Attorney-General of Tasmania v Stephen Peter Estcourt and the Wilderness Society Inc [1995] TASSC 65;

Attorney-General of Tasmania v Stephen Peter Estcourt and the Wilderness Society Inc [1995] TASSC 65; - TASSC 1995 case summary — Zoe

[18]

"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."

[29]

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:

[36]

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.

At a glance

Court

Decision date

Before

Source

Judgment (80 paragraphs)

Attorney-General of Tasmania v Stephen Peter Estcourt and the Wilderness Society Inc [1995] TASSC 65; (1995) 4 Tas R 355 (8 June 1995)

Parties

Legislation Cited (5)

Cases Cited (7)