DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal against the conviction by a magistrate of the appellant on two counts, one alleging an offence against s 4.3.5 of the Integrated Planning Act 1997 (“the Act”) and one alleging an offence against a local law of the Maroochy Shire Council.  The appeal is brought in respect of both counts, and was initially against sentence as well as conviction; at the hearing the appeal against sentence was abandoned.  The appeal against conviction does not arise out of any dispute as to the facts, but out of matters of law.

2. [2]
   The complaint by the respondent alleged that the appellant, the owner of a particular property:

“1. Did between about 28 August 2002 and about 5 April 2003 carry on an unlawful use of the said premises, namely outdoor recreation, contrary to s 4.3.5 of the Integrated Planning Act 1997 (Q).

2. Did between about 28 August 2002 and about 5 April 2003 operate an entertainment venue upon the said premises when there was not a permit for the said entertainment venue in force, contrary to s 4 of Maroochy Shire Council Local Law No. 4 (Entertainment Venues) 1999.”

Count 1 – no valid complaint

3. [3]
   In relation to Count 1, the appellant submitted that the conviction was invalid because Count 1 as it stood^[1] was not a valid complaint because it failed to disclose the essential ingredients of the offence.  The Justices Act 1886 provides that a proceeding under the Act is to be commenced by a complaint (s 42) which prima facie is to be for one matter only:  s 43.  It follows from s 53(1) that a complainant is to identify the offence alleged against the defendant.  Section 47(1) of the Act says:

“The description of any offence in the words of the Act, order, by-law, regulation, or other instrument creating the offence, or in similar words shall be sufficient in law.”

4. [4]
   It is well established that the process by which a summary proceeding is commenced against a person^[2] is required to set out the nature of the offence and the manner in which it is alleged to have been committed.^[3]  In order to assess that submission, it is necessary to have regard to the terms of the statute creating the offence which the appellant was alleged to have committed.

The statute

5. [5]
   Section 4.3.5 of the Act provided^[4]:

“Subject to s 4.3.6, a person must not use premises –

1. (a)
   if the use is not a lawful use; or

2. (b)
   unless the use is in accordance with –

1. (i)
   for premises that have not been designated – a planning scheme or temporary local planning instrument that regulates the use of the premises; or

2. (ii)
   for premises that have been designated – any requirements about the use of land that are part of the designation.

Maximum penalty – 1665 penalty units.”

6. [6]
   It was submitted on behalf of the respondent that this section created two different offences, one under paragraph (a) and one under paragraph (b), and the appellant had been charged with an offence under paragraph (a).  The appellant accepted that the matter had proceeded on that basis in the magistrates court, but it seems to me that such an interpretation of the section, though one which may arise on a strictly literal and grammatical reading, is not clear.  The form of the section strikes me as difficult and artificial, because the two paragraphs are not commensurate and the construction “or unless” is at least cumbersome.  The section contains a large number of negatives, and it seems to me that it may be a cumbersome expression of one of two different ideas.

7. [7]
   The first thing to bear in mind about the section is that the term “lawful use” does not simply mean a use which is in accordance with the law; the term is defined in s 1.3.4 in the following terms:

“A use of premises is a lawful use of the premises if –

1. (a)
   The use is a natural and ordinary consequence of making a material change of use of the premises, and

2. (b)
   The making of the material change of use was in accordance with this Act.”

8. [8]
   There is no reason to think that that definition did not apply to the expression “lawful use” in this section, and the respondent did not argue that it did not. On the interpretation contended for by the respondent, the section creates an offence of using premises if the use is not a lawful use as defined, and also creates a separate offence of using premises if the use is not in accordance with a planning scheme or instrument (or, for premises that have been designated, the designation). The main difficulty with that interpretation is that an offence could be committed under paragraph (b) even though the use was a lawful use for the purposes of paragraph (a).

9. [9]
   There is no doubt that a use can be a lawful use (as defined) notwithstanding that it is not in accordance with the planning scheme which governs the particular land, because the Act contemplates that authorisation can be given in accordance with the Act for a material change of use to one which is not in accordance with the scheme: this is made clear by s 3.5.14(2)(b), which expressly does not confine a use authorised in accordance with the Act to those uses which are permissible under the applicable planning scheme.^[5]  It would be decidedly odd for the Act to provide that a person may be permitted to use land (by giving effect to an authorised change of use under the Act) for a use which is not in accordance with the planning scheme, but nevertheless make it an offence to use land in a way which is not in accordance with the planning scheme, notwithstanding that the use is a “lawful use” as defined.

10. [10]
    Looking at the matter the other way, it may also be possible for a use of land to be in accordance with a planning scheme without necessarily being a lawful use as defined. The Act or planning scheme may provide that particular development, and hence particular material change of use, is exempt from regulation under the Act, or is self-assessable. Indeed, s 3.1.2(1) provides that all development is exempt, unless it is made assessable or self-assessable under the Act.  If it is exempt no development permit is required (s 3.1.4(2)) and the Act does not appear to apply to it at all.  If it is self-assessable no approval is required, though it is necessary to follow certain codes established in accordance with the Act:  s 3.1.10.

11. [11]
    If self‑assessable development occurs other than in accordance with the codes, that is made a separate offence under s 4.3.4.  Accordingly, there is no need for s 4.3.5 to cover by paragraph (a) carrying on a use of land as a result of a material change of use which occurred in circumstances where that was self-assessable development but there was a failure to comply with the relevant code.  Therefore, the Act contemplates that a situation may easily arise where the operation of a planning scheme means that people will be able to use land without the requirement for a process of approval of any material change of use under the Act.  In these circumstances, it would be odd for the Act to provide in this section that using the land in that way, which would not be a “lawful use” as defined,^[6] is an offence, notwithstanding that the use is in accordance with the planning scheme which applies to the premises.

12. [12]
    It follows that the interpretation contended for by the respondent would be at best odd, and at worst fundamentally inconsistent with the general structure of the legislation. The respondent also relied on the explanatory note to clause 54 of the bill, which became the 2001 Amendment Act.  That explanatory note referred to creating two separate offences, but the difficulty is that it obviously referred to a situation where there were two different sub‑sections for the proposed clause, one sub‑section creating one offence and one sub‑section creating the other.  But the clause in the form which was apparently introduced to the House^[7] is as it was passed, and does not contain sub‑sections.  I infer the explanatory note in relation to this clause was written at a time when the proposed clause was different from its current form.  What is not known is whether the change merely represented an attempt to formulate the same thing in different words, or whether the change came about because of a realisation, after the time when the explanatory note was drafted, that what was being proposed did not make sense in terms of the overall structure of the Act, and the clause was changed to give effect to an intention to make it an offence to use premises only if the use was neither a lawful use nor one in accordance with (relevantly) the applicable planning scheme.  Accordingly, the explanatory note really does not throw any light on the appropriate interpretation of the section.

13. [13]
    Prior to this amendment, the section simply made it an offence to use premises if the use was not a lawful use. That, read together with s 1.3.4, made it an offence to use premises other than as a natural and ordinary consequence of making a material change of use in accordance with the Act.  Subject to the question of whether a material change of use which is the result of exempt development or self‑assessable development is one made “in accordance with the Act”, this is a clear and reasonable provision, but the amendment has obviously produced some change, and the question is, what.  The fact that paragraph (a) might make sense on its own is not conclusive if paragraph (b) does not.

14. [14]
    In order to understand the operation of the legislation, it may be helpful to approach the matter in a way which disregards the various negatives. One would expect that the legislature would have intended that the use of premises in accordance with a planning scheme (or temporary local planning scheme or designation, as the case may be) that applies to the premises should be lawful. One would also expect that the use of premises for a “lawful use” (as defined) should be lawful. Because these two categories will not necessarily entirely overlap, one would expect therefore that any use which fell into one or the other ought to be lawful. Putting that in the negative then, one would expect that any use which did not fall into one or the other category would be unlawful. It is, I think, quite plausible that that was the legislative intention, and that the section has merely failed to express that intention as clearly as it ought to have.

15. [15]
    The section should be given an interpretation which fits in with the structure of the legislation as a whole, and supports the purpose of the legislation.^[8]  In addition, a provision creating an offence should be given no wider an operation than is clearly provided.^[9]  For the reasons I have given, in my opinion those objectives indicate an interpretation of the section as one which creates a single offence.

Comment

16. [16]
    Whatever the true legislative intention was, what was expressed in s 4.3.5 was in my opinion ambiguous, and badly drafted. It would be desirable for the legislature to review this provision, to decide just what use of land it is appropriate to criminalise in the light of the structure of the Act as a whole, and to express that decision clearly and unambiguously.

Was that offence adequately set out?

17. [17]
    Leaving aside the effect of any saving provision in the Justices Act, for a complaint to be valid it must identify the essential factual ingredients of the actual offence alleged.^[10]  In the present case, the complaint in relation to Count 1 identifies what it is that the appellant is alleged to have done, but that is not only the factual ingredient of the offence.  If s 4.3.5 of the Act made it an offence to carry on the use of outdoor recreation on premises, the position would be different, but it does not.  What it prohibits is any use which is not a “lawful use” as defined, and which is not a use in accordance with the applicable planning scheme.^[11]  Whether or not something is a “lawful use” is, because of the definition of that term in s 1.3.4, something which depends on factual matters.  In order to show that the use is not a lawful use, it is necessary to show that it is not the result of a material change of use which has been authorised under the Act.  Whether that has occurred in any particular case is a question of fact.  Similarly, although a local planning instrument is a statutory instrument under s 2.1.23(1) of the Act and does not need to be proved,^[12] that the local planning instrument applies to the land in question in such a way that the alleged use is not in accordance with it may involve a factual issue which has to be proved in order to sustain the prosecution.

18. [18]
    It follows that, in order to prove that an offence has been committed under s 4.3.5, the prosecution must show at least that the defendant was using the premises in a particular way, that that use was not the result of a material change of use authorised under the Act, and that that use was not in accordance with a planning scheme that regulated the use of those premises.^[13]

19. [19]
    All that was alleged in the complaint was that the appellant was using premises in a particular way, and that he was in that way carrying on an unlawful use of those premises. The factual basis on which it was alleged that that use was unlawful was not set out in the complaint. In John L Pty Ltd (supra) the majority of the High Court held that an information alleging that the appellant had published a particular statement which was to the appellant’s knowledge false or misleading in a material particular was not a valid information, because it did not identify an essential factual ingredient of the offence, namely the factual basis on which it was alleged that the material particular was false or misleading.  The particular statement was an assertion of an intention to engage in future conduct.

20. [20]
    At p 521 the majority said:

“Whether it was the absence of intention [to carry out its promise] or some other circumstance which was alleged to make the statement false or misleading does not appear from the information and consequently it failed to specify how the appellant was said to have committed the offence.  In other words, the information failed to specify the manner of the appellant’s acts or omissions … or to provide fair information and reasonable particularity as to the nature of the offence charged … In the result, the information was defective and insufficient to found proceedings against the appellant in respect of the alleged offence unless its failure to identify the “material particular” in which the alleged statement was false or misleading was cured or overcome by some applicable statutory provision.”

21. [21]
    That prosecution alleged a breach of a provision of the Consumer Protection Act which made it an offence to publish a statement in certain circumstances which was to the knowledge of the person who published the statement false or misleading in any material particular.  In my opinion, if a complaint that a statement was false or misleading in a material particular was inadequate because it did not identify how the statement was false or misleading, a statement that a use of land is unlawful is also inadequate because it does not identify how it is alleged that the use was unlawful.  It follows that the complaint was defective and insufficient to found a proceeding against the appellant unless the deficiency was cured or overcome by some applicable statutory provision.

Statutory provisions

22. [22]
    The first provision for consideration is s 47(1) of the Justices Act, which provides:

“The description of any offence in the words of the Act, order, by-law, regulation, or other instrument creating the offence, or in similar words, shall be sufficient in law.”

23. [23]
    It will be immediately apparent from the terms of the complaint and the terms of s 4.3.5 that the offence was not in the complaint described in the words of that section.  What was alleged in the complaint was that the appellant’s use was an unlawful use, and the section does not in terms make the use of land for an unlawful use an offence.  It was submitted nevertheless for the respondent that the words used in the complaint were similar words to the words of the Act, and that therefore the wording of the complaint was saved by s 47(1).  In my opinion, that is not correct, for two reasons.  The first follows from my conclusion that the section creates one offence, not two offences.  If it creates two offences, it is necessary for the similar words to be similar to all of the relevant words of the section.  At best, the words of the complaint were only arguably similar to the words of paragraph (a), based on the proposition that that paragraph with the introductory words created a separate offence.

24. [24]
    Even if that construction were correct, however, I do not consider that the words of the complaint were sufficiently similar to satisfy the test in s 47(1).  In order to determine the approach to that test,^[14] in my opinion it is important to bear in mind the purpose identified by the High Court for stating factual allegations in the complaint, referred to earlier.  The effect of s 47(1) involves a judgment by the legislature that that purpose can be adequately met in a particular case by following the wording of the Act, or as the case may be, by which the offence is created, or by the use of similar words, but whether the words are sufficiently similar should be assessed in my opinion by reference to those objectives, and the legislative assumption behind the sub‑section.

25. [25]
    The difficulty in the present case is that the term “lawful use” has a specific, defined and quite limited meaning, which is quite different from the ordinary meaning of the expression “lawful use” in the sense of any use which is not prohibited by law. Translating those words into the negative does not obviously pick up the defined meaning of the expression “lawful use” in the section. The words used in the complaint were ambiguous as to whether what was alleged was an unlawful use in the sense that it was not a “lawful use” as defined in the Act, or whether it was an “unlawful use” in the more conventional sense, of being a use which is prohibited by law. This is not in my opinion a mere matter of semantics; because of the definition, it is not correct to say that an “unlawful use” is simply a use which is not a “lawful use”.

26. [26]
    In my opinion, for a description of the offence to be sufficient in law on the basis that it is in words which are similar to the words of the Act, the words used must be sufficiently similar to the words of the Act creating the offence for it to be clear that what is being alleged is the offence created by those particular words of the Act.^[15]  The reference to the section of the Act relied on did not cover the deficiency.^[16]  In my opinion, the formulation of Count 1 of this complaint did not satisfy that test, and so it was not saved by section 47(1) of the Justices Act.

27. [27]
    The respondent did not specifically seek to rely on s 48 of the Justices Act to sustain the validity of Count 1 of the complaint.  I think that was appropriate.  Relevantly that section provides:

“If at the hearing of a complaint, it appears to the justices that –

1. (a)
   there is a defect therein, in substance or in form, other than a non‑compliance with the provisions of s 43 … then –

4. (d)
   if an objection is taken for any such defect or variance – the justices shall … make such order for the amendment of the complaint, summons or warrant as appears to them to be necessarily or desirable of the interests of justice.”

28. [28]
    That section does not provide that what would otherwise be a defect in substance or in form is not a defect, nor does it provide that a proceeding may be had on a defective complaint notwithstanding the defect. Rather, by making amendment of the complaint in such circumstances mandatory, it confirms that there cannot be a valid conviction upon a defective complaint. In my opinion, the position is analogous to that where there has been a civil proceeding commenced in the District Court by a claim and statement of claim which do not allege a cause of action within the jurisdiction of the District Court: there is an absence of jurisdiction in respect of the matter, but the proceeding can be amended in a way which will overcome the deficiency and thereby give the court jurisdiction to entertain the substance of the matter.^[17]  In my opinion, the position is the same under s 48 in respect of a deficiency which would deprive the court of jurisdiction to proceed with the complaint at common law; in the absence of the necessary amendment to overcome the deficiency, the court remains without jurisdiction in respect of the defective complaint.

29. [29]
    In these circumstances, it follows that in respect of Count 1 the jurisdiction of the court was never properly enlivened, so there was no jurisdiction to convict the appellant of that offence.^[18]  The appeal against the conviction on Count 1 must be allowed, the conviction set aside, and in lieu thereof Count 1 should be struck out.  The magistrate, following conviction, made an order under the Act restraining the appellant from continuing to carry on the use on the land.  The jurisdiction to make that order depended upon the conviction of the appellant for this offence, so it follows that this order should also be set aside.  I shall consider subsequently the question of costs in relation to Count 1.

Onus of proof re continuing pre-existing use

30. [30]
    That is sufficient to deal with the appeal in respect of Count 1; however, some other matters were raised, and in case a different view as to the matters considered above is taken elsewhere, I should say something about them as well.  The first matter which arose was as to which party had the onus in relation to any potential application to the prosecution of the provisions of Chapter 1 Part IV of the Act, which deal with an existing lawful use right.  In essence, if the use of the land had been carried on for long enough, a right to continue to use the land in that way is preserved to the appellant under the Act.  The respondent concedes that these provisions have the effect that a person using land under an existing lawful use right was not committing an offence against s 4.3.5, although there is no express provision in that section to that effect.  In my opinion, that concession was appropriate.

31. [31]
    The planning process is essentially concerned with the management of change.^[19]  Because of this, I understand it has generally been a feature of planning legislation  for planning schemes not to restrict the ability of occupiers of land to continue to do with the land what they have been doing prior to the commencement of the scheme.^[20]  The provisions of the Act make it clear that it continues this position, so that continuing pre-existing uses remain lawful.

32. [32]
    Section 76 of the Justices Act provides:

“If the complaint in any case of a simple offence or breach of duty negatives any exemption, exception, proviso, or condition, contained in the Act on which the same is framed, it shall not be necessary for the complainant to prove such negative, but the defendant shall be called upon to prove the affirmative thereof in the defendant’s defence.”

33. [33]
    The respondent cannot rely on that section for the purpose of putting the onus on the appellant to prove that he was carrying on a continuing pre-existing use, which was therefore lawful, because the requirement of the section, that the complaint negatived that proposition, was not complied with. There was no allegation in the complaint that the use was not a continuing pre‑existing use.  That, however, is not the end of the matter, because the section is declaratory of a common law principle which appears not to incorporate the requirement that there be an express negativing in the complaint.

34. [34]
    In this context, the appellant relied on the decision of the Full Court in Macarone v McKone, ex parte Macarone [1986] 1 Qd R 284.  In that case the appellant was charged under what seems to have been essentially the equivalent to this provision in what was then the schedule to the 1978 town plan for the City of Brisbane.  The relevant provision was as follows:

“Subject to the provisions of Part III, no person shall –

… (e) carry out development for a prohibited purpose.”

35. [35]
    What was alleged against the appellant was that she was using premises for the purpose of a shop, which under the then legislation amounted to “carrying out development”, and because the premises were in a future urban zone the use of the premises as a shop was a prohibited use. She sought to defend the charge by calling evidence to show that use as a shop was an existing non-conforming use, that is, that use as a shop had continued since prior to the time when the prohibition first came into operation. The court held that the effect of the provision which I have quoted was not to prohibit generally carrying out development for a prohibited purpose, but, because of the introductory words, prohibited such development only where it was not authorised by the provisions of Part III.  The reasoning of the court focused specifically on the particular wording of that prohibition, and on the question of whether the relevant activity was prohibited generally, or whether it was prohibited only to the extent that it was not protected by the provisions of Part III.

36. [36]
    Reference was made by Williams J, with whom Kelly SPJ agreed, to the judgment of Sir Owen Dixon in Dowling v Bowie (1952) 86 CLR 136 at 140, where his Honour formulated a test which was said to determine, as a matter of substance not of form, where the burden of proof lies:

“A qualification or exception to a general principle of liability may express an exculpation excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind.  If that is the effect of the statutory provisions, considerations of substance may warrant the conclusion that the party relying on the qualification or exception must show that he comes within it.”

37. [37]
    His Honour’s approach focused on the scope of the general rule of liability, or the general prohibition, and turned on whether the proof of additional special facts will then show a matter by way of defence. But the determination of the “general rule of liability” remains a matter of some difficulty, particularly in the common case where there is a prohibition on doing something without some statutory licence or permission. It is common enough for a statute to set up a system for permission or licence to be required for some particular activity, and then to enforce the requirement by prohibiting the activity in the absence of the required permission or licence. Is that a general prohibition on the activity, subject to an exculpation, excuse or justification if there has been the required permission or licence, or is it only a general prohibition on carrying out the activity without the necessary permission or licence? It seems to me, with respect, that even that distinction can be said to justify the comment on the same page by Sir Owen Dixon that, “The distinction has been criticized as unreal and illusory and as, at best, depending on nothing but the form in which the legislation may be cast and not upon its substantial meaning or effect.”

38. [38]
    Uninstructed by authority, I would have thought that as a general proposition prohibiting the carrying on of an activity without a licence was not a general prohibition on the activity, but only a prohibition on the activity without the licence, so that proof of the absence of a licence was a necessary part of the prosecution case. There are, however, numerous cases where courts have decided, under specific legislation, that that was not the outcome.^[21]  In any case, in Macarone the court decided this was not a general prohibition on the carrying out of development for a prohibited purpose, but only a prohibition on doing so where that did not involve a use which was protected by Part III of the Act.  I would, with respect, entirely agree with that conclusion on the words of that statute, but it is clear from their Honour’s reasons that that conclusion was arrived at by reference to the specific terms of the legislation, particularly the express subjugation of the prohibition to the provisions of Part III.  On this basis the court distinguished other decisions, including one of the High Court, where a different conclusion had been reached in relation to other legislation dealing with the same question of who had the onus in relation to an existing non-conforming use.^[22]

39. [39]
    The difficulty for the appellant is that the particular features of the section in question which led to that conclusion in Macarone are not present in s 4.3.5.  Far from being subject to the relevant provisions of the Act preserving continuing prior uses, the section makes no mention of them.  On the face of the section, continuing prior uses are prohibited, and it is only by a consideration of the statute as a whole that it can be appreciated that such an outcome is too wide, and that the other provisions must be regarded as providing at least a ground of defence.  It is, however, more difficult to see them as operating so as to read down the “general rule of liability” expressed by s 4.3.5, where that has been expressed in such sweeping terms.

40. [40]
    The High Court returned to the issue in Vines v Djordjevitch (1955) 91 CLR 512.  The court in a joint judgment at p 519 said:

“In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance.  But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies.  When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions.  Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anyone obtains a right or incurs a liability under the provision.  In other words it may embody the principle which the legislature seeks to apply generally.  On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts.  In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right.  For such a purpose the use of a proviso is natural.  But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.”

41. [41]
    In R v Edwards [1975] QB 27 Lawton LJ delivering the judgment of the Court of Appeal reviewed the history of the English authorities in this area, and concluded at p 39-40:

“The common law … has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. … It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities.  Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid.  If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely upon the exception.  In our judgment its application does not depend upon either the fact, or the presumption, that the defendant has particular knowledge enabling him to prove the positive of any negative averment.”

42. [42]
    In R v Hunt [1987] AC 352 Lord Griffiths, with whom Lord Keith agreed, referred at p 375 to this formulation as “an excellent guide to construction rather than as an exception to a rule.  In the final analysis, each case must turn upon the construction of the particular legislation to determine whether the defence is an exception to … the rule for trials on indictment.”  These authorities were referred to with approval in the joint judgment of Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 where nevertheless their Honours added at 258-9:

“If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.”

43. [43]
    Earlier at 257 their Honours said, “The categorisation of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction.” One could not argue with that proposition, but it is not very helpful when it is necessary to decide what the correct construction is in a particular case.

44. [44]
    The High Court endorsed the same approach in Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 where in the joint judgment of Brennan, Dawson and Gaudron JJ at p 601 their Honours said:

“The statutory exceptions [to the rule that the onus is on the prosecution] are not confined to those which expressly cast the burden of proof upon the accused … but extend to cases in which an intention to do so is necessarily implied.  Such cases will ordinarily occur where an offence created by statute is subjected to a proviso or exception which, by reason of the  manner in which it is expressed or its subject matter, discloses a legislative intention to impose upon the accused the ultimate burden of bringing himself within it.  That burden may, of course, be discharged upon the balance of probabilities.  Whilst it is convenient to speak in terms of provisos or exceptions, the legislative intent cannot be ascertained as a mere matter of form. … Each case must turn upon the construction of the particular enactment.”

45. [45]
    With the law in this state, it is unsurprising that, for example, in two recent decisions of the Queensland Court of Appeal, the court was divided on which party had the onus in relation to a particular matter in respect of a statutory offence. In Phillips v Spencer [2005] QCA 317 the Chief Justice and the President held that, for a prosecution under s 88 of the Nature Conservation Act 1992, the non‑application of the exclusion in subsection (2) was not an element to the offence, so that it did not have to be proved by the prosecution, whereas Jerrard JA would have held to the contrary:  [34].  In Stevenson v Yasso [2006] QCA 40 McPherson JA and Fryberg J held that the onus of proof in relation to the application of s 14 of the Fisheries Act 1994 to the prosecution for an offence under that Act lay on the defendant, while the President would have held that once the question of the application of s 14 had been raised it was a matter for the prosecution to negative beyond reasonable doubt, in order to show that the relevant act had been committed unlawfully.^[23]  This sort of disagreement simply underlines the fact that it is unhelpful just to say that it is all a question of statutory interpretation.

46. [46]
    In the present case, approaching the matter as one of statutory interpretation, there is an absence of any reference in s 4.3.5, or even for that matter in an adjoining section, which suggests that the absence of a continuing pre‑existing use is part of the complete factual situation which gives rise to the offence under the section.  A further important consideration in my opinion is that the general trend of authority in this area on this point has been to place the onus on the defendant to establish lawfulness of use on the basis of a continuing pre‑existing use; to the decisions distinguished in Macarone may be added Danielle v Shire of Swan (1977) 93 LGERA 201 and City of Sterling v Clemente [1999] WASC 245.  Finally, there is the consideration that, although the owner of the land would not necessarily know of his own knowledge the use of the land back to the relevant date^[24] because he may not have been in occupation of the land for the whole of that period, he would certainly know of the use to which the land was put during the period of his own occupation, and would presumably know who was in occupation before him, so that the relevant facts may be more readily within the defendant’s knowledge than the prosecutor’s knowledge.

47. [47]
    In my opinion, because of the change in the drafting of the relevant provision, the decision in Macarone is not applicable under the Act, in the case of an offence under s 4.3.5, and the defendant had the onus of showing, relevantly, that the use being carried on was a continuing pre-existing use and therefore lawful.  To the extent that the magistrate seems to have proceeded on the contrary basis, that was in error.  It also follows that it was unnecessary for the complaint to allege that the use was not a continuing pre-existing use.^[25]

Leave to reopen

48. [48]
    A further matter argued was whether the magistrate erred in giving leave to reopen the respondent’s case after the unsuccessful submission that there was no case to answer. In deciding to do so, the magistrate said the court had an unfettered discretion to grant leave to reopen proceedings, and referred to the decision of R v CDR (1995) 78 A Crim R 572.  That is authority for the proposition that an application will be more readily accepted where the purpose is not to rebut evidence called on behalf of the defence but to fill a gap in the Crown case.  That was a case where the person charged with assault was in fact just under the age of 15 so that s 29(2) of the Criminal Code applied and it was necessary for the Crown to prove that the defendant had the capacity to know that he ought not to do the act alleged.  The Crown closed its case without doing so, the question of the age of the defendant not having been raised prior to that time.  When it was submitted that there was no case to answer because s 29 had not been satisfied, the judge foreshadowed a willingness to allow the Crown to reopen to enable evidence to be led, after which an admission was made.

49. [49]
    The court at p 574-5 said:

“An application by the Crown to reopen can more readily be accepted where (as here) the purpose is not to rebut evidence called on behalf of the defence, but to fill a gap in the Crown evidence which has been noticed.  In McKenna (1956) 40 Cr App R 65 a ‘highly technical’ point was taken by way of submission of no case and the Crown was allowed to reopen, the court holding that in these circumstances there was a complete discretion whether a witness could be recalled.  More recently, in CentralCriminal Court,ex parte Garnier (1988) RTR 42 and Francis (1990) 91 Cr App R 271 it has been held that there are two exceptions to the rule that the prosecution must call the whole of its evidence before closing its case; the first is that evidence may be called to deal with a matter which could not have been foreseen before the defence raised it; the second is that formal matters may be proved.  But according to English practice, the discretion to admit evidence after close of the prosecution case is not confined to those two exceptions:  ‘It is of the essence of any discretion that it should be kept flexible,’ (Francis at 275).  It appears to us that the law as laid down in these two cases is likely to provide a sound guide to the exercise of the discretion, as long as it is kept in mind that allowing a reopening is an exceptional course.”

50. [50]
    Later on p 575 the Court referred to the proposition that the evidence to be called was not of a controversial kind.  But for the fact that the magistrate did not expressly refer to the proposition that allowing a reopening was an exceptional course, it seems to me that the magistrate’s approach was consistent with the approach approved by the Court of Appeal in that decision.  The situation here was that it was the respondent’s case before the magistrate, as before me, that the appellant had the onus in relation to the defence of a continuing pre‑existing use.  For reasons I have given, the respondent was entitled to take that position, and the magistrate erred in concluding to the contrary.  But in circumstances where the respondent was taking that position, and there was a ruling to the contrary, it was I think a legitimate exercise of the discretion to allow a reopening for the case to be reopened in order to enable that supposed deficiency of proof to be supplemented.

51. [51]
    When a prosecutor proceeds on the basis that it is not necessary to prove X, and immediately after the close of the Crown case a submission is made and upheld that it is necessary to prove X, it is difficult to see how there is any injustice to the defendant in allowing the evidence to be led then rather than a little earlier, particularly if all this occurs prior to the defendant’s electing whether or not to give or call evidence. At least this would apply when the prosecutor’s approach to the issue had been a reasonable one.^[26]  When reviewing an exercise of discretion of this nature, in my opinion the language used by the magistrate in ex tempore reasons should not be scrutinised too closely with a view to finding error.  The conclusion arrived at by the magistrate was reasonable in the circumstances and, had it been necessary for me to decide the matter, I would not have interfered with the magistrate’s exercise of discretion.

Count 2

52. [52]
    The conviction of Count 2 was challenged on two grounds:

1. (a)
   that the local law creating the offence was invalid pursuant to s 854(2) of the Local Government Act 1993;

2. (b)
   the respondent had failed to prove that the local law was properly made in accordance with the Local Government Act 1993.

Either of those grounds would, if successful, be sufficient to justify quashing the conviction.

Was the local law invalid?

53. [53]
    The s 854 of the Local Government Act 1993 provides so far as is relevant:

“(1) The local government must not, on or after 30 March 1998, pass a resolution to propose to make a local law, or a subordinate local law, establishing a process about development, within the meaning of the Integrated Planning Act 1997, if the process would be similar to or duplicate all or part of the processes in Chapter 3 of that Act.

3. (3)
   A local law or a subordinate local law, to the extent the law or subordinate local law is contrary to subsection (1), is of no effect.”

54. [54]
    The relevant local law commenced after 30 March 1998, and it was not submitted on behalf of the respondent that this section could not potentially apply, though the respondent did submit that the local law did not infringe the prohibition in s 854.  The appellant set out a comparison between the provisions of local law number 4 and the provisions of the Integrated Planning Act 1997 dealing with assessable development.  Both require a permit to do something, in the former case to operate an entertainment venue and in the latter case to undertake assessable development.  Both provide for an application containing particular information.  The local law requires the local government to have regard to design and construction, amenity, impacts, refuse disposal, and matters specified by a policy; the Act requires the assessment manager (ordinarily the local authority) to carry out impact assessment having regard to among other things the planning scheme, state planning policies, any existing development approvals and matters prescribed by a regulation.  A permit under the local law may be for such term as is specified in the permit; a development permit is for a term of four years or such other time as is provided by the permit.  A permit under the local law may be subject to conditions, and under the Act an assessment manager may approve an application for a development permit subject to conditions.  Under the local law there is power to change the conditions, and under the Act there can be an application to change conditions which can be approved or refused.

55. [55]
    It was submitted that the process provided for by the local law was similar to the process provided in the relevant part of the Act. Reference was made to dictionary definitions referred to in Rescrete Industries Pty Ltd v Jones (1998) 86 IR 269 at 270^[27] and Cooper-Baker v Ross [2000] VSC 221 at [21].^[28]  The appellant pointed out that it was not necessary for the local law completely to reproduce the process in the Act, so long as it was similar to or duplicated part of the process in Chapter 3 of the Act.  It was submitted that there was clear and significant similarity of process, which was sufficient to activate the provisions of s 854.

56. [56]
    The respondent submitted that there was no similarity between the purpose of the process of assessment under the Integrated Planning Act, the Integrated Development Assessment System, and the purpose of the process prescribed by the local law.  However, what is relevant for the purposes of s 854 is a similarity of process, and not a similarity of purpose; so much appears from the terms of subsection (1) itself.  It was also submitted that it would be an absurd result for any local law which provided for the need to obtain a permit or licence for development to be prohibited by s 854.  But I am not at all sure that that follows.

57. [57]
    Section 854 was inserted into the Local Government Act 1993 by the Integrated Planning Act 1997 when it was originally passed, and was obviously inserted in order to give effect to the system for integrating state and local government assessments and approval processes for development detailed in Chapter 3 of the 1997 Act:  see s 3.1.1.  Section 1.2.1, identifying the purpose of the Act, indicates a clear legislative intention that planning at the local, regional and state levels should be coordinated and integrated, and that the process by which development occurs is to be managed under the Act.  It seems to me quite consistent with this that the Act should introduce a provision to the Local Government Act to prohibit the creation of any separate local law for managing the process by which development occurs.

58. [58]
    The crucial consideration, however, is that, just as the Integrated Planning Act is about managing change, the prohibition on local laws also extends only to those which establish “a process about development within the meaning of the Integrated Planning Act 1987”.^[29]  That Act defines development in s 1.3.2:

“Development is any of the following –

1. (a)
   carrying out building work;

2. (b)
   carrying out plumbing or drainage work;

3. (c)
   carrying out operational work;

4. (d)
   reconfiguring a lot;

5. (e)
   making a material change of use of premises.”

59. [59]
    All of those except for (c) are obviously concerned with changing something. “Operational work” is itself defined in s 1.3.5, in various ways, most of which would involve making some change to land or what was being done on land, or some change to something in connection with land.  There are some exceptions to this, but it does not seem to me that operating an entertainment venue would fall within any of them.^[30]  The mere use of premises in a particular way, where that does not involve a material change of use of premises, is not ordinarily development for the purposes of the Integrated Planning Act.^[31]  In my opinion, there is a distinction in the Integrated Planning Act between “development” and “use”, and s 854(1), when referring to “a process about development”, preserves it and reflects this distinction.  It follows that, unless perhaps the local law establishes a process restricting the use of land in respect of a use which would itself exceptionally amount to development, because of the extended definition in s 1.3.5, a local law regulating a use of land in a particular way is not one establishing a process about development within the meaning of the Integrated Planning Act 1997.

60. [60]
    This I appreciate is a fairly subtle distinction, but I consider the alternative interpretation, which did not involve distinguishing between use and development, would produce sweeping consequences which the legislature could hardly have intended. It is commonplace that all sorts of activities, particularly commercial activities, are nowadays subject to a huge amount of intrusive regulation by local authorities, and there are a large number of activities for which some form of licence or permission is required from a local authority before they can be undertaken. I have difficulty in accepting that the legislature really intended, when enacting this provision, that once a change of use had been approved under the Integrated Planning Act, use of the land in the way brought about by making that approved change was to be wholly unregulatable by the local authority, however attractive a society organised in such a way might seem to some.

61. [61]
    I accept that there is in practice a great deal of overlap between local authority regulation and the requirements of conditions of development approval under the Integrated Planning Act.  The Act certainly contemplates that approval can be given for development work in a way which imposes conditions on the use of the land which is to occur as a result of the development work.^[32]  The Act certainly does not contemplate that there is to be a rigid demarcation in regulation between the regulation of development and the regulation of use.  No doubt in practice this often produces a situation where particular activities are subject to conditions under development approval and also conditions under a permit to use land in a particular way, which are frequently overlapping and perhaps even sometimes inconsistent.^[33]  In these circumstances, I do not think that s 854(1) can be given the sweeping scope of operation implied by the appellant’s submissions.  In my opinion, this local law did not regulate development as defined and was not invalid under s 854(2).

Was the valid making of the local law proved?

62. [62]
    The alternative ground argued in relation to Count 2 was that there had been a failure to prove, in accordance with s 898(3) of the Local Government Act 1993, that the law was properly made.  Section 898 is headed “Proof of Local Laws and Subordinate Local Laws”^[34] and provides as follows:

“(1) In a proceeding, a certified copy of a local law or subordinate local law is evidence of the content of the local law or subordinate local law.

3. (3)
   All courts, judges and persons acting judicially must take judicial notice of a certified copy of a local law or subordinate local law.

3. (3)
   In a proceeding, a copy of the Gazette or newspaper containing a notice about the making of a local law or subordinate local law is –

1. (a)
   evidence of the matters stated in the notice; and

2. (b)
   evidence that the local law or subordinate local law has been properly made.”

63. [63]
    In order to understand the appellant’s submission, it is necessary to bear in mind the process laid down in the Local Government Act for making a local law.  Section 865 requires the process stated in division three of part 2 of Chapter 12 to be used to make a local law, and provides that a purported local law not made in that way is of no effect.  There then follows a nine-step process, of which the last two steps are specified in sections 873 and 874 as follows:

“873 Step 8 – Make proposed law

3. (1)
   The local government must, by resolution, make –

1. (a)
   the advertised proposed law; or

2. (b)
   the amended proposed law; or

3. (c)
   the proposed law for which the local government received advice from the minister that it could proceed to this step without satisfying steps 3 to 7.

3. (2)
   The local government’s chief executive officer must certify the required number of copies of the local law to be the local law as made by the local government.

874 Step 9 – Give public notice of law

1. (1)
   A notice of the making of the local law must be published in the Gazette stating the following –

1. (a)
   the name of the local government making the local law;

2. (b)
   the name of the local law;

3. (c)
   the date of the local government’s resolution making the local law;

4. (d)
   the name of any existing local law amended or repealed by the new local law.

…

3. (2)
   If the local law is not notified within one year of the date of the local government’s resolution making the local law (or a longer period decided by the minister), the process stated in this division must be used again before the local law is notified in the Gazette.

3. (3)
   On the date of notification (or as soon as practicable after the day) the local government must give the minister –

1. (a)
   a copy of the notice; and

2. (b)
   the required number of certified copies of the local law …”

64. [64]
    The appellant’s point was that, in order to prove the appellant guilty of the offence, it was necessary for the respondent to prove that there was a local law in force which the appellant had breached. Section 896 provides:  “On commencement, a local law made by a local government has the force of law.”  It was submitted that it followed that prior to commencement the local law did not have the force of law, so that it was necessary for the respondent to prove that the local law had commenced prior to the date on which the appellant did the relevant acts.  There is no express provision in the Local Government Act 1993 which identifies the date on which a local law commences, but it could not be prior to the completion of the process identified in s 865 as necessary in order for a local law to be validly made, and that includes step 9.  Further, it follows from s 874(3) that if step 9 is not complied with within a particular time (ordinarily one year) of step 8, the process has to start again.  What the respondent proved before the magistrate was that the local government had made the law by resolution on a particular date, but there was no proof that step 9 had been complied with.  Accordingly, the respondent had not proved that the local law had commenced.  Section 898(3) provided for a method of proof that the local law had been properly made, in a way which would necessarily involve proof of compliance with step 9.  All that the respondent had done was comply with s 898(1), which was inadequate without also complying with subsection (3).

65. [65]
    The local law was a “statutory instrument” for the purposes of the Statutory Instruments Act 1992: s 7.  In the absence of any specific provision, the local law commenced on the date of notification in the Gazette:  s 32 of that Act.  Counsel for the respondent conceded that the local law commenced operation once step 9 had been completed (p 30).  The respondent submitted that s 20 of the Statutory Instruments Act 1992 was a complete answer on this point.  That section provides:

“All conditions and preliminary steps required for the making of a statutory instrument are presumed to have been satisfied and performed in the absence of evidence to the contrary.”

66. [66]
    In my opinion, however, this section is not an answer to the point, which was that it was for the respondent to prove that the local law had commenced by the time relevant to the prosecution. Section 20 is not talking about the commencement of the operation of the statutory instrument.  It is concerned in terms with “conditions and preliminary steps”, which in the context of a local law means steps 1 to 7 in division 3 of part 2 of chapter 12 of the Local Government Act.  In my opinion, s 20 has nothing to say about whether and when step 9 has been complied with.

67. [67]
    What was put in evidence before the magistrate was a copy of the local law which was certified by the chief executive officer of the council: Exhibit 9.  The certification was in the following terms:

“This and the preceding 10 pages bearing my initials is a certified copy of Local Law Number 4 (Entertainment Venues) made, in accordance with the provisions of the Local Government Act 1993, by the Council of the Shire of Maroochy at the general meeting held on 26 May 1999.”

68. [68]
    That certification is that the document contained the law which was made in accordance with the Local Government Act on a particular date, that is, that in respect of that local law step 8 was complied with by the council on that date.  Counsel for the respondent then relied on s 874(3) as leading to a conclusion that, if the law had been validly made, one of the things that must have been done was that public notice had been given of the law within one year of the date from which step 8 had been taken, shown by the certification to have been 26 May 1999, so that it followed from the presumption of validity that the local law was in force not later than 26 May 2000.  That was well before the dates of the offences alleged in the complaint.

69. [69]
    The difficulty with this submission is that it also relies on the presumption of validity in s 20, which as I have said in my opinion does not extend to a presumption that a particular provision of the law has commenced.  In theory, it may be that in this case the minister allowed a longer period, so that notice was not given until a much later date, but the law then validly commenced after the relevant dates, having still been made at the time certified.  The point is that there was no proof in this way that the law had commenced at the relevant time.

70. [70]
    As counsel for the appellant pointed out, if the effect of s 898(1) is that by that process it is possible to prove not merely what the local law provided but also that it was in force at a particular time, it is difficult to see what purpose is fulfilled by s 898(3).  One assumes from the presence of subsection (3) in the section the legislature thought that it had some purpose, and that suggests a legislative intention that subsection (1) would not be sufficient to show that the local law having a particular content had commenced.

71. [71]
    It is not necessary in proceedings, including criminal proceedings, to prove the terms of any statute; courts simply take judicial notice of acts of parliament, or at least public acts.^[35]  The position at common law was different in relation to subordinate legislation such as regulations, or in this case local laws, at least in a case where the statute did not provide that such subordinate legislation, upon being made, took effect as if enacted in the Act.^[36]  It has frequently been held that in the absence of some statutory provision to the contrary, the making of regulations, and hence other subordinate legislation, and their contents must be proved.^[37]

72. [72]
    Hence, in Reynolds v Bogan Holdings when, on the prosecution for an offence against zoning regulations of a municipality, the complainant closed his case without tendering the government Gazette containing the relevant regulations, it was held that the magistrate was correct in not taking judicial notice of the regulations, and indeed in refusing the complainant leave to reopen to remedy the deficiency:  p 199.  At p 200 Bolen J said that “the regulations were at the heart and soul of the prosecution.”  No doubt it is because of this situation at common law that provisions such as s 898 are inserted in legislation like the Local Government Act 1993.

73. [73]
    Of course, provisions such as this do not mean that the relevant law cannot be proved in some other way.^[38]  It appears that another way in which the local law could have been proved was in accordance with s 36 of the Statutory Instruments Act 1992, but that involves the use of a copy printed by the Government Printer or authorised by the parliamentary counsel.  In such a case, s 36(2)(b) provides that in such a copy a statement of when the statutory instrument was notified is evidence of that matter.  That involves a legislative recognition of the proposition that, at least in the case of some statutory instruments, it is necessary for them not merely to be made but to be published or notified.  But it does not appear that the copy which was tendered to the magistrate (Exhibit 9) satisfied the requirements of subsection (1).

74. [74]
    The Local Government Act 1936 used to contain a provision in s 31(27) to the effect that a by-law, once made in accordance of the Act, “shall have the same force and effect in the Area as if it were enacted in this Act …”  That had the effect of picking up the recognised exception to the general rule at common law, that, because courts took judicial notice of statutes (and by extension the commencement of statutes), they would also take judicial notice of subordinate legislation which, once made, took effect as if enacted in the statute.^[39]  It appears, however, that that provision has not been repeated in the current Act, which provides in s 896 simply that a local law “has the force of law”. 

75. [75]
    That provision was not relied on on behalf of the respondent as activating this principle. I have looked at the single judge decision in Brady v Mazurak [1983] WAR 291 on this point, but do not find it persuasive.  Subordinate legislation once validly made always has the force of law, in the sense that it is binding on people who are liable to be punished if they do not comply with it.  But the other authorities show that that has not been regarded elsewhere as sufficient basis for taking judicial knowledge of its provisions.  In Ostrowski v Palmer (2004) 218 CLR 493 Gleeson CJ and Kirby J in a joint judgment said at [3]:

“Regulations duly made form part of the law but, subject to any statutory provision to the contrary, in legal proceedings their existence and content must be alleged and proved by the party relying on them.”

It seems to me that this proposition is plainly inconsistent with the decision in Brady, and I prefer to follow what was said by their Honours.

76. [76]
    There is, however, an applicable Queensland statutory provision: s 43 of the Evidence Act 1977 provides:

“Judicial notice must be taken of the following –

1. (a)
   every Act;

2. (b)
   every statutory instrument;

3. (c)
   the time when every Act or statutory instrument commenced, and every provision of every Act or statutory instrument commenced.”

77. [77]
    Although it does not appear that the term “statutory instrument” is defined in that Act, the definition in the Statutory Instruments Act applies,^[40] and a local law falls within that definition:  s 7.  This provision has now equated any statutory instrument with the position of statutes, in that judicial notice is to be taken by all courts of the terms and the commencement of any statutory instrument.  It follows that proof of this as part of the prosecution case was unnecessary:  Rolls v Bateman [1946] St R Qd 34.^[41]  Not only was it unnecessary for the prosecution to prove the date of commencement of the local law, it was unnecessary even to go as far as it did and prove the content of it, although as Dr Forbes noted, the provision of a current copy of legislation is a standard courtesy to the court.  Although this section was not raised in argument, it seems to me plainly to apply, and to be a complete answer to the second ground relied on on behalf of the appellant.

78. [78]
    In this matter the magistrate ruled that the certified copy of the local law which was put in evidence was sufficient proof of the local law. It was proof of the content of the local law, but it was not proof of the commencement of the local law, that is, it was not proof that step 9 in the process required by the legislation had been complied with, or more importantly, complied with prior to the date when the offence was alleged to have occurred.  However, proof of that was unnecessary.  The magistrate correctly concluded that there was no deficiency in the respondent’s proof in relation to Count 2, although it appears the magistrate arrived at that conclusion for the wrong reasons.  He should simply have taken judicial notice that the relevant local law had commenced at the relevant time.  The appellant was not entitled to have the charge dismissed on this ground.  Both grounds of appeal in relation to Count 2 therefore fail.

79. [79]
    Accordingly, the appeal is allowed in part, the conviction of the appellant of Count 1 is set aside, the sentence imposed and the order under the Integrated Planning Act are set aside, and in lieu thereof Count 1 is struck out.  The appeal otherwise is dismissed.  Because one sentence was imposed in respect of both counts, I will have to re-sentence the appellant, for which purpose I will hear further submissions.  As well, I will have to hear further submissions in relation to the costs of the appeal and the proceeding before the magistrate.