Wylkian Pty Ltd v ACT Government [2002] ACTSC 97 (24 September 2002)

Last Updated: 10 October 2002

WYLKIAN PTY LTD v ACT GOVERNMENT

[2002] ACTSC 97 (24 September 2002)

CATCHWORDS

FIRE, EXPLOSIVES & FIREARMS - fireworks - regulatory regime - where regulatory amendments restricted use of fireworks licences and permits in the Australian Capital Territory - where exemption for shopgoods fireworks removed from licensing regulations

STATUTES - by-laws and regulations - ultra vires - validity - inconsistency with Commonwealth statute - accrued rights

CONSTITUTIONAL LAW - whether protectionist restriction on free trade - whether acquisition of property - whether inconsistency established between Commonwealth law and law of the Australian Capital Territory - test of inconsistency to be applied

PRACTICE & PROCEDURE - nature of proceeding under O 29 of the Rules of Court

Supreme Court Rules (ACT) O 29

Dangerous Goods Act 1984 (ACT) ss 4(3), 10

Dangerous Goods Act 1975 (NSW) ss 8, 15, 17, 19, 21, 27, 28

Dangerous Goods Regulation 1978 regs 36, 41, 54, 175, 185, 206

Legislation Act 2001(ACT) s 139

Australian Capital Territory (Self-Government) Act 1988 (Cth) ss 22(1), 23, 28, 69

Subordinate Laws Act 1989 (ACT) s 7

Interpretation Act 1967 (ACT) s 38(c)

Constitution ss 51(xxxi), 109

Road Transport Reform (Dangerous Goods) Act 1995 (Cth) ss 3, 4, 10, 11

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

Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360 applied

Bath v Alston Holdings Pty Ltd [1988] HCA 27; (1988) 165 CLR 411 applied

Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; (1990) 169 CLR 436 applied

Elliott v Minister for Transport & Infrastructure Development (2000) 158 FLR 245 distinguished

Frank v Australian Capital Territory [2001] ACTSC 42; (2001) 161 FLR 262 considered

Smith v ANL Ltd [2000] HCA 58; (2001) 204 CLR 493 considered

Georgiadis v Australian & Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297 referred to

Health Insurance Commission v Peverill (1994) [1994] HCA 8; 179 CLR 226 referred to

Commonwealth v WMC Resources Ltd [1998] HCA 8; (1998) 194 CLR 1 applied

Bienke v Minister for Primary Industries & Energy (1996) 63 FCR 567 followed

Australian Capital Territory v Pinter [2002] FCAFC 186 referred to

Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513 cited

Minister for Primary Industries & Energy v Davey (1993) 47 FCR 151 followed

Re Credit Tribunal; Ex parte General Motors Acceptance Corporation Australia [1977] HCA 34; (1997) 137 CLR 545 referred to

Grace Bros v Magistrates, Local Court of New South Wales (1988) 84 ALR 492 referred to

Majik Markets v Brake & Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443 followed

Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1976) 142 CLR 237 referred to

Re Jacob (1996) 43 ALD 459 cited

No SC 330 of 2001

Judge: Gyles J

Supreme Court of the ACT

Date: 24 September 2002

IN THE SUPREME COURT OF THE )

) No SC 330 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: WYLKIAN PTY LTD and HAROLD SCOTT UPTON

Plaintiffs

AND: ACT GOVERNMENT

Defendant

O R D E R

Judge: Gyles J

Date: 24 September 2002

Place: Sydney (heard in Canberra)

THE COURT ORDERS THAT:

The proceeding stand over to a date to be fixed to enable counsel for the defendant to bring in short minutes of order to give effect to these reasons.

1. This is the determination of questions of law pursuant to O 29 of the Rules of Court, concerning the validity of changes to the regulation of fireworks pursuant to the Dangerous Goods Act 1975 (NSW) as applied in the Australian Capital Territory ("the Territory") (the Act).

2. The relevant parts of the further amended Statement of Claim are as follows:

"1. The First Plaintiff is a corporation which trades and conducts business throughout the Australian Capital Territory, Australia and overseas and is able to sue in its corporate name and style.

2. At all relevant times the First Plaintiff conducted the business of fireworks importer, distributor and seller.

3. The Second Plaintiff is a director and shareholder of the First Plaintiff and conducts in his own right the business of fireworks displays and fireworks consultancy and training throughout the Territory, Australia and overseas.

4. At all relevant times the first Plaintiff held the following licenses [sic] issued in accordance with the provisions of the Dangerous Goods Act 1975 as applied to the Territory:

a) Licence to import (15)

b) Licenses [sic] to keep (800, 807, 908).

5. At all relevant times the Second Plaintiff held the following licences and permit issued in accordance with the provisions of the Dangerous Goods Act 1975 as applied to the Territory

a) Licence to manufacture (ME 29)

b) Licence to sell (LS00001)

c) General permit (GP 19).

6. At all relevant times the plaintiffs also enjoyed various property rights, rights and privileges additional to those conferred upon them by the said licences and permit by virtue of the provisions of the Dangerous Goods Act 1975 as applied to the Territory.

7. At all relevant times the Plaintiffs relied upon and utilized the said licences and permit in order to conduct their business and to trade throughout the Territory, Australia and overseas.

8. At all relevant times the Plaintiffs relied upon and utilized the rights and privileges referred to in paragraph 5 above in order to conduct their businesses and to trade throughout the Territory, Australia and overseas.

9. On 15 June 1999 Regulation 36(a)(i) [and 41(8)] of the Dangerous Goods Act 1975 as applied to the Territory was amended by Subordinate Law No 7 in 1999.

10. On 23 May 2001 Regulations 41(2); 51A; 54; 55; 56; 57; 59; 60; 61; 62; 68(1); 93(2); 94; 173; 185; and 206 of the Dangerous Goods Act 1975 as applied to the Territory were amended by Subordinate Law No 14 of 2001.

11. Each of the said amending regulations repealed property rights, rights and privilege of the Plaintiffs which rights and privileges they relied upon in order to conduct their business and trade.

12. By reason of the following provisions each of the said amendments is invalid:

a) section 92 of the Australian Constitution 1901;

b) section 23(1) of the Australian Capital Territory (Self-Government) Act 1988;

c) section 38(c) of the Territory Interpretation Act 1967;

d) section 7 of the Territory Subordinate Laws Act of 1989;

e) section 69 of the Self Government Act 1989;

f) The Territory legislation is inconsistent with Commonwealth legislation, in particular the Road Transport Reform (Dangerous Goods) Act 1995 and other Commonwealth legislation that regulates to transportation of dangerous goods

12A. Additionally and/or alternatively to paragraph 12 above, each of the said regulations are ultra vires."

3. The amended order of the Court was:

"Pursuant to Order 29 rule 2 of the ACT Supreme Court Rules, the points of law stated in paragraphs 9-12A (inclusive) of the amended statement of claim dated 23 August 2001 be heard, on a date to be fixed, as a preliminary matter before trial."

4. Order 29 provides as follows (so far as relevant):

"Order 29 Proceedings in lieu of demurrer

1. No demurrer allowed

A demurrer shall not be allowed.

2. Points of law, how disposed of

Any party may raise by his or her pleading any point of law, and any point so raised shall be disposed of by the judge at or after the trial, but by consent of the parties, or by order of the court, on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.

3. Order thereon

If, in the opinion of the court, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counterclaim, or reply therein, the court may thereupon dismiss the action or make such other order therein as is just."

6. Two procedural issues arise. The first is the substratum of fact against which the questions of law are to be answered. The second is identification of the questions of law. In my opinion, the facts to which I can have regard are those which are pleaded. There is no agreed set of facts and there is not even a defence filed. The procedure which has been chosen here is the equivalent of the old demurrer proceeding, although in the setting of a different form of pleading. I therefore reject the evidence sought to be tendered on behalf of the respondent. I do not intend to suggest that O 29 is limited to that procedure, as that question does not arise here. There is an issue as to what facts are pleaded. That issue, and the issue as to what precise questions of law arise, can be left until the questions of substance which have been argued have been considered. However, I indicated to the parties that my inclination was to strike out par [6] of the Statement of Claim and that the matter should be argued accordingly.

7. The parties have argued the matter on the basis that the relevant legislation and delegated legislation to which reference is made in the further amended Statement of Claim can be considered in full. Reference was also made to certain extrinsic material in aid of construction of the legislation and delegated legislation.

8. The starting point for the argument is the statutory regime as it existed before the first of the impugned set of amendments. The Dangerous Goods Act 1984 (ACT) (s 10) applied the provisions of the Act and the Dangerous Goods Regulation 1978 (the Regulation) as laws of the Territory subject to certain modifications but it now expressly provides that neither the Act nor the Regulation apply to the transport of dangerous goods by road (s 4(3)).

9. I was provided with a copy of a review of the sale, use and availability of fireworks in the Territory in 1999 by ACT WorkCover as extrinsic material to explain the background of the first of the impugned amendments to the Regulation. Whether or not that is legitimate, it does contain a useful short summary of the pre-existing position which I reproduce by way of broad explanation:

"Regulation of fireworks was adopted from New South Wales when the Dangerous Goods Act, 1975 (NSW) was enacted as an ordinance in the ACT in 1984. Regulations dealing with specific aspects of dangerous goods were also adopted at this time. Since then NSW has moved to tighten regulation of fireworks due to public concern over the availability and use of shopgoods fireworks in that state.

The Dangerous Goods Regulation, Clause 4 (1), define fireworks as:

* articles designed to produce a sound, or a visual display or signal by means of the ignition or explosion of an explosive substance.

There are two broad categories of fireworks; shopgoods fireworks (specifically described in legislation) and those that can be described as display fireworks. Display fireworks are those used at large events and may only be used by persons who hold a specific general permit issued under clause 54, Dangerous Goods Regulation. Specific general permits are only issued if the person can use and keep those fireworks without danger to public safety, and the person has had adequate experience in and is fully competent in the use of those fireworks.

The Dangerous Goods Regulation, Clause 4 (1), describes shopgoods fireworks as:

`fireworks that contain less than forty grams of an explosive substance, being fireworks other than marine distress fireworks, starting pistol caps and fireworks known as gerbes, lances, mines, mortar shells, roman candles, rockets, wheels, salutes and torches.

The sale, use and availability of shopgoods fireworks is the focus of this review.

BACKGROUND

There are no requirements to be licensed or to hold a permit to sell shopgoods fireworks in quantities of less than one tonne at a time. The Dangerous Goods Regulation makes it an offence to sell shopgoods fireworks to members of the public who do not hold a permit. Further it is an offence to sell such shopgoods fireworks to minors.

The current legislation has an existing permit system that allows for the purchase of shopgoods fireworks all year round. However, during a defined period prior to the Queen's Birthday long weekend the demand for permits exceeds the capacity and arrangements to issue them. For the last three years the relevant Minister has amended the regulations to allow the purchase of shopgoods fireworks without permit for a defined period (usually two to three weeks), prior to the long weekend."

10. A license to import was authorised by s 17 of the Act; a licence to keep was authorised by s 8 of the Act; a licence to manufacture was authorised by s 19 of the Act; and a licence to sell was authorised by s 21 of the Act. The licenses permitted that which was otherwise unlawful.

11. Sections 27 and 28 of the Act are (and have at all material times been) as follows:

"Licenses, generally:

27. (1) Subject to this section, the Chief Inspector may, from time to time, renew a licence.

(2) The Chief Inspector shall refuse to renew a licence if he is satisfied of the existence of any ground on which an application for the issue of the licence could be refused.

(3) a licence is subject to-

(a) any term or condition prescribed for all licences or for a class of licences to which it belongs; and

(b) any term or condition that the Chief Inspector thinks fit to impose and that is specified in the licence.

(4) A licence is in force for the period or periods specified in the licence, not exceeding 3 years from the date of issue or any renewal, unless it is sooner cancelled by the Chief Inspector under section 28(3) or 32(2).

Suspension and cancellation

28. (1) Where the holder of a licence or permit is proceeded against for an offence against this Act or the regulations, or has failed to comply with a lawful discretion or requirement of an inspector, the Chief Inspector may suspend the licence or permit until the proceeding has been disposed of or, as the case may be, until the direction or requirement has been complied with.

(2) A licence or permit shall be deemed not to be in force during any period of its suspension.

(3) The Chief Inspector may cancel a licence or permit if he is satisfied that-

(a) the holder of the licence or permit has been convicted of an offence against this Act or the regulations or of an offence against a law of the Commonwealth, a State or another Territory relating to dangerous goods;

(b) there exist grounds on which the application for the issue of the licence or permit could have been refused had the existence of those grounds been known at the time the licence or permit was issued;

(c) the application for the issue of the licence or permit contained a statement that was false or misleading in a material particular; or

(d) the holder of the licence or permit has breached a condition of the Chief Inspector."

12. A general permit means a permit to receive public display fireworks for the purpose of holding a public fireworks display pursuant to reg 54 of the Regulation.

13. Section 15 of the Act provided:

"In a Division of this Part, except Division 3 and this Division, "explosive" does not include any explosive prescribed as an explosive in respect of which the Division does not apply."

14. By reg 36 it was provided that for the purposes of s 15 of the Act shopgoods fireworks are described as explosives in respect of which Divs 2, 4 and 5 of Pts 1 and 4 of the Act do not apply.

15. Regulation 41 dealt with prohibited explosives (fireworks) and (so far as is relevant) was in the following terms:

"Prohibited explosives (fireworks)

41. (1) Subject to this clause, a person shall not import into the Territory, manufacture, sell or expose for sale-

(a) fireworks (other than shopgoods fireworks, amorces, confetti bombs, marine distress fireworks, model rocket propellant devices, snaps for bon-bon crackers, sparklers, starting pistol caps and streamer cones);

...

(2) Subclause (1) does not apply to or in respect of the manufacture, import or sale of any fireworks for the purpose only of -

(a) a public display, if the fireworks have been or are to be received under the authority of a permit under clause 54; or

(b) use outside the Territory, if the fireworks are exported as soon as practicable after their manufacture or import into the Territory.

(3) A person who manufactures fireworks (other than for the purposes of a public display) shall cause to be printed on or attached to each firework a statement containing instructions on the manner in which the firework is to be ignited and a description of the manner in which the firework is designed to behave after it is so ignited.

(4) A person shall not import any firework into the Territory (other than for the purposes of a public display) or sell any firework by retail to any person other than the holder of a permit under clause 54) unless the firework has printed on or attached to it a statement referred to in subclause (3).

(5) A person shall not sell any shopgoods fireworks (other than amorces, confetti bombs, marine distress fireworks, model rocket propellant devices, snaps for bon-bon crackers, sparklers and streamer cones) by retail to any person (other than the holder of a permit under clause 54) in a packet or container unless the packet or container has printed on or attached to it a statement containing instructions on the manner in which the fireworks contained in it are to be ignited and a description of the manner in which those fireworks are designed to behave after they are so ignited.

(6) Subclauses (3) and (4) do not apply in relation to a firework that is of such a kind that it is not reasonably practicable to print on or attach to the firework a statement referred to in subclause (3).

(7) ..."

16. The relevant portions of reg 54 were as follows:

"(4) The holder of a general permit shall, and it is a condition of the permit (which shall be specified in the permit) that he shall, at least 2 days (exclusive of Saturday, Sunday and public holidays) before the holding of a public fireworks display by him or under his authority or supervision notify the Chief Inspector of-

(a) the time and place at which the display is to be held;

(b) the type or types of fireworks to be used in the display;

(c) the name and address of every person from whom such fireworks have been or are to be obtained for use in the display;

(d) the name and address of every person who will be supervising the display or assisting the holder to supervise the display; and

(e) full details of the experience which every person, other than the holder, whose name is notified under paragraph (d) has had in the conduct or supervision of public fireworks displays and the use of public display fireworks.

(5) A public display fireworks permit is subject to any conditions, additional to that referred to in subclause (4), that the Chief Inspector thinks fit to impose and that are specified in the permit.

(6) Subject to clause 56, a public display fireworks permit authorises-

(a) the holder of the permit; and

(b) any person acting under his authority or supervision,

to receive fireworks, of the type or types specified in the permit, for use in the case of

(c) a general permit - in public fireworks displays; or

(d) a special permit - in a public fireworks display held at the place specified in the permit and at the time so specified or a time, within 8 days thereafter, to which the holding of the display is postponed,

but only if he does so subject to the condition or conditions specified in the permit.

(7) A general permit is in force for the period specified therein in pursuance of subclause (3)."

17. Significant amendments to the Regulation were made by Subordinate Law No. 7 of 1999. The Explanatory Statement in relation to it commenced as follows:

"The Dangerous Goods Act 1984 (the Act) relates to explosives and other dangerous goods. Section 13(2) of the Act allows the Executive to repeal or amend any of the provisions of the regulations in their application in the Territory.

In 1998 the ACT Government conducted a review into the use, sale and availability of fireworks in the ACT. Following consideration of the review, the Government decided to introduce a new regulatory regime for the use, sale and availability of fireworks."

18. In my opinion the review to which reference is made can be considered as legitimate extrinsic material (s 139 of the Legislation Act 2001 (ACT); cf s 11B of the Interpretation Act 1967 (ACT)). It concluded:

"The regulation of the sale, use and availability of fireworks in the ACT must have as its objective, the protection of the public, animals and property from the adverse effects of the use of explosives.

Sufficient evidence has been collected in the conduct of this review to show that the current arrangements are not meeting the objective. Here are concerning reports from individuals, schools and event organisers like Summernats to show that people, particularly youth and young adults, are being injured. The RSPCA and many individual submissions reported that animals are being distressed and injured by the noise and/or effects of fireworks. In addition to these concerns the Australian Federal Police and the Fire Brigade report an increase in property damage through the use of fireworks, and where fireworks have been used in setting bush fires. There are also concerning reports from regulatory agencies about the increase in illegal sale and use.

Given these findings it is appropriate to move to improve the regulations.

The review considered three options:

* a total ban

* improved controls on the sale of fireworks, and

* a combination of improved controls on the sale and on the use of fireworks.

There can be no doubt that any solution to the problems that have been identified will be controversial. An approach which implements the third option would appear to significantly address the safety concerns whilst at the same time ensuring the viability of the legal fireworks industry.

This is an industry that should be regularly reviewed given the rapid rate of change in the technology of explosives and the need to implement a regulatory regime that can be dynamic enough to quickly respond to concerns about public safety."

19. The principal effect of the amendments is summarised in the Explanatory Statement as follows:

"3. Amends the interpretation of the regulations to include the definition of a `purchaser's permit' for the purposes of purchasing shopgoods fireworks.

4. Inserts the following requirements to regulations as clause 9B, which specify that:

- shopgoods fireworks will only be available for sale for the 14 day period ending at the end of the Queen's Birthday public holiday;

- these requirements apply to licenses for the sale, keeping, import and manufacture of shopgoods fireworks; and

- a licensee for the sale, keeping, import and manufacture of shopgoods fireworks will satisfy the testing requirements for shopgoods fireworks under clause 65L (explained at 9 below).

5. Amends clause 36 of the regulations which previous exempted shopgoods fireworks from the provisions of Divisions 2 (Import), 4 (Sale, supply and receipt) and 5 (Possession) of Part IV of the Act.

...

7. Removes clause 46 of the regulations which previously set out the conditions for the use, sale and availability of shopgoods fireworks in the Territory. Clauses 65A to 65K (explained in 9 below) of the amended regulations sets out the new requirements for the use, sale and availability of shopgoods fireworks.

8. Removes clause 46A of the regulations which previously prevented the use, sale and availability of shopgoods fireworks to persons under the age of 18 years in the Territory. Clause 65D (explained in 9 below) of the amended regulations sets out the new requirements for the sale, use and availability of shopgoods fireworks.

9. Inserts `Division 4A', clauses 65A to 65L into the regulations as applied to fireworks. The clauses inserted relate to the following:

65A Defines the type of shopgoods fireworks considered for the purpose of this Division;

65B Restricts the use of shopgoods firework [sic], other than the 14 day period ending at the end of the Queens Birthday public holiday, to people with public display fireworks permits;

65C Prevents any person from knowingly using fireworks in a manner that is dangerous to people, animals or property;

65D Restricts the use of shopgoods fireworks, by members of the general public, to the 14 day period ending at the end of the Queens Birthday public holiday in a year. This clause allows people under the age of 18 to use shopgoods fireworks under the immediate supervision of a person over the age of 18 years;

65E Requires the retail purchase of shopgoods fireworks to be made in accordance with the conditions placed on a `purchaser's permit';

65F Restricts the use of marine distress fireworks to emergency situations;

65G Defines the format of an application for a purchaser's permit, the information which may be required by the Chief Inspector of Dangerous Goods to accompany the application and the fee applicable for a purchaser's permit;

65H Permits the Chief Inspector of Dangerous Goods to seek additional information from an applicant for a purchaser's permit;

65J Determines the decision making powers that the Chief Inspector of Dangerous Goods can use when an application for a purchaser's permit has been received;

65K Requires that a purchaser's permit include information about the person who can purchase shopgoods fireworks, the period that the permit is valid for, the person who can use shopgoods fireworks and the place or places that the shopgoods fireworks can be used; and

65L Determines the appropriate sampling and testing standards and who is authorised to complete the required tests when classifying whether or not fireworks are appropriate for retail sale as shopgoods fireworks."

20. Then there was another significant amendment of the Regulation by Subordinate Law No. 14 of 2001, further regulating and restricting dealing in and with fireworks. The substance of the Explanatory Statement was as follows:

"Explanatory Statement

Purpose of the Act

The Dangerous Goods Act 1975 (the Act) relates to explosives and other dangerous goods. Section 49 of the Act allows the Executive to repeal or amend any of the provisions of the regulations in their application in the Territory.

Overview of the Amendments

The amendments are designed to improve ACT WorkCover's ability to regulate the sale and supply of shopgoods fireworks. In summary the amendments have the following effect:

* ensure that anyone who buys fireworks for use in the ACT or another jurisdiction is properly authorised to receive fireworks;

* ensure that retailers selling fireworks to the holder of an interstate licence or permit is told of their obligations, in particular requiring the seller to inform the buyer that the goods must be exported from the Territory within six hours of receipt;

* require that retailers record details of fireworks permits or licences;

* require that the kinds (including size) and quantities of fireworks that a display permit holder can use in a public displays [sic] are properly notified to the Chief Inspector of Dangerous Goods;

* enable the Chief Inspector of Dangerous Goods to place a limit on the kinds (including size) and quantities of fireworks used in a public display;

* restrict the amount of shopgoods fireworks, that can be received under a permit without the requirement for specialised storage to 50kg, and remove the exemption that previously allowed persons to keep up to 1000kg without a license to keep; and

* align the transport of shopgoods fireworks with the general requirements for the transport of dangerous goods.

The regulations will commence on the day they are notified in the Gazette."

21. Another amendment to the Regulation was made in 2001, the general effect of which was described in the Explanatory Statement as follows:

"Explanatory Statement

Purpose of the Act

The Dangerous Goods Act 1975 (the Act) relates to explosives and other dangerous goods. Section 49 of the Act allows the Executive to repeal or amend any of the provisions of the regulations in their application in the Territory.

Outline of the amendment

The amendment to subregulation 93(6) provides for a restriction upon the amount of shop good fireworks that may be received under a permit. From 1 July 2001 the permit will reduce the amounts stored from 1000kg to 50kg."

22. This summary is sufficient to enable the significant effect that the changes to the legislative scheme in 1999 and 2001 would have had upon the business of the first and second plaintiffs as pleaded to be appreciated. It is hardly surprising that they seek a remedy from the Court.

Free Trade

23. Section 69 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (the Self-Government Act) provides as follows:

"69. (1) Subject to subsection (2), trade, commerce and intercourse between the Territory and a State, and between the Territory and the Northern Territory, the Jervis Bay Territory, the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands, shall be absolutely free.

(2) Subsection (1) does not bind the Commonwealth."

24. There is no doubt that the trade in fireworks to and from the Territory is affected in a general way by the amendments. To take an obvious example, there was effectively free trade in shopgoods fireworks until 1999 when regulation was imposed so that thereafter, for instance, shopgoods fireworks could only be imported pursuant to a licence. Further, one of the effects of the 2001 amendments was to render the sale for export from the Territory of shopgoods fireworks unlawful except to an interstate purchaser holding a permit in the home State or Territory of that purchaser and then only on condition that upon delivery the fireworks would be removed from the Territory within six hours.

25. The difficulty facing the plaintiffs in relation to this branch of the argument is the re-interpretation of s 92 effected by the High Court in Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360 and Bath v Alston Holdings Pty Ltd [1988] HCA 27; (1988) 165 CLR 411 as confirmed and explained in Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; (1990) 169 CLR 436, the effect of which is that s 92 requires that interstate trade and commerce should be immune only from discriminatory burdens of a protectionist kind. In my opinion the same construction should be given to s 69 of the Self-Government Act. I cannot discern any protectionist element in the regulatory scheme which has been imposed.

Retrospectivity

26. Section 7 of the Subordinate Laws Act 1989 (ACT) was as follows:

"7 Retrospectivity

A subordinate law shall not be expressed to take effect from a date before the date of its notification in the Gazette where, if the law so took effect-

(a) the rights of a person (other than the Territory or a Territory authority) existing at the date of notification would be affected in a manner prejudicial to that person; or

(b) liabilities would be imposed on a person (other than the Territory or a Territory authority) in respect of any act or omission before the date of notification;

and where any subordinate law contains a provision in contravention of this section, that provision is void and of no effect."

27. None of the amendments to the Regulation in question are expressed to take effect from a date before the date of the notification of it in the Gazette.

Acquisition of Property, Accrued Rights and Ultra Vires

28. There are several inter-related aspects of this argument. The first flows from s 23 of the Self-Government Act which (as far as it is relevant) provided:

"23. (1) Subject to this section, the Assembly has no power to make laws with respect to:

(a) the acquisition of property, otherwise than on just terms;"

The second flows from the accrued rights provision which has conventional effect, namely that repeal or amendment does not affect a right or privilege acquired or accrued under the earlier provision. The Statement of Claim refers in this connection to s 38(c) of the Interpretation Act 1967 (ACT). Although the matter was not fully developed in argument, it may be that the Legislation Act now governs the issue and it may also have been necessary to take account of the corresponding provision in the Subordinate Laws Act. This does not appear to matter, as there is no relevant difference in the substance of the provisions.

29. Counsel for the defendant submits that it is clear that neither of these bases for invalidity has anything to do with the principal practical effect of the change in regulatory regime, namely the removal of the exemption of shopgoods fireworks pursuant to subreg 36. It was submitted that the cessation of that exemption, and the consequent application of a system of regulation and restriction, did not involve any accrued rights or property in any sense - the amendment was merely a change in the law requiring that those who wish to deal in that type of fireworks in the future would need to comply with the regulatory regime. It is no different to the introduction of regulation into an unregulated area. In my opinion that submission is demonstrably correct and needs no further elucidation.

30. However the first and the second plaintiffs were licence holders and their position as such cannot be disposed of so easily. The licences themselves are, it is submitted, accrued rights, and so protected, and are a form of property which cannot be acquired otherwise than on just terms. The principal answer by counsel for the defendant is that the changes to the Regulation do not affect the existence of the licences, although the practical way in which they may be utilised might have been affected, and there is thus no interference with accrued rights and no acquisition of property.

31. Counsel for the plaintiffs relied upon the decision of the Northern Territory Supreme Court in Elliott v Minister for Transport & Infrastructure Development (2000) 158 FLR 245 and the decision of this Court in Frank v Australian Capital Territory [2001] ACTSC 42; (2001) 161 FLR 262 as well as the line of decisions in the High Court of Australia dealing with rights of action culminating in Smith v ANL Ltd [2000] HCA 58; (2001) 204 CLR 493 which had started with Georgiadis v Australian & Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297.

32. It is at this point that another aspect of the argument comes into play, namely the point raised by par 12A of the Statement of Claim. I confess to finding the argument for the plaintiffs somewhat elusive. It was submitted that as the Act provided for licences which permitted trade (inter alia) in shopgoods fireworks, it is beyond the regulation making power to interfere with that which the Act permits. It was also submitted for the plaintiffs that it is not a proper use of the regulation making power in the Act to achieve indirectly what could not be achieved directly. It was argued that the effect of the amendments to the Regulation is to effectively strip the licences of content although leaving them in place as a matter of form. This was called the ultra vires argument. I shall return to it later.

33. The response on behalf of the defendant to the principal arguments for the plaintiffs is that they misconceive the nature of a statutory scheme of regulation such as that involved here. It is submitted that the privileges inherent in the licences are created by the legislation and delegated legislation establishing the regulatory scheme and so are inherently variable. The scheme may be modified either by enlarging or restricting what may be done in relation to what may be classed as dangerous goods. What has occurred is merely a variation of the requirements of the statutory regulatory scheme, and licence holders have no "property" in requirements of this kind remaining unchanged. That proposition is said not to depend upon a licence being expressed to be subject to variation (although it is submitted that some are). It is submitted that the necessary construction to be placed upon the scheme is that the licences are subject to the relevant provisions of that scheme as amended from time to time. It is submitted that the contrary construction would render the scheme unworkable. It is said to be nonsensical that a new requirement introduced in relation to the safekeeping of explosives, for example, would not apply to an existing licence to keep explosives. It is said that the effect of the plaintiffs' case is that the licence holder's "rights" must remain frozen in accordance with the form of the scheme as at the time the licence was issued. This would mean that the rights of every licencee may be different, depending on the form of the scheme when the licence was issued. Counsel for the defendant gave the illustration of an amendment to the Motor Traffic Act 1936 (ACT) to prohibit the driving of motor vehicles in the city area after 10:00 pm. That would diminish the rights of holders of driver's licences and may even reduce the value of motor vehicles but it would not interfere with any property rights or accrued rights, as a driver's licence is obtained in the context of the motor traffic scheme as it exists from time to time. The effect of such a legislative change upon a taxi licence would illustrate the same point.

34. It was submitted by counsel for the defendant that the applicable principles are explained by the decisions of the High Court in Health Insurance Commission v Peverill [1994] HCA 8; (1994) 179 CLR 226 particularly per Mason CJ, Deane and Gaudron JJ at 237, Brennan J at 245, Toohey J at 256 and McHugh J at 266-267 and Commonwealth v WMC Resources Ltd [1998] HCA 8; (1998) 194 CLR 1 and of the Full Court of the Federal Court in Bienke v Minister for Primary Industries & Energy (1996) 63 FCR 567. He sought to distinguish Elliott v Minister for Transport and Frank v Australian Capital Territory as well as the line of cases culminating in Smith v ANL Ltd.

35. The varying results in the authorities to which reference was made by counsel show that it is difficult to answer this kind of question at too general a level. Differences in the legislation under consideration can account for differences in result and minds can easily differ upon the same legislation - witness the division in the Full Court of the Federal Court in Australian Capital Territory v Pinter [2002] FCAFC 186 (decided after argument in this case) on appeal from the Full Court of this Court in Frank v Australian Capital Territory.

36. I do not regard the cause of action cases (including Pinter) as particularly helpful in resolving the present issue beyond some very general statements of principle. More assistance is to be obtained from Peverill, WMC Resources Ltd, Bienke and Elliott to which can be added Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513. In my opinion most guidance can be obtained from the judgments of the majority in WMC Resources Ltd. In that case WMC Resources Ltd held an interest in an exploration permit issued pursuant to the Petroleum (Submerged Lands) Act 1967 (Cth) which permitted exploration in numerous "blocks" constituting an area within the continental shelf between Australia and East Timor. In 1989 Australia and Indonesia made a treaty in respect of the disputed area, creating a Zone of Cooperation divided into Areas designated A, B and C. Many of the blocks constituting the permit area lay within Area A. Parliament enacted the Petroleum (Australia - Indonesia Zone of Cooperation) Act 1990 (Cth) and the Petroleum (Australia - Indonesia Zone of Cooperation) (Consequential Provisions) Act 1990 (Cth) (the Consequential Provisions Act). The amendments had the effect of excising from the permit area the blocks that lay within Area A. WMC Resources Ltd contended that the excision from the permit area of the blocks was an acquisition of property otherwise than on just terms which (if correct) gave it the right to compensation pursuant to the Consequential Provisions Act.

37. Brennan CJ said (at 15-17):

"13. Axiomatically, a law is not a law for the acquisition of property unless it effects an acquisition of property...However, s 51(xxxi) would be a "hollow facade" if a law of the Commonwealth which extinguished proprietary rights in relief of the burden or liability which those rights imposed on the Commonwealth or a third party were not held to effect an acquisition of property by the Commonwealth or the third party...

14. In the present case, the permit and WMC's interest can be classified as proprietary rights. But those rights were the creatures of statute, namely, the P(SL) Act, and their continued existence depends upon the continued existence of their statutory support. If the statute is amended so that the rights are diminished, does the diminution amount to an acquisition of property?

...

17. Where a law of the Commonwealth creates or authorises the creation of a right, a statutory modification or extinguishment of the right effects its acquisition if, but only if, it modifies or extinguishes a reciprocal liability to which the party acquiring the right was subject. Thus in Newcrest Mining (WA) Ltd v The Commonwealth, the law which sterilised Newcrest's right under its mining lease to carry on "operations for the recovery of minerals" on land vested in the Commonwealth was, in my opinion, a law for the acquisition of property because it extinguished the liability of the Commonwealth to have those minerals extracted from its land and thereby enhanced the property of the Commonwealth. But where a law of the Commonwealth creates or authorises the creation of a right that does not impose on the Commonwealth a reciprocal liability, the mere extinguishment of the right effects to acquisition of the right by the Commonwealth. The Commonwealth's position remains unchanged by the extinguishment."

38. At 20 his Honour concluded:

"24. The statutory modification or extinguishment of a permit or an interest in a permit is not an acquisition of property by the Commonwealth, for the Commonwealth was under no liability reciprocal to the permit or interest and acquires no benefit by the modification or extinguishment. It follows that the Consequential Provisions Act is not a law falling within s 51(xxxi)."

39. Gaudron J said (at 35-36):

"77. Because s 51(xxxi) is, in effect, a guarantee of just terms, it is construed liberally. In particular, the expression "acquisition of property" is not construed as requiring a precise correspondence between what is taken and what is received. Even so, for there to be an acquisition there must be a taking and a receipt of some kind. As was pointed out in the Tasmanian Dam Case, "it is not enough that [the] legislation adversely affects or terminates a pre-existing right that an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be.".

78. In Georgiadis v Australian and Overseas Telecommunications Corporation, Mason CJ, Deane J and I pointed out that, prima facie at least, a statutory right is inherently susceptible of statutory modification or extinguishment and no acquisition of property is effected by a law which simply modifies or extinguishes a statutory right that has no basis in the general law. That is because, ordinarily at least, a law of that kind does not confer an interest in property or any other benefit on the Commonwealth or any person; and, ordinarily at least, it does not constitute a law that is properly characterised as a law with respect to the acquisition of property. Thus, when s 51(xxxi) is invoked, it may be helpful to ask whether the law in question does no more than modify or extinguish a statutory right which has no basis in the general law and which is inherently susceptible to modification or extinguishment. However, the questions which, ultimately, have to be answered are whether the law effects an acquisition of property and, if so, whether it is properly characterised as law with respect to the acquisition of property.

79. If a law modifies or extinguishes a statutory right which has no basis in the general law in circumstances in which some person obtains some consequential advantage or benefit in relation to property, that law may and, ordinarily, will effect an acquisition. And there may and, ordinarily, will be an acquisition if a law operates to transfer a right to some other person, even though the right has no basis in the general law and is inherently susceptible of modification or extinguishment. So, too, there may and, ordinarily, will be an acquisition if a law extinguishes a right of that kind (particularly a monopoly right) and vests a similar right or a right with respect to the same subject matter in some other person. In cases of that kind, there is something more than the mere modification or extinguishment of a right that is inherently susceptible to that course; the law also operates to confer a benefit."

40. Later her Honour said:

"84. WMC's first argument expressly assumes and, perhaps, its third argument impliedly assumes that there is an underlying proprietary estate or interest in the continental shelf or, at least, that part within Area A which was excised from the Permit. I do not doubt that, in the exercise of sovereign rights as a coastal nation, the Commonwealth may make laws creating proprietary estates or interests in its territorial seas, the lands under those seas and the resources of those seas and lands. And if it were also to enact a law modifying or extinguishing a statutory right with the consequence that some estate or interest in the sea, the underlying land, or its or their resources were enhanced, that would, in my view, effect an acquisition of property. However, the Commonwealth did not at any stage create any estate or interest within that part of Area A excised from the Permit. It simply conferred a right to explore for petroleum, buttressing that right by making it an offence for anyone else to do so. There was, thus, no estate or interest which was or, even, could be enhanced by modification of the Permit.

...

86. In my view, the Consequential Provisions Act simply modified a statutory right which had no basis in the general law and which was inherently susceptible to that course and, thus, did not effect an acquisition of property. Accordingly, it is not strictly necessary to consider the Commonwealth's further argument that the Consequential Provisions Act is not properly characterised as a law with respect to the acquisition of property. Its primary argument in that regard is, in essence, that the Consequential Provisions Act is a law for the adjustment of competing rights and interests of a kind that falls outside s 51(xxxi) of the Constitution. There was a subsidiary argument that s 51(xxxi) does not apply to areas external to Australia."

41. McHugh J said (at 51):

"134. The power make laws with respect to a subject described in s 51 carries with it the power to amend or repeal a law made on that subject. A property interest that is created by federal legislation, where no property interest previously existed, is necessarily of an inherently determinable character and is always liable to modification or extinguishment by a subsequent federal enactment. Section 51(xxxi) therefore does not ordinarily withdraw from the Parliament the authority to use another s 51 power to revoke or amend legislation that has been passed under that power, even when the legislation has created a property right. The fact that the Commonwealth or some other person might be viewed as benefiting from that alteration or revocation is irrelevant."

42. Later his Honour said (at 56):

"144. The Commonwealth contends that the defeasible nature of the rights granted to WMC under the statutory permit effectively defeats WMC's claim for declaratory relief. There is both a broad and a narrow basis for this contention. Under the broad basis, the Commonwealth contends that a right or interest that is entirely statutory is, by its nature, inherently susceptible to modification or extinguishment and outside the ambit of s 51(xxxi). Under the narrow basis, the Commonwealth contends that, as a matter of interpretation of the particular legislation creating the interest in question (ie the P(SL) Act), it is clear that the interest was inherently subject to modification by amendments to the P(SL) Act from time to time. The permit, in particular the uncertainty regarding the seabed boundary in the Timor Gap, reinforces this interpretation.

145. The Commonwealth's submissions were shaped largely by the notion that s 51(xxxi) is a true guarantee of property rights. This notion is, as I have said, misleading. However, the substance of the Commonwealth's contentions is undoubtedly correct. The rights of WMC were created by the P(SL) Act, a federal statute enacted under the power conferred by s 51(xxxi) of the Constitution. That being so, the rights were always liable to be amended, revoked or extinguished by legislation enacted under that same power. In the case of property rights created by federal law under a head of s 51 power, in circumstances where no specific property right previously existed under a State enactment or the general law, the Parliament retains the authority under that head of power to extinguish the right even if a consequence of that extinguishment is to vest some benefit in the Commonwealth or some other person. Section 51(xxxi) does not withdraw from the Parliament the power to repeal or amend laws that it has created in those circumstances. Accordingly, the Commonwealth succeeds in its broad submission on defeasibility.

146. In my view, the Commonwealth also succeeds in its narrow submission on defeasibility. Independently of the Parliament's traditional right to repeal or amend statutory rights that it has created, exploration permits granted under the P(SL) Act were by the terms of that legislation inherently subject to variation by subsequent amendment..."

43. Gummow J said (at 71-73):

"189. Before the enactment of the Consequential Provisions Act, the Permit had conferred upon WMC (and the other interested parties) an immunity from the operation of the criminal law in respect of the conduct of petroleum exploration in a specified area. The Consequential Provisions Act operated first to reduce that specified area. This rendered pro tanto otiose the immunity in respect of all but the retained portion of the specified area. The Consequential Provisions Act then adjusted accordingly the scope of the Permit and the operation of the immunity. The reduction in the operation of the immunity did not result in any acquisition, within the meaning of the authorities, of something proprietary in nature.

...

193. It may be accepted that the P(SL) Act recognised that permits and dealings therein could carry a commercial value and might be the objects of rights and obligations created inter partes which were supported by the law of contract and by the legal and equitable doctrines and remedies by which effect is given to that general law. The Consequential Provisions Act may have operated to diminish the commercial value of the permits to which it applied by reason of the separate treatment now given to blocks and parts of blocks within Area A of the Zone of Cooperation. Further, the Executive Government of the Commonwealth was advantaged in the sense that the international law obligations assumed to Indonesia in the Treaty were rendered more likely of fulfilment.

194. However, these circumstances do not indicate that the Consequential Provisions Act involved any acquisition of property which attracted the constitutional guarantee. The necessary legal analysis must proceed from consideration of the nature and function of such permits, the structure of the P(SL) Act and the immunity the permits conferred. Such analysis, as indicated earlier, discloses that there could not have been an acquisition in the requisite sense.

195. Further, any proprietary rights which were enjoyed by WMC by reason of the interest it acquired in the Permit in 1984 were inherently unstable. By reason of this nature of the property concerned there could be no acquisition within the meaning of s 51(xxxi).

196. To accept this proposition is not to assert that the defeasible character of the statutory rights in question denies them the attribute of "property" in the "traditional" sense of the general law. For example, the vested interest of a beneficiary under a settlement in which the settlor reserved a power of revocation would, pending such revocation, be proprietary in nature. A revocable trust is enforceable in equity whilst it subsists and the revocation would be without prejudice to prior distribution of income or capital. The point of present significance is that in some circumstances, of which the statutory rights in this case are an instance, the nature of the property may be such that its defeasance or abrogation does not occasion any acquisition in the constitutional sense.

197. The present case has an affinity to, but is not on all fours with, those cases involving gratuitous payments, whether as pensions or otherwise, made by the Executive Government under statutory authority. It has been said that the "rights" to receive such payments are the creation of the legislature and are always liable to alteration or abolition by later legislation.

198. Rather, the flexible statutory schemes considered in Minister for Primary Industry and Energy v Davey and Bienke v Minister for Primary Industries and Energy are more directly in point. In the present case, it was apparent from the terms of the legislation as it stood when the Permit was granted in 1977 that the Permit was inherently susceptible to variation in accordance with amendments which might be made to the statute from time to time."

44. His Honour concluded (at 75):

"203. The result was that, from the moment of its grant in 1997, the Permit suffered from the "congenital infirmity" that its scope and incidents were subject to the P(SL) Act in the form it might from time to time thereafter assume. Any proprietary rights which were created in respect of the Permit were liable to defeasance. By reason of their nature, upon such defeasance of those rights there would be no acquisition of property to which s 51(xxxi) applied."

45. In Australian Capital Territory v Pinter, Dowsett J (at [267]-[269]) referred to the difference between s 51(xxxi) of the Constitution (which is a grant of power with a limitation) and s 23 of the Self-Government Act (which limits the general power granted by s 22(1) of that Act "to make laws for the peace, order and good government of the Territory") but concluded that the authorities on s 51(xxxi) were relevant to s 23. In my opinion that is so here, as well, although it needs to be borne in mind that s 23 is in the nature of a guarantee rather than a grant of power.

46. Approaching the legislation in question here with these principles in mind it does not seem to me that there is any accrued right or anything in the nature of property arising out of the content of the statutory regulation of dangerous goods, and fireworks in particular, at any one time. In my opinion the legislation envisaged that the Regulation would reflect what needed to be done in the public interest from time to time in relation to dangerous goods, consistently with the Act. Licences or permits issued pursuant to the legislation or the delegated legislation are exemptions from what the legislation otherwise makes unlawful and cannot govern the content of what is or is not unlawful. Furthermore, even if there were property, in a broad sense, of that kind, I cannot see that the amendments involve any acquisition of it by anybody. There is no suggestion that others will take the benefit of that which is now denied to the plaintiffs.

47. Counsel for the plaintiffs naturally placed considerable reliance upon Elliott v Minister for Transport. The critical paragraph in that judgment was as follows (at 252):

"19. In the present case I think there has been an acquisition of property. The plaintiffs' taxi licences, a monopoly right shared by a restricted number, have been cancelled and coincidentally and correspondingly a right with respect of the same subject matter, the ability to operate a taxi cab for reward, is given to any number of the public upon application and payment of a prescribed fee. The scheme as a whole is more than the mere extinguishment of a right which is inherently susceptible to that course."

It will be seen that the situation in that case was the converse of the situation here where all are banned from the activity. Thus, even if correct, the decision in Elliott is distinguishable from the present case which, in my opinion, is closer to the schemes considered in WMC Resources Ltd; Minister for Primary Industries & Energy v Davey (1993) 47 FCR 151 and Bienke.

48. It follows that, even if the licences which the plaintiffs hold can be seen as protected from revocation in the absence of express statutory revocation, the amendments do not impinge upon the licences such as to affect accrued rights and it also follows that there has been no breach of s 23 of the Self-Government Act.

49. That leaves for consideration the ultra vires argument which, as I understood it, was that it is not permissible to use the regulation making power to effectively negate the benefit of the existing licences issued pursuant to the Act either at all or in a way which is not proportionate to the necessity. In my opinion there is no substance in this argument for the reasons I have already explained. The licences did not create statutory rights incapable of being affected by regulations. It should be clear that no case of bad faith on the part of the defendant is pleaded. It cannot be suggested that the amendments to the Regulation were a deliberate subterfuge introduced in order to render the licences of the plaintiffs valueless without paying any compensation or otherwise for a collateral and improper purpose. The amendments on their face are designed to deal with a matter of public safety which have had an incidental effect on the business of the plaintiffs and the exercise of the licences they hold. Even though the effect upon the plaintiffs might be significant (and obvious) this would not remove the amendments from the proper scope of the general power to make and amend regulations to carry the Act into effect. (See s 41 of the Act.)

Inconsistency

50. The last issue is the alleged inconsistency of the Regulation with the Road Transport Reform (Dangerous Goods) Act 1995 (Cth) (the Road Transport Act), ss 3, 4 and 10 of which are as follows:

"3 Purpose

(1) The purpose of this Act is to regulate the transport of dangerous goods by road in the Australian Capital Territory and the Jervis Bay Territory in order to promote public safety and protect property and the environment.

(2) It is intended that:

(a) the States and the Northern Territory will adopt section 6 and Parts 3, 4, 5 and 6 of this Act and the regulations in accordance with the agreements scheduled to the National Road Transport Commission Act 1991 as part of the uniform national road transport legislation envisaged by the Act; and

(b) when so adopted, those provisions of this Act and the regulations will constitute the primary law of the States and the Northern Territory in relation to the transport of dangerous goods by road.

4 Status of this Act under Commonwealth and ACT laws

(1) For the purposes of the laws of the Commonwealth and the laws of the Australian Capital Territory, this Act is taken to be a law made by the Legislative Assembly for the Australian Capital Territory under subsection 22(1) of the Australian Capital Territory (Self-Government) Act 1988.

(2) Subsection (1) does not empower the Legislative Assembly for the Australian Capital Territory to make a law amending or repealing this Act.

(3) In this section:

laws of the Commonwealth does not include:

(a) this section or section 7; or

(b) sections 31, 33 and 35 of the Australian Capital Territory (Self-Government) Act 1988.

10 Scope of this Act

(1) This Act does not apply to dangerous goods that are in a container that is designed to form part of, and forms part of, the fuel or battery system of a vehicle's engine, auxiliary engine, fuel burning appliance or other part of the vehicle's propulsation equipment.

(2) Subject to subsection (3), the provisions of this Act have effect despite any other law.

(3) If a provision of this Act is inconsistent with a law of the Australian Capital Territory that:

(a) relates to the storage and handling of dangerous goods; and

(b) does not relate to the transport of dangerous goods by road;

the law of the Australian Capital Territory prevails."

51. The Preamble to the Road Transport Act is:

"An Act to make provision for safety in the transport of dangerous goods by road as part of the system of nationally consistent road transport laws."

52. The Road Transport Act does not contain any substantive regulatory provisions which are left to the regulation making power set out in s 11 which I need not reproduce.

53. Section 28 of the Self-Government Act is as follows:

"Inconsistency with other laws

28. (1) A provision of an enactment has no effect to the extent that it is inconsistent with a law defined by subsection (2), but such a provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law.

(2) In this section:

"Law" means:

(a) a law in force in the Territory (other than an enactment or a subordinate law); or

(b) an award, order or determination, or any other instrument of a legislative character, made under a law falling within paragraph (a)."

54. The argument on this issue was economical. I was only referred to a discrete portion of the Road Transport Reform (Dangerous Goods) Regulations 1999 (Cth) made under the Road Transport Act and there was no comprehensive analysis by counsel of the operation of those regulations compared with the Regulation. There was little detailed discussion of the effect of s 4(3) of the Dangerous Goods Act 1984 (ACT).

55. Counsel for the plaintiffs submitted that the amendments involving subregs 173, 185 and 206 of the Regulation were in direct conflict with the Commonwealth legislation scheme, and so invalid. Counsel for the defendant submitted that s 10(3) of the Road Transport Act avoided inconsistency. In the alternative, he submitted that inconsistency with s 28 of the Self-Government Act was not to be judged by a "cover the field" test as for s 109 of the Constitution, but rather by direct inconsistency as with statutes in the same jurisdiction in that simultaneous obedience to both laws is impossible or one law takes away a right or privilege conferred by the other. He cited Re Credit Tribunal; Ex parte General Motors Acceptance Corporation Australia [1977] HCA 34; (1997) 137 CLR 545; Grace Bros v Magistrates, Local Court of New South Wales (1988) 84 ALR 492; Majik Markets v Brake & Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443; Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1976) 142 CLR 237; and Re Jacob (1996) 43 ALD 459. It was submitted in conclusion that, in any event, the Commonwealth legislation did not purport to cover the field.

56. I do not agree with the submission that s 10 of the Road Transport Act by itself relevantly avoids the issue of inconsistency. The application of it depends upon whether the law of the Australian Capital Territory relates to the transport of dangerous goods by road.

57. The main general question is the effect of s 28 of the Self-Government Act. The relevant High Court authorities in relation to inconsistency between Commonwealth and State legislation, including the effect of Commonwealth sections which provide that Commonwealth and State laws can operate concurrently, were analysed by the New South Wales Court of Appeal in Majik Markets v Brake & Service Centre Drummoyne Pty Ltd particularly per Kirby P at 451-452, Mahoney JA at 462 and Handley JA at 467-468. There is no need for me to repeat this analysis. All of the High Court authorities analysed in Majik Markets had been decided by the time that the Self-Government Act was passed. In those circumstances it must be assumed that the Commonwealth legislature intended that s 28 would be construed in accordance with the settled construction of such sections notwithstanding that s 28 is found in a quasi constitutional statute. Put another way, the capability of a law to operate concurrently with an enactment within the meaning of s 28 is to be judged on the basis of direct inconsistency between the two statutes rather than by any notion of covering the field as with s 109 of the Constitution. This is consistent with the view expressed by Curtis P of the Australian Capital Territory Administrative Appeals Tribunal in Re Jacob (see [28]-[30]).

58 This means that the principal argument for the plaintiffs on this point fails and no conclusion of inconsistency can be arrived at without closely analysing each set of legislative provisions and it may be necessary to have further elucidation as to facts, particularly as the defendant raised an issue during oral argument as to the lack of any legitimate interest that the plaintiffs have in the question. My inclination is to think that it is not appropriate to deal finally with this question, but I will hear further argument as to that.

Conclusion

57. I am not satisfied that the question posed is the appropriate question (or questions) to be answered and there is room for debate on what answers should be given and what the consequences are for the case as a whole. I will strike out par [6] of the Statement of Claim. I propose to stand the matter over to a date to be fixed to permit counsel for the defendant to circulate and bring in short minutes of order to give effect to these reasons which should also deal with costs.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gyles.

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Associate:

Date: 24 September 2002

Counsel for the plaintiffs: R Thomas

Solicitor for the plaintiffs: Garry Bates & Co

Counsel for the defendant: DR Jarvis

Solicitor for the defendant: ACT Government Solicitor

Date of hearing: 11, 12 June 2002

Date of judgment: 24 September 2002