State v Bentley [2005] FJHC 713; HAC0026D.2003S (26 January 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC026 OF 2003S

STATE

V

KIM BENTLEY and UNITED AIRCO Ltd

Gates J

Ms L. Chandra for the State
Mr. A. Patel for both Accused

24, 25, 26 January 2005

RULING

Handling of a controlled substance without authority, Regulations 7 and 21(e) Ozone Depleting Substances Regulations 2000; section 25, Ozone Depleting Substances Act 1998; requirement for handler to be licensed; validity of regulations; whether ultra vires the Act; whether Act empowered Minister to make regulations creating offences and imposing penalties; whether Regulations could create licensing regime; section 25 Interpretation Act Cap 7; whether sufficient power granted by Act to permit the creation of a regime of licensing; scheme of Act overall envisaging the introduction of licensing; Regulations made by Head of Interim Military Government; whether doctrine of necessity applies; legality of intervening acts of illegal government; principles to be applied for confirmation of legislative acts; day to day requirements of inhabitants; curtailment of rights of inhabitants; the common weal.

[1] This Ruling is not to be published by anyone including the media until the conclusion of the trial.

[2] The question has arisen as to whether there exists in law an offence of handling of a controlled substance without authority. There are three arguments raised against the existence of such an offence. The first is that the Minister had no power under section 25 of the Ozone Depleting Substances Act 1998 (the Act) to create offences and to impose penalties. The second is that there was no power to create a licensing regime whereby prior authority was to be required before a person could handle such substances. Lastly it is said the Regulations were made, not by a Minister, the democratically elected representative of the people, but by Commodore J.V. Bainimarama on 11 June 2000, signing the purported subsidiary legislation as Commander and Head of the then Interim Military Government. The State argues the doctrine of necessity comes to the rescue and legitimizes this otherwise irregular law-making.

[3] Prior to arraignment I raised with counsel whether there was such an offence. Mr Patel for the Accused indicated he had been going to raise the challenge anyway. Both counsel considered it prudent to deal with this issue as a preliminary argument after the assessors had been sworn in. The challenge does not strictly amount to a quashing of the information, pursuant to section 275 of the CPC for there remains a second count, that of unlawful storage of a controlled substance against Accused 2 only [United Airco Ltd.]. The challenge aims at count 1, an allegation against Accused 1 only [Kim Bentley].

[4] Count 1 alleges that a controlled substance, namely CFC12 gas, was handled by the Accused when he was not an authorised handler. The necessary authority would have been a licence issued by the Director of Environment. In 2001 the Reserve Bank was replacing chillers for its air conditioning plant, so as to use a more environmentally safe gas for cooling purposes. The Accused who was contracted to assist in the replacement required a licence under the Regulations to handle the gas which was contained in the old system. The gas was a chemical controlled by the Montreal Protocol and listed as a controlled substance in the schedule to the Act [Part I, Group I].

[5] The allegation is that Accused 1 disconnected the container holding the gas at the Reserve Bank and took it to the premises of Accused 2 where it was stored. At this stage it is not possible or necessary to go into further details of the case for or against the allegation.

[6] The first argument can be disposed of simply. The Minister, whose portfolio is not named in the Act, but I am informed is the Minister for Local Government, Housing, Squatter Settlement and Environment is empowered by section 25 of the Act to "make regulations necessary to give effect to the provisions of this Act and in particular to –

"(a). give effect to the National Policy and implementation programme formulated under this Act;

(b). establish procedures, standards, codes of practice, programmes and fiscal

incentives to give effect to the National Policy and to the implementation programme formulated under this Act;

(c). establish an echo-labelling programme for any controlled substance;

(d). provide for the prohibition of the use of halons in any building or construction material;

(e). prescribe fees that may be required to be paid under this Act or the regulations;

(f). amend the Schedules to this Act.

(g). prescribe forms of licence, or any other matter required to be prescribed under this Act."

(h).

[7] Though referring to the prohibitions on the use of halons [bromofluorocarbons], section 25 does not provide a specific power to enforce procedures, standards, or codes of practice by the creation of offences for breach of such, nor does it refer to the setting of penalties, nor does it provide for the creation of a regime of licensing. I shall return to that last point later.

[8] Ms Chandra took me to section 25 of the Interpretation Act Cap 7, the relevant part of which states:

"25. Where an Act confers power on any person or authority to make or issue subsidiary legislation, the following provisions shall, unless a contrary intention appears, have effect with reference to the making of such subsidiary legislation

(d) where any Act confers power on any person or authority to make or issue subsidiary legislation for any general purpose, and also for any special purposes incidental thereto, the enumeration of the special purposes shall not be deemed to derogate from the generality of the powers conferred with reference to the general purpose;

(e) there may be annexed to the breach of any subsidiary legislation such penalty, not exceeding four hundred dollars or such term of imprisonment not exceeding six months, or both such fine and such imprisonment, as the person or authority making or issuing the subsidiary legislation may think fit;"

[9] The General Penalty regulation [Regulation 21(e)] keeps within 25(e) of the Interpretation Act in confining penalties for breach of the Regulations to a maximum fine of $400 and 6 months imprisonment.

[10] It is clear that the extent to which the Minister is enabled to make Regulations is broadly sufficient to permit him to create regulatory offences, and to provide for penalties for contravention up to the limits permitted by the Interpretation Act. The Ozone Depleting Substances Act has not permitted the Minister to go beyond such limits. If the penalties were regarded as inadequate for compliance purposes, the Act itself would have to be amended to provide the Minister with powers to amend the Regulations in order to go beyond the limits set by the Interpretation Act on penalties in subsidiary legislation.

[11] I find therefore that the creation of offences and penalties in the Regulations to that extent was carried out intra vires the Act.

Was there a power to create a licensing regime?

[12] Leaving aside for the moment the doctrine of necessity argument, section 25 of the Act only refers to licensing in subsection (1)(g) in the phrase "prescribe forms of licence, or any other matter required to be prescribed under this Act."

[13] To shackle a citizen’s freedom of action in business, trade or commerce by the requirement to submit to a scheme of licensing is undoubtedly a restriction on such freedom. In contrast the old Traffic Act 1965 granted some 43 separate powers to the Central Traffic Authority to make regulations, a number of which powers permitted regulations instituting a system of licences for various related activities. Similarly the Electricity Act Cap 180 provided extensive powers for the Fiji Electricity Authority to carry out inspections, to decide minimum standards and specifications of apparatus, to provide for manner of measurement of supply, the setting of standards generally, and of prescribing the form, content, conditions, and fees for licences, and all other ancillary matters to do with licensing [section 66].

[14] There is no doubt the powers granted to the Minister in the Act here are less fulsome, at least in section 25. The purpose of the Act in its long title is said:

"TO REGULATE THE IMPORTATION, EXPORTATION, SALE, STORAGE AND USE OF OZONE DEPLETING SUBSTANCES AND TO GIVE EFFECT TO FIJI’S OBLIGATIONS UNDER THE VIENNA CONVENTION FOR THE PROTECTION OF THE OZONE LAYER AND THE MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE LAYER, AND FOR RELATED MATTERS"

[15] The powers of the Director of Environment are set out in section 11 of the Act. Amongst them is the power to administer the licence or permit requirements and conditions under the provisions of the Act [section 11(c)].

[16] Section 13 provides that the Minister must formulate a National Policy for the protection of the Ozone Layer. Amongst other matters to be taken into account by the National Policy are "mechanisms that are to be employed to monitor and manage the implementation of the National Policy and implementation programme and to ensure its periodic review."

[17] Sections 15, 16 and 17 of the Act all refer to the need for a licence or permit for recovering, handling or dealing in any way with controlled substances. This part is headed Management of Controlled Substances. It is clear on an overall reading that the Act envisages that there will be a licensing regime set up to assist with the National Policy, and with implementation of procedures, as part of the management of that policy. I conclude therefore that there is sufficient power granted in the Act for the Minister by regulation to set up a controlling regime with a system of permits and licences.

Are these regulations saved by the doctrine of necessity?

[18] The Head of the Interim Military Government on 11 June 2000 was obviously not the Minister as envisaged by the Act. What power did he have to make and sign this subsidiary legislation?

[19] No issue has been raised as to whether the Regulations should have been laid before Parliament. They appeared in the Fiji Government Gazette Supplement for Friday 28 July 2000 [pp279-321]. The Act was assented to by the President on 19 June 1998 and the Act was issued with the Gazette of Friday 26 June 1998 [FRG Vo. 12 No. 38 p.485]. The then Minister appointed its commencement date as being 1 July 1998.

[20] The making of these Regulations was not a life and death matter in which the Commander had been compelled to act. Mr Patel says the Commander should have waited till the crisis had passed and a lawful government restored. Thus he should have left the making of the Regulations to the lawfully appointed legislator, the Minister.

[21] In Livai Nagera v The State (as yet unreported) Suva High Court Criminal App:HAA0056.01S; 5 October 2001, Shameem J found there was a sufficient emergency created by the hostage crisis and general lawlessness which permitted the Head of the Military Government to pass an Emergency Decree. At p.12 of the judgment her ladyship said:

"it is clear that the extraordinary measures (including the involvement of the armed forces in maintaining law and order) were passed to meet an extraordinary situation. Indeed the measures were introduced to deal with persons responsible for the removal of democracy, and those who might take advantage of the situation which arises when democratic institutions are destroyed, or fail to operate."

[22] Shameem J found the doctrine of necessity to apply to validate the extra-constitutional act of the military commander. At p.10 she had said:

"I am satisfied on the affidavit of ASP Tabakau that the hostage-taking of Parliamentarians on May 19th created an exceptional situation which was not provided for in the Constitution. I also accept that there was no other course of action available than to allow for the security measures promulgated in the Emergency Decree. I am also satisfied that the promulgation of the Emergency Decree was reasonably necessary in the interests of peace, order and good government and that it does not make provision for acts that go beyond national security measures."

[23] In Republic of Fiji v Prasad [2001] 2 LRC 743 at p.762 the Court of Appeal had said of the doctrine:

"The doctrine of necessity enables those in de facto control, such as the military, to respond to and deal with a sudden and stark crisis in circumstances which had not been provided for in the written Constitution or where the emergency powers machinery in that constitution was inadequate for the occasion. The extra-constitutional action authorized by that doctrine is essentially of a temporary character and it ceases to apply once the crisis has passed."

[24] However the court found that the Commander did intend to abrogate the Constitution. The court went on (p.762):

"The doctrine of necessity would have authorised him to have taken all necessary steps, whether authorised by the text of the 1997 Constitution or not, to have restored law and order, to have secured the release of the hostages, and then, when the emergency had abated, to have reverted to the Constitution. Had the commander chosen this path, his actions could have been validated by the doctrine of necessity. Instead, he chose a different path, that of constitutional abrogation. The doctrine of necessity does not authorise permanent changes to a written Constitution, let alone its complete abrogation."

[25] Not all intervening acts are swallowed up and tainted in an intended abrogation. Some are clearly separate and may survive the duration of an illegal regime.

[26] In Prasad the Court of Appeal in dealing with the legality of intervening acts adopted Lord Pearce’s dissenting opinion in the Privy Council in Madzimbamuto v Lardner-Burke [1968] UKPC 2; [1969] 1 AC 645 at p.732 as the law in Fiji. Lord Pearce had said:

"I accept the existence of the principle that acts done by those actually in control without lawful validity may be recognised as valid or acted upon by the courts, with certain limitations namely (a) so far as they are directed to and reasonably required for ordinary orderly running of the State, and (b) so far as they do not impair the rights of citizens under the lawful (1961) Constitution, and (c) so far as they are not intended to and do not in fact directly help the usurpation and do not run contrary to the policy of the lawful Sovereign. This last, i.e., (c), is tantamount to a test of public policy."

[27] Lord Pearce also set out passages from three judgments of the Supreme Court of the United States. These concerned actions taken within the rebel Confederate States during the American Civil War and showed the grounds on which retrospective acknowledgement was to be accorded to acts which otherwise lacked lawful validity.

[28] The first was taken from Texas v White (1868) 7 Wallace 700, 733 (74 U.S.):

". . . It is not necessary to attempt any exact definitions, within which the acts of such a State government must be treated as valid, or invalid. It may be said, perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens, such for example, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual, though unlawful government; and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void. . . ."

[29] The next was taken from Horn v Lockhart (1873) 17 Wallace 570, 580 (84 U.S.):

". . . We admit that the acts of the several States in their individual capacities, and of their different departments, of government, executive, judicial, and legislative, during the war, so far as they did not impair or tend to impair the supremacy of the national authority, or the just rights of citizens under the Constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated precisely as in time of peace. No one that we are aware of seriously questions the validity of judicial or legislative acts in the insurrectionary States touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the National Government, and did not impair the rights of citizens under the Constitution. . . ."

[30] Finally in Baldy v Hunter (1898) 64 Davis 388, 400, 401 (171 U.S.) it was stated:

". . . From these cases it may be deduced That the transactions between persons actually residing within the territory dominated by the Government of the Confederate States were not invalid for the reason only that they occurred under the sanction of the laws of that government or of any local government recognising its authority; that, within such territory, the preservation or order, the maintenance of police regulations, the prosecution of crimes, the protection of property, the enforcement of contracts, the celebration of marriages, the settlement of estates, the transfer and descent of property, and similar or kindred subjects, were, during the war, under the control of the local governments constituting the so called Confederate States; that what occurred or was done in respect of such matters under the authority of the laws of these local de facto governments should not be disregarded or held to be invalid merely because those governments were organized in hostility to the Union established by the national Constitution; this, because the existence of war between the United States and the Confederate States did not relieve those who were within the insurrectionary lines from the necessity of civil obedience, nor destroy the bonds of society, nor do away with civil government or the regular administration of the laws, and because transactions in the ordinary course of civil society as organised within the enemy’s territory, although they may have indirectly or remotely promoted the ends of the de facto or unlawful government organised to effect a dissolution of the Union, were without blame ‘except when proved to have been entered into with actual intent to further invasion or insurrection’; and, that judicial and legislative acts in the respective States composing the so called Confederate States should be respected by the courts if they were not ‘hostile in their purpose or mode of enforcement to the authority of the National Government, and did not impair the rights of citizens under the Constitution.’. . ."

[31] Lord Pearce summarised the reason for this approach as (p.737):

"the reasonable and humane desire of preserving law and order and avoiding chaos which would work great hardship on the citizens of all races and which would incidentally damage that part of the realm to the detriment of whoever is ultimately successful. This would accord with the common sense view expressed by Grotius (above). For this reason it is clearly desirable to keep the courts out of the main area of dispute, so that, whatever be the political battle, and whatever be the sanctions or other pressures employed to end the rebellion, the courts can carry on their peaceful tasks of protecting the fabric of society and maintaining law and order."

[32] Fieldsend AJA in the court below [1968] (2) SA 435 had said:

"The necessity relied on in the present case, is the need to avoid the vacuum which would result from a refusal to give validity to the acts and legislation of the present authorities in continuing to provide for the every day requirements of the inhabitants of Rhodesia over a period of two years. If such acts were to be without validity there would be no effective means of providing money for the hospitals, the police, or the courts, of making essential by-laws for new townships or of safeguarding the country and its people in any emergency which might occur, to mention but a few of the numerous matters which require attention in the complex and modern state. Without constant attention to such matters the whole machinery of the administration would break down, to be replaced by chaos, and the welfare of the inhabitants of all races would be grievously affected."

Conclusion

[33] In this case Parliament had already passed the Act and foreshadowed the subsidiary legislation which would be required to effect the changes to be brought about by that Act. The Act and Regulations are however reformist in nature and by introducing licensing and other restrictions do have the effect of curtailing rights of the inhabitants. But these factors are to be balanced alongside the common weal which can be anticipated to follow with the implementation of the Act which had been approved already by Parliament, and by the making of the supporting subsidiary legislation.

[34] In addition Fiji had acceded to the Vienna Convention of 1985 and to the Montreal Protocol of 1987 on 23 October 1989. These international instruments took effect on 21 January 1990. By virtue of section 14(1) of the Act controlled substances in bulk listed in Part I were no longer to be imported, exported or manufactured, stored or disposed of from 1 January 2000 onwards. There was clearly good and orderly purpose in proceeding without delay to set up the supporting enforcement machinery as provided for in the Regulations. I note that the cited cases include legislative acts of an illegal regime as acts capable of being confirmed and not merely judicial or administrative acts such as where the police continue to maintain law and order.

[35] Though there existed no dire need for the immediate passing of such Regulations they were sufficiently unremarkable and routine as well as neutrally beneficial . They did not support the abrogation of the Constitution or sustain the illegal regime. The position would have been quite different if the Act had been passed as a decree by the Commander. But here Parliament had acted and passed the necessary bill some 2 years beforehand in accordance with its constitutionally mandated procedures.

[36] I conclude the Ozone Depleting Substances Regulations are saved under the doctrine of the legality of intervening acts. Count 1 therefore alleges an offence known to the law.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused: Messrs S.B. Patel & Co., Lautoka