Wylkian Pty Ltd v ACT Government (No 2) [2002] ACTSC 109 (30 October 2002)

Last Updated: 4 November 2002

WYLKIAN PTY LTD v AUSTRALIAN CAPITAL

TERRITORY GOVERNMENT (No 2)

[2002] ACTSC 109 (30 October 2002)

FIRE, EXPLOSIVES AND FIREARMS - fireworks - regulating regime governing transport of dangerous goods by road

STATUTES - by-laws and regulations - validity - whether inconsistency between regulations of Commonwealth and Australian Capital Territory

Road Transport Reform (Dangerous Goods) Act 1995 (Cth)

Road Transport Reform (Dangerous Goods) Regulations 1999 (Cth)

Dangerous Goods Regulations 1978 (ACT)

Dangerous Goods Act 1984 (ACT)

SC 330 of 2001

Judge: Gyles J

Supreme Court of the ACT

Date: 30 October 2002

IN THE SUPREME COURT OF THE )

) SC 330 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: WYLKIAN PTY LIMITED

HAROLD SCOTT UPTON

Plaintiffs

AND: ACT GOVERNMENT

Defendant

O R D E R

Judge: Gyles J

Date: 30 October 2002

Place: Canberra

THE COURT ORDERS THAT:

1. Paragraph 6 of the further amended statement of claim be struck out.

2. It be determined that none of the amending regulations referred to in the further amended statement of claim are invalid.

3. Proceedings SC 330 of 2001 be dismissed.

4. The plaintiffs are to pay the costs to the defendant of the proceeding.

1. On 24 September last I delivered reasons and stood the proceeding over to enable short minutes of order to be brought in. This judgment should be read with those reasons, and I shall use the same terminology.

2. At that time, I did not resolve the issue of inconsistency, which I explained and will not repeat, although I did make some decisions along the way (see pars [50] to [58] inclusive). In particular I decided that for present purposes inconsistency between Commonwealth and Australian Capital Territory ("ACT") statutes and delegated legislation is to be judged on the basis of direct inconsistency between the two instruments rather than any notion of "covering the field".

3. I have now had the benefit of comprehensive written and oral submissions as to the question of direct inconsistency. I need not set them out in full. They are available if required. I consider that despite an initially attractive argument the plaintiff has failed in this attack upon the validity of the ACT regulatory regime. As it is desirable that there be early finality to my decision I will explain as succinctly as I can why I have come to that opinion.

4. On or about 1 October 1999 the Road Transport Reform (Dangerous Goods) Amendment Regulations 1999 (No 1) (Cth) ("the Commonwealth Amendments") came into force pursuant to subs 4(1) and subs 4(3) of the Road Transport Reform (Dangerous Goods) Act 1995 (Cth) ("the Act"). The Act and the Road Transport Reform (Dangerous Goods) Regulations (Cth) ("the Commonwealth Regulations") regulate the transport of dangerous goods by road in the Australian Capital Territory. The purpose of the Commonwealth Amendments was said in the Explanatory Memorandum to be:

"Amendments to allow the Regulations to operate successfully in the Australian Capital Territory. As the regulations do not comprehensively regulate the transport of explosives, radioactive substances and infectious substances, the Amendment Regulations remove these three classes from operation of the Regulations. The ACT will rely on existing legislation regulating these three classes of dangerous goods."

5. In the schedule to that Explanatory Memorandum the following appears:

"Item 2 inserts a new subregulation (3) to exclude dangerous goods of Class 1 (Explosives), 6.2 (Infectious Substances), or 7 (Radioactive Substances) from the operation of these Regulations. This is to assist the operation of these Regulations in the Australian Capital Territory by ensuring that the laws of the ACT regulate the transport of these classes of goods, as the Regulations do not comprehensively regulate these goods."

6. The regulatory impact statement includes the following:

"3.2 Amendments for the Australian Capital Territory

The amendments in relation to the ACT can be dealt with administratively. Currently an emergency order made under the National Road Transport Commission Act 1991 is in place for the ACT which deals with the situation.

Under the National Road Transport Commission Act an Emergency Order may only be made for six months at a time. This is not an efficient or durable means of dealing with the problems for the ACT when simple amendments to the Principal Regulations provide a long term solution.

It is also preferable to include the information within the Principal Regulations rather than in an Emergency Order because information contained in regulations is more transparent and publicly accessible. At present, an interested member of the public (including those involved in the road transport industry) would bet unlikely to seek out and find information contained in an Emergency Order."

Later the following is said:

"Clause 2 (now subregulation 2.2(3)) - coverage of certain dangerous goods.

An emergency order made under section 34 of the Road Transport Reform (Dangerous Goods) Act 1995 is currently in place in the ACT and excludes dangerous goods of Class 1 (explosives), 6.2 (infectious substances), and 7 (radioactive materials), from the meaning of dangerous goods. The ACT wishes to rely on their existing law relating to the transport of dangerous goods of Class 1, 6.2, and 7 because thePprincipal Regulations do not comprehensively regulate these dangerous goods.

The other States and Territories have the ability to deal with this situation in their own law, so the amendment is only aimed at fixing the situation for the ACT. The proposed amendment simply provides a legislative method for fixing a problem which is currently resolved administratively. This amendment will make the application of the Regulations clear without the need to resort to an administrative instrument. It will also remove the need to make an Emergency Order for the ACT every six months."

7. The terms of the Commonwealth Amendments are apt to give effect to those statements of purpose.

8. At the same time reg 2.2(3) was inserted into the ACT Regulation by regulations number 211 of 1999 (ACT) commencing on 1 October 1999, and provided that the meaning of the term "dangerous goods" does not include dangerous goods of Class 1, Class 6.2, and Class 7. These classes correspond with the classes dealt with by the Commonwealth Amendments. The paradoxical effect of this exclusion was to leave regulation of the road transport of those classes of goods in the hands of the ACT Government