Local Government - Appeals - Tasmania - Resource Management and Planning Appeal Tribunal - Civil enforcement powers - Nature of the jurisdiction conferred - Whether jurisdiction to consider the validity of a regulation concerning the subject matter of an application. Land Use Planning and Approvals Act 1993 (Tas), ss64 and 65. Resource Management and Planning Appeal Tribunal Act 1993 (Tas), ss5, 22(1), 23(1) and 27. F Hoffmann-La Roche and Co AG v Secretary of State for Trade and Industry (1975) AC 295 at 365-366; Re Adams and The Tax Agents' Board (1976) 12 ALR 239 and Camden L B Rent Officer ex p Ebiri (1981) 1 WLR 881, referred to.

WRIGHT J In proceedings before the Resource Management and Planning Appeal Tribunal ("the Tribunal") in which a temporary order was sought under the Land Use Planning and Approvals Act 1993, s64 prohibiting further construction or development by the Minister for Transport and Works of a road between Marrawah and Zeehan, a question arose as to whether Statutory Rules Nos 167 and 171 of 1994 were ultra vires or invalid. Counsel for the Minister submitted that the Tribunal had no jurisdiction to entertain or rule upon any such question. The Tribunal chairman (referred to in the Act by the neologism "chairperson") rejected that submission and rejected counsel's further submission that the matter should be referred to the Supreme Court for determination pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s27. The chairman did not purport to give any ruling or decision as to the validity of the challenged statutory rules.

2. Proceedings were commenced by the Minister seeking a Writ of Prohibition against the chairman to prevent him from:

"... proceeding in any way to hear or determine any issue or

fact directed towards establishing the invalidity or in any

way concerning the validity of Statutory Rules 167 and/or 171

of 1994 on any grounds foreshadowed to him by Dr Bates on the

16th day of November 1994 or any additional or other grounds

on the grounds that:

(1) he lacks jurisdiction to determine any question or make

any decision concerning the invalidity of the said statutory

rules;

(2) the Resource Management and Planning Appeal Tribunal is

not a court of law; and

(3) the Resource Management and Planning Appeal Tribunal is

created by statute and lacks specific statutory authorisation

to investigate and/or determine such issues."

3. An order nisi directed to the Attorney-General to show cause was made by Cox J on 25 November 1994. This order was returned before Zeeman J who, on 19 December 1994, discharged the order nisi. The Attorney-General has now appealed against Zeeman J's order of discharge, essentially upon the same grounds as were incorporated in the application for the order nisi, albeit that the grounds of appeal are couched in somewhat different terms. The chairman, who was named as the first respondent to the appeal, submitted to the jurisdiction of this Court and did not seek to advance argument. The Wilderness Society Inc, which had a community of interest in the proceedings with Dr Bates, sought to be joined as a second respondent. This was not opposed by counsel for the appellant and the application was granted. The Court heard submissions from counsel for the appellant and the second respondent and reserved its decision. On 24 March 1995 the Court unanimously dismissed the appeal announcing that it would publish its reasons for so doing at a later date.

4. My reasons are as follows. The Tribunal is constituted by the Resource Management and Planning Appeal Tribunal Act 1993. The Land Use Planning and Approvals Act 1993, s61 confers jurisdiction on the Tribunal to hear and determine appeals against planning decisions and s64 confers jurisdiction upon it to make orders (inter alia) in the nature of injunctions against persons or bodies who are alleged (inter alia) to be acting contrary to State Policy, a planning scheme, a permit issued by a planning authority and the like. The last mentioned Act, s4(1), binds the Crown, and by subs(2) provides:

"Subject to subsection (3)," (irrelevant for present

purposes) "this Act applies to all parts of the State except

such parts as may from time to time be prescribed in the

regulations."

5. Statutory Rules 1994, No 167 provides, (reg 3):

"3 The Land Use Planning and Approvals Act 1993 does not

apply to any part of the State

(a) declared by proclamation under the Roads and Jetties Act

1935 to be a State highway or a subsidiary road; or

(b) declared by proclamation under the Roads and Jetties Act

1935 to be the intended new line of a State highway or

subsidiary road; or

(c) declared by proclamation under the Roads and Jetties Act

1935 to be the intended line of a new State highway or

subsidiary road; or

(d) purchased or taken for a State highway or subsidiary

road."

6. Zeeman J, in his reasons for judgment, made the following observations (at 9):

"Before the tribunal Dr Bates submitted that the Regulations

were not valid for a number of reasons. The effect of his

submissions is as follows:

(a) the Regulations do not prescribe parts of the State but

rather classes of development and therefore are not

authorised by the Land Use Planning and Approvals Act, s4(2);

(b) the Regulations do not satisfy the reasonable

proportionality test, which I take to be a reference to the

test referred to in South Australia v Tanner (1988-1989) 166

CLR 161 at 165 and Commonwealth v Tasmania (The Tasmanian Dam

Case) [1983] HCA 21; (1983) 158 CLR 1 at 260;

(c) the Regulations do not refer to a part of the State

because they do not describe any geographic area;

(d) the Regulations in an impermissible way rely on future

and past instruments for their operative effect, which I take

to be a submission that they are ambulatory in effect; and

(e) the Regulations do not satisfy the requirement that they

be in furtherance of the objectives laid down by the Land Use

Planning and Approvals Act, s5.

Counsel for the Society did not seek to support the

propositions advanced to the tribunal by Dr Bates contained

in pars(c) and (e), although that in no way binds Dr Bates in

his conduct of the case before the Tribunal. It is

unnecessary to express any view as to the merits of the

submissions advanced by Dr Bates. I have referred to them

merely to indicate the nature of the submissions which the

respondent was being asked to entertain."

7. Referring to the nature of the Tribunal and to the provisions of the Resource Management and Planning Appeal Tribunal Act 1993, his Honour said at 9-11:

"The Tribunal consists of a Chairperson, who must be a

barrister or legal practitioner of not less than five years

standing, together with such number of persons as the

Governor considers necessary who possess expertise in

specified disciplines and such other persons as the Governor

considers necessary. Schedule 2 to that Act makes provision

with respect to the membership of the Tribunal and provides

that a member is appointed for a term of five years and is

eligible for reappointment. Whilst members of the Tribunal

do not have judicial tenure a limited form of tenure is

provided for by par6 of that Schedule. For the purposes of

the hearing and determination of an appeal (which includes an

application of the type before the respondent) the Tribunal

is to be constituted by any one of its members or by the

Chairperson and not more than four other members. Section 9

confers various powers on the Chairperson to determine the

constitution of the Tribunal from time to time.

Other relevant provisions contained in that Act are the

following:

'22 (1) For the purpose of an appeal, the Appeal Tribunal

may do all things necessary or convenient to be done for or

in connection with the hearing and determination of the

appeal.

...

23 (1) For the purpose of determining an appeal, the Appeal

Tribunal may exercise all the powers that are conferred by

the relevant legislation on the person who made the decision

that gave rise to the appeal.'

Counsel for the prosecutor submitted that the fact that the

powers conferred by s64 might be exercised by the Tribunal

constituted by a non legally qualified member indicated that

jurisdiction of the type proposed to be assumed by the

respondent was not intended to be conferred on the Tribunal.

He further submitted that the nature of the powers conferred

upon the Tribunal indicated an intention to exclude the

jurisdiction to examine the validity of subordinate

legislation. Counsel also referred to the power conferred on

the Tribunal by the Resource Management and Planning Appeal

Tribunal Act, s27 to refer a question of law arising in an

appeal before it to the Supreme Court for its decision. He

submitted that that provision provides the mechanism whereby

a question of the type proposed to be considered by the

respondent could be determined.

The powers conferred upon the Tribunal by s64 are markedly

different in nature from the primary jurisdiction conferred

upon it which is the determination of appeals against

planning decisions under s61. The relief which may be

granted under s64(3) is in the nature of injunctive relief,

in part mandatory. It is relief of a type normally granted

by superior courts. Formerly, by the Local Government Act

1962, s734(3), this Court had the power to enforce interim

orders by injunction. The effect of the prosecutor's

submission is that by conferring upon an administrative

tribunal a power of a type normally exercised by a court (at

least in part by taking away some of the statutory

jurisdiction of this Court and conferring it upon such a

tribunal) the power is to be exercised without regard to what

would be relevant considerations were the power being

exercised by a court. The Court ought not readily to accept

such a submission. Whilst the powers conferred by s64 have

been conferred upon an administrative tribunal they are not

powers of an administrative nature.

Whilst counsel for the prosecutor from time to time referred

to an absence of power on the part of the Tribunal to declare

the Regulations to be ultra vires, that is not what is at

issue. The nature of what is at issue was explained by

Latham CJ in South Australia v The Commonwealth (1942) 65 CLR

373 at 408 as follows:

'Common expressions, such as: "The courts have declared a

statute invalid," sometimes lead to misunderstanding. A

pretended law made in excess of power is not and never has

been a law at all. Anybody in the country is entitled to

disregard it. Naturally he will feel safer if he has a

decision of a court in his favour but such a decision is not

an element which produces invalidity in any law. The law is

not valid until a court pronounces against it and thereafter

invalid. If it is beyond power it is invalid ab initio.'

If the prosecutor's argument is right it would have the

result that the Tribunal would be unable to make an order

under s64, which otherwise it thought proper to make, because

of some regulation which in fact is invalid ab initio and

might be led into making an order under that section by force

of something contained in a regulation which is invalid ab

initio, in circumstances where in the absence of that

regulation it would not have considered it proper to make the

order.

In the course of any proceedings before it, the Tribunal may

be called upon to determine both questions of fact and law.

A variety of questions of law will arise before it. It may

be assumed that questions of the legal construction of

planning instruments will commonly arise before the Tribunal.

Counsel for the prosecutor did not suggest that such

questions of law were beyond the competence of the Tribunal

but submitted that the questions of the validity of

subordinate legislation fall into a special category of

matters of law which the Tribunal is not competent to

consider or determine. Counsel for the prosecutor did not

cite any clear authority in support of the proposition

advanced by him but referred to some authorities which he

submitted indicated that his submission ought to be

accepted."

8. I consider that this passage in the judgment usefully and accurately describes the Tribunal's function, compendiously sets out the submissions by counsel for the Attorney-General which were repeated before us, and appropriately comments upon those submissions.

9. His Honour then undertook an examination of the cases to which he was referred and concluded at 13-14:

"It will be apparent from my examination of the cases and the

observations concerning them which I have made, that they do

not dissuade me from my prima facie view that there is

nothing to prevent the respondent from considering the

validity of the Regulations in the course of determining the

application before the Tribunal. That is a necessary

incident of his consideration of the application. Parliament

has seen fit to confer upon the Tribunal a jurisdiction of a

nature which is the traditional preserve of the courts and I

see no reason why the general powers conferred upon the

Tribunal ought to be cut down so as to take away from it its

ability to properly exercise that jurisdiction. Section

23(1) suggests that it was not intended that those powers be

so cut down.

I do not consider the fact that the powers conferred by s64

are capable of being exercised by the Tribunal constituted by

a person without legal qualifications, upon which the

prosecutor placed considerable reliance, to affect the

matter. One could reasonably advance the proposition that it

is highly undesirable that such powers be exercised by a

Tribunal so constituted. Nevertheless the fact is that

Parliament has chosen to confer it upon the Tribunal

howsoever constituted. The undoubted proposition that a

court has the power which the prosecutor submits is not

possessed by the Tribunal, must lead to the further

proposition that a court not constituted by a person with

legal qualifications has such a power. Courts of petty

sessions may of course be constituted by one or more justices

not possessed of legal qualifications.

I am not persuaded that the prosecutor has made out a case

for prohibition."

10. His Honour distinguished the cases relied upon by the appellant in terms upon which I cannot improve. The same cases and many more were referred to by counsel for the appellant in his submissions to this Court. Many of the passages in the judgments referred to were taken out of context. The material issue in many of the cases was whether an administrative body was invested with or was purporting to exercise the judicial power of the Commonwealth, ie a constitutional question which does not arise in respect of State legislation which we are now considering. The question which we have to determine on this appeal is in no way comparable to that which has often arisen in constitutional cases where a court has had to decide whether or not a tribunal or other body is exercising judicial power of the kind dealt with by ChIII of the Constitution. Yet it was upon this distinction between judicial power and non-judicial power that much of the appellant's argument appeared to be centred, on the assumption, as I understand it, that if a tribunal is not a court, it is incapable of exercising judicial power, and thus cannot pronounce upon legal issues.

11. The fallacy of this approach may be illustrated by reference to the joint judgment of Mason CJ, Brennan and Toohey JJ in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 69 ALJR 191 at 197 where they said:

"Thus, it has always been accepted that the punishment of

criminal offences and the trial of actions for breach of

contract and for wrongs are inalienable exercises of judicial

power Federal Commissioner of Taxation v Munro (1926) 38 CLR

153 at 175 per Isaacs J. The validity of that proposition

rests not only on history and precedent but also on the

principle that the process of the trial results in a binding

and authoritative judicial determination which ascertains the

rights of the parties Reg v Davison (1954) 90 CLR at 368-370

per Dixon CJ and McTiernan J. So, when A alleges that he or

she has suffered loss or damage as a result of B's unlawful

conduct and a court determines that B is to pay a sum of

money to A by way of compensation, there is an exercise of

judicial power. The determination involves an exercise of

such power not simply because it is made by a court but

because the determination is made by reference to the

application of principles and standards 'supposed already to

exist' Prentis v Atlantic Coast Line [1908] USSC 160; (1908) 211 US 210 at 226

per Holmes J. And the determination is binding and

authoritative in the sense that there is what has been

described as an immediately enforceable liability of B to pay

A the sum in question. See Rola Co (1944) 69 CLR at 199 per

Latham CJ. Consequently, even if the determination in such a

case were to be made by an administrative tribunal and not by

a court, the determination would constitute an exercise of

judicial power, although not one in conformity with Ch111 of

the Constitution."

12. An attempt to resolve the present issue by deciding whether or not the Tribunal exercises a judicial power when it enters upon the jurisdiction conferred by the Land Use Planning and Approvals Act, s64, will be inconclusive and therefore unsuccessful.

13. The Tribunal does not have power to enforce its own orders in respect of s64 proceedings (see s64(7) and (8)) and has many of the other characteristics which may be regarded as indicative that a tribunal is not a court (Roads Corporation v Melbourne Estates and Finance Co Pty Ltd [1993] VicRp 94; (1993) 2 VR 620 at 629). It seems therefore that the Tribunal when exercising s64 jurisdiction is not operating as a "court" (see also Halsbury 4th edn, vol 10, par702). There is, however, room for a contrary view (see Australian Postal Commission v Dao (1986) 6 NSWLR 497 per McHugh JA at 515 and AG v BBC (1981) AC 303 per Lord Denning MR at 312-314). It may be necessary in certain circumstances to attempt to determine whether a court is a court of law or a court of some other kind (see the cases discussed by Starke J in Trevor Boiler Engineering Co Pty Ltd v Moreley [1983] VicRp 67; (1983) VR 716 at 719), but in my opinion, none of these questions bears upon the issue raised by the notice of appeal in the present case. The submissions which Dr Bates sought to put to the chairman all related directly or indirectly to the Tribunal's jurisdiction. The following passage from Wade, Administrative Law at 253 correctly states the relevant principle, in my opinion:

"Power to determine jurisdictional questions

Where a jurisdictional question is disputed before a

tribunal, the tribunal must necessarily decide it. (Unless,

perhaps, trial by a court is more suitable: see the Zerek

case (below) at 13 (Devlin J); or unless statute provides

otherwise: R v Kensington Rent Officer ex p Noel (1978) QB

1). If it refuses to do so, it is wrongfully declining

jurisdiction and the court will order it to act properly. R

v Marsham (1892) 1 QB 371; R v Pugh (Judge) ex p Graham

(1951) 2 KB 623; R v Camden L B Rent Officer ex p Ebiri

(1981) 1 WLR 881. Otherwise the tribunal or other authority

'would be able to wield an absolutely despotic power, which

the legislature never intended that it should exercise'. R v

Marsham (above) at 379. It follows that the question is

within the tribunal's own jurisdiction, but with this

difference, that the tribunal's decision about it cannot be

conclusive."

14. Prima facie the Tribunal has Statewide jurisdiction. Thus the chairman needed to determine whether or not the questioned statutory rules restricted or removed that jurisdiction in relation to the relevant road construction. It was submitted by the appellant that although the Tribunal could interpret the statutory rules and decide for itself whether as a matter of construction they applied in any given circumstances, the Tribunal could not look behind the statutory rules and examine their validity. It seems to me that there are two answers to the appellant's submissions. The first is to be found in general principles and the second is apparent from the nature of the statutory functions actually conferred upon the Tribunal.

15. It appears to me that every body, including every tribunal which has a duty to act according to law, must, for the purpose of guiding or moulding its action, satisfy itself as to what the law is, not only for the purpose of satisfying itself that it has jurisdiction to deal with the subject matter of any dispute which it is asked to resolve, but also for the purpose of deciding substantive issues which are raised during the course of any such dispute. In this process such a body will inevitably be required to make "findings" or "determinations" as to the relevant law. Whatever these decisions are called by the body itself, they are not determinations or decisions having the binding force of a court order. Any procedural or substantive error of law made by such a tribunal, if acting judicially, will be reviewable by way of prerogative writ or, more usually in modern times, by direct appeal to a court of law. In Re Adams and The Tax Agents' Board (1976) 12 ALR 239, a decision of Brennan J sitting as president of the Administrative Appeals Tribunal, a decision much relied on by the appellant, his Honour discussed the difficulty and the great inconvenience to the public which may arise from officials acting merely ministerially deciding not to perform their duty on the ground that the obligation cast upon them was unlawful for constitutional or other reasons. His Honour's comments to the effect that such an official would be well advised to seek legal advice rather than forming his own opinion on such matters, fell far short of endorsing the propositions urged upon us by counsel for the appellant. Similarly, the views expressed by Donaldson LJ in R v Camden Rent Officer ex parte Ebiri (1981) 1 WLR 881 at 884, concerning the right of a rent control officer to make a "final and binding" decision as to whether or not a matter referred to him involved a "protected tenancy" has little to do with the present problem. In other cases in which phrases have been used to the effect that it is only a court of law which has power to make a "conclusive", "final" or "binding" decision on a matter of law, it seems that these terms were often used in the sense discussed by Lord Diplock in F Hoffmann-La Roche and Co AG v Secretary of State for Trade and Industry (1975) AC 295 at 365- 366, where, predicating a judgment of a properly constituted court to the effect that a statutory instrument was ultra vires, he said:

"Although such a decision is directly binding only as between

the parties to the proceedings in which it was made, the

application of the doctrine of precedent has the consequence

of enabling the benefit of it to accrue to all other persons

whose legal rights have been interfered with in reliance on

the law which the statutory instrument purported to declare."

16. Had it been necessary for Lord Diplock's purposes he may also have referred to a judicial decision as being binding in the sense of creating an issue estoppel or res judicata in subsequent proceedings between the same parties.

17. There is however another and more obvious sense in which a decision may be "final", "binding" or "conclusive". Decisions of courts or tribunals are "binding" upon the parties to the relevant dispute in this sense if the decision made directly underpins the order or disposition made by the court or tribunal. Such a decision may be subject to appeal or review by some process but the decision is nonetheless "binding" unless the appeal or other comparable process succeeds in overturning the initial determination. Only when all avenues of appeal or review have been exhausted does the determination become unassailable and thus "binding" in an absolute way. It is this sense in which I think Donaldson LJ used the term "binding", in the Camden Rent Officer case. Thus the term "binding" may have a connotation which is dependent upon the context in which it is used and the dicta in the cases referred to by counsel for the appellant fall far short of persuading me that the chairman is unable to consider the statutory rules along the lines foreshadowed by Dr Bates' argument.

18. In Loring v Sandy Bay Developments A1/1991 at 8-9 referring to a jurisdictional point which had been raised before the Interim Planning Appeal Board, I said:

"Nonetheless once the issue was broached the Board should

have determined it as best it could upon the material

available to it. It was not entitled to avoid this

jurisdictional problem and proceed as if it did not exist.

See Parisienne Basket Shoes Pty Ltd v Whyte (1937-38) 59 CLR

369 at 374-375, per Latham CJ. Jurisdictional issues are

always within the province of the body whose jurisdiction is

in question. Furthermore, such issues must be determined

irrespective of whether or not they have been raised in a

ground of appeal, provided it is made to appear that a

genuine jurisdictional question exists."

19. The respondent submits that in the present case the Tribunal was being asked to perform a function no different in any relevant sense from the function which it would have been required to perform if a jurisdictional question has been directly raised before it. I agree with this submission. The validity of the statutory rules was directly relevant to the issue before the Tribunal and it was therefore obliged to consider the matter.

20. The view which I have formed is strongly reinforced by a consideration of some of the relevant provisions of the two Acts previously referred to. The Land Use Planning and Approvals Act, s64, gives the Tribunal power similar to that traditionally exercised only by superior courts. The power is judicial in nature and would be largely negated if, each time an issue as to the law generally, or the legal status of an Act or other instrument such as a statutory rule in particular, was raised before it, the Tribunal was required to refer the issue to the Supreme Court under the Resource Management and Planning Appeal Tribunal Act, s27, as submitted by counsel for the appellant. In my opinion s27 is merely an ancillary method provided to the Tribunal to have a question of law resolved. Significantly s25 of the last mentioned Act provides that a party to an appeal (which by virtue of the Land Use Planning and Approvals Act, s64(11) includes a proceeding under s64) before the Appeal Tribunal, may appeal to the Supreme Court on a question of law from any decision of the Tribunal. Whilst it is possible to envisage questions of law arising even if the Tribunal itself has no power to determine any question of law, eg, its failure to observe the rules of natural justice, there is no reason to construe s25 in such a narrow way. I agree with counsel for the respondent that s25 contemplates that the Tribunal will itself determine questions of law, albeit that its determination will be subject to review in the Supreme Court. I do not see the provisions of the Land Use Planning and Approvals Act, s65 as cutting down the right of appeal provided by the Resource Management and Planning Appeal Tribunal Act, s25. Section 65 provides a slightly different time frame for the lodgement of an appeal under the Land Use Planning and Approvals Act, s64 than that provided for in the Resource Management and Planning Appeal Tribunal Act, s25 but more significantly, it does not limit the right of appeal to questions of law. I can see nothing in these two sections, viewed either separately or collectively, which lends support to the appellant's argument. If it is accepted that the Tribunal has jurisdiction to consider and determine questions of law, there is no basis for distinguishing an issue which involves the validity of a statutory instrument from any other legal question. There has been no decision or pronouncement of any court of binding or persuasive authority which would suggest to me that the Tribunal was unable to entertain and resolve for itself the issues raised by Dr Bates as to the validity of the statutory rules.

CRAWFORD J I concur with the reasons for judgment of Wright J and agree with him that no error was made by the learned judge at first instance.

SLICER J Three parties, including the Wilderness Society, applied by way of summons pursuant to the Land Use Planning and Approvals Act 1993 ("the Act") for an order restraining the construction of roadworks in an area within the Municipalities of Circular Head and Waratah. A temporary order was granted ex parte by the Resource Management and Planning Appeal Tribunal on 9 November 1994. On 10 November Statutory Rule No 167 of 1994 was made pursuant to the provisions of the Act, s4(2), such being published in accordance with the Rules Publication Act 1953 in the Tasmanian Government Gazette on 11 November 1994. Statutory Rule No 167 of 1994 provides:

"3 The Land Use Planning and Approvals Act 1993 does not

apply to any part of the State

(a) declared by proclamation under the Roads and Jetties Act

1935 to be a State highway or a subsidiary road; or

(b) declared by proclamation under the Roads and Jetties Act

1935 to be the intended new line of a State highway or

subsidiary road; or

(c) declared by proclamation under the Roads and Jetties Act

1935 to be the intended line of a new State highway or

subsidiary road; or

(d) purchased or taken for a State highway or subsidiary

road."

2. Further Statutory Rules Nos 170 and 171 of 1994 were made to permit the continuation of the roadworks. The purport of Statutory Rule No 167 of 1994 was to remove from the Tribunal any jurisdiction with respect to the proposed road construction. Statutory Rule No 170 of 1994 revoked a proclamation made in 1986 under the Roads and Jetties Act 1935 relating to the area of roadworks and Statutory Rule No 171 of 1994 proclaimed a new intended line of the road. The applicants contended that Statutory Rules 167 and 171 were invalid and that accordingly the Tribunal retained jurisdiction. In the course of legal submissions made concerning the applicability of the statutory rules, the chairman of the Tribunal "indicated that he regarded himself as having jurisdiction to rule on the matter of the validity of the statutory rules before him".

3. An application for prerogative relief was made on 24 November, and an order nisi directed to the Attorney-General granted on 25 November. The order, returned on 19 December 1994, was discharged on that date. The Attorney-General appealed to the Full Court against that order.

4. The question raised by the appeal is whether a statutory tribunal possesses jurisdiction to determine the validity of a statutory instrument purporting to remove or limit the power of a tribunal which, but for that instrument, is the appropriate forum for the determination of the issue under consideration.

5. The Land Use Planning and Approvals Act 1993, s4 provides:

"(1) This Act binds the Crown in right of Tasmania and, so

far as the legislative power of Parliament permits, in all

its other capacities.

(2) Subject to subsection (3), this Act applies to all parts

of the State except such parts as may from time to time be

prescribed in the regulations."

6. Section 5 requires "any person on whom a function is imposed or a power is conferred ... to perform the function or exercise the power in such a manner as to further the objectives set out in Schedule 1", whilst those objectives include:

"1 ...

(e) to promote the sharing of responsibility for resource

management and planning between the different spheres of

Government, the community and industry in the State."

7. Although the responsibility for appointment remains with the Executive (eg, the Act, s9(1)(c), (d), (e) and (2)) and the Minister has directive power (eg, the Act, s11), a tribunal or panel acting in accordance with the Act derives its power from Parliament and is responsible to meet statutory responsibilities to both Parliament and the Executive. It must comply with the legitimate requirements of the Executive, but that legitimacy is in turn dependent upon power afforded by the Parliament.

8. The power to make regulations afforded by the Act, s87 is expressed in extensive form.

9. The Resource Management and Planning Appeal Tribunal Act 1993 ("the Tribunal Act") provides for the establishment of a Resource Management and Appeal Tribunal (s5(1)) with "such jurisdiction as may be conferred ... by any other Act" (s5(2)). Schedule 2 of that Act limits the term of appointment of a member of the Tribunal to five years, with provision for re-appointment. The Tribunal is afforded certain powers as to costs (s28), and penalties are provided in circumstances of obstruction or failure to attend (ss30, 31, 32 and 34), but the enforcement of an order for costs (s28(3) and (4)) or contempt proceedings (s33) must be taken in a court of competent jurisdiction.

10. The powers of the Tribunal relevant to this appeal are afforded by the Act, Pt4, Div3 and Div4. Those powers include an order to:

"... require the respondent to refrain, either temporarily or

permanently, from the act, or course of action, that

constitutes the contravention of, or failure to comply with,

this Part;" (s64(1)(c)

"... in order to preserve the rights or interests of parties

to the proceedings or for any other reason, it is desirable

to make a temporary order under this section, the Appeal

Tribunal may at any time during those proceedings make such

an order." (s64(5)).

11. An appeal lies to the Supreme Court by virtue of the Act, s65.

12. The status and jurisdiction of the Tribunal can be categorised as follows:

- It is not a judicial body in the sense that it is a

court.

- It possesses only those powers granted by statute.

- It possesses limited powers of enforcement but has the

ability to determine (subject to statute) its practice and

procedure.

- It is afforded discretion (eg, the Tribunal Act, s22).

- Some powers and functions are judicial in nature whilst

others can be characterised as administrative.

- In the exercise of its functions, it is required to act in

accordance with the expression of Parliament. The Executive

is likewise afforded powers by Parliament, but the grant of

executive power does not permit an abrogation of the duty to

comply with the expression of the legislature.

13. Central to the position taken by the Attorney-General is the contention that since the Tribunal is not a judicial body, it can never determine its own validity or jurisdiction. It is claimed that only the courts possess power to rule delegated legislation invalid. Two limitations must be imposed to that contention.

14. The first is that there is a distinction between the exercise of judicial power (ie, methodology, procedure and determination) and the effective translation of that exercise of power (enforcement). As was said in the joint judgment of Mason CJ, Brennan and Toohey JJ in Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 69 ALJR 191 at 197:

"The determination involves an exercise of such power not

simply because it is made by a court but because the

determination is made by reference to the application of

principles and standards 'supposed already to exist' (Prentis

v Atlantic Coast Line [1908] USSC 160; (1908) 211 US 210 at 226 per Holmes J).

... Consequently, even if the determination in such a case

were to be made by an administrative tribunal and not by a

court, the determination would constitute an exercise of

judicial power, although not one in conformity with ChIII of

the Constitution."

15. The second limitation arises in cases where the exercise of power purports to be external to the operation of the Tribunal. A Tribunal may not be able to pronounce on the validity of legislation extraneous to its charter and the effect of any pronouncement may not amount to an enforceable declaration or determination. But it does not follow that it is prevented from examining and pronouncing on its own jurisdiction. An examination of the legislation under consideration illustrates that distinction. The Act, s4(2) states that the Act "applies to all parts of the State except such parts as may from time to time be prescribed in the regulations", whilst subs(3) provides:

"Part 3 of this Act does not apply to public land, within the

meaning of the Public Land (Administration and Forests) Act

1991, that is the subject of a reference to the Public Land

Use Commission."

16. The Tribunal would be required to determine whether:

- the land was public land;

- it came within the ambit of an Act of Parliament; and

- a valid reference had been made

before it could decide whether there existed a valid planning scheme which was the subject of proceedings within the Act, Pt 4, Div3 and Div4. Its jurisdiction would depend on an examination of the land in question and a determination of its status. Indeed, the Attorney-General did not contend "that the Tribunal cannot examine the terms of the Statutory Rules to determine if they apply to the land in question and exempt that land from the Act".

17. If the Tribunal is required to examine the contents of a statutory rule to ascertain jurisdiction, it is difficult to discern a stage at which it could not examine the totality of that statutory rule in order to determine its extrinsic validity. If, for example, a statutory instrument purporting to exempt land had never been proclaimed or published according to law, then jurisdiction would not be ousted. In such a case, the Tribunal would be required to examine the necessary formalities in order to determine the validity of the instrument.

18. During the course of proceedings before the Tribunal, an application was made for a reference to be made to the Supreme Court in accordance with the Tribunal Act, s27. It was contended that such a reference was the appropriate method for the determination of the validity of the statutory rule and its effect on jurisdiction. But, consistent with that approach, no reference could be made since the Tribunal lacked all jurisdiction. On the position adopted by the Attorney-General, once Statutory Rule No 167 of 1994 was proclaimed and published, the Tribunal could neither entertain nor proceed with an existing application. But such a process would still involve a determination that there existed a statutory instrument in proper form, the effect of which was to bring to an end existing proceedings. That process, in itself, requires the existence of jurisdiction in order to determine that it has been withdrawn. The converse is valid. If in considering the import of the statutory instrument the Tribunal concludes that the instrument is invalid, then it is exercising the same jurisdiction as is required to bring the proceedings to an end.

19. That question was addressed by Wright J in Loring v Sandy Bay Developments A1/1991 where his Honour stated at 8:

"Nonetheless once the issue was broached the Board should

have determined it as best it could upon the material

available to it. It was not entitled to avoid this

jurisdictional problem and proceed as if it did not exist.

See Parisienne Basket Shoes Pty Ltd v Whyte (1937-38) 59 CLR

369 at pp374-375, per Latham CJ. Jurisdictional issues are

always within the province of the body whose jurisdiction is

in question. Furthermore, such issues must be determined

irrespective of whether or not they have been raised in a

ground of appeal provided it is made to appear that a genuine

jurisdictional question exists."

20. It is necessary for a Tribunal, required to act in accordance with the judicial process, to consider its jurisdictional basis. But that conclusion does not necessarily preclude a limitation to the extent of that consideration. Brennan J in Re Adams and The Tax Agents Board (1976) 12 ALR 239 at 241 referred to the distinction between an opinion as to a law and a declaration of that law in the following terms:

"It follows that neither the Tribunal nor the Board can give

a definitive answer to the question of constitutional

validity. It is one thing to deny to the Tribunal and the

Board the power definitively to answer the question; it is

another thing to deny their competence to consider and to

reach an opinion on the question. An opinion formed by an

administrative body on such a question does not, however,

produce any effect in point of law. It is incapable of

adding to or subtracting from any authority, or purported

authority, conferred by the challenged statute. It is

incapable of affecting any legal requirement as to the

exercise of an authority actually conferred upon the

administrative body."

21. The approach taken by Brennan J is consistent with that taken by Dixon J in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 when, in dealing with a power of a statutory board to determine the meaning of a statutory phrase upon which its jurisdiction depended, he observed at 618:

"I do not mean to say that the Board may not, for the purpose

of determining its own action, 'decide' in the sense of

forming an opinion upon the meaning and application of the

words 'coal mining industry'. It must make up its mind

whether this or that particular function on the borders of

the coal mining industry does or does not fall within the

conception."

22. It would be open, on a narrow approach, for the Tribunal to consider the textual meaning of Statutory Rule No 167 of 1994 to determine whether its wording excluded jurisdiction and whether the description of the lands purported to be excluded were adequately defined and in fact comprised or included the lands which were the subject of the application. But the argument advanced on behalf of the Attorney-General was that no such questions were involved. Instead the Tribunal was embarking on an exercise of determining jurisdiction on the basis that the limitation was beyond power. It was undertaking a process of interpretation by reference to instruments of legislation and the application of legal principles which were external to the Statutory Rule. There is good reason to limit the extent to which an administrative body can embark on a wide ranging review of constitutional and administrative law in order to obtain jurisdiction. As Brennan J, in Re Adams (supra) at 242, observed:

"An administrative body cannot therefore lawfully exercise

authority merely because it is of the opinion that it has the

authority. Its opinion is not the charter of its powers and

discretions. It derives its powers and discretions from and

in accordance with the law. It is the court's judgment and

not the administrative body's opinion which defines the

extent of (as well as the constitutional support for) its

statutory authority."

23. A Tribunal should pay regard to its legislative charter and examine the validity of that charter, in order to determine its own conduct. Its approach is that of an endeavour to give effect to the will of the legislature. In cases where a statute affords power an administrative body should refrain from challenging the grant of power only in a case of patent invalidity. In cases where a statute derogates power, an administrative body should examine whether the derogation is lawful in accordance with the powers possessed by the particular legislature. It ought not to use its interpretation of other statutes as a construct to avoid the derogation.

24. In considering the validity of Statutory Rule No 167 of 1994 the Tribunal was entitled to consider whether the exercise of executive power was within the power granted by the Parliament. The power of the Executive was limited by an act of Parliament. As Brennan J observed in Re Adams (supra) at 243:

"The problem is one which can arise only where the power of

the legislature is limited. It does not arise where, as in

the United Kingdom, Parliament may constitutionally exercise

plenary power."

25. Statutory Rule No 167 of 1994 purported to exclude significant but widely defined lands. The Executive gave effect to its power to make regulations in embracing terms in the following form:

"3 The Land Use Planning and Approvals Act 1993 does not

apply to any part of the State

(a) declared by proclamation under the Roads and Jetties Act

1935 to be a State highway or a subsidiary road; or

(b) declared by proclamation under the Roads and Jetties Act

1935 to be the intended new line of a State highway or

subsidiary road; or

(c) declared by proclamation under the Roads and Jetties Act

1935 to be the intended line of a new State highway or

subsidiary road; or

(d) purchased or taken for a State highway or subsidiary

road."

26. That may or may not have been a valid exercise of power. The question is whether it was a power afforded by the legislature. That question could be determined by the Tribunal by reference to the judicial method of the interpretation of subordinate legislation.

27. That the Resource Management and Planning Appeal Tribunal was entitled to consider the provisions of Statutory Rules Nos 167 and 171 of 1994 in order to determine whether such Statutory Rules validly precluded the Tribunal from proceeding with the application with respect to the land described in the Statutory Rule.