COUNCIL OF THE CITY OF NEWCASTLE v THE MINISTER FOR LOCAL GOVERNMENT AND CO-OPERATIVES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, KirBy P and CoLe JA 1 February 1995, 17 February 1995 [1995] NSWCA 101 LOCAL GOVERNMENT — election of council — number of councillors — whether number of councillors changed — election of mayor who also stood and was elected as alderman — proper computation of number of councillors — whether referendum required — held: (dismissing appeal): Purported change in number of councillors — invalid without approval at referendum. STATUTES — construction — intractable language — duty of court to obey and not amend. LOCAL GOVERNMENT — Local Government — election of councillors increase in number of councillors requiring referendum — mayor elected both as alderman and as mayor — proper approach to number of councillors — whether change in number of councillors — held: (Gleeson CJ; Kirby and Cole JA concurring): (1) The duty of the Court, where the legislation is clear and intractable, is to give effect to the purpose of Parliament expressed in the language used; (2) Having regard to the clear language of the applicable legislation, a determination that there should be thirteen councillors following the 1995 elections for the Council of the City of Newcastle amounted to a proposal to change the number of councillors within the meaning of s224(3) of the Local Government Act 1993 and so required the obtaining of approval for the change at a constitutional referendum; (3) The inconvenience, possible oversight and unanticipated consequences of the result were reasons for examining the legislation closely but not for amending its terms; (4) Appeal (from Windeyer J) dismissed with costs. City of Newcastle Act 1986, s7. Local Government Act 1919, subs23. Local Government Act 1993, s25A, s222, s223, s224, s226, s227, schedule 7, CL22, CL26. Gleeson CJ The Local Government Act 1993 ("the 1993 Act'') came into force on 1 July 1993. It repealed the Local Government Act 1919 and the City of Newcastle Act 1986. Under the scheme of the 1993 Act, local councils are constituted for particular areas, and elected representatives, called councillors, comprise the governing body of a council (s222). The role of the governing body is to direct and control the affairs of the council (s223). Each area has an elected mayor, whose role is to exercise the policy-making functions of the governing body of the council between meetings of the council, to preside at meetings of the council, to carry out civic and ceremonial functions, and to exercise such other functions as the council determines (s226). A mayor may be elected either by the councillors from among their number, or by popular vote of the electors (s227). However elected, a mayor is a councillor, and is included in the number of councillors for the purposes of the Act. 2 UNREPORTED JUDGMENTS Between 1976 and 1993 the Local Government Act 1919 contained provision for the popular election of mayors. As at 1 July 1993 the City of Newcastle had a popularly elected mayor. S224 of the 1993 Act provides: "224 (1) A council must have at least 5 and not more than 15 councillors (one of whom is the mayor). (2) Not less than 12 months before the next ordinary election, the council must determine the number, in accordance with subs(1), of its councillors for the following term of office. (3) If the council proposes to change the number of councillors, it must, before determining the number, obtain approval for the change at a constitutional referendum." The next ordinary election for the Council of the City of Newcastle is to take place in September 1995. For reasons that will appear below, the council determined, pursuant to s224(2), that the number of councillors to be elected (including the mayor) was 13. The respondent contends that this determination was invalid because it involves a change in the number of councillors within the meaning of s224(3), and there has been no approval for the change given at a referendum. According to the respondent the present number of councillors is, and the number of councillors at 1 July 1993 was, 12. The respondent's contention was upheld by Windeyer J at first instance. This appeal has been brought on as a matter of urgency. If this court upholds the decision of Windeyer J there is a limited remedy available to the council under the transitional provisions in Schedule 7 to the 1993 Act, which empower the Minister to give a particular approval before 1 March 1995. The central question is whether the council's determination that the number of councillors to be elected in September 1995 is to be 13 involved a proposal to change the number of councillors within the meaning of s224(3). To answer that question it is necessary to decide what number of councillors there were on | July 1993. Whatever that number is, it has not altered since then. CL22 of Schedule 7 to the 1993 Act provides: "22. A council constituted immediately before the commencement of Division 1 of Pt2 of Chapter 9 continues as that council and is taken to be constituted under this Act." The City of Newcastle Act 1986 provided (s6) that the council of the City of Newcastle, as constituted under an earlier Act, should continue and should be the same legal entity. Under the City of Newcastle Act, which operated in conjunction with, and as part of, the Local Government Act 1919, (referred to as the Principal Act) the members of the council were described as aldermen. S7 of the City of Newcastle Act provided: "7 (1) The Council shall have 12 aldermen. (2) Nothing in subs(1) limits the operation of s23 of the Principal Act." In order to appreciate the significance of the reference to s23 of the Local Government Act 1919 it is necessary first to have regard to the provisions of s25A. That section, so far as relevant, provided as follows: "25A (1) This section applies to: (a) the City of Newcastle and the City of Greater Wollongong; and (b) any other area in respect of which the council of the area has applied this section in accordance with subs(7) or subs(8) by a resolution which is still in force. WRQUNCIL OF THE CITY OF NEWCASTLE v THE MINISTER FOR LOCAL GOVERNMENS AND CO-OPERATIVES (Gleeson CJ) (2) Except to the extent that this section otherwise provides, the mayor or president of an area to which this section applies shall be elected by the electors of that area at the general election of the council of that area next following the application of this section to that area and at each general election of that council thereafter. (5) ere a person is, under subs(2) or subs(3), elected or, under subs(4), appointed as mayor or president of an area but is not an alderman or councillor of that area he shall, by virtue of his office as mayor or president, be, in the case of a mayor an alderman or, in the case of a president, a councillor of that area." The last elections for the Council of the City of Newcastle were held in 1991. Alderman McNaughton stood for election both as an alderman and as mayor. (At that time, elections for mayor, in Newcastle, were by popular vote.) It was not necessary for him to have done so. He could have stood for election only as mayor and, if he had been elected, the provisions of s25A(5) would have come into effect. (That, in turn, would have had certain consequences in relation to his voting rights. It is not necessary for present purposes to explore the details of those consequences. It is sufficient to note that they existed.) However, he stood for election, and was elected, both as an alderman and as the mayor. S23 of the Local Government Act 1919, to which reference was made in s7 of the City of Newcastle Act 1986, provided, relevantly, as follows: "23 (1) Each city and municipal council shall consist of aldermen elected by the electors (except where otherwise provided). (1A) Where s25A applies to a municipality, the council of the municipality shall, on and from the general election that next follows the application of that section to the municipality, consist. (a) where the mayor is an alderman of that council by reason only of the operation of s25A(5) - of the mayor and the number of other aldermen for the time being authorised by or under this Act in respect of that council; or (b) in any other case - of the mayor and one less than the number of other aldermen for the time being authorised by or under this Act in respect of that council. (2) Subject to subs(1A), the number of aldermen of a municipal council shall be the number from time to time determined by the Governor for that council but, where no such determination is in force shall be the number authorised for that council by or under this Act immediately before the commencement of the Local Government (Elections) Amendment Act 1976." The combined effect of s7 of the City of Newcastle Act and s23 of the Local Government Act 1919 was that, immediately following the 1991 elections, the council of the City of Newcastle consisted of 12 aldermen, being the mayor and 11 other aldermen (s23(1A)(b)). If Alderman McNaughton had been elected as mayor but not as an alderman then the council would have consisted of the mayor and 12 other aldermen (s23(1A)(a)). Whether this is a relevant consideration is a matter that will be considered below. After 1991, following procedures the detail of which need not be examined, the Council of the City of Newcastle decided, with the support of referendum, and a Proclamation by the Governor, to introduce a ward system, which was to operate from the 1995 elections. The council decided that there should be 4 wards each returning 3 aldermen (or as the 1993 Act describes them, councillors) together with a mayor to be elected by all the voters in the council's area. For that 4 UNREPORTED JUDGMENTS reason the council determined, pursuant to s224(2) of the 1993 Act, that the number of councillors for the term of office commencing after the 1995 elections would be 13. The Solicitor-General, on behalf of the respondent Minister, contends that this involved a change in the number of councillors. He argues that at 1 July 1993, and at all material times thereafter, the number of councillors was 12. This conclusion, it is said, follows from the clear and unambiguous language of s7 of the City of Newcastle Act and s23 (and in particular s23(1A)(b)) of the Local Government Act 1919. The number of aldermen was 12, including the mayor. It was true that, if different events had occurred, if the mayor had not been elected as an alderman, and if s25A(5) had come into play, then the number of aldermen (and, for the purposes of s224 of the 1993 Act, the number of councillors) would have been 13. But, as things turned out, because of what happened at the 1991 elections, the number of councillors at the relevant time was 12. This argument was reinforced by reference to a cognate provision, to be found in CL26 of the transitional provisions in Schedule 7 of the 1993 Act. That clause addressed a problem raised by the provisions of s224(1). As originally enacted (it was later slightly amended in a immaterial respect) it was in the following terms: "26 (1) A council with more than 15 councillors at the commencement of s224 may retain that number of councillors until the end of the current term of office. (2) However, a vacancy may not be filled by an election during the current term of office to maintain the number of councillors above 15." Clearly enough, the application of CL26 requires a determination at a specific date (1 July 1993) of the number of councillors who were members of a particular council. In the case of the City of Newcastle, so it is submitted, the answer to that question must have been 12. The Solicitor-General's argument was accepted by Windeyer J, and is correct. As was noted, the 1993 Act repealed the Local Government Act 1919 and the City of Newcastle Act 1986. The transitional provisions in Schedule 7 to the 1993 Act provided that the council continued as the Council of the City of Newcastle and was taken to be constituted under the 1993 Act. If things had gone differently at the 1991 elections, (and if Alderman McNaughton had been elected mayor but not as an alderman), the effect of the repealed legislation would have been that, as at 1 July 1993, the number of councillors would have been 13. However, in the events that occurred in 1991, the council had only 12 aldermen under the regime that existed prior to 1 July 1993 and, in consequence, had 12 councillors as from 1 July 1993. In the result, the determination that there should be 13 councillors following the 1995 elections amounted to a proposal to change the number of councillors within the meaning of s224(3) of the 1993 Act. The language of the statute appears to me to be unambiguous and intractable. A number of arguments were advanced in an attempt to avoid this conclusion. It was submitted that there is no discernible reason of policy why Parliament, in 1993, would have intended such a conclusion, which turns upon what was described as a matter of chance, that is to say, whether or not the mayor of a particular council (assuming the council had a popularly elected mayor) had also been elected an alderman. There is, I acknowledge, force in this observation. $224 is a provision intended to operate into the indefinite future. Its purpose is to permit councils to change the number of councillors from term to term, but only if such change is approved at a referendum. What has occurred in the present case is that, by reason of the language used to give effect to that general WRQUNCIL OF THE CITY OF NEWCASTLE v THE MINISTER FOR LOCAL GOVERNMENS AND CO-OPERATIVES (Gleeson CJ) intention, the Council of the City of Newcastle has been caught up in a transitional difficulty which appears to have little to do with the legislative policy just mentioned. Even so, it is the duty of the court to apply the language of the statute, not to amend it in order to ameliorate its operation in a particular case which is said to have escaped the attention of the legislature. We do not know what the legislators had in mind about particular cases such as this except insofar as it can be deduced from the language of the statute. The function of the court is to apply the language used by Parliament to the facts and circumstance of the case. If that language is clear, and covers the case, it does not assist the appellant to observe that the result is one unlikely to have been intended if detailed attention had been given to all the possible circumstances in which the legislation would apply. It was argued that what was involved here was not relevantly a proposal to change the number of councillors because, immediately before 1 July 1993, the number of aldermen of the council of the City of Newcastle provided for by the applicable legislation was not 12, but was either 12 or 13 depending upon the facts of the case. However, even if the expression "the number" could be taken to mean, in a particular instance, "12 or 13 depending upon the circumstances", so that a determination that the number following the 1995 elections should be 13 did not relevantly involve a change, there is a fatal difficulty with the argument. At the same time as s224 came into effect, the pre-existing legislation was repealed. S224 required, for the application of s224(3), a specification of the number of councillors of the council of the City of Newcastle on and following 1 July 1993. Under the scheme of the 1993 Act, that number was fixed, not flexible. Whatever other possibilities might have existed in theory, by reason of the events that occurred in the 1991 elections, the Council of the City of Newcastle arrived at the transitional date of 1 July 1993 with 12 aldermen, not 13. There is no difficulty about determining the number of councillors on and following 1 July 1993. There were 12. An alternative argument was developed upon the theme that there is a critical distinction to be drawn between offices and officers. Following the 1991 elections there were only 12 officers, but they occupied, between them, 13 offices. This was because Alderman McNaughton occupied the office of an alderman and the office of mayor. The difficulty with that argument is that s224 is concerned with the number of councillors. The 1993 Act distinguishes between the office of councillor and the office of mayor, just as the previous legislation distinguished between the office of alderman and the office of mayor. The council of the City of Newcastle had 12 aldermen prior to 1 July 1993, and it had 12 councillors following 1 July 1993. That is what matters for the purpose of the application of s224(3). The appellant attributed to the respondent, erroneously, a contention that what was important was the number of individual persons in the office at 1 July 1993, and then sought to demonstrate the absurdity of such a contention by pointing to the anomalies that would arise in the event that casual vacancies might have existed. That, however, is not the respondent's argument. It is not a question of working out the number of persons who were sitting around a council table at a particular date. If a casual vacancy had existed a quite different problem would have arisen. The appellant is correct to observe that attention should be directed to the office, rather than the officer, but the point is that the relevant office is that of councillor. 6 UNREPORTED JUDGMENTS The terms of CL22 of Schedule 7 to the 1993 Act do not assist the resolution of the present problem. In particular, the use in that clause of the word "constituted" does not assist the argument of either party. The provision simply produced the consequence that the council of the City of Newcastle continued under the 1993 Act and was taken to be constituted under that Act. That meant, amongst other things, that the aldermen who were in office continued to comprise the governing body of the council, had the role of directing and controlling the affairs of the council in accordance with the 1993 Act, and became councillors. The appeal should be dismissed with costs. Kirby P I agree with Gleeson CJ. Cole JA I agree with the Chief Justice. Appeal dismissed with costs. Counsel for the Appellant: JJ Garnsey QC Instructed by: Trevor Dunn Counsel for the Respondent: K Mason QC (Solicitor-General) / L Katz Instructed by: IV Knight, Crown Solicitor