Pfeiffer v Stevens

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Hayne J,McHugh J,Gummow J,Kirby J
• Judgment Date: 13 December 2001
• Neutral Citation: 2001-1213 HCA D,[2001] HCA 71
• Docket Number: B40/2001
• Date: 13 December 2001
• Court: High Court

[2001] HCA 71

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ

B40/2001

Otto Pfeiffer

Appellant

and

Paul Ernest Stevens

Respondent

Representation:

R A Ingham-Myers with A C Harding for the appellant (instructed by Gall Standfield and Smith)

G J Gibson QC with S M Ure for the respondent (instructed by King & Company)

Acts Interpretation Act 1954 (Q), s 23(1).

Local Government Act 1993 (Q), ss 850, 851, 859, 860, 861, 862, 863.

Pfeiffer v Stevens

Statutes — Construction — By-laws and Regulations — Validity — Procedure for making interim local laws — Whether Minister's power to extend interim local law limited so as to preclude multiple extensions — Whether power to extend interim local law contrary to requirements of sunset provision — Where statute conferred power on Minister to extend interim local law for ‘longer period’ – Whether interim local law had ceased to have effect at relevant time.

Local Government — By-laws and Regulations — Validity — Power of extension of interim local law.

Constitutional law (Cth) – ‘law of a State’ – Constitutional presumptions and penal laws — Contextual implications of limited delegation — Whether multiple extensions of an interim local law that imposes penal sanctions results in uncertain validity.

Words and phrases — ‘sunset provision’, ‘a longer period’, ‘interim local law’.

ORDER

Appeal dismissed with costs.

1 Gleeson CJ and Hayne J. The appellant was prosecuted by the respondent, an officer of the Gold Coast City Council, for damaging protected vegetation contrary to s 5(1) of Interim Local Law No 6 (Vegetation Management). The complaint was dismissed by a magistrate (Magistrate Webber) on the ground that, at the time of the alleged offence, the interim local law had ceased to have effect. An appeal to a District Court judge succeeded, the judge (Hanger DCJ) deciding that the interim local law remained in force at the relevant time. The Court of Appeal of Queensland (McPherson JA, Moynihan SJA, and Atkinson J) dismissed an application for leave to appeal, concluding that the decision of the District Court judge was correct.

2 The issue as to whether the interim local law was still in force at the time of the alleged offence turns upon the power of the Minister to extend a period the subject of a sunset provision in the interim local law. It is accepted that the Minister had the power to extend the period once. But the Minister purported to extend it twice, and it was during the period of the second extension that the alleged destruction of vegetation occurred. There is no challenge to the Minister's action on any ground other than that the power to make a second extension did not exist. There is, in particular, no suggestion that there was an abuse of power. The appellant's argument is that, as a matter of statutory construction, the power of extension conferred upon the Minister was capable of being exercised once only. In order to explain how the question arises, it is necessary to refer to the scheme under which interim local laws may be made.

3 Chapter 12 of the Local Government Act 1993 (Q) (‘the Act’), which begins by noting that a local government's jurisdiction to make laws is stated in Ch 2, provides a law-making process for all laws made by local governments (s 848). A law made by a local government is called a ‘local law’ (s 850). The legislation contemplates model local laws, which are laws proposed by the Minister as suitable for adoption by local governments as a local law (s 851). We are not here concerned with model local laws. The legislation provides for interim local laws, which are local laws that the local government and the Minister agree may be made by using the process in Pt 2 Div 2 of Ch 12 because of the nature of the law (s 852). It also provides for local laws other than model local laws and interim local laws.

4 Part 2 of Ch 12 includes Div 1, which sets out the process for making model local laws, Div 2, which sets out the process for making interim local laws, and Div 3, which sets out the process for making other local laws. Section 865, which is in Div 3, provides that the process stated in Div 3 must be used to make a local law other than a model local law or interim local law. It is convenient to begin with that process.

5 The first step in the Div 3 process is a resolution by the local government proposing to make a law (s 866). The second step is to advise the Minister of the proposed local law. At that stage the Minister considers State interests, and, depending on the outcome of such consideration, gives certain advice to the local government. Such advice may include advice that the local government may proceed further in making the law, or may impose conditions on the local government (s 867). Thus, the Minister, acting in the light of State interests, exercises a substantial measure of control over the law-making proposal. The next step, assuming advice that permits the local government to proceed, is for the local government to consult with the public about the proposed local law. The consultation procedure, including the period of consultation, is prescribed (s 868). The Minister may have a say in the fixing of the consultation period (s 868(2)). The public may make submissions (s 870). After considering all submissions, the local government must decide, by resolution, whether to proceed with the proposed local law (s 871). If a positive decision is made, the matter is referred again to the Minister to consider State interests once more (s 872). If the Minister considers that State interests are satisfactorily dealt with, then the Minister advises the local council it may proceed to the final step (s 872). The final step is a resolution by the local government to make the proposed local law.

6 That process for making local laws forms the background against which the process for making interim local laws operates. The process for making local laws involves consideration of local interests by the local government, consideration of State interests by the Minister, protection of State interests by the degree of control over the process given to the Minister, public consultation, and a requirement to consider submissions from the public.

7 It is Div 2, which concerns the process for making interim local laws, that is of direct relevance to this case.

8 The first step in Div 2 concerns the proposal for an interim local law. The Act provides:

‘860 (1) The local government must, by resolution, propose to —

• (a) make a law; and

• (b) get the Minister's agreement to make the law as an interim local law.

(2) The proposed local law must include a sunset provision stating the law will expire —

• (a) 6 months after its commencement; or

• (b) at the end of a longer period gazetted by the Minister.’

9 As was noted above, s 852 provides that, for a law to be proposed as an interim local law, the local government and the Minister must agree that, because of the nature of the law, it may be made using the Div 2 process. The second step in the process is for the local government to advise the Minister of the proposed law and state why it is necessary or desirable for it to be made on an interim basis (s 861). It is only if the Minister agrees, either unconditionally or conditionally, that the local government may proceed to step 3. And even then, before proceeding to step 3, the local government must agree to immediately begin the process stated in Div 3 to make the proposed interim local law as a local law under Div 3 (s 861(4)). Before taking step 3 of the Div 2 process, the local government must begin the Div 3 process (s 861(5)). Thus, the continuation of the Div 2 process is linked with the initiation of the Div 3 process. This is critical to an understanding of the legislative scheme.

10 Step 3 of the Div 2 process is for the local government, by resolution, to make the proposed interim local law (s 862). Step 4 is to give public notice of the law by publication in the Gazette (s 863). The notice must contain certain information (s 863(1)). Section 863(2) provides:

‘The notice also may state the following —

• (a) that the local law is an interim local law;

• (b) the purposes and general effect of the local law;

• (c) the date the local law will expire and that the Minister may extend this date by gazette notice;

• (d) that a certified copy of the local law is open to inspection at the local government's public office and at the department's State office;

• (e) that a copy of the certified copy of the local law may be purchased at the local government's public office.’

11 Section 863(2)(c) reflects the provisions of s 860(2), and makes plain, in some respects, what the legislature meant by s 860(2).

12 In the present case, the procedures required by Div 2 were followed. Interim Local Law No 6 (Vegetation Management) was made on 7 March 1997. A notice in the Gazette of 14 March 1997 stated that the interim local law expired on 14 September unless extended by the Minister by Gazette notice. This complied with s 863(2)(c).

13 On 22 August 1997, the Minister extended the interim local law until 14 March 1998. Notice of the extension was published in the Gazette. There is no dispute as to the validity of that extension.

14 On 25 February 1998, the Minister purported to extend the interim local law for a further period ending on 14 September 1998. Notice of the purported extension was published in the Gazette. It was during the period of that purported extension that the appellant allegedly contravened the interim local law. It is the validity of that extension that is in issue.

15 Interim Local Law No 6 (Vegetation Management) contained the following provision, under the heading ‘Expiry’:

‘22. This local law expires six (6) months after it commences or at the...