Seip v Riley [2005] ACTSC 68 (5 August 2005)

Last Updated: 11 August 2005

RAB GARTH CHRISTIAN SEIP v JOHN EDER RILEY

[2005] ACTSC 68 (5 August 2005)

APPEAL FROM MAGISTRATE - application to set aside decision dismissing prosecution - whether breath alcohol screening device approved for use.

LEGISLATION ACT - requirement to notify instruments - notification effective by way of gazettal or electronic notification.

Road Traffic (Alcohol and Drugs) Act 1977, s 19(1)

Legislation Act 2001, s 3, s 18, s 19, s 61, s 62, s 63, s 82, s 88, s 123

Debates of the Legislative Assembly for the Australian Capital Territory, 30 November 2000

ON APPEAL FROM THE MAGISTRATES COURT

No SC 195 of 2005

Judge: Connolly J

Supreme Court of the ACT

Date: 5 August 2005

IN THE SUPREME COURT OF THE )

) No SC 195 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: RAB GARTH CHRISTIAN SEIP

Appellant

AND: JOHN EDER RILEY

Respondent

ORDER

Judge: Connolly J

Date: 5 August 2005

Place: Canberra

THE COURT ORDERS THAT:

1. The order nisi be made absolute and the matter be remitted to the Magistrate for determination according to law.

1. This is an application to review the decision of a Magistrate on 16 March 2005 dismissing an information against the respondent alleging that he had committed an offence against s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (the Road Transport (Alcohol and Drugs) Act) in that being a driver of a motor vehicle in a public street in the Australian Capital Territory on 20 August 2004 he had more than the prescribed concentration of alcohol in his blood.

2. The application came before me for an order nisi, which I granted on 7 April 2005, and came back for final determination on 26 July 2005. The matter raises for determination the question as to whether blood alcohol tests conducted by police in the Australian Capital Territory during a period from either 5 April 2001 or 5 April 2002 to 17 March 2005 are valid, and able to be lead as evidence in prosecutions for drink driving offences. The argument, accepted by the Magistrate, was, because the notification of the particular type of instrument used as a screening device did not appear on the internet site of ACT legislation known as the legislation register, the instrument was of no effect. This was said to follow from s 62 of the Legislation Act 2001 (the Legislation Act) which provides -

62 Effect of failure to notify registrable instrument

(1) A registrable instrument is not enforceable by or against the Territory or anyone else unless it is notified.

The facts underlying the matter

3. The respondent was the driver of a vehicle involved in a single vehicle accident on 20 August 2004. He was directed by police to undertake a "screening test" by submitting a sample of his breath into a machine held by police. As a consequence of a positive result on the screening test, he was then taken to Tuggeranong Police Station, and required to undergo a breath analysis, which recorded a blood alcohol reading of 0.067 grams, in excess of the limit of 0.05. He was then charged.

4. The matter was brought before a magistrate in the ordinary way, and at the hearing counsel for the respondent motorist made the submission that the information should be dismissed because there was not in place on the ACT legislation register any written approval of the instrument used as a screening device.

5. The Road Transport (Alcohol and Drugs) Act provides in Part 2 that a police officer may require a driver involved in an accident to undergo a screening test. The "suitable device" for use in the test is that approved by the Minister, pursuant to Part 1, by way of written notice, which must be published in the Gazette. It is common ground that on 25 February 2000 the then Minister for Urban Services, Mr Smyth, approved a "lion alcolmeter SD-400" as a suitable screening device for the purposes of tests under Part 2 of the Road Transport (Alcohol and Drugs) Act, and that that notification appeared at page 7 of the Australian Capital Territory Gazette published on 29 February 2000 by way of publication of the full text of the instrument. It is common ground that the consequence of this is that the requirements of the Road Transport (Alcohol and Drugs) Act for approval of a screening device had been complied with, and that after 29 February 2001 a police officer could lawfully require a person to undertake a screening test using a lion alcolmeter SD-400, and that if the screening test was positive, the person could be required to undertake a further breath analysis, and that the outcome of that analysis could be used in evidence against the person for an offence under the Act. This was the machine used in this matter.

6. The argument before the Magistrate was that, either upon the commencement of the Legislation Act on 15 April 2000, or at a point twelve months thereafter, the lion alcolmeter SD-400 ceased to be a valid device, because there was not in place in the ACT legislation register maintained on the internet a reference to the approval properly made by the Minister on 25 February 2000 and notified in the Gazette on 29 February 2000. It is common ground that the legislation register did not contain this information at the date the matter was before the Magistrate, and that this information only appeared on the register on 17 March 2005, after the learned Magistrate announced his decision dismissing the information.

7. The real question for determination on this application is thus whether the entry into force of the Legislation Act has had the effect of invalidating or making ineffective a notification that it was common ground, was valid and effective when originally made.

The Legislation Act 2001

8. The Legislation Act has as its stated main object "to make legislation more accessible" (s 3(1)). The Act was originally presented to the Legislative Assembly as the Legislation (Access and Operation) Bill 2000, and in his presentation speech the then Chief Minister and Attorney-General, Mr Humphries, said (Hansard, 30 November 2000 at 3473):

This bill sets in place the legislative framework to support the public access to legislation project, an initiative that will put the ACT at the forefront of legislative access provision in Australia.

The central element of the initiative is establishing an authorised, electronic statute book, the ACT legislation register, which would be published on the Internet to provide free public access to authorised versions of ACT legislation and other legislative material.

Significantly, no other Australian jurisdiction has yet authorised its legislation in electronic form. This pioneering step will promote the ACT's reputation for technology-based innovation. It will also ensure a level of legislative access that is not only free, convenient and comprehensive, but also backed by statutory presumptions to support its authoritative status.

9. He continued (Hansard at 3475):

A further benefit from this initiative is that the legislation register will make accessible legislative material that, under current circumstances, is virtually inaccessible to most people - for example, historical versions of legislation, approved forms and other statutory instruments notified only in the Gazette.

10. He concluded (Hansard at 3476):

Although the bill contains transitional provisions to enable registration to replace gazettal, it is proposed that all ACT laws and subordinate laws will be reviewed and amended as necessary to bring them fully into line with the new legislative framework - for example, changing statutory instruments required to be notified in the Gazette into registrable instruments and making approved forms notifiable instruments. A bill to make the necessary consequential amendments will be presented to the Legislative Assembly as early as possible in 2001.

11. It seems to me that, from an examination of the Legislation Act as enacted, it is clear that it was generally intended to be prospective in its operation. The Act required the ACT Parliamentary Counsel to establish and maintain a register of Acts and statutory instruments to be known as the ACT legislation register (s 18). The contents of the register were set out in s 19 -

19 Contents of register

(1) The ACT legislation register must contain the following parts:

part 1 - authorised republications of laws as in force from time to time

part 2 - Acts as made

part 3 - subordinate laws as made

part 4 - disallowable instruments as made

part 5 - commencement notices as made

part 6 - notifiable instruments as made

12. The Act then set out the process by which Acts and registrable instruments (subordinate laws, disallowable instruments, notifiable instruments and commencement notices: s 12) were to be placed on the register. In each case, the relevant requirement was, on its face, prospective in its operation. Section 28, Notification of Acts, imposed an obligation on the Speaker to ask the Parliamentary Counsel to notify the making of a law when the proposed law is passed by the Legislative Assembly. This is clearly prospective, and there is no requirement in relation to laws in force before the commencement of the Act. The requirement for registrable instruments was set out in s 61 of the Act.

13. This provided:

61 Notification of registrable instruments

(1) If a registrable instrument is made, the maker of, or the appropriate person for, the instrument may ask the parliamentary counsel to notify the making of the instrument.

(2) If the maker of, or appropriate person for, a registrable instrument asks the parliamentary counsel to notify the making of the instrument and complies with the requirements (if any) prescribed under the regulations, the parliamentary counsel must -

(a) notify the instrument in the register; or

(b) if that is not practicable or a copy of the material on a relevant part of the register is not accessible at 1 or more approved web sites when the instrument is to be notified - notify the instrument in the Gazette.

14. It seems to me that the requirements of both ss 28 and 61 on their face applied to Acts and registrable instruments as they were being made and the provisions, on their face, would not be taken to have applied to laws or subordinate laws or notifiable instruments made prior to the commencement of the Legislation Act.

15. If this be so, then it would follow that the Legislation Act has not purported to repeal or suspend the operation of the previously properly notified instrument of approval of the lion alcolmeter, and that the Magistrate was wrong in dismissing the information, and the order nisi should be made absolute, and the matter remitted for determination according to law.

16. If I am wrong on this point, it seems to me that there is a further argument conclusive as to the validity of the notification, even though it did not at the relevant time appear on the internet website. The learned Magistrate was taken simply to s 62, which provided (and continues to provide) that "a registrable instrument is not enforceable by or against the Territory or anyone else unless it is notified". He was told, properly, that the notification of the lion alcolmeter did not appear on the website. He thus concluded that it had not been "notified", and that accordingly it was unenforceable pursuant to s 62.

17. He was not taken to s 63 of the Act, which provided (and continues to provide):

63 References to notification of registrable instruments

In an Act or statutory instrument, a reference to the notification of a registrable instrument is a reference to the instrument having been notified in the register or Gazette.

18. A copy of the ACT Special Gazette of 29 February 2000 was put before me by the Director of Public Prosecutions in these proceedings. To be found at 7 is a full copy of the notice of approval of screening devices as executed by the Minister on 25 February 2000.

19. It follows that, if ss 61-63 are to be taken to have retrospective rather than prospective effect, the registrable instrument here in question, being the approval of the screening device, was notified, as at the time s 63 provided that notification can occur by way of notification in the register or the Gazette. Mr Pappas, for the respondent, made the submission that the Gazette published the full text of the "notice", but does not refer to a notification. Mr Refshauge SC, for the appellant, says that nothing turns on this, and I am inclined to agree, but in any event, the form of notification in the Gazette which, under s 63, is an alternative to notification on the register, is provided within s 61.

20. Section 61 sets out how the making of a registrable instrument is to be notified in both the register (which it is common ground was not done until 17 March 2005) and the Gazette, in subsections (3) and (4). At the relevant time, these provided:

(3) The registrable instrument is notified in the register by -

(a) entering in the appropriate part of the register a statement that the instrument has been made; and

(b) entering the text of the instrument in the relevant part of the register.

(4) The registrable instrument is notified in the Gazette by -

(a) publishing the text of the instrument in the Gazette; or

(b) publishing in the Gazette a statement -

(i) that the instrument has been made; and

(ii) of the place or places where copies of the instrument can be purchased.

21. The Gazette of 29 February 2000 sets out the full text of the instrument. It thus complies with what was set out in s 61(4)(a) as the method by which the making of a registrable instrument is "notified in the Gazette". It follows that, on the terms of s 63, the notification in the Gazette is taken to be a notification for the purposes of s 62. As s 63 provided that "in an act or statutory instrument, a reference to the notification of a registrable instrument is a reference to the instrument having been notified in the register or Gazette", it follows that, if ss 61-63 are to be read as applying on their terms to registrable instruments (as defined) made before the entry into force of the Legislation Act, the publication in the Gazette of 29 February 2000 of the full text of the notice of approval of the screening device satisfies the requirement of the Legislation Act that it be notified. Section 62 of the Act thus has no effect, as it cannot be said that the registrable instrument had not been notified. It had been.

22. This was not drawn to the attention of the learned Magistrate, and accordingly he was, it seems to me, lead into error. It would however be appropriate to order on this basis (and assuming for the purpose of this argument that the Legislation Act is intended to have retrospective effect) that the order nisi be made absolute and the matter be remitted for determination according to law, on the basis that there was a valid information before the Court as the notice of approval of the screening device which appeared in the Gazette on 29 February 2000 satisfied the requirements of the Legislation Act for notification of a registrable instrument, even though the notification had not yet been made on the website.

23. The scheme of s 61 is essentially that the makers of registrable instruments being, in general, members of the executive government, Ministers or their officials, must ask Parliamentary Counsel to notify the instrument on the website. The scheme depends on the integrity and reliability of the website and, accordingly, it makes sense that it is only Parliamentary Counsel who can deal with adding or deleting material. Officers of the executive government do not need to rely on Parliamentary Counsel to notify by way of the Gazette. There is a requirement under s 61(5) that, following notification in the Gazette, Parliamentary Counsel must enter the notification and the text of the instrument on the website.

24. It is entirely consistent with such a scheme that the sanction in s 62, that a registrable instrument is not enforceable by or against the Territory unless it is notified, would only operate if there was no notification either electronically or by way of notification in the Gazette. If mere failure to place information on the website was to have this effect, Ministers and officials who had done all in their power to either request parliamentary counsel to register electronically, or who had ensured that the registrable instrument had been properly notified in the Gazette, could find that the validity of the law would rest solely on the action or inaction of whoever is responsible for web postings within the office of parliamentary counsel. The effectiveness of a law would depend, not on the actions of a Minister exercising a power or discretion conferred by an enactment of the Legislative Assembly, but on whether or not an electronic posting was made.

25. The requirement in the Legislation Act in s 62 must, it seems to me, be read with s 63 and s 61 as a whole. The effect is that a registrable instrument is not enforceable unless it is notified, but that notification can take place either electronically or by way of the Gazette. Section 61(4)(a) provides that the making of a registrable instrument is notified in the Gazette by publishing the text of the instrument in the Gazette. This was done in this case by the publication of the full text of Minister Smyth's determination in the Gazette of 29 February 2000.

The Transitional Provisions

26. Considerable time in the course of this appeal, both in written submissions and oral argument, focussed on the impact of the now expired transitional provisions that appeared in s 123 of the Legislation Act, and the interaction between this expired transitional provision and s 88 of the Legislation Act - "Repeal does not end effect of transitional laws etc". It seems to me that, on the analysis above, this need not be determined on this appeal, either because ss 61-63 of the Legislation Act do not operate retrospectively so as to render invalid a registrable instrument that had previously been properly notified in the Gazette, or if the sections do operate retrospectively, in this case the form of notification in the Gazette of 29 February 2000 complied with the requirements of the Legislation Act, so that there was no failure to comply with s 62.

27. Section 123, contained in Chapter 13 - "Transitional", of the Legislation Act, provided:

123 Application of s 61 and s 62

(1) Sections 61 (Notification of registrable instruments) and 62 (Effect of failure to notify registrable instrument) do not apply to a registrable instrument made before the commencement of this section if the instrument, or the making of the instrument, has been published or notified in the Gazette before the commencement.

(2) Sections 61 and 62 do not apply to any other registrable instrument made before the commencement of this section if neither the instrument, nor the making of the instrument, were required to be published or notified in the Gazette.

(3) This section expires 1 year after it commences.

28. Mr Pappas argued that this could have had the effect that, upon the commencement of the Legislation Act, there was a 12 month "period of grace" during which instruments not notified electronically would remain valid provided they had been published or notified in the Gazette, if so required.

29. He argued, however, that the expiry of the section provided for in s 123(3) meant that, after the 12 month period, the section was of no effect. This is the relevance of 15 April 2002, being 12 months after the commencement of the Legislation Act. Mr Pappas argued that, at least as of this date, the notification was of no effect, and that from this date prosecutions based on screening tests using the lion alcolmeter would be bound to fail.

30. It seems to me that, in the circumstances of this case, there is no need to rely on this provision for the reasons set out above. However, Mr Refshauge SC argued that, to the extent that the transitional provision in s 123 supported the ongoing validity of the Gazette notification of February 2000 by expressly providing that s 62 does not apply to a registrable instrument made before the commencement of the Legislation Act so long as it had been published or notified in the Gazette, it had an ongoing operation even after its expiry.

31. Section 88 of the Legislation Act provides:

88 Repeal does not end effect of transitional laws etc

(1) If a law-

(a) declares something for a transitional purpose (whether or not the law is expressed to be made for that purpose); or

(b) validates something that is or may otherwise be invalid; or

(c) declares something for a purpose that is consequential on a declaration mentioned in paragraph (a) or a validation mentioned in paragraph (b) (whether or not the law is expressed to be made for a purpose of that kind);

the declaratory or validating effect of the law does not end only because of the repeal of the law.

32. The effect of this section was drawn to the Magistrate's attention, but his Worship expressed the view that this provision dealt with repealed laws, and that this did not include a law that expired due to what may be referred to as a sunset provision. This is clearly not correct, as s 82 (which was not drawn to his Worship's attention) provides that "repeal includes lapse and expire".

33. It seems to me that, if the matter was to turn on this, I would be of the view that s 88 of the Legislation Act has had the effect of saving the transitional effect of s 123(1), so that s 62 of the Act does not apply. In saying this, however, it is not inappropriate for me to make the observation that, insofar as the stated purpose of the Legislation Act is to make the law more accessible, it is an odd way to go about this by providing that a transitional provision that saves the operation of certain previously valid registrable instruments is to expire after 12 months, but then to in effect continue to call that now repealed provision in aid by way of s 88 of the Legislation Act. Relying on a now repealed transitional provision, a provision that is not included in the latest consolidated print of the Legislation Act either in paper or electronic form, by reason of the savings effect of s 88, can hardly be said to make access to the law easy or transparent.

34. Moreover, it seems to me that there may well be cases where if it appears from the legislative history that a "sunset provision" was consciously enacted by a majority of the Legislative Assembly for a specific purpose, the general provisions of s 88 of the Legislation Act may not have the effect of overriding a specific legislative intention to limit a law to a particular time. That question, however, does not arise directly in this matter.

35. The order nisi should be made absolute and the matter remitted to the Magistrates Court for determination according to law.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 5 August 2005

Counsel for the appellant: Mr R Refshauge SC

Solicitor for the appellant: ACT Director of Public Prosecutions

Counsel for the respondent: Mr J Pappas

Solicitor for the respondent: S & T Lawyers

Date of hearing: 26 July 2005

Date of judgment: 5 August 2005