1.6 In this local law, unless the context otherwise requires -

...

'advertisement' means any word, letter, model, sign, placard, board, notice, device, representation, painted representation, whether illuminated or not, in the nature of and employed wholly or partly for the purpose of an advertisement, announcement or direction and includes any hoarding or similar structure used or adapted for use, for the display of advertisements and 'advertising' has a correlative meaning;

...

'display' in relation to -

(a) a sign, includes the erection, placement, use and maintenance of the sign;

(b) a bill, includes the posting, attachment, erection, placement, use and maintenance of the bill;

...

'land' includes buildings, parts of buildings and other structures and land covered with water;

...

'portable sign' means a free standing sign which may or may not be permanently attached to a structure or fixed to the ground, and includes a ground based sign, a sandwich board sign and an 'A' frame sign.

'sign' has the same meaning as advertisement;

...

Signs to be licensed

2.1 A person shall not display a sign on any land unless -

(a) the sign is the subject of a valid licence; and

(b) the sign is displayed in accordance with the licence and any terms and conditions set out in, or applying in respect of the licence.

Licence exemptions

2.2 (1) The following signs are exempt from the requirements of clause 2.1 -

[There is then listed some 14 categories of sign]

Application for licence

3.1 (1) ...

(2) An application for a licence under this local law shall -

(c) provide two (2) copies of plans drawn to scale of not less than 1:100 showing the size, position, materials, design and inscription thereon, the method of construction and fixing of the sign for which the licence is sought;

Determination of application

3.2 (1) ...

(2) In determining an application for a licence, the City is to have regard to -

(a) any relevant signs policy of the City;

(b) the impact of the sign on the quality of the streetscape where it is to be displayed and more generally of the district;

(c) whether the size of the sign appropriately relates to the architectural style, design and size of a building on which the sign is to be displayed, and in measuring the size of a sign a polygon shall be taken immediately around the text, graphics or image of the sign and not the entire background, except where the finish or colour of the background differs substantially from the background against which the sign is to be displayed;

(d) whether the colour scheme and materials of the sign are compatible with the architectural style and design of a building on which the sign is to be displayed;

(e) whether the colour scheme and materials of the sign are compatible with the overall architectural style and design of the area or precinct in which the sign is to be displayed;

(f) how many signs are on the land where the sign will be displayed;

(g) whether the construction of the sign is sound;

(h) whether any insurance should be obtained in relation to the display of the sign; and

(i) the matters set out in subclause (3).

(3) The City may refuse to approve an application for a licence, where:-

(a) the application has not been made in accordance with clause 3.1(2) or any other clause of this local law, relating to the requirements to be complied with when making an application for a licence;

(b) the applicant has committed a breach of any provision of this local law or of any written law relevant to the activity in respect of which the licence is sought;

(c) the sign may obstruct the sight lines of a pedestrian or a person driving or riding a vehicle;

(d) the sign may unreasonably distract persons driving or riding a vehicle;

(e) the sign may detract from the quality of the streetscape or area where it is to be displayed;

(f) the size of the sign does not appropriately relate to the architectural style, design and size of a building on which the sign is to be displayed;

(g) the colour scheme and materials of the sign are not compatible with the architectural style and design of a building on which the sign is to be displayed;

(h) the colour scheme and materials of the sign are not compatible with the overall architectural style and design of the area or precinct in which the sign is to be displayed;

(i) the construction of the sign is not sound;

(j) the sign will be additional to other signs on the land where it will be displayed;

(k) the proposed content of the sign may be considered offensive; or

(l) there are other grounds on which the City considers the application should be refused.

Portable signs

4.1 (1) A person may place or erect real estate signs on a thoroughfare on an infrequent or occasional basis only to direct attention to a residence that is for sale during the hours of a home open.

(2) A person may place or erect community information signs on a thoroughfare on an infrequent or occasional basis, only to direct attention to a place, activity or event during the hours of that activity or event, if the activity or event has been approved by the City, inclusive of the said community information signs.

Restrictions

5.1 A person shall not erect, maintain or display a sign, or suffer or permit a sign to be erected, maintained or displayed or to remain:-

(a) so as to obstruct the view from a street or public place of traffic in a street or public place;

(b) so as to be likely to be confused with or mistaken for an official traffic light or sign or so as to contravene the Road Traffic Act 1974 or any regulations made under that Act;

(c) so as to obstruct access to or from a door, fire escape or window, other than a window designed for the display of goods;

(d) so as to obstruct the movement of any pedestrian or vehicle in any street or thoroughfare;

(e) except with the approval of the City on an ornamental tower, spire, dome or similar architectural feature or on a lift machinery room, bulkhead over stairs or other superstructure over the main roof of a building;

(f) on any building where the stability of the building is, in the opinion of an authorised person, likely to be affected by the sign;

(g) on any light or power pole;

(h) on any tree, shrub, plant, rock or any other natural feature;

(i) on any vehicle unless it advertises the business of the vehicle owner or occupier and is not parked so as to be general advertising;

(j) which contains glass other than an electric light globe or tube or toughened glass or safety glass;

(k) which contains or has attached to it any paper, cardboard, cloth or other readily combustible material, except posters securely fixed to a signboard or hoarding, flags, banners or canvas awnings;

(l) the light from which is so intense as to cause a nuisance to the public;

(m) as a moveable or portable sign on local government property or public place, not affixed to a building, unless approved by the City under this local law;

(n) subject to subclause 2.2(1)(g) and (h) on any street, thoroughfare or other public place, if the sign is an election sign; or

(o) subject to subclause 2.2(1)(i) and (j) on any street, thoroughfare or other public place, if the sign is a real estate sign or community information sign.

26 Clause 8 provides that a person who fails to do anything required or directed to be done under the local law, or who does anything which under the local law that person is prohibited from doing, commits an offence.

27 The plaintiff's submissions respecting the construction of the Signs Local Law seem to me to afford a primacy to the literal meaning of the language of the relevant provisions which is not consistent with the modern approach to the construction of statutes. The modern approach invites attention being given also to considerations of context, object, purpose and inconvenience or improbability of result.

28 In Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 [11] McHugh ACJ, Gummow and Hayne JJ restated the following principles of statutory interpretation, by reference to earlier authorities:

In Newcastle City Council v GIO General Ltd [(1997) [1997] HCA 53; 191 CLR 85, 112], McHugh J observed:

'[A] court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context.'

His Honour went on to refer to what had been said in the joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd. There, Brennan CJ, Dawson, Toohey and Gummow JJ said (at 408):

'It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd [(1986) 6 NSWLR 363, 388], if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.' (footnotes omitted)

29 In the passage quoted above in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408, Brennan CJ, Dawson, Toohey and Gummow JJ cited with approval the reasons of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 320 - 321, where their Honours said:

If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature.

... the propriety of departing from the literal interpretation is not confined to situations described by these labels [namely 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure']. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

30 As to the need to construe a statutory provision so that it is consistent with the language and purpose of all of the provisions of the statute, see also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69], [79].

31 Thus the purpose and object of an Act, so far as they may be discerned, are to be taken into account in identifying and choosing between competing constructions that are reasonably open. But a court does not have free rein to ignore the terms of or rewrite a statute in order to give effect to the discerned object and purpose.

32 When a by-law is open to two constructions, on one of which the by-law would be within the powers of the local authority, and on the other outside of those powers, the first of the constructions should be adopted: Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977, 983; Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62; (1999) 202 CLR 133 [229] - [232], [408], [414].

33 In Eremin v Minister for Immigration, Local Government and Ethnic Affairs [1990] FCA 326; (1990) 21 ALD 69, 76, the Full Federal Court (Lockhart, Gummow and Foster JJ) invoked that principle to prefer a construction which would avoid debate as to the validity of delegated legislation.

34 However, this principle cannot be used to rewrite a provision of subordinate legislation into a form which avoids invalidity. The principle is engaged only if there are competing reasonably open constructions of the provision: Re Adelaide City Corporation; Ex parte Mitchell [1925] SASR 179, 184 - 186; see also Pearce D and Argument S, Delegated Legislation in Australia (3rd ed, 2005) [30.4].

35 The plaintiff's case is that cl 2.1 of the Signs Local Law prohibits a person from:

(a) carrying a shopping bag with a brand name or logo on it;

(b) wearing a T-shirt (or other clothing) with a brand name or logo visible on it; and

(a) in each case, the brand name or logo is within the definition of an advertisement and is, therefore, a sign;

(b) in each example, the person is 'displaying' the sign; and

(c) such display occurs 'on any land' in that it occurs on the land where the person is at the relevant time.

37 The plaintiff further submits that a person carrying a bag or wearing clothing with a brand name or logo would, while in any public place such as the city mall, commit an offence against cl 5.1(m) (unless approval from the City were obtained). Finally, the plaintiff submits that a person driving a car which has painted on it a company name (where the owner of the company is neither the car owner nor the driver) would also commit an offence under cl 5.1(i). These two submissions rely upon the first and second of the three steps set out in the preceding paragraph of these reasons. (Clause 5.1 does not require that the display occur 'on any land'.)

38 The City takes issue with the first and third of those three steps. It submits that, in each case, there is no 'advertisement', within the definition of that term in the Signs Local Law. Further, as regards cl 2.1, the City submits that the element that the display occur on any land is not satisfied. There may also be room for argument as to the second step, but, as will emerge later in these reasons, it is not necessary to deal with any such argument.

39 The City submits that to construe the Signs Local Law as contended by the plaintiff would be to apply it to circumstances beyond its evident purpose and object and to circumstances to which it is not intended to apply. In that regard, the City contends that the purpose and object of the Signs Local Law relate to the promotion of safety and amenity within the City. That distillation of the purpose of the local law is, as I understood it, common ground. In any case, I accept it. It is supported by consideration of the whole of the local law, including the statement in cl 1.3 of the local law as to its purpose and intent; the exemptions in cl 2.2; the matters to which the City is to have regard under cl 3.2(2); the grounds for refusal of an application for a licence under cl 3.2(3); and the provisions of cl 5.

40 Both parties submit that if the local law is construed so that it regulates the three postulated situations then it is applying to circumstances beyond the object and purpose of the local law. The plaintiff says that that is why the local law is invalid; the City says that is why it should not be so construed.

41 These submissions invite attention to the question of whether the language of the relevant provisions of the local law requires that those provisions be construed so as to operate in circumstances which are, it is common ground, outside the object and purpose of the local law. In other words, is the language 'intractable'? (Cooper Brookes 320)

42 Further, the construction advanced by the plaintiff would lead to results, in the postulated examples, which can fairly be described as inconvenient and improbable. Again, the question arises whether the language of the local law requires such a construction.

43 The City concedes that if the Signs Local Law were to be construed as contended by the plaintiff (ie, so as to apply to the shopping bag, T-shirt and car examples) then it would, to that extent, be invalid. That, the City contends, provides a further reason why the Signs Local Law should not be so construed.

44 If there is a reasonably open alternative construction of the local law to that put forward by the plaintiff then the principles of statutory construction referred to earlier would mean that that alternative construction should be preferred to the plaintiff's construction which leads to invalidity.

45 I turn to the first issue of construction, namely as to the meaning of the definition of 'advertisement'.

46 Here the term 'advertisement' has a dual effect. Not only is the term 'advertisement' used in several places in the local law, 'sign' is defined to have the same meaning as advertisement. 'Sign' is used in numerous places in the local law. The contexts in which the definition of advertisement operates should be borne in mind in determining the proper construction of the definition.

47 As McHugh J has observed, a definition should not be construed in isolation from the substantive enactment(s) containing the word or term defined. The function of a definition is not to enact substantive law, but to aid the construction of the statute. It is only when a definition is inserted into the relevant statutory enactment(s) that considerations of the object and evident policy of the statute can properly be brought to bear. To construe a definition without bringing these matters to bear would be to invite error: Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [84], [103]; see also Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628, 635.

48 In that light, I make the following observations as to the language of the definition, but without coming to any definitive position before consideration is given to the substantive enactments into which the definition is to be inserted.

49 The definition of 'advertisement' may be viewed as having two elements: first, that there be a particular type of physical element; secondly, that that physical element has a defined nature and purpose. The physical element is that there is a 'word, letter, model, sign, placard, board, notice, device, representation, or painted representation'. The second element goes to the nature and purpose of that 'word ... or painted representation': it must be 'in the nature of and employed wholly or partly for the purpose of an advertisement, announcement or direction'.

50 The City submits that in each of the postulated examples (shopping bag, T-shirt and car) there is no advertisement because the object on which one finds the brand name or logo does not have the nature and purpose that I have referred to as the second element. Thus, for example, the item of clothing cannot be said to be in the nature of and employed wholly or partly for the purpose of advertisement, announcement or direction.

51 However, that analysis seems to me to be very difficult to accommodate within the language of the definition. The ten things listed as constituting (subject to the element of nature and purpose) an advertisement range across two categories. Some of them (eg placard, board, sign) are objects in their own right, while others (eg word, letter, representation, painted representation) are not of that character, but, by their nature, must be found on some other object. Whichever of the ten members of the list is involved, the language of the definition makes the stipulated physical element ('word ... or painted representation') the subject matter of the inquiry as to nature and purpose. It does not direct attention to the nature and purpose of an object on which the word, letter, painted representation etc may be found.

52 Thus the language of the definition appears to provide a substantial obstacle to acceptance of the City's submissions as to the construction of the definition of 'advertisement'.

53 I turn to the City's second argument, as to the construction of the words 'on any land' in cl 2.1.

54 The City submits that a sign is displayed 'on any land' only if the sign is affixed to land or a building. (It is to be recalled that land is defined to include buildings.)

55 The plaintiff says that a sign is displayed 'on any land' whenever the thing constituting a sign is located on or above land or on a building.

56 There may be thought to be some irony in these contentions when they are applied to Mr Lane's prosecution by the City for contravening cl 2.1. That prosecution is the event giving the plaintiff standing and said to justify the making of a declaration. On the plaintiff's submissions, Mr Lane (the plaintiff's employee) would seem to be guilty of the offence (subject to the validity of the local law), whereas on the City's submissions, his conduct in carrying a sign does not contravene cl 2.1 because the sign was not displayed 'on any land'. Yet the City has instituted the prosecution. In any event, my task is to construe the Signs Local Law in the light of the submissions made.

57 Some support for the construction advanced by the City may be found in various of the provisions of the local law. In this regard, the City referred to the requirements set out in cl 3.1(2), especially in par (c), the various matters to which the City may have regard in determining an application under cl 3.2(2) and the grounds for refusal in cl 3.2(3).

58 All of those provisions are consistent with a reading of cl 2.1 as regulating signs only if they are affixed to land or buildings. However, I accept that those provisions do not have a controlling significance on the construction of 'on any land'. As the plaintiff submitted, these provisions may be read as if they state '(as applicable)' in each provision.

59 Clause 2.2(1) sets out classes of signs which are exempt from the requirements of cl 2.1. Paragraph (i) exempts real estate signs 'erected under cl 4.1(1)'; paragraph (j) exempts community information signs 'erected under cl 4.1(2)'. Clauses 4.1(1) and 4.1(2) are in similar terms to each other. Taking cl 4.1(1) as an example, it provides that a person may 'place or erect' real estate signs on a thoroughfare in certain circumstances and for certain purposes. What may be noticed, for present purposes, is that cl 2.2(1)(i) and cl 2.2(1)(j) exempt only signs 'erected' under cl 4.1(1) and cl 4.1(2), whereas those clauses permit a person to 'place or erect' the relevant sign. The absence of reference in cl 2.2(1)(i) and (j) to a sign 'placed' is noteworthy. That absence might be explained on the basis that a sign that is merely placed is not displayed 'on any land', so is not caught by cl 2.1 and thus requires no exemption under cl 2.2.

60 Finally, aspects of cl 5.1 may be said to support the City's construction of the words 'on any land' in cl 2.1. Clause 5.1(m) prohibits a person from displaying a sign as a moveable or portable sign on local government property or public place, not affixed to a building, unless approved by the City under the local law. If the plaintiff's wide construction of the words 'on any land' in cl 2.1 were accepted, any person who displayed a moveable sign on any land, not affixed to a building, would commit an offence against cl 2.1, unless they had a licence. On that construction of cl 2.1, cl 5.1(m) might be thought to be superfluous. It would render a subset of the same conduct, namely the display of a moveable sign on local government property or public place, a contravention unless approved by the City under the local law.

61 No such arguable incongruity would arise if 'on any land' is construed in the way contended by the City.

62 Counsel for the plaintiff submitted that the inclusion, in the definition of 'display', of placement was inconsistent with reading 'on any land' as requiring a sign to be affixed. He argued that the inclusion of placement, in the inclusive definition of display, meant that it must be accepted that a sign placed on land was displayed on any land.

64 The element 'on any land' is separate from the element that there be a display. Further, 'display' is used in other parts of the Signs Local Law in which there is no requirement that the display occur 'on any land'. See, for example, cl 5.1. The placement limb of the definition of display can and does operate in such a context. The definition of 'display' to include placement does not, therefore, control the meaning of the separate element, in cl 2.1, that a display occur 'on any land'.

65 Counsel for the plaintiff referred to the presence of the word 'affixed' in other parts of cl 2, namely in cl 2.2(1)(d) and cl 2.2(1)(e), submitting that the use of the word 'affixed' meant that something other than 'affixed' must have been intended by the phrase 'on any land'. While I accept that this is a relevant matter, to my mind it is outweighed by the indications to the contrary, referred to elsewhere in these reasons.

66 Although not the subject of submissions, I would mention that I have not overlooked the language of cl 3.7(4) of the local law, but again, in my opinion it is outweighed by the considerations pointing to the construction advanced by the City.

67 In my opinion, the textual considerations referred to above make the construction advanced by the City one that is reasonably open. That position is reinforced when regard is had to the evident purpose and object of the Signs Local Law. When that is done, and when account is taken of the preference in favour of a construction avoiding an inconvenient and improbable result and for a construction leading to or avoiding debate as to validity, I accept the City's construction of the words 'on any land' in cl 2.1.

68 When cl 2.1 is so construed, cl 2.1 does not regulate any of the postulated examples. That being so, the attack on the validity of cl 2.1 fails.

69 This makes it unnecessary to consider whether, in the postulated examples, any advertisement had been 'displayed' at all. That question would have involved consideration of whether the inclusive definition of 'display' might, exceptionally, have been treated as exhaustive, taking into account considerations of object and purpose and the preference for a construction avoiding invalidity. (See, in this regard, Riordan v Australian Sports Drug Agency [2002] FCA 858; (2002) 120 FCR 424.)

70 The plaintiff submits that cl 5.1(i) purports to regulate advertising on vehicles driven within the municipality of the City. Further, the plaintiff submits that cl 5.1(m) purports to regulate advertising or symbols on clothing and carry bags when in a public place.

71 A public place includes any thoroughfare, pedestrian mall or place which the public are allowed to use.

72 The City denies that, properly construed, the subclauses of cl 5.1 have this effect.

73 The City accepts that if, on their proper construction, these clauses do have that effect then they are, to that extent, invalid.

74 The City's submission that cl 5.1(i) and cl 5.1(m) do not have the effect contended by the plaintiff relies primarily upon the City's submissions respecting the proper construction of the definition of 'advertisement'. The discussion earlier in these reasons identified that the language of the definition provided a substantial obstacle to the acceptance of the City's submissions. However, for reasons explained below, it does not seem to me to be necessary to come to a concluded view on whether the City's submissions as to the proper construction of the definition of 'advertisement' should be accepted.

76 Clause 5.1(m) applies to signs which are erected, maintained or displayed 'as a moveable or portable sign'.

77 The question is whether any of the postulated examples (clothing, carry bags or vehicles) involve the display of a sign as a moveable or portable sign.

78 'Portable sign' is defined to mean a free standing sign which may or may not be permanently attached to a structure or fixed to the ground, and includes a ground based sign, a sandwich board sign and an A frame sign.

79 In the context of the Signs Local Law I do not think that the phrase 'free standing sign' is apt to describe any of the postulated examples.

80 The word 'moveable' is not defined in the Signs Local Law. Its ordinary meaning is 'able to be moved'.

81 Counsel for the plaintiff submitted that where words or representations were on clothing, a carry bag or a vehicle, such clothing, carry bag or vehicle, is able to be moved and so is 'moveable'.

82 However, that submission involves applying the description 'moveable' to the object on which the advertisement/sign is to be found, rather than to the advertisement/sign itself. Yet, as has been emphasised by counsel for the plaintiff, in the postulated examples it is the words or representations - not the clothing or carry bags or vehicles - which constitute the advertisement and thus the sign. In that way the plaintiff's submission does not fit comfortably with the language of the local law.

83 Another construction of cl 5.1(m) seems to me to be reasonably open. That clause is engaged by display (or erection or maintenance) of a sign 'as a moveable or portable sign'. A sign will only be displayed as a moveable sign if the thing constituting the sign can be described as moveable. Where the thing constituting the sign is not itself a physical object, but is a word, letter, representation or painted representation, there will be no room for a conclusion that the sign is being displayed 'as a moveable sign'. Where, however, the thing constituting the sign is itself an object (such as a placard, board or sign) then if that object is, as displayed, able to be moved, then it is displayed 'as a moveable sign'.

84 That construction seems to me to be consistent with the language of the local law, particularly cl 5.1(m) and the relevant definitions. That construction is also more consistent with the object and purpose of the Signs Local Law. It avoids an inconvenient and improbable result. Further, it avoids invalidity on the basis alleged by the plaintiff and so is, for that additional reason, to be preferred to the construction advanced by the plaintiff.

85 For those reasons, I adopt the construction of display 'as a moveable or portable sign' just explained. That has the consequence that cl 5.1(m) does not purport to regulate any of the postulated examples, with the result that the claim of invalidity of cl 5.1(m) fails.

86 That conclusion makes it again unnecessary to consider whether, in the postulated examples, any advertisement has been 'displayed'. See [69] of these reasons.

87 The plaintiff also submits that cl 5.1(i) purports to regulate cars with painted words or logos. For reasons detailed elsewhere in these reasons, I am of the opinion that the plaintiff has no standing to claim that that clause is invalid and that there is no controversy sufficient to engage the court's jurisdiction to grant declaratory relief in respect of cl 5.1(i).

88 In that light it seems to me to be unnecessary, if not inappropriate, to express any views as to the construction and validity of cl 5.1(i).

89 The City submitted that if and insofar as any of the provisions of the Signs Local Law were beyond power, such provisions should be read down so as to apply only to those cases which were within power.

90 In support of that submission, the City invoked the principles stated in Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87 and discussed in Pearce D and Argument S, Delegated Legislation in Australia (3rd ed, 2005) [29.11].

91 However, Pidoto involved the application of a statute which has no equivalent in Western Australia, namely the former s 46(b) of the Acts Interpretation Act 1901 (Cth), which was in the following terms:

Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then-

(a) ...

(b) any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power.

92 Now see Legislative Instruments Act 2003 (Cth) s 13(1), s 13(2). (A similar provision applying to statutes is in s 15A of the Acts Interpretation Act (Cth)). Most state and territories have enacted a similar provision requiring delegated legislation to be read down to the extent that it is beyond power under the enabling Act. See Pearce & Argument [29.5].

93 In Western Australia however, there is no provision requiring the reading down of subordinate legislation that is beyond the authorising power in the empowering Act. Thus the power to sever any provision of a local law that is invalid because it is ultra vires must be found in the common law. There is no statutory power.

94 The position as to severance under the common law should not be equated with the position under the common form statutory severance and reading down provisions: Harrington v Lowe (1996) 190 CLR 311, 327 - 328; Director of Public Prosecutions (UK) v Hutchinson [1990] 2 AC 783; R v Ng [2002] VSCA 108; (2002) 5 VR 257; Sportsodds Systems Pty Ltd v New South Wales [2003] FCAFC 237; (2003) 133 FCR 63 [20].

95 In Harrington, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ made a considered obiter statement as to the common law severance position established by earlier decisions of the High Court, namely that:

[A] valid operation of the sub-rules might be preserved after textual surgery by operation of the 'blue pencil' rule so that the valid portion could operate independently of the invalid portion, or, failing that, by treating the text as modified so as to achieve severance. But this latter step may be taken only where in so doing there is effected no change to the substantial purpose and effect of the impugned provision, and, in particular, there is not left substantially a different law as to the subject-matter dealt with from what it would otherwise be (328).

96 In R v Ng [58], the Court of Appeal of Victoria took that statement as representing the common law of Australia. I propose to take the same approach.

97 Applying that test, any invalidity in respect of cl 5.1(i) would not affect the validity of cl 5.1(m) or cl 2.1. If cl 5.1(i) were found to be invalid, it could be struck out from the Signs Local Law, leaving the balance of the Signs Local Law to operate in accordance with its terms and independently of the invalid provision.

98 I have found cl 2.1 and cl 5.1(m), as I have construed them, to be valid. Thus in those respects no question of severance arises.

99 If I were wrong in my construction of 'displayed as a moveable ... sign' in cl 5.1(m), I would have severed cl 5.1(m) so as to delete the words 'moveable or'. Insofar as the clause operates upon signs displayed as 'portable' (ie free standing) signs I see no invalidity.

100 The City contended that to the extent that any of the provisions of the Signs Local Law were invalid they should be read down so as to apply only to those cases to which they can validly apply. For example, it was submitted that the definition of 'advertisement' could be 'read down' by reading it as if there were, inserted after the words of the definition, words to the effect 'other than advertisements that appear on clothing, bags or apparel'. That contention was, as I have said, premised on the adoption of the approach taken in the cases concerning statutory reading down and severance. While there is, to say the least, room for considerable debate as to whether a statutory reading down or severance power could be exercised in the manner contended by the City, it is not necessary to enter into that debate in the present case. As already explained, there is no applicable statutory reading down or severance power. Had the question arisen, the common law power of severance would not have enabled the 'reading down' invited by the City.

Is there a controversy? Should declarations be made?

101 It was accepted by the parties that a person seeking declaratory relief must have a real interest in the declaration sought and relief will not be granted if the question is purely hypothetical, if relief is claimed in relation to circumstances that have not occurred and might never happen or if the court's declaration will produce no foreseeable consequences for the parties: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 582.

102 In this case, an employee of the plaintiff has been issued with an infringement notice under cl 2.1 of the Signs Local Law. Notwithstanding that agreed fact, the City contended that, even if cl 2.1 of the Signs Local Law were found to be invalid, declaratory relief would not be given to the plaintiff. Had I construed cl 2.1 as contended by the plaintiff, and thereby to be invalid, I would not have accepted the City's argument in this respect. In my opinion, in those circumstances a declaration in favour of the plaintiff would have been an appropriate exercise of the power to grant declaratory relief. However, I have found that cl 2.1 is not invalid on the pleaded grounds.

103 I have also found that cl 5.1(m) is not invalid on the pleaded grounds.

104 Had I found cl 5.1(m) to be invalid, I am satisfied that it would have been appropriate to grant declaratory relief in relation to any invalidity of cl 5.1(m). On the agreed facts, it would appear that Mr Lane's conduct would have constituted a contravention of cl 5.1(m). It is not too late for proceedings in that regard to be commenced, or for any prosecution notice in respect of his conduct to be amended to refer to cl 5.1(m) instead of cl 2.1: see Local Government Act 1995 (WA) s 9.25(2); Interpretation Act 1984 (WA) s 47.

105 However, I am not satisfied that declaratory relief ought to be granted in respect of the question of the validity of cl 5.1(i). If the question of the validity of cl 5.1(i) had consequences for the validity of cl 2.1 or cl 5.1(m), the position would be different. But given the independence of those provisions, the plaintiff has, on the facts before me, no interest, in the relevant sense, in the question of the validity of a local law controlling the erection, maintenance and display of signs on vehicles. A declaration of invalidity would not produce any foreseeable consequence for the plaintiff.

106 For the reasons given, I have reached the following major conclusions:

1. On its proper construction, cl 2.1 of the Signs Local Law does not purport to regulate the inclusion of advertising or symbols on clothing, carry bags or vehicles.
2. Accordingly, the claim that cl 2.1 is invalid fails.
3. On its proper construction, cl 5.1(m) of the Signs Local Law does not purport to regulate the inclusion of advertising or symbols on clothing, carry bags or vehicles.
4. Accordingly, the claim that cl 5.1(m) is invalid fails.
5. The plaintiff does not have standing to agitate the claim that cl 5.1(i) is invalid.
6. Further, there is no controversy involving the plaintiff respecting the validity of cl 5.1(i), so that a declaration of invalidity would produce no foreseeable consequence.
7. For the reasons in 5 and 6, the plaintiff's claim for a declaration that cl 5.1(i) is invalid fails.

107 It follows that the plaintiff's claim should be dismissed. I will hear the parties in relation to costs.