High Court of Australia Gibbs CJ Mason, Murphy, Aickin and Brennan JJ. STAN Constructions Pty Ltd v Williams ORDER Appeal dismissed. No order as to costs. Judgment reserved. Gibbs CJ, Mason, Murphy, Aickin and Brennan JJ. THE COURT delivered a joint judgment. In the Supreme Court of the Australian Capital Territory, Blackburn J., as he then was, refused the appellant an order nisi for a prerogative writ to challenge the validity of a notice given to it by the respondent as building controller on 4th February, 1975. The notice required the appellant to restore a building containing residential fiats to the condition in which it stood before some alterations were carried out by the appellant's predecessor in title. By s 46(1)(a) of the Building Ordinance 1972-1974 ACT, the respondent was empowered to give such a notice if the alterations had been carried out without a permit having been issued under the Canberra Building Regulations. No permit had been issued in respect of those alterations under the Canberra Building Regulations in force at the time when the alterations were made. Subregulation 11(1) purported to require a written permit to authorize the altering of a building, but the appellant challenged the validity of that subregulation and sought relief on the ground that there was no valid provision of the Canberra Building Regulations which required a permit to authorize the altering of an existing building. To ascertain whether the Canberra Building Regulations in force at the relevant time required a permit to authorize the altering of an existing building, it is necessary to find a pathway through a maze of statutory instruments, and to inquire into the effect which a series of ordinances have had upon a set of regulations made on 16th October, 1924. The instruments which must be examined to discover what regulations govern alterations to buildings in Canberra are needlessly complex. Litigation in the Supreme Court in 1973 in Agua Marga Pry Ltd v. Minister of State for the Interior (1973) 22 F.L.R. 136 exposed their complexity and the present lengthy litigation adds its testimony to the costs and inefficiency which attend the absence of a contemporary building code. The appellant's argument begins at the beginning: the making of the Canberra Building Regulations on 16th October, 1924, by the Minister of State for Home and Territories in purported pursuance of powers conferred upon him by the Building and Services Ordinance 1924 (No. 9 of 1924). By s 4(1) of that ordinance the Minister was empowered to make regulations prescribing, inter alia, "the conditions subject to which buildings may be erected in the Territory". The regulations made by the Minister included reg 3 which applied the regulations "to the erection of all buildings and other structures in the city area and to fill additions to, or alterations of, existing buildings or structures". The attempt to extend the application of the regulations to building activity other than the erection of buildings as authorized by s 4(1) of the ordinance was invalid. Regulations could not be made to apply to mere alterations of existing buildings or structures. Section 4 of the Building and Services Ordinance 1924 was repealed on 20th December, 1924, by s 4(1) of the Federal Capital Commission's Powers Ordinance 1924 (No. 12 of 1924), but a provision designed to preserve the operation of the regulations was contained in s 4(2): The repeal of any provision of an Ordinance effected by the last preceding sub-section shall not affect the operation of any regulation or notice made or published under that Ordinance which is in force at the commencement of this Ordinance . This subsection did not validate the invalid provisions of the regulations: it confirmed the operation only of those regulations which were in force when the ordinance containing the subsection commenced, and precluded an argument that regulations validly made by the Minister were affected by the repeal of the section under which the-regulations-had-been-made. The Building and Services Ordinance 1925 (No. 9 of 1925) went further. Section 4 of that ordinance provided: All regulations purporting to have been made under any provision of the Building and Services Ordinance 1924 shall be deemed to have been duly made. It was submitted that this provision did not validate any invalid regulation and that, if it had had that effect, the life retrospectively given to regulations which were invalid when they were purportedly made on 16th October, 1924, expired on 20th December, 1924, by reason of the repeal of the provision creating the Minister's power to make regulations. Neither proposition can be sustained. The invalidity of purported legislation does not necessarily preclude its being affected by subsequent legislation which refers to it. Invalidity does not so far deprive purported legislation of existence that subsequent legislative reference to it is necessarily nugatory. It is a question whether the subsequent reference is to the purported legislation as it validly exists or as it is written. Commissioner of Taxation v. Clyne (1958) 100 C.L.R. 246 and Akar v. Attorney-General of Sierra Leone [1970] A.C. 853 are instances where a later Act was construed as referring only to what the legislature had earlier and validly enacted; Brown v. Green (1951) 84 C.L.R. 285 is an instance where an Act was construed as referring to "what stands in the printer's copy" of earlier legislation, to adopt the phrase used by Dixon C.J. in Clyne's case (1958) 100 C.L.R. 246, at p. 268. Section 4 of the Building and Services Ordinance 1925 contains a reference of the latter kind. It picks up the "regulations purporting to have been made" under the earlier Building Ordinance and confers validity upon them or more accurately, it requires that they be treated as though they were valid. Clearly the purpose of the provision is to remove grounds of challenge to the validity of the regulations and to confirm them as being in force from the time when they were purportedly made under the earlier Building Ordinance. The force thus accorded to the regulations was not terminated by s 4 of the Federal Capital Commission's Powers Ordinance 1924 which repealed the section under which the regulations were purportedly made. Although the repeal of a section conferring a power to make regulations ordinarily — but not invariably — repeals the regulations (Bird v. John Sharp & Sons Pty Ltd (1942) 66 C.L.R. 233, at p. 250; The Queen v. Kelly; Ex parte Waterside Workers' Federation of Australia (1952) 85 C.L.R. 601, at pp. 626, 627). s 4 of the Building and Services Ordinance 1925 in conjunction with s 4(2) of the Federal Capital Commission's Powers Ordinance 1924 maintains the force which the former provision conferred upon those regulations which were beyond the Minister's power to make, It is true to say that the invalid regulations were not in force when the Federal Capital Commission's Powers Ordinance was introduced and that they then fell outside the sustaining operation of s 4(2) of that ordinance; but s 4 of the Building and Services Ordinance 1925 required that the invalid regulations were to be deemed "to have been duly made", and therefore the invalid regulations were to be treated as though they were in force at the commencement of the Federal Capital Commission's Powers Ordinance, The invalid provisions of the Canberra Building Regulations were required to be treated as though they had been sustained in operation by s 4(2) of that ordinance. Thus, in 1925, those provisions of the Canberra Building Regulations which were invalid when the regulations were made in 1924 acquired retrospective force from the time when they were first made and thereafter they remained in force, as amended from time to time. In 1964, a further Building Ordinance (No. 19 of 1964) was introduced. Section 4(1) of that ordinance provides: The Canberra Building Regulations, being the Regulations first specified in the Schedule to this Ordinance and made under the Building and Services Ordinance 1924, as amended by the other Regulations specified in that Schedule and made under that Ordinance as amended from time to time, shall be in force by virtue of this Ordinance. The regulations first specified in the schedule are the regulations made on 16th October, 1924, and notified in the Gazette of 18th October, 1924. When the 1964 ordinance was introduced those regulations had been amended on twelve occasions by other regulations specified in the schedule. The Canberra Building Regulations made and deemed to have been made under the Building and Services Ordinance 1924, and amended from time to time, were thus kept in force by virtue of the 1964 ordinance. A power of amendment was conferred upon the Minister by s 4(2) of the 1964 ordinance, limited to the matters specified in the subsection: The Minister may make regulations, not inconsistent with this Ordinance, amending the Canberra Building Regulations but so that any such amendment shall be— (a) in respect of a matter dealt with by those Regulations; Among the matters dealt with by the regulations were applications for permission to erect buildings (reg 11) and, by the extension of operation of the Canberra Building Regulations effected by reg 3, applications for permission to alter existing buildings and structures. Had it not been for the retrospective bringing into force of reg 3, the matter of permission to alter existing buildings would not have been "dealt with by those regulations". Unless the Canberra Building Regulations had dealt with that matter. power would not have been conferred by s 4(2)(a) upon the Minister to make the particular regulation a regulation dealing with permits to alter buildings upon which the decision in this case depends. By Regulations 1965, No. 3, reg 3, sub-reg 11(1) of the Canberra Building Regulations was omitted and the following subregulation was inserted in its stead: A person shall not carry out any work on the construction of, or alteration to, a building unless the proper authority has issued a written permit authorizing the erection or alteration of the building by that person. This subregulation was in force at the time when the relevant alterations were made, and became part of the Canberra Building Regulations. It is the provision upon which the respondent relies to establish the ground upon which he gave notice to demolish the unauthorized alterations. In the Full Court of the Federal Court, to which the appellant unsuccessfully appealed from the refusal by Blackburn J. to grant an order nisi, power to make the new sub-reg 11(1) was found in a general power to make regulations prescribing matters convenient to be prescribed for carrying out the Building Ordinance 1964 (s 22). As s 8 of that ordinance provides for a demolition notice to be issued when a building is altered without a permit under the Canberra Building Regulations and s 11 creates an offence when an alteration of a building is carried on or completed without a permit, it was held that there was power under s 22 to make the new sub-reg 11(1). But the general regulation-making power under s 22 is to be distinguished from the power to amend the Canberra Building Regulations under s 4(2). It is only by the exercise of power under s 4(2) that an amendment is included in the Canberra Building Regulations: see s 3(2). Section 46(1)(a) of the Building Ordinance 1972-1974 which authorized the respondent to give a notice requiring the demolition of work done without a permit speaks only of a "permit issued under the Canberra Building Regulations", and a regulation made in reliance solely upon s 22 of the 1964 ordinance is not a part of the Canberra Building Regulations. As the conditions of s 4(2)(a) of the 1964 ordinance were satisfied, the Minister was empowered to amend the Canberra Building Regulations by inserting sub-reg 11(1). As no permit under that subregulation was issued to authorize the relevant alterations, the respondent was empowered to issue a demolition notice to the appellant under s 46(1)(a) of the Building Ordinance 1972-1974. The appellant's challenge to the validity of the respondent's notice therefore fails, and the appeal must be dismissed. The ordinances and regulations bearing upon the question are not of reasonable clarity having regard to their subjectmatter and history and the respondent has been successful on a different basis in each court. Although a refusal of costs at first instance would have been the appropriate order in this case, the justice of the case may be met by allowing the orders for costs in the courts below to stand and by refusing the respondent the costs of this appeal. The appeal is dismissed. There will be no order as to costs.