[1971-72] PNGLR 354

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

BOLVIN PAIKARA AND OTHERS

V

RIMA NAU

Port Moresby
Minogue CJ Clarkson Kelly JJ

3-5 May 1971
1 July 1971

LOCAL GOVERNMENT - Validly constituted Councils - Validity of proclamations - Presumption of regularity - “After consultation with” - Local Government Ordinance (1963-1970) s. 18.[cccxcii]1

STATUTES - Validity of proclamations - Presumption of regularity - Local Government Ordinance (1963-1970).

Section 18 of the Local Government Ordinance (1936-1970) which permits the Administrator in Council to do certain things “after consultation with the Council or Councils concerned” is mandatory and the Administrator is obliged to consult with the Council or Councils concerned: it does not lay down any procedure to be followed nor does it require any accord to be reached. The nature and extent of the communication necessary to constitute a consultation could depend on the nature and complexity of the proposal, where and when it originates, any previous communications or even a refusal by the Council to discuss the matter.

Cases Referred To

Port Louis Corporation v. Attorney General of Mauritius [1965] A.C. 1111; In re the Union of Benefices of Whippingham and East Cowes, St. James [1954] A.C. 245; Attorney General v. J. N. Perry Constructions Pty. Ltd. (1962) 79 W.N. (N.S.W.) 235.

The presumption of regularity will not be applied to the making of regulations, proclamations or ordinances if there is an apparent defect on the face of them. The absence of a statement that a preliminary step in the making of an instrument has in fact preceded its making may present the appearance of such a defect if by reason of the surrounding circumstances the absence of the statement appears significant. But there is no rule that there must always appear a statement specifying the preliminary steps have been taken.

Held

That the absence from a proclamation of a statement that consultation had occurred was not significant in the relevant sense when taken with the surrounding circumstances which included some evidence that consultation took place.

Dictum of Gowans J. in Bolton v. Dance [1968] V.R. 631 at pp. 641-2 applied.

Cases Referred To

McLean Bros. & Rigg Ltd. v. Grice (1906), 4 C.L.R. 835; Lucerne v. Collins (1967), 86 W.N. (Pt. 1) (N.S.W.) 247; Reg. v. Martin (1967), 67 S.R. (N.S.W.) 404; Murphy v. Matlock, [1926] V.L.R. 170; McGregor v. Australian Mortgage Land and Finance Co. (1898), 15 W.N. (N.S.W.) 128.

Appeal

The six appellants were charged with failure to pay tax to the Gazelle Peninsula Local Government Council. By consent all the cases were heard together by the District Court at Rabaul. All the appellants were found guilty and all appealed to the Supreme Court. The Court ordered that the appeals be reserved for the consideration of the Full Court and that they be heard together.

The appellants argued before the Full Court that when the charges for failure to pay tax were brought against them, the Council did not exist, or alternatively it was in a state of suspension. Thus in either case it was unable to exercise its powers and functions and so could not receive or give a receipt for the tax, was not able to institute the proceedings and could not act by its servants or agents. Further facts and arguments appear in the judgment.

Counsel

Hamilton (with him Goldring), for the appellants.
Curtis (with him Kinna), for the respondents.
Cur. adv. vult.

1 July 1971

MINOGUE CJ CLARKSON KELLY JJ:  delivered the following written judgment:

In July 1970, each of the six appellants was charged that being a person who was immediately after the commencement of the Local Government (Declaration of Validity) Ordinance 1970, that is to say on 15th January 1970, liable by virtue of the said Ordinance or the Local Government Ordinance 1963-1969 to pay to the Gazelle Peninsula Local Government Council a tax of $16.00 for the period 1st July, 1969, to 30th June, 1970, did on the 13th February, 1970, without reasonable cause fail to pay the said tax within 28 days after the commencement of the Local Government (Declaration of Validity) Ordinance 1970.

By consent the six matters were heard together in the District Court at Rabaul where on 21st October, 1970, each appellant was convicted and ordered to pay a fine of $30.00 in default 30 days’ imprisonment.

Each appellant then appealed to this Court. It was subsequently ordered that the appeals be reserved for consideration by the Full Court and that they be heard together. Some grounds of appeal raised in the notice were abandoned and the grounds of appeal on which the appeals were argued were:

(a)      That the learned Magistrate was wrong in law in finding that the Gazelle Peninsula Local Government Council was validly constituted.

(b)      That the learned Magistrate was wrong in law in finding that there are presently individuals who can exercise the powers and duties of members of the Gazelle Peninsula Local Government Council.

The appellants argued that when the proceedings were brought the Council did not exist or alternatively was in a state of suspension in which it was not able to exercise its powers or functions with the result in either case that the Council was unable to receive or give a receipt for the tax, was not able to institute the proceedings, nor to act by its servants or agents.

It will be seen that the attack is on the constitution of the Council itself not the validity of the tax which would appear to be supported by the Validating Ordinance referred to in the information. Argument has consequently been concerned principally with two aspects: firstly, an examination of the constitution of the Council, and secondly, the consequences which would flow from a conclusion that the Council was not at the relevant time properly constituted.

The Council was originally constituted by a proclamation made under the Native Local Government Councils Ordinance 1949-60, in September 1963, which amalgamated four existing councils in the Gazelle. Section 5 of this Ordinance provided that the Administrator could either in the proclamation establishing a Council or by a subsequent proclamation make provision for the manner in which the Council was to be constituted, the manner in which the members of the Council were to be appointed or cease to hold office, the tenure of office of the members and the order of precedence of the members. This 1949 Ordinance was replaced by the Local Government Ordinance 1963 which came into effect on 1st January, 1965, but by virtue of Part XI of which the proclamation of September 1963 was continued in force as the constituent proclamation of the Council and could be amended by proclamation under the 1963 Ordinance. The provision in the 1963 Ordinance which is the equivalent of s. 5 of the 1949 Ordinance is s. 18 which provides:

“18(1) After consultation with the Council or Councils concerned the Administrator in Council may, by proclamation:

(a)      vary the area in and for which a Council is established;

(b)      change the name of the Council;

(c)      vary the constitution of a Council;

(d)      vary the wards into which a Council area is divided;

(e)      divide a Council area, in whole or in part, between two or more Councils; or

(f)      amalgamate, in whole or in part, two or more Councils.

(2)      In proclamation under the last preceding subsection or by a subsequent proclamation, the Administrator in Council may make provision for:

(a)      the continuance in office of all or any Councillors for terms not exceeding the balance of their terms then unserved;

(b)      the appointment or election and the first term of office of new Councillors;

(c)      the taking over by the Administration or by another Council of the whole or part of the assets and liabilities of a Council;

(d)      the continuance, extension or amendment of all or any of the rules made by a Council; and

(e)      generally for effectuating the variation, amendment, division or amalgamation.”

It will be noted that this latter provision is more elaborate than its 1949 predecessor and that matters which could formerly be dealt with by the Administrator by proclamation were thereafter to be dealt with by the Administrator in Council, and that there is provision for some matters to be dealt with “after consultation with the Council or Councils concerned”. It should also be noted that whilst s. 18 contains reference to elections and terms of office of Councillors, ss. 24 and 25 of the same Ordinance contain provisions for the commencement of an election, the period over which it is to extend, the conduct and method of an election and the procedure to be followed. It should be noted that unless a commencing date for any election is specified in the constituent proclamation such date is to be fixed by the Commissioner for Local Government.

An election was held in 1966 and the Councillors then elected were to hold office for a term fixed by par. (d) of the 1963 proclamation, that is in effect for three years from and including the day on which their election was completed and “in addition . . . such further time, if any, as may be necessary to complete the next succeeding election of members”.

During this term, the constituent proclamation was amended by a further proclamation of March 1967. The number of Councillors was increased from 47 to 49 to meet a redistribution of wards. Forty-five of the existing Councillors were continued in office. Three points should be noted regarding this proclamation: firstly, it is made under the 1963 Ordinance and not under the 1949 Ordinance as the 1963 proclamation was; secondly, it defines the term of office of Councillors in the same terms as the 1963 proclamation did and, thirdly, like the 1963 proclamation it fixed no commencing date for any election. During the hearing of the appeal the validity of this proclamation was challenged for the first time.

The next proclamation is that of 5th February, 1969, but before examining it it is desirable to note evidence of certain resolutions passed by the Council during 1968 and 1969.

On 22nd February, 1968, the Council passed a motion reading: “(a) Multi Racial Council.

Motion No. 7: Gazelle Peninsula Council agrees to the plan of all wards for the multi racial council, it has not taken long to decide them correctly, and they are correct.”

Further motions Nos. 10, 11 and 12 passed on 30th November 1968 were:

“Motion No. 10:        Two wards of the Duke of York Islands Council agree to entry the Multi Racial Council.

Motion No. 11:         And the two wards of the Duke of York Council will enter into Rabaul Regional Ward known as Ward No. 36.

Motion No. 12:         An election for the Multi Racial Council will take place in February or March 1969. And the next election will then occur in 1971.”

In December 1968 a letter was sent by the Administrator to the Council advising that the proclamation—presumably the proposed proclamation—would go before the Administrator’s Executive Council in January or February 1969. In February 1969, after the making of that proclamation, the Council decided to write to the Administrator thanking him for the proclamation which converted the Council to a multi-racial council.

At the meeting of 15th/16th May, 1969, however, the Council resolved to request the Administrator to revoke the proclamation of the multi-racial council, because the Tolai people did not favour it, to the intent that the Council should continue as the Gazelle Local Government Council. The resolution contained further words which were interpreted in the District Court as being “and this motion was passed” but it seems that the better interpretation is that the motion also requested that the impending election should be stopped.

It also appears from the evidence of Mr. Towartovo who described himself as the present President of the Council that prior to 1969 there were discussions between some councillors and the Administrator personally about the formation of the multi-racial council and that there was some correspondence about it.

We now come to the proclamation of 5th February, 1969, the effect of which was to convert the Council to a multi-racial council. The detailed provisions relating to wards are omitted in the Appeal Book but we were informed that the conversion was effected by the simple expedient of including in them alienated land in addition to the native land previously shown.

The form of the proclamation substantially follows the form of the 1967 proclamation; paragraphs (a), (b), (c) and (d) of the operative portion of the 1963 proclamation (as amended in 1967) were repealed and new provisions substituted, the Schedule was repealed and a new Schedule substituted and the proclamation concludes with two declarations, the first that the councillors in office at the date of the proclamation should continue in office for the balance of the term for which they were elected and the second that all Council rules in force at that date should continue in force.

The validity of this proclamation was attacked by the appellants on a number of grounds which we shall discuss later. For the present it is sufficient to note three matters.

Although this proclamation is spoken of as having established the multi-racial Council, in form it merely amended the 1963 proclamation by repealing the operative paragraphs (a), (b), (c) and (d) which had been inserted by the 1967 proclamation. The declarations made by the 1967 proclamation were spent with the result that the constituent proclamation of the Council as defined in s. 5 of the Ordinance consisted of the 1963 proclamation as amended by the February 1969 proclamation.

Secondly, although the new paragraph (d) fixed a term of two years as the period for which the Councillors elected at the first election of the reconstituted Council should hold office, no date for such election was fixed.

Finally, a matter which follows from the last observation, there was a latent conflict between par. (d) which fixed the term of office of the new Councillors as commencing from and including the day on which their election was completed and the declaration that the Councillors in office at the date of the proclamation should continue in office for the balance of the term for which they had been elected. It has already been noted that the Councillors then in office had been elected in 1966 under the 1963 proclamation for a term of at least three years. Ordinarily, they would have retired in November 1969 or at such later date as would have been necessary to enable the 1969 election to be completed. If the 1969 election were completed before November 1969, either par. (d) or the declaration of continuance in office would have to give way.

It was suggested by counsel for the respondent that if this situation arose, then on normal rules of construction the latter provision would prevail, but in any event the situation was at least doubtful.

The first election under the February 1969 proclamation commenced in May and finished in June of that year and the names of those elected were published in the Local Government Gazette on 11th August, 1969, and the situation of doubt thus arose. According to the proclamation the new Councillors were to take office in June and the old Councillors were to continue in office until November.

The next development was a further proclamation of 14th September, 1969. The validity of this document also is challenged by the appellants. It commences by reciting:

(a)      that the Council is established under the 1963 Ordinance;

(b)      that by Motion 12 at meeting 24 of the Council on 30th November, 1968, it was resolved, amongst other things, that the first election for the reconstituted Council should be held in February or March 1969;

(c)      that the Administrator in Council had resolved to amend the Council’s constitution accordingly;

(d)      that it appears that the February 1969 Proclamation did not give effect to the Council’s motion and the decision of the Administrator in Council.

The Administrator then proclaims and declares “that notwithstanding anything in the said Proclamation contained on and after the date of this Proclamation the Councillors of the said Council shall be the persons set out in a notice of election of Councillors of the said Council published in the Local Government Gazette No. 8 of the eleventh day of August, One thousand nine hundred and sixty nine on page 73, who shall hold office as though they had been duly elected at the election to which that notice relates”.

It is an understatement to describe the drafting of this proclamation as unhappy.

There are no later documents relevant to the issues raised on appeal.

In this state of affairs, the appellants attack the validity of both the 1969 proclamations. As to the February proclamation they point to the opening words of s. 18 of the Ordinance—”After consultation with the Council . . . concerned the Administrator in Council may, by proclamation” do specified things, and say that the proclamation was purportedly made under s. 18 but that its making was not preceded by consultation with the Council and such consultation was mandatory. Alternatively, the appellants say that unsatisfactory as the evidence was it was sufficient to discharge any onus which may have lain on the appellants to show that there was no sufficient consultation. Finally the appellants contend that the prosecution carried the burden of proving that there was consultation and of proving there was a validly existing Council at all relevant times and that once these assertions had been challenged by the defence, the prosecution was not entitled to rely on any presumption of regularity.

The September proclamation is likewise attacked on a number of grounds. Firstly, that if the first proclamation is invalid the second falls with it and counsel for the respondent concedes that this would be so. The remaining submissions assume the validity of the first proclamation. Secondly, if the second proclamation is purportedly made under s. 18(2) of the Ordinance it can only deal with matters consequential to and consistent with those dealt with under s. 18(1). Here, however, the second proclamation deals with an entirely new scheme. Thirdly, prior consultation is a prerequisite to any proclamation made under s. 18(1) or s. 18(2) and no such consultation took place. Fourthly, the second proclamation was beyond power in purporting to say that someone previously elected should be deemed to be elected.

Counsel for the appellants then went on to deal with the consequences which flowed from a conclusion that either or both of the two proclamations were deficient in the ways suggested.

A convenient starting point in an examination of the problems here involved is to consider one aspect of s. 18 and then the nature and effect of the September 1969 proclamation.

We are quite satisfied that the opening words of s. 18(1) “After consultation” govern that subsection only and not sub-s. (2). Section 18 is the only section in Div. 2 of Div. 4 of the Ordinance and that Division is headed “Variation, Subdivision, Amalgamation”. Clearly if the Administrator seeks to exercise any of the powers set out in paragraphs (a) to (f) of sub-s. (1) the opening words apply. By contrast, exercise of any of the powers referred to in sub-s. (2) would be consequential upon the exercise of one or more of those details in sub-s. (1) and prior consultation is not provided for. Prior consultation is required not to the making of a proclamation but to any variation or amalgamation in accordance with paragraphs (a) to (f) of sub-s. (1). The absence of any reference in sub-s. (2) to consultation strongly supports this view.

We agree with the submission that any proclamation made in respect to sub-s. (2) matters only must be preceded by a proclamation made, after consultation, under sub-s. (1) but if a proclamation has been properly made under sub-s. (1) prior consultation is not again required before the making of a subsequent proclamation under sub-s. (2) which does no more than exercise powers set out in the latter subsection.

It will be seen that the recitals of the September 1969 proclamation when referring to the 1969 election merely record that the motion was for it to be held in February or March without also recording the subsequent events and the conflict which arose between par. (d) and the declaration in the February proclamation of continuance in office. As a result, anyone unfamiliar with the full history of the matter might be excused for failing to see immediately what a proclamation in September that certain persons named in a notice in August should forthwith be councillors had to do with an election which was supposed to have been held in February or March. Nor would it be clear to the unitiated how a proclamation made in September could give effect to a resolution to hold elections in the preceding February or March.

The operative part of the proclamation is also ungainly. Having proclaimed that certain persons shall be the councillors, it goes on to say that they shall hold office “as though they had been duly elected . . .” thus casting doubt on the validity of their election. If the true purpose of the proclamation was to validate an election otherwise invalid, the simple comment is that the Administrator had no power to give effect to such a purpose.

Further confusion is caused by the operative provision that “the Councillors of the said Council shall be the persons set out in a notice . . .”.

The situation to be met appears clearly enough from the facts already set out. No proclamation had been made in 1968 to give effect to the Council motion of 30th November, 1968, for an election in February or March 1969, some eight months before the term of existing Councillors expired. By the time the February 1969 Proclamation was made it was clearly too late to provide for an election which met the express description of the motion. The election was however commenced in May and completed in June with the result that the doubt regarding the commencement of the term of the new Councillors arose in the way explained. It would have been a simple matter to recite, that because the February 1969 proclamation was not made until that month, it was not practicable to hold the election in February or March, that it had therefore been held in May and June, that the names of those elected had been published in the Local Government Gazette of 11th August, 1969, and that doubts having arisen as to when the new Councillors took office and the old Councillors vacated it the February 1969 proclamation was amended by deleting the words “for the balance of the term for which they were elected . . .” and substituting “until 14th September, 1969” that is, the date of the September 1969 proclamation. Alternatively, a similar result would have been achieved by prefacing the declaration of continuance in office with the words “Subject to par. (d)”. In either of these ways, that declaration would be made congruent with par. (d) and effect would be given to the unexpressed intention of the November motion that the new Councillors should take office as soon as practicable after their election and not be held out of office until November. What was done however was to declare “that notwithstanding anything in the said Proclamation contained on and after the date of this Proclamation the Councillors of the said Council shall be” the new Councillors. By implication, it is then argued, the old Councillors must be taken to have vacated office at the same time as the new Councillors assumed it.

The question which arises is whether, as the respondent contends, the September 1969 proclamation merely filled an omission in the February proclamation, or, as the appellants say, put into operation an entirely new scheme. If there was a new scheme the requirement for consultation arose under s. 18(1) and if the proclamation is read literally as an attempt to validate an invalid election it would appear to be beyond power.

The respondent’s answer to these submissions involves a consideration of the effect of the September proclamation in the light of events which had occurred since the resolutions of the Council of 30th November, 1968. The history of these events has been set out and it remains to consider whether what was apparently intended to be achieved was in law achieved. If on a proper construction of the February 1969 proclamation and the Ordinance, the term of the old Councillors ceased on the election of the new Councillors in June then the September proclamation added nothing. The question therefore narrows to whether it was competent for the Administrator by the September proclamation to terminate the term of office of the old Councillors, on the assumption they were still in office in September 1969.

Section 18(2) of the Ordinance contains two provisions under which the term of existing Councillors may be affected. Paragraph (a) empowers the Administrator to make provision for their continuance in office for terms not exceeding the balance of their terms then unserved. Paragraph (b) empowers the making of provision for the appointment or election and the first term of office of new councillors. This latter power is not limited in any way by reference to the terms of office of existing councillors and we construe it to mean that the first term of new councillors could be fixed in such a way as to deprive existing councillors of office.

Unless the contrary intention appears, the power given by s. 10 to make proclamations can be exercised from time to time as the occasion arises and the conferring of that power should be construed as including a power, exercisable in the like manner and subject to the like condition, to amend or vary (s. 32(1) and (3), Ordinance Interpretation Ordinance).

The February 1969 proclamation provided both for the continuance in office of existing councillors and also for the first term of office of new councillors. It is our view that it was within the power of the Administrator, when doubts arose after the completion of the election in June 1969 as to who then held office, to amend or vary those provisions to remove that doubt and that he did so. As already pointed out, the power would have been more clearly seen to have been exercised if some literal amendment had been made to the first declaration, but we think it was nonetheless effectively exercised by providing that the recently elected councillors should forthwith be the councillors of the Council because this provision, while providing for the first term of office of the new councillors, necessarily carries the implication that the old councillors if then in office cease to be in office. In this way the provision for continuance in office of existing Councillors made in the February 1969 proclamation was amended to make that provision accord with the intention that the new Councillors should not be held out of office until November 1969. Such an amendment is supported by the powers contained in s. 32 of the Ordinances Interpretation Ordinance and s. 18(2)(e) of the Local Government Ordinance.

The final provision of the September 1969 proclamation also has its difficulties. As we have said it could be read as suggesting that the May/June election was for some reason invalid. However no-one suggested any reason for so thinking and the better explanation is that it is a clumsy way of fixing the duration of the term of the new councillors. Paragraph (d) of the February 1969 proclamation provided that they should take office for two years from the completion of the election which, in the event, was completed in June 1969, but as already explained doubts arose as to whether they had then taken office. It seems that the draftsman, conscious of the possibility that some further doubt might arise as to when the term of the new Councillors commenced and would finish, said that they should hold office as though elected in June 1969 when nothing more was meant than that their term of office should, whatever the doubts, be deemed to have commenced in June 1969 and would therefore expire in June 1971.

A further contention which may be conveniently dealt with here is that prior consultation was prerequisite to the making of the September proclamation. This proclamation dealt with nothing but s. 18(2) matters and, on the construction of that section already adopted, no prior consultation was necessary. But in any event, if as we have concluded the September proclamation was not implementing a new scheme, but merely correcting a failure of the February proclamation to give effect to the variation proposed, the real question is whether the February proclamation, not the September proclamation, was made after consultation. We shall deal with this question later.

Subject therefore to the February 1969 proclamation being valid, we conclude that the September 1969 proclamation was valid.

We are further of the opinion that even if this view is wrong, then provided the February 1969 proclamation is valid, any invalidity of the September 1969 proclamation does not assist the appellants.

The failure of the September 1969 proclamation would leave in doubt who were the councillors of the Council between June and November 1969. It may well be, as the respondent suggests, that the better view is that the old councillors continued in office after the June election. But we do not think there can be any doubt that after the expiration of the term of the old councillors in November, the new councillors elected in June 1969, took office at least until June 1971. The relevant tax rule was made in May 1969 when the old Councillors were in office and the liability to pay the tax arose, the failure to pay occurred and proceedings were instituted, all in 1970 when the new councillors were in office.

It will be seen then that the central issue now for consideration is the validity of the February 1969 proclamation. This proclamation admittedly contained a purported exercise of powers conferred by s. 18(1) of the Ordinance. It also contained an exercise of s. 18(2) powers; for instance the final declaration makes provisions for the continuance in force of existing Council rules and is expressed to be made pursuant to s. 18(2). But the proclamation undoubtedly sought to vary the constitution of the Council and also the wards into which the Council area was divided and these are s. 18(1) matters.

In the course of argument both counsel dealt carefully and helpfully with the question whether the February 1969 proclamation was made “after consultation” with the Council and if not what the consequences were.

We have already recorded that there were some discussions held and some resolutions passed by the Council before the making of the proclamation. The appellants insist that the consultation referred to in the section is consultation between the Administrator in Council and the Local Government Council and not consultation between officers of the Administration and some Council members or employees, unless special authority for that purpose is shown.

The appellants sought to construct from the relevant authorities a number of rules which must be complied with before it can be said that consultation has taken place. Thus it was suggested that views should be solicited in writing by the Administrator from the Council, and that discussions should take place at a Council meeting if they were to be relied on as part of the consultative process and that the Council or its representative duly appointed for the purpose must be given adequate opportunity to consider and express views on the matters proposed. These are the sorts of matters to which the authorities refer, but we do not find it useful to attempt the formulation of a number of tests to determine in all cases whether consultation has occurred or not. Further we do not agree with the proposition implicit in the rules propounded that consultation can only be initiated by some formal communication from the Administrator or the Administrator in Council to the Local Government Council. Assume for instance that the Council wishes to change its name and having passed the appropriate resolution requests the Administrator to give effect to it. This might be the first the Administrator hears of the proposal but it seems to us to be quite unreal to suggest that if the Administrator in Council then makes the appropriate proclamation without first enquiring of the Council whether it wants him to do what it has already asked him to do there has been no consultation, with the result, on the appellants’ argument, that the proclamation is bad. We think that in such a case sufficient consultation would have occurred.

No doubt the matters referred to by the appellants may all be relevant to the enquiry but we think the authorities show that whether in any particular case consultation has occurred is essentially a question to be decided on the facts of that case. As the Judicial Committee said in Port Louis Corporation v. Attorney-General of Mauritius[cccxciii]2: “Helpful as the citations were, the nature and the object of consultation must be related to the circumstances which call for it.”

We agree that the Administrator is obliged to consult with the Council—the Ordinance says so. But it does not lay down any procedure to be followed nor does it require any accord to be reached. The nature and extent of the communication necessary to constitute a consultation could depend on the nature and complexity of the proposal, where and when it originates, any previous communications or even a refusal by the Council to discuss the matter.

The great variety of circumstances in which it may be said a consultation has taken place is illustrated by some of the cases cited to us. We mention only two. In In re The Union of the Benefices of Whippingham and East Cowes, St. James[cccxciv]3 the Judicial Committee concluded that there had been “consultation so far as is practicable . . . with the . . . parochial church councils concerned” where council members attended an informal meeting and opposed the proposals. It was argued that “the consultation must be with the council, and consequently the views of individual members, even if freely and fully expressed, were not sufficient compliance with the enactment. A vote of the council itself was required”.[cccxcv]4. Their Lordships’ opinion in that case was however that “A full and sufficient opportunity must be given to the members of the council to ask questions and to submit their opinions in any reasonable way, but that is all that is required.”[cccxcvi]5.

In Attorney-General v. J. N. Perry Constructions Pty Ltd[cccxcvii]6 Myers J. said:

“The information appears to take the view that a prerequisite of a consultation is an initiating communication by the responsible authority to the Cumberland Country Council but there Clarkson and is no justification for that on any construction of cl. 43(1). Now what happened here was that Cumberland County Council requested the responsible authority not to refer to it applications for consent to proposed development of a certain kind. Implicit in that request was a prior consideration by the Cumberland Country Council of that kind of development in the Sutherland Shire and a decision that it was unobjectionable in all cases and did not call for any representations. The responsible authority acceded to the request and did not forward any such applications. If the two councils or their representatives had met and the Cumberland County Council had made the request at the meeting and it had been agreed to, there would have been a consultation regarding development of the kind specified and I do not think that it was any the less a consultation because the same thing was done by correspondence.”

Before proceeding further it is desirable to point out that we are not concerned merely with the question, as on a case stated, whether what occurred in this case amounted in law to consultation within the meaning of s. 18(1) of the Ordinance. This is a prosecution for an alleged failure to pay tax and there are at least two further relevant considerations. The first is that the learned magistrate who heard the cases convicted the appellants and the question before us is not simply whether there was prior consultation in terms of the section but whether the magistrate was wrong in concluding that there had been. The second, a matter already referred to and the one with which we now deal, is whether the complainant was entitled to call in aid any presumption that there had been prior consultation.

The presumption of regularity as it is sometimes called is a rebuttable presumption of law drawn by the Court and is chiefly applied to judicial and official acts. If applied, it is, in the absence of opposing evidence, conclusive for the party in whose favour it operates.

We take these statements from Phipson on Evidence (10th ed.) pars 2016 and 2027. Expressed as a presumption arising from the ordinary course of business it was discussed by Griffith C.J. in McLean Bros. & Rigg Ltd. v. Grice[cccxcviii]7. The Chief Justice quoted with approval an observation by Brewer J. in Knox County v. Ninth National Bank[cccxcix]8 which reads: “It is a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act.”

The making of a proclamation by the Administrator is clearly an official public act by the officer formally charged with the duty of administering the government of the Territory on behalf of the Commonwealth of Australia. Such an act in the absence of all else appears to be an act in respect to the due performance of which the presumption would arise and as will be seen there are cases where the presumption has been held to apply with respect to the making of proclamations. However this general statement needs qualification in the light of some of the authorities to which we were referred. For instance, the presumption may not be enough to show the due exercise of the power to make proclamation when some deficiency is apparent on the face of the proclamation— Lucerne v. Collins[cd]9.

Reg v. Martin[cdi]10 indicates that it is probably not appropriate to apply the presumption where the prerequisite to due exercise of the power is a state of mind of the Governor in Council. Murphy v. Matlock[cdii]11 seems to suggest that where the prerequisite is an act by some other body—in that case a recommendation of the Pharmacy Board—the failure of the proclamation to show on its face the doing of that act reveals a fatal defect. Mann J. expressed “some little doubt” about this conclusion.

In McGregor v. Australian Mortgage, Land and Finance Co.[cdiii]12 the claimant proved the relevant proclamation but not publication of a notice of intention to make the proclamation and the proclamation contained no reference to publication of a prior notice. Darley C.J. for the Full Court of New South Wales said:[cdiv]13.

“I do not think that the claimants were called upon to prove the notices of intention to proclaim either in the Gazette or in the local newspaper. No doubt, if either were not in fact made, the proclamation itself would have been improperly made. But this was merely a question of evidence, and the Land Board were bound to assume that everything had been properly done. To hold otherwise would lead to endless trouble. The public cannot go behind every proclamation; they must assume, and were intended to assume, that when a proclamation is made it is properly made.”

Bolton v. Dance[cdv]14 is a case where the presumption was applied. Gowans J.[cdvi]15after referring to a number of cases including Murphy[cdvii]16, Lucerne[cdviii]17, and McGregor[cdix]18, said:

“These cases, in my opinion, show no more than that the presumption of regularity will not be applied to the making of regulations, proclamations or ordinances if there is an apparent defect on the face of them. The absence of a statement that a preliminary step in the making of the instrument has in fact preceded its making may present the appearance of such a defect if by reason of the surrounding circumstances the absence of the statement appears significant. But there is no rule that there must always appear a statement specifying the preliminary steps that have been taken or that all preliminary steps have been taken.”

We accept this as a proper statement of the law and apply it accordingly. No doubt it may be difficult in a particular case to determine whether by reason of the surrounding circumstances “the absence of the statement appears significant” but we do not find it so in this case. Here there is some evidence that some consultation took place and this circumstance distinguishes this case from those cited in which the presumption was not applied. We refer in particular to the resolutions of the Council and the correspondence to which the witnesses referred. We have already explained why we think that the request by the Council to give effect to its resolutions and the decision of the Administrator to do so could amount to consultation. Bearing these matters in mind as part of the surrounding circumstances we do not think the absence from the proclamation of a statement that consultation had occurred is significant in the relevant sense.

In our view the prosecutor was entitled to call in aid the presumption.

We turn now to consider the facts in the light of the opinions expressed. The first point to be made, and it is an important one, is that the scheme upon which consultation was required while it might have had important social and political implications was quite a simple one. The Council had been in operation for many years as a going concern. The scheme was to include in the Council area certain alienated land previously excluded, and to provide for Councillors to represent the new areas. Once the Council agreed to such a scheme—and from the motion of 22nd February, 1968, it appears that it then did so—it is difficult to imagine what further discussions could be required or even helpful except in relation to proposed amendments such as those which occurred in November 1968 when the Council resolved to include two wards of the Duke of York Islands Council in Ward 36 and to bring the next election back from late 1969 to early 1969.

Another point worth noting is that, quite apart from mere consultation, the Council was sufficiently satisfied in February 1969 that its desires had been put into effect by the Administrator, to pass the motion and write a letter referred to in the evidence of Mr. Towartovo thanking the Administrator for the proclamation creating the multi-racial Council. This would seem to show that accord had in fact then been reached and whilst, as already pointed out, consultation does not require accord to be reached, the fact that it has is evidence of prior consultation. The apparent dissipation of that accord in May 1969 is not to the point. From the evidence we think it reasonable to assume that the appellants felt aggrieved that in the light of opposition then existing the election actually took place but the decision to proceed with the election is no part of the preliminary consultative process required by s. 18.

Finally, we note that while there was a body of evidence suggesting that consultation took place there does not appear to be any evidence inconsistent with the allegation that it did in fact take place. The real complaint seems to have been that there was not enough consultation with the electors.

These appeals were conducted on the basis that the conclusions of the learned magistrate included a finding that the appropriate consultation had taken place before the February 1969 proclamation was made and we agree with this construction of what he said. Further, although there was no express finding to this effect, it is implicit in the decision that there were at all relevant times persons who could on behalf of the Council lawfully exercise its powers and discharge its duties. We are not persuaded that, on the evidence before him and on a proper view of the law, the magistrate was wrong in concluding that at the relevant times the Council was validly constituted and able to sue for and recover the amounts of tax in dispute in these proceedings, and that therefore the complainant should succeed. In fact, our view is that with the abandonment of other grounds of appeal the validity of the February 1969 proclamation became the real issue on this appeal and that on the evidence in these particular cases and with the aid of the presumption of regularity which we have discussed the magistrate correctly found the proclamation to be valid.

We are however careful to qualify our conclusion by reference to the evidence in these cases because whether or not prior consultation took place is a justiciable question of fact and law and it is apparent from the record that all the relevant available evidence on this issue was not given.

We should also note that in the event it has become unnecessary for us to consider the validity of the 1967 proclamation or whether the requirement for consultation on s. 18(1) of the Local Government Ordinance is mandatory or only directory. We have assumed it is mandatory.

The appeals are dismissed.

Solicitor for each appellant: John Goldring.
Solicitor for the respondent in each appeal: P. J. Clay, Crown Solicitor.

[cccxcii]Infra p. 357.
[cccxciii][1965] AC. 1111, at p. 1124.
[cccxciv][1954] AC. 245.
[cccxcv][1954] AC. 245, at p. 254.
[cccxcvi][1954] AC. at p. 254.
[cccxcvii](1962) 79 WN. (N.S.W.) 235, at p. 238.
[cccxcviii](1906) 4 CLR. 835, at p. 850.
[cccxcix]147 U.S. 91, at p. 97.
[cd](1967) 86 WN. (Pt. 1) (N.S.W.) 247, at p. 254.
[cdi](1967) 67 SR. (N.S.W.) 404, per Jacobs J.A., at p. 408.
[cdii][1926] VLR. 170.
[cdiii](1898) 15 WN. (N.S.W.) 128.
(1898) 15 WN. (N.S.W.) 128, at p. 129.
[cdv][1968] VR. 631, at p. 641.
[cdvi][1968] VR. 631, at pp. 641-2.
[cdvii][1926] VLR. 170.
[cdviii](1967) 86 WN. (Pt. 1) (N.S.W.) 247.
[cdix](1898) 15 WN. (N.S.W.) 128.