Background:
There is a line of authority in Western Australia requiring that subsidiary legislation be proved in evidence. This was most clearly put in Norton v The Queen [2001] WASCA 207, in which Roberts-Smith J (with Wallwork J and Pidgeon AUJ agreeing) said:
‘…the authorities establish that in the absence of a statutory provision so directing, judicial notice cannot be taken of delegated legislation and such legislation must be formally proved’. ([162])
This was later accepted as a correct representation of the law in Western Australia by four members of the High Court in Ostrowski v Palmer [2004] HCA 30.
In Ireland v Jackson [2021] WASC 362 and Montalbano v Morris [2019] WASC 309 (both traffic conviction appeals from the Magistrates court brought by self-represented appellants), submissions from the respondent (represented by the State Solicitor’s Office) have suggested various legislative bases for notice or proof of subsidiary legislation.
Montalbano v Morris [2019] WASC 309:
In Montalbano, the respondent submitted that the magistrate should be taken to have had judicial notice of the relevant instrument in the Government Gazette because it formed part of the Road Traffic (Administration) Act 2008 (WA). The respondent argued that this was so because s 53(1) of the Evidence Act 1906 (WA) – which provides for judicial notice to be taken of Acts of various Parliaments – extends to the relevant instrument by virtue of s 46 of the Interpretation Act 1984 (WA), which sets out that ‘A reference in a written law to a written law shall be construed so as to include a reference to any subsidiary legislation made under that written law’.
Ultimately, Tottle J found that s 53(1) of the Evidence Act 1906 (WA) does not direct courts to take judicial notice of subsidiary legislation because it:
‘… does not contain a reference to a written law in the sense that that phrase is used in s 46 of the Interpretation Act 1984. It contains a generic reference to “Acts of the Parliament of the United Kingdom and of the Commonwealth, and of any State, and of any Australasian colony, passed before or after the commencement of this Act”. Further, the language used in s 53(1)(b) discloses an intention that is contrary to the expansive construction of “Acts of Parliament” contended for by the respondent. Section 53(1)(b) refers to “Acts of Parliament … passed …”. Acts are “passed” but subsidiary legislation is not. For these reasons s 46(1) of the Interpretation Act 1984 is not engaged by s 53(1)(b) of the Evidence Act 1906 and does not operate to oblige courts to take judicial notice of subsidiary legislation.’ ([42])
Ireland v Jackson [2021] WASC 362:
Montalbano was recently referred to by Allanson J in Ireland. In that case, the respondent submitted that Commonwealth evidence legislation operated to allow notice to be taken of Western Australian subsidiary legislation. The respondent pointed to s 143 of the Evidence Act 1995 (Cth), which relevantly sets out that proof is not required of an Act (including a State Act), nor of a regulation, rule, by-law, or other instrument of a legislative character which is made ‘under such an Act’. The respondent argued that s 143 applies because s 5 of the same Act names s 143 as one of a handful of provisions which apply to ‘all proceedings in an Australian court’, where the term ‘Australian court’ includes all State and Territory courts.
Justice Allanson set out a number of reasons which support an interpretation consistent with the respondent’s submissions, but noted the conclusion reached by Tottle J in Montalbano and previous authorities:
‘The question is whether, when s 143(1)(b) refers to a regulation “made … under such an Act or Ordinance”, it includes a State Act or is confined to an Act of the Australian Parliament or of a Territory. There are arguments for why it should not be so confined. First, the same expression should be given a consistent meaning throughout the section. Section 143(1)(c) refers to a proclamation or order of the Governor of a State made under ‘such an Act or Ordinance’. I am not aware of any circumstance in which the Governor of a State may make a proclamation or order under an Act of the Australian Parliament, or an Act or Ordinance of a Territory.
Second, s 143(1)(d) is also, on its face, of wide operation in referring to “any government or official gazette” rather than a gazette of the Commonwealth or a Territory.
There is, however, a clear line of authority, discussed by Tottle J in Montalbano v Morris, that in Western Australia regulations must be proved in evidence. His Honour was referred to the Commonwealth Evidence Act, but it did not affect his conclusion.’ ([68]–[70])
The respondent also put an alternative argument based on s 8 of the Reprints Act 1984 (WA), which provides that a reprint of any written law under the Act shall be judicially noted. Justice Allanson described that submission as follows:
‘The argument is attractively simple. By s 5 of the Interpretation Act 1984 (WA), a written law means all Acts for the time being in force, and all subsidiary legislation for the time being in force. The Road Traffic Code is subsidiary legislation, and has been reprinted. Section 8 of the Reprints Act provides for judicial notice of that reprint.
Given the extent to which a reprint may alter the text of a written law, under s 7 of the Reprints Act, it would be an odd result were the court to take judicial notice of those changes but not the original underlying text.’ ([71]–[72])
However, Allanson J noted that it was difficult to determine the relevant ground of appeal because the appellant was unrepresented and the issues relating to the Evidence Act 1995 (Cth) and the Reprints Act 1984 (WA) were thus ‘only argued on one side.’ As the appeal was successful on a separate ground, Justice Allanson ultimately found that it was unnecessary to determine this ground of appeal, noting that ‘It should be left to be fully argued on another occasion.’ ([73])
Comment:
It remains unclear whether s 143 of the Evidence Act 1995 (Cth) or s 8 of the Reprints Act 1984 (WA) – which were not the basis of substantial consideration in the cases forming the ‘clear line of authority’ – could provide an exemption from the requirement to formally prove subsidiary legislation in Western Australia. On the basis of that uncertainty and the ‘clear line of authority’, it would presently appear prudent for a party relying on subsidiary legislation to formally prove it in court.
Evidence Law in Western Australia 