Was the Attorney-General acting beyond power in making a determination proleptically?
72 In my view, this is the real issue here. Another way of stating the issue is to ask whether it was open to the Attorney-General to make a determination which, in terms of its temporal operation, had an ambulatory operation? Both concepts (that is, a proleptic or an ambulatory operation) are familiar in the law (see e.g. Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351 at [179]; Re The Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at [56]; Fejo v Northern Territory of Australia (1998) 195 CLR 96 at [29]; North Ganalanja Aboriginal Corporation and Bidanggn Aboriginal Corporation on behalf of the Waanyi People v State of Queensland (1996) 185 CLR 595 at [43]; Australian Securities and Investments Commission v Edensor (2001) 204 CLR 559 at [79]; Commonwealth v District Court of the Metropolitan District (1954) 90 CLR 13 at 20; Allan v Transurban City Link Ltd (2001) 183 ALR 380 at [17]; John L. Pierce Pty Ltd v Kennedy (2000) 104 FCR 225 at [42];and D. Pearce & R. Geddes Statutory Interpretation in Australia,5th ed. Butterworths(2001) at [4.8]). Whether, in a particular context, a proleptic or ambulatory operation is permissible, will always be a question of the construction of the particular delegated legislative authority.
73 As a matter of general principle, it has been said that delegated legislation may be held to be invalid for various reasons. For instance, in explaining the position in England, F. A. R. Bennion in Statutory Interpretation, 3rd ed. Butterworths (1997) says (at 183):
"Any provision … is ineffective if [it] goes beyond the totality of the legislative power which (expressly or by implication) is conferred on the delegate by the enabling Act. The provision is then said to be ultra vires (beyond the powers)…
…
A power to do something extends only to that thing. Its purported exercise extending to a different thing is to that extent not an exercise of power at all. … Here implications extending or limiting the express words must be taken into account."
74 Bennion adds (at 184) that the fact that the delegate has failed to comply strictly with the conditions laid down in the enabling Act does not mean that the purported delegated legislation is necessarily void. The Court may, if good reason exists, decline its discretion to revoke it, or to declare it void.
75 Bennion notes (at 188) the distinction between substantive, and procedural, invalidity of delegated legislation, citing the observations of Woolf L.J. in Bugg v DPP [1993] QB 473 (at494)that substantive invalidity (which theprimary Judge found here) (relevantly) arises "where the [delegated legislation] is on its face invalid because … it is outwith the power pursuant to which it was made because … it seeks to deal with matters outside the scope of the enabling legislation …".
76 The relevant position in this country is explained similarly by Dennis Pearce and Stephen Argument, in Delegated Legislation in Australia, 2nd ed. Butterworths (1999) at 98, citing Griffith CJ in Young v Tockassie (1905) 2 CLR 470 at 477:
"[D]elegated legislation may deal with a subject not within the scope of the power provided in the empowering Act. Alternatively, it may deal with such a subject but may exceed the prescribed limits within which the legislation must fall."
77 In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355,McHugh, Gummow, Kirby and Hayne JJ observed (at [94]):
"Section 160 proceeds on the hypothesis that the ABA has power to perform certain functions and directs that it 'is to perform' those functions 'in a manner consistent with' the four matters set out in the section. In the present case, for example, s 158(j) as well as s 122 authorised the making of a standard relating to the Australian content of television programs. Thus, the making of an Australian content standard was not outside the powers granted to the ABA even though, as we have concluded, cl 9 of the Standard was made in breach of the Act. The fact that s 160 regulates the exercise of functions already conferred on the ABA rather than imposes essential preliminaries to the exercise of its functions strongly indicates that it was not a purpose of the Act that a breach of s 160 was intended to invalidate any act done in breach of that section." (References omitted)
78 Their Honours went on to say (at [99] - [100]):
"Because that is so, the best interpretation of s 160 is that, while it imposes a legal duty on the ABA, an act done in breach of its provisions is not invalid.
In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision 'may in particular cases be punishable'. That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action." (References omitted)
79 The High Court declared that, relevantly, the determination was "unlawfully made" and reserved liberty to apply; that is to say, the High Court refused to make a declaration of invalidity.
80 The vitiating factor in Project Blue Sky was the breach of an express statutory condition in the form of an "essential preliminary" to the exercise of the power to make a determination. In the present case, the challenge takes a different form, being the circumstance that, although enacted, the Queensland legislation was not yet in force.
81 Turning from the earlier general consideration of the characteristics of legislation enacted, but not yet in force, to the specific context of s 43, in the Native Title Act Case, Western Australia v The Commonwealth (1995) 183 CLR 373, Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ said of s 43 as it then stood (that is, in substantially the same terms as at present) (at 473):
"Section 43 states the Parliament's intention that acts covered by s 26(2) should not be governed exclusively by Commonwealth law when the Minister is of the opinion that State laws and executive action taken under them satisfy the requirements which the Parliament specifies. When the Minister makes a determination under s 43(1)(b), the Commonwealth law (Subdiv B) is withdrawn pro tanto and the State law is left with a corresponding field of effective operation. The Minister is not empowered to engage but to exercise a power to disengage the operation of s 109. Section 43 of the Native Title Act is valid." (References omitted) (Emphasis added)
82 In my view, the process of disengagement in the constitutional context described by their Honours illuminates the intended meaning of s 43, and, in particular, what is meant by a "law" (of a State) in s 43(1)(a) for the purposes of ascertaining the meaning of the (alternative) "provisions" in s 43(1)(b). Prima facie at least, a reference to a "law" of a State would extend to legislation enacted, even if not yet in force; and a reference to "provisions" of a law would extend to the sections of such an Act. Moreover, in my view, the constitutional context confirms that this construction was intended, for the following reasons, (as was submitted for South Australia):
· Section 109 of the Constitution provides for the effect of inconsistency between Commonwealth and State statutes.
· It is beyond the power of the Commonwealth Parliament to legislate so as to purport to vary s 109 for the purpose of controlling or preventing State legislative action. (That is, Commonwealth law must take the State law as it finds it.)
· But the Commonwealth Parliament can, within its own field, prescribe what ground its own legislation covers.
· So far as they can be, words should be read as being within power, that is to say, that the Commonwealth law does not apply whilst the determination is in force and the alternative provisions then have effect. In other words, s 43(1) does not dictate that the State Act must be in force at the date that the opinion in the form of the determination is formed.
(See Wenn v Attorney-General (Vic) (1948) 77 CLR 84 at 120; R v Credit Tribunal; Ex parte GMAC (1977) 137 CLR 545 at 563 - 564; Botany Municipal Council v Federal Airports Authority (1992) 175 CLR 453 at 464 - 465; University of Wollongong v Metwally (1984) 158 CLR 447 at 460; Western Australia v The Commonwealth (1995) 183 CLR 373 at 464; 469; 487 - 488).
83 In my opinion, this constitutional framework only serves to reinforce both the natural and the purposive meaning of s 43(1), even if s 43 is considered as a free-standing provision. It is plain enough that the Attorney-General's duty and function under s 43 is to consider whether, in his opinion, the requirements of s 43(2)(a) to (k) are satisfied. That is to say, the Attorney-General has no responsibility, or authority, on the question of the temporal operation of State laws. His concern is with their substantive impact, in terms of their content. In other words, the Attorney-General must take the State law as he finds it, in all its dimensions, substantive and temporal, and form an opinion as to its contents in the respects specified in pars (a) to (k) of s 43(2). It is no part of his function to interfere with the timing of the State law - that, as mentioned, is accepted by the terms of s 43(1), in simply stating that the provisions of the State law will, in the event, "have effect", that is to say, operate in accordance with their tenor in all respects, substantively and temporally.
84 When so viewed, it cannot, in my opinion, be said that for the Attorney-General to act proleptically, or in an ambulatory fashion, as he did here, was outside the scope of s 43. There is no express prohibition of such a course to be found in the language of s 43; and there is no basis for making such an implication. The Attorney-General was not dealing with only a Bill. The Second Reading Speech made it plain that the Queensland law would be brought into formal force, subject, necessarily, to the making (and notification) of a determination. In any event, it would not be open to the Queensland Government to leave the Act without force. As Bennion says (at 208):
"Whenever Parliament passes an Act it intends, unless the contrary intention appears, that all its provisions shall be brought into force within a reasonable time, and there is no reason in principle why this matter of public law should be treated as withheld from the supervisory jurisdiction of the High Court."
85 In short, in my opinion, the temporal aspects of the State law are not, of themselves, an "essential preliminary", with the potential to deprive the Attorney-General of his power to make a determination. On the contrary, the determination dealt with a subject (here the expression of an opinion on the specific issues raised by s 43(2)) that was exactly within the scope of the Attorney-General's statutory responsibility. Once a determination was made, the temporal operations of the applicable Federal and State legislation was entirely a matter for that legislation respectively, viewed in the context of s 109 of the Constitution. In other words, that temporal operation was not a matter within the Attorney-General's province, and his determination has no more, and no less, force and effect than is given to it by the law pursuant to which it was made. As Gaudron and Gummow JJ observed in an analogous context in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 at [46]:
"In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as 'void', 'voidable', 'invalid', 'vitiated' or, even, as 'nullities'. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made." (Emphasis added)
86 (See also F.C. Hutley, "The Cult of Nullification in English Law" (1978) 52 ALJ 8.)