(b) The 1912 Act
56The primary judge said that cl 4B of Ordinance 20 made ss 382 and 383 (and other provisions) of the Local Government Act 1919 applicable to the Sydney County Council. Section 382(1) gave power to construct works for the supply of electricity. Section 383(1) conferred the powers of a constructing authority under the 1912 Act for that purpose.
57Section 80 of the 1912 Act provided that for the carrying out of any public work a constructing authority and all persons acting under the constructing authority -
"(a) May enter into and upon the lands and grounds of any person whomsoever, and ... take and appropriate, for the purposes herein mentioned, such parts thereof as may be necessary and proper for the laying out, making and using any public work, and all other works, matters and conveniences connected with;
...
(i) And generally may do all other acts necessary for constructing, reconstructing, making, maintaining, altering, repairing, adding to, extending, and using such public work."
58Section 86 of the 1912 Act provided that if the public work "crosses any public highway or carriage road", it should not be carried across, over or under any such road unless, the Governor had approved "the proposed place and mode of such crossing and the immediate approaches thereto, and all other necessary works connected therewith".
59It appears that at trial the appellants did not dispute that s 80 could provide authority for erection of the pole, but submitted that there was no evidence of the Governor's approval as required by s 86. The primary judge accepted that the presumption of regularity applied, whereby the absence of specific evidence of approval was overcome; her Honour also appeared to accept that non-compliance with s 86 would not mean that the erection of the pole was unauthorised.
60No ground of appeal challenged that s 80 of the 1912 Act was available as a source of authority for erection of the pole. Ground of appeal 2 was a challenge to the primary judge's application of the presumption of regularity to find approval by the Governor as required by s 86. Her Honour's apparent acceptance that the erection of the pole was authorised despite absence of the Governor's approval was passed over.
61Compliance or non-compliance with s 86 of the 1912 Act is of no consequence, since the part of what became lot 1234 on which the pole was erected was not a public highway or a carriage road. Subject to the matters next considered, the primary judge's holding that the erection of the pole was authorised under s 80 of the 1912 Act would stand.
62The primary judge was incorrect in her starting-point of cl 4B of Ordinance 20, at least for authority to erect the pole in 1982-83. Clause 4B was inserted in Ordinance 20 in 1990. Prior to that time the Gas and Electricity
Act 1935 transferred and delegated to the Sydney County Council the powers of the Municipal Council of Sydney under the 1896 Act (s 51(1), s 55(1)) and provided that certain sections of the Local Government Act , relevantly s 383 but not s 382, applied to it (s 55(3)). In 1955 the Shire of Sutherland became part of the Sydney County District. This brought the same position in 1983-83 as the misplaced reliance on cl 4B of Ordinance 20.
63Without the benefit of a ground of appeal or attention in their written submissions, the appellants submitted that the 1912 Act did not apply to any works carried out after 1935. Again, the respondent did not object.
64As best we understand it, the point of the submission was that s 383 only conferred the powers of a constructing authority for the purpose of works "under this Part", that is, under Pt XIV of the Local Government Act . However, the conferral of the powers of a constructing authority on the Sydney County Council was for works carried out in the exercise of its power to supply electricity. It was not necessary that the works be under Pt XIV of the Local Government Act .
65In Gallen v Strathfield Municipal Council (1943) 1 NSWLR 122 it was held, approving Brighton v Dungog Municipal Council (1971) 15 LGR (NSW) 74, that the combined operation of ss 382 and 383 of the Local Government Act and s 80 of the Public Works Act entitled a council to enter private land and construct and maintain sewerage and drainage pipes without first resuming an easement, subject to a liability to pay compensation. These decisions were applied in Quirindi Shire Council v Gigli (1985) 3 NSWLR 178. The appellants accepted this position.
66However, again without the benefit of a ground of appeal or attention in their written submissions, and only in submissions in reply, the appellants referred to Randwick Municipal Council v Commissioner for Government Transport (1967) 1 NSWLR 428, in which Street J held at 438 that certain sections of the Local Government Act , including ss 382, did not authorise entry on the land of a body representing the Crown and the building of a dam, because the provisions did not bind the Crown. They submitted that s 382 "will not of itself authorise construction in respect of land of the Crown", and that the decision was "applicable under s 14 of the 1896 Act". The application under s 14 was not explained.
67The respondent again did not object to this accretion to the appeal. It submitted that in Randwick Municipal Council v Commissioner for Government Transport s 383 "does not appear to have been in the forefront of the argument", and that the decision could not stand with Gallen v Strathfield Municipal Council and Quirindi Shire Council v Gigli.
68Gallen v Strathfield Municipal Council and Quirindi Shire Council v Gigli were both concerned with works on private land, not Crown land, and the lastmentioned submission was unsound.
69The relevant holding in Randwick Municipal Council v Commissioner for Government Transport was as to s 382 of the Local Government Act , the provision giving power to construct works, rather than s 383 conferring facilitative powers. The reasoning would extend to those powers, and Street J said at 439 that s 383 would not "extend the scope of any power granted elsewhere to make such power binding on the Crown".
70However, the question in the present case is not whether the power to construct works for the supply of electricity given by s 382 extended to Crown land, but whether the power to supply electricity transferred and delegated to the Sydney County Council by ss 51 and 55(1) of the Gas and Electricity Act , and the accompanying powers of a constructing authority under s 80 of the 1912 Act via s 383 extended to construction of electricity works on Crown land. The source power is that of the Municipal Council of Sydney in the 1896 Act; thus, reverting to the submission that Randwick Municipal Council v Commissioner for Government Transport was applicable under s 14 of the 1896 Act, whether it applied does indeed arise. But Randwick Municipal Council v Commissioner for Government Transport does not answer the question.
71In Randwick Municipal Council v Commissioner for Government Transport Street J examined the Local Government Act to ascertain "whether ... it can be affirmed that the beneficent purpose [of the relevant sections] must be wholly frustrated unless the Crown were bound" (at 437). The 1896 Act, or the 1896 Act as taken up in the Gas and Electricity Act , are not in their terms or their purpose in like position to the Local Government Act . Moreover, the test of complete frustration unless the Crown is bound, taken by his Honour from Bombay Province v Bombay Municipal Corporation (1947) AC 58 at 63 as applied in North Sydney Municipal Council v Housing Commission of New South Wales (1948) SR (NSW) 281, is no longer the law.
72In Bropho v Western Australia (1990) 171 CLR 1 the High Court reconsidered the rule that statutory provisions worded in general terms are to be construed as prima facie inapplicable to the Crown. The joint judgment of Mason CJ and Deane, Dawson, Toohey, Gaudron and McHugh JJ referred to the test variously expressed in Bombay Province v Bombay Municipal Corporation and other cases as "an eye of the needle test" (at 17). Their Honours saw it as inappropriate to modern conditions where there were a "myriad of governmental, commercial and industrial instrumentalities covered by the shield of the Crown" (at 19), and found unconvincing as an argument for preserving "such an inflexible and stringent rule" (at 20) that the legislature would ordinarily have proceeded conformably with the rule. They said (at 21-2) -
"Once it is recognized that the rule does not, of itself, provide an impregnable foundation for its own observance, there can remain no basis in principle for unqualified insistence upon the rule as an inflexible one, with the stringent implications which recent cases have accorded it. In other words, once it is accepted that a legislative intention to bind the Crown may be disclosed notwithstanding that it could not be said that that intention was 'manifest from the very terms' of the statute or that the purpose of the statute would otherwise be 'wholly frustrated', fundamental principle precludes confinement of the general words which the legislature has used in a way which will defeat that intention. Such a legislative intent must, of course, be found in the provisions of the statute - including its subject matter and disclosed purpose and policy - when construed in a context which includes permissible extrinsic aids. If such a legislative intent does appear from the provisions of a statute when so construed, it must necessarily prevail over any judge-made rule of statutory construction including the rule relating to statutes binding the Crown. Indeed, even if such a rule of statutory construction had been laid down in completely unqualified and mandatory terms by legislative provision, it would necessarily give way to the provisions of a subsequent enactment which, notwithstanding the earlier provision, disclosed a contrary legislative intent since the subsequent enactment would represent a pro tanto repeal or amendment of the earlier provision.
It follows from what has been said above that considerations of principle preclude recognition of an inflexible rule that a statute is not to be construed as binding the Crown or Crown instrumentalities or agents unless it manifests a legislative intent so to do either by express words or by "necessary implication" in the limited and stringent sense explained above. If such a legislative intent appears when the relevant legislative provision is construed in a context which includes the presumption against the Crown and its instrumentalities or agents being so bound, that legislative intent must, as a matter of principle, prevail. That being so, earlier judicial statements to the effect that it must be manifest from the very terms of the statute itself that it was the legislative intent that the general words of a statute should bind the Crown, or that it must be apparent that the purposes of the statute would be wholly frustrated unless the Crown were bound, should be read as applying to the context of the particular statutory provisions involved in the cases in which they were made. Such statements should no longer be seen as precluding the identification of such a legislative intent in other circumstances or as warranting the overriding of a legislative intent which can be discerned in the provisions of a statute when construed in context."
73Recognising that the stringent test had previously been established, their Honours said (at 23) that -
" ... it may be necessary, in construing a legislative provision enacted before the publication of the decision in the present case, to take account of the fact that those tests were seen as of general application at the time when the particular provision was enacted. If, however, a legislative intent that the Crown be bound is apparent notwithstanding that those tests are not satisfied, that legislative intent must prevail."
74Their Honours also pointed out (at 23-4) in the context of subsequently enacted legislation but equally applicable to a legislative provision enacted prior to the decision, that -
" ... notwithstanding the absence of express words, an Act may, when construed in context, disclose a legislative intent that one of its provisions will bind the Crown while others do not and that a disclosed legislative intent to bind the Crown may be qualified in that it may, for example, not apply directly to the Sovereign herself or to a Crown instrumentality itself as distinct from employees or agents. Always, the ultimate questions must be whether the presumption against the Crown being bound has, in all the circumstances, been rebutted, and, if it has, the extent to which it was the legislative intent that the particular Act should bind the Crown and/or those covered by the prima facie immunity of the Crown."
75Brennan J said succinctly (at 28) that -
" ... the presumption cannot be put any higher than this: that the Crown is not bound by statute unless a contrary intention can be discerned from all the relevant circumstances. As the Court must determine whether the legislature intended (or would have intended had the question been addressed) that the statute should affect the activities of the Executive Government, the circumstances which properly relate to that question must be considered. Those circumstances include the terms of the statute, its subject matter, the nature of the mischief to be redressed, the general purpose and effect of the statute, and the nature of the activities of the Executive Government which would be affected if the Crown is bound."
76His Honour did not share the plurality's regard to the earlier sway of the stringent test, saying (at 28-9) -
"I would add a brief mention as to the effect of the reasons for judgment in this case upon the interpretation of statutes earlier enacted. In my respectful opinion, it would be a legal fiction to impute to the legislatures of this country or to their parliamentary counsel an intention fluctuating with the changing formulations of the presumption by the courts of this country and of England. The question whether the Crown is bound by a statute arises ordinarily in reference to statutes enacted without conscious animadversion to the strength of the presumption and, if it be right to look at all the relevant circumstances to determine what the intention of the legislature was or to determine what intention ought fairly to be imputed to the legislature when it enacts a statute in the future, equally it must be right to look at all the relevant circumstances when interpreting a statute enacted in the past."
77This approach to whether the Crown is bound has since been affirmed, for example in the joint judgment of Gleeson CJ and Gummow, Hayne, Heydon and Crennan JJ in Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2007] HCA 38; (2007) 252 CLR 1.
78In the present case, the supply of electricity to a large urban population was in the 1890's a beneficial and important governmental function, and has remained so. It requires an extensive infrastructure, and the clear provisions for construction of works on public places (s 14 of the 1896 Act) and "the lands and grounds of any person whomsoever" (s 80 of the 1912 Act); which includes public highways and carriage roads, see s 86) should not readily be inhibited by excluding Crown land if it is necessary for the infrastructure.
79As to the 1896 Act, the Crown in many of its governmental, commercial and industrial manifestations could be expected to be an electricity customer, entitled to a supply (s 27) and subject to contracts for supply (s 21), care of meters (s 24) and entry on Crown land for inspection and testing (s 36). The Postmaster General's telegraph and telephone lines and other public works are not to be injuriously affected (s 17), and the Secretary for Public Works and the Postmaster General (amongst others) are to be given notice of proposed works in, under, along or across any street, highway or public bridge, on which a telegraph, telephone or railway line might be (s 18). Under the 1912 Act, the Governor must consent to a public work crossing a public highway or carriage road. Land so affected may be Crown land.
80Crown land is held ultimately for the benefit of the populace. If the public (as to roads, for example) and private landholders are liable to entry and construction of electricity works in the exercise of the important governmental function, a legislative intent can readily enough be seen that the Crown should similarly be liable to entry and construction of electricity works on the land held for the benefit of the populace. Further, the Crown in its manifestations abovementioned also benefits from the construction of the electricity works. In our opinion, the intent is apparent that the Crown was bound by combined effect of the 1896 Act and s 80 of the 1912 Act as taken up and supplemented in the Gas and Electricity Act , so that the relevant powers extended to construction of electricity works on Crown land.
81In our opinion, therefore, the pole was lawfully erected.