ground two
33 The Tribunal found that it had jurisdiction to review the Administrator's decision:
"… on the basis that although the Subdivision Act 1996 had been repealed the Administrator had acted pursuant to this Act on the 13th September 2004 presumably on the basis of the savings provisions in the Interpretation Act 1979, and had so acted following advise [sic] given to him by the Planning and Environment Board and the Executive Member who had acted pursuant to the Subdivision Act 2002 and the Planning Act 2002 which legislation provides for appeal to the Tribunal."
34 The Administrator submitted that in reading the Tribunal's reasons it was not possible to discern, with any degree of precision, which statutory regime the Tribunal thought applicable to the proceedings before it. He did, however, concede that during the course of the hearing before the Tribunal, the Senior Member stated that the "new legislation" applied (whatever that may have meant).
35 Mr Jope submitted, however, that the Tribunal's findings as to jurisdiction were to be gleaned not solely from its reasons for decision, but also from the transcript of proceedings. During the course of the Tribunal hearing, the Senior Member said:
"Now, I have come to a view that the Administrative Review Tribunal in this instant case does have jurisdiction. Now, I'd lean to that view by looking at the Planning Act 2002, section 78, that provides for a review. So it is quite clear that the Planning Act provides that subdivision applications or any development approval - and I think development approvals fall under section 102 and 103 of the Planning Act, that subdivision approvals are really to be treated the same way as development applications. That's the way I read it. That they're governed by the Planning Act and if an application for a subdivision was made now, there would be a review provision to the Administrative Review Tribunal."
36 The Senior Member continued:
"And in effect I find the refusal to Mr Jope to essentially cancel his approval or find that it had lapsed and that he could not proceed, in essence I find that that was a decision of the Norfolk Island government starting from the Planning and Environment Board through to the then Norfolk Island Minister responsible for land and environment matters and the Administrator was acting in a, if I could put it, a nominal capacity. And that leads me to the view that there should be a flow-on into the Subdivision Act 2002 and the Planning Act 2002 and I feel strengthened by sections 102 and 103 of the Planning Act."
37 In the final analysis, and for reasons that will become clearer when I turn to ground three, it matters little what the Tribunal thought about the basis for the exercise of its jurisdiction. It either had jurisdiction to review the Administrator's decision, or it did not.
38 For the reasons that follow, I think the Administrator's decision was a "reviewable decision", and that the Tribunal accordingly had power to review it.
39 The Administrator submitted that the Tribunal, in reviewing his decision, approached the matter on an erroneous basis. He submitted that the Tribunal had focused upon the advice or information provided to the Administrator, and not upon the decision that he had made. That meant that the Tribunal had not carried out its statutory task, and further meant that it had exceeded its jurisdiction.
40 Mr Jope conceded that the Tribunal had indeed focused upon the advice or information provided to the Administrator, and not the decision. However, he submitted that this did not mean that the Tribunal lacked power to conduct the review. In essence, Mr Jope's submission was that any flaw of this kind in the Tribunal's reasoning amounted merely to error of law within jurisdiction, but did not constitute jurisdictional error.
41 The Administrator submitted that the Tribunal had no power to review his decision under either the 1996 statutory scheme, or the current scheme. Mr Jope conceded that the Tribunal had no jurisdiction to review the Administrator's decision by reference only to the 1996 scheme. However, he contended that he had a right of review by virtue of the concurrent operation of the provisions of the Planning Act 2002 and the Administrative Review Tribunal Act 1979 (NI) ("the Review Act").
42 It is clear that the Tribunal has no general powers of review. It can only review decisions that are "reviewable" pursuant to statutes that expressly confer power upon it to do so.
43 In that regard, s 14 of the Review Act relevantly provides that an Act may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that Act. Where an Act makes provision for such review, it must specify the person to whose decision the particular provision applies, and may specify conditions subject to which any application for review may be made. Decisions made by those to whom powers have been delegated can also be reviewed. There is an extended definition of what constitutes "making" a decision so that a failure by a person to do an act or thing within the period prescribed is deemed to constitute making a decision not to do the act or thing. Finally, there is also a provision which extends power to review decisions made by persons who no longer hold or perform the duties of an office or appointment.
44 The Administrator submitted that the Tribunal had no power to review his decision (that the in-principle planning approval had lapsed) in the absence of express power conferred by transitional provisions under the current statutory regime. No such transitional provisions had been enacted.
45 In support of that submission, the Administrator noted that neither the Subdivision Act 2002, nor the Planning Act 2002 contained any provisions of the kind that had existed under the 1996 regime, particularly those in the Subdivision Act 1996 allowing for in-principle approval of a subdivision proposal to be obtained. He submitted that, under the current regime, the Administrator no longer performs that particular function, which is now discharged by the Chief Executive Officer, or his delegate. There being no transitional provisions enabling review of decisions made by the Administrator under the 1996 regime, as if they were decisions by the Chief Executive Officer under the current regime, there could be no power to undertake such review.
46 Mr Jope submitted that this difficulty was overcome by s 102 of the Planning Act 2002. As previously indicated, that section provides that a planning approval or a development approval under the Planning Act 1996 and current immediately before the commencement of the Planning Act 2002, is on and from the commencement deemed to be a "development approval". Accordingly, any planing approval granted prior to 27 February 2004 was to be construed as though it was a "development approval" granted under the Planning Act 2002. That in turn brought into play s 81 of the Planning Act 2002 and rendered the Administrator's decision a "reviewable decision" within the meaning of s 78. Mr Jope's reasoning was that the Administrator's letter dated 13 September 2004, notifying him that the in-principle approval previously granted had lapsed, amounted to a "compliance order" within the meaning of s 81(2). Presumably, Mr Jope contends that the Administrator is relevantly an "authorised officer" under that section.
47 Mr Jope submitted that the next question was whether or not the "planning approval" the subject of review by the Tribunal was "current immediately before the commencement of" the Planning Act 2002. He submitted that this was a question of fact, which the Tribunal had resolved in his favour when it concluded that he had achieved "substantial progress" within the prescribed period.
CONCLUSION REGARDING POWER OF TRIBUNAL
48 In order to determine whether the Tribunal had power to review the Administrator's decision that the planning approval had lapsed, three matters must be considered. First, whether the Act under which that decision was taken confers power upon the Tribunal to review that decision. Second, whether what the Administrator did constituted a "decision" within the meaning of the Review Act. And third, whether the decision was taken "under" the enactment conferring jurisdiction.
49 In my view the Planning Act 2002 conferred power upon the Tribunal to review the Administrator's decision. Section 102 of that Act, which deems a "planning approval or a development approval" under the 1996 Act to be a "development approval" under the 2002 Act seems to me to incorporate, within the ambit of a development approval given under the later Act all the elements of a planning approval given under the earlier Act. In effect the terms become interchangeable. No other interpretation is possible without reading s 102 (in the context of the Planning Act 2002 as a whole), so restrictively as to make it virtually otiose.
50 There is no real issue in this case as to whether the Administrator's decision that the earlier planning approval had lapsed amounted to a "decision" within the meaning of the Review Act. In Riordan v Parole Board (ACT) (1981) 34 ALR 322 it was said that the word "decision" was a word of "aoristic meaning" (which the dictionary defines as "broad, indefinite or indeterminate"). The Administrator did not contend otherwise. Nor did he challenge that the decision was made under an enactment, namely the Planning Act 2002.
51 The real question, then, is whether the in-principle planning approval (the lapse of which was the subject of Mr Jope's application for review) was "current immediately before the commencement of" the Planning Act 2002, within the meaning of s 102 of that Act.
52 That was a matter for the Tribunal to determine. It found that Mr Jope had made "substantial progress" in relation to the subdivision, utilising s 26 of the Norfolk Island Plan prepared under the Planning Act 1996. It is true that it made no express finding as to whether the approval was current immediately prior to 27 February 2004 when the Planning Act 2002 came into effect. However, having regard to its finding that "substantial progress" had been made in implementing the consent, it may be inferred that the Tribunal was satisfied that the planning approval was current at the relevant time.
53 The Tribunal has both the power and the obligation to determine facts that go to an exercise of jurisdiction. In Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, the High Court reversed the decision of the Full Court of the Federal Court in Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456. In doing so, the High Court, in effect endorsed Black CJ's reasoning where his Honour said (at 465):
"Subject to constitutional limitations (and none were suggested in the present case) an Act may commit to an administrative body the power to investigate and conclusively to determine the existence of certain facts upon which the exercise of a power to proceed further, such as the power to enter a place in the Register of the National Estate, may depend. In such circumstances, the capacity of a court to review a decision by an administrative body that the facts do exist will be limited, in accordance with the ordinary principles of judicial review, and there will be no question of the court making its own decision as to the true facts."
54 In Cabal v Attorney-General (2001) 113 FCR 154 (affirmed on appeal by the Full Court of the Federal Court in Cabal v Attorney-General [2001] FCA 1234), I said (at 166-167):
"The so-called doctrine of "jurisdictional fact" (assuming that it is correct to so describe it) represents an exception to the principles of restraint which normally govern judicial review. "Jurisdictional fact" enables such review whenever the Court determines for itself that a statutorily required fact does not exist. Parliament can stipulate that any action which it authorises depends upon the existence of various preconditions. The legislation may require the existence of those preconditions to be established in the mind of the person or body exercising the power, or in the mind of the reviewing court. Where the power depends upon factual requirements being demonstrated to the satisfaction of the person in whom it is reposed, it is that person's determination of the facts which is decisive. The validity of the exercise of the power is unaffected if the person, acting in good faith and otherwise according to law, considers the facts, and reaches an opinion about them, albeit one which a court would not share. Where the power depends upon the existence of objective facts, the court on judicial review is given the final say as to whether the required facts exist. This "doctrine" which is sometimes described as "jurisdictional fact" is regarded by some as one which ought to be kept within strict boundaries. It is thought to involve an unwarranted intrusion on the part of the judiciary into matters which are properly the province of the executive. Others, however, take the view that "jurisdictional fact" provides an important corrective, in favour of the rights of the individual, to arbitrary and capricious decision-making."
55 In Trajkovski v Telstra Corp Ltd (1998) 81 FCR 459 Tamberlin J said, in reference to the powers of the Administrative Appeals Tribunal (at 468):
"… there is a line of English authority to the effect that, if a certain state of facts has to exist before a tribunal has jurisdiction, it can inquire into the facts in order to decide whether it has jurisdiction but it cannot give itself jurisdiction by wrong decision upon those facts. The Courts may, by means of proceeding by way of prerogative writ such as certiorari, for example, inquire into the correctness of that decision. The AAT's decision as to the existence of the state of facts is regarded as collateral because, although the exercise of jurisdiction depends on it, it is not the main question which the tribunal must determine."
56 In my view, Mr Jope's contention that the Tribunal had power to review the Administrator's decision regarding the lapse of the in-principle planning approval is correct. If, as Mr Jope submitted, there was a planning approval current immediately before the commencement of the Planning Act 2002, all decisions relating to that approval, including any decision that it had lapsed, arguably culminating in a "compliance order", were reviewable under the 2002 Act when combined with the Review Act.
57 It is unnecessary, in these circumstances, to consider whether the provisions of the Interpretation Act 1979 (NI), to which the Tribunal referred, and upon which it relied, provide further support for this conclusion.