Case: Bank of New South Wales v The Commonwealth (The Bank Nationalisation Case) [1948] HCA 7 ; (1948) 76 CLR 1
Outcome: applied
Later, in Bank of New South Wales v The Commonwealth (The Bank Nationalisation Case) [1948] HCA 7 ; (1948) 76 CLR 1 at 370-371 Dixon J expanded upon the principles applicable to the construction of legislation or actions done under the authority of legislation where provisions such as ss 15A and 46 of the Acts Interpretation Act 1901 (Cth) displaced the common law doctrine of severance. He explained that there was a common law presumption that the legislature intended its will on any particular matter as expressed in a statute to operate in its entirety and had no intention that something less should be the law (76 CLR at 371; see too The King v Poole; Ex parte Henry [No 2] [1939] HCA 19 ; (1939) 61 CLR 634 at 651 per Dixon J; Victoria v The Commonwealth (The Industrial Relations Act Case) [1995] HCA 45 ; (1996) 187 CLR 416 at 502 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ; Harrington v Lowe [1996] HCA 8 ; (1996) 190 CLR 311 at 326 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). In the Bank Nationalisation Case 76 CLR at 371 Dixon J discussed ss 15A and the then form of s 46(b) (cp now: s 46(2)) of the Acts Interpretation Act . He said that in applying those provisions: '... the courts have insisted that a provision, though in itself unobjectionable constitutionally, must share the fate of so much of the statute, regulation or order as is found to be invalid, once it appears that the rejection of the invalid part would mean that the otherwise unobjectionable provision would operate differently upon the persons, matters or things falling under it or in some other way would produce a different result. This consideration supplies a strong logical ground for holding provisions to be inseverable, whether the prima-facie presumption be in favour or against severability. It is important where there is no statutory clause like s. 15A and it is important in using s. 15A. For the inference in such a case is strong that provisions so associated form an entire law and that no legislative intention existed that anything less should operate as a law. Further, where severance would produce a result upon the persons and matters affected different from that which the entire enactment would have produced upon them, had it been valid, it might be said with justice that unless the legislature had specifically assented to that result, contingently on the failure of its primary intent, it could not amount to a law.' 125 When he signed the s 16 notice, Senator Johnston was acting in a public office. Under the administrative arrangements order of 21 September 2006 and the division of portfolio responsibilities agreed between the previous Attorney-General and Minister for Justice and Customs, the latter had portfolio responsibility for extradition. Senator Johnston's act of signing the s 16 notice is evidence of his having been appointed as a Minister of State with responsibility for administering s 16 of the Act: Cassell v The Queen [2000] HCA 8 ; (2000) 201 CLR 189 at 193-194 [17] - [22] per Gleeson CJ, Gaudron, McHugh and Gummow JJ citing R v Brewer [1942] HCA 33 ; (1942) 66 CLR 535 at 548 per Latham CJ and McTiernan J. 126 The Extradition Act refers to the Attorney-General by name. He or she is thus a 'particular minister' within the meaning of s 19A(1)(ab) of the Acts Interpretation Act 1901 . In addition, s 19A(1) of the Acts Interpretation Act provides that where a provision of a statute refers to a particular minister, then unless the contrary intention appears, where two or more ministers administer the provision, any one of them is referred to as administering it (see: s 19A(1)(a) and (b)). 127 There is no contrary intention in the Extradition Act to prevent a reference to the Attorney-General also being a reference to another minister administering, with the Attorney-General, that Act or the Attorney-General's Department of State. Section 19A(1)(a)(i) of the Acts Interpretation Act provides that where different ministers administer a provision in respect of different matters, and if two or more of those ministers administer it in respect of the relevant matter, any of the Ministers may do so. And, s 19A(1)(b) provides that if s 19A(1)(a) does not apply, and for the time being two or more ministers administer the provision, any one of those ministers may do so. 209 Is it possible, as the Minister contended, to sever the invalid portions of Senator Johnston's s 16 notice under s 46(2) of the Acts Interpretation Act ? That provides, as explained above, that the notice is to be taken to be valid '... to the extent to which it is not in excess of ...' the power to make it. However, Dixon J explained in the Bank Nationalisation Case 76 CLR at 371 that the statutory presumption would be displaced if rejection or severance of the invalid part would mean that the otherwise unobjectionable portion would operate differently on Mr Tervonen or in some other way produce a different result.