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[1997] HCA 10
High Court of Australia
1997-03-18
Kirby JJ, Drummond J, Cooper J
Original judgment source is linked above.
High Court of Australia Dawson, Gaudron, McHugh, Gummow and Kirby JJ Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10
(e) An entry may be made by the Australian Heritage Commission pursuant to s 23 of the Australian Heritage Commission Act 1975 Cth, in the Register of the National Estate of any place that the Australian Heritage Commission determines, according to law, is part of the national estate as that term is defined in the Act.
18 March 1997 Dawson, Gaudron, McHugh, Gummow and Kirby JJ
The Court delivered the following written judgment: -
The appellant, the Australian Heritage Commission (the Commission), was established by s 6 of the Australian Heritage Commission Act 1975 Cth (the Act). Part IV (ss 22-27) is headed " The Register of the National Estate ". Section 22 requires the Commission to keep a register to be known as the Register of the National Estate (the Register). Section 23 provides that, subject to certain matters to which further reference will be necessary in these reasons, the Commission shall enter in the Register a place that is not in the Register "where the Commission considers" that the place "should be recorded as part of the national estate".
On 30 June 1994, the Commission resolved to enter in the Register an area comprising the Sir Edward Pellew Group of islands, a nearby strip of mainland coast and the adjacent waters in the Gulf of Carpentaria, an area of approximately 300,000 ha. The respondent, Mount Isa Mines Ltd (MIM), which is a person aggrieved by this decision, instituted a proceeding in the Federal Court of Australia seeking judicial review. The application by MIM did not, on its face, contain an averment of the jurisdictional basis of the proceeding. However, it is apparent, and accepted by the parties, that what was sought was relief under the Administrative Decisions (Judicial Review) Act 1977 Cth (the AD(JR) Act).
A judge of the Federal Court (Cooper J) ordered that certain questions be decided separately before trial. At first instance, those questions were considered by Drummond J [1] . One of these (question (e)) was in the following terms:
Whether, on the true construction of the Act, an entry may be made by [the Commission], pursuant to s 23 of the Act, in the Register of any place within the meaning of the Act which [the Commission] considers should be so recorded or whether only a particular place which, objectively, answers the description in s 4 of that Act can be so recorded? 1. Mount Isa Mines Ltd v Australian Heritage Commission (1995) 56 FCR 219.
Section 4 declares that for the purposes of the statute the national estate consists of "places" having certain "aesthetic, historic, scientific or social significance or other special value" [2] . The term "place" is defined in s 3(1) of the Act so as to include a site, area or region and buildings or other structures. In the present proceeding, Drummond J answered another question [3] by determining that an area of the surface of the earth identified by metes and bounds cannot, without more, be a "place" within the meaning in the Act [4] . Before this Court there is no dispute as to the meaning or application of the term "place". The dispute turns upon whether, there being a place not in the Register, the Commission fell into reviewable error in its consideration that the place should be recorded as part of the national estate.
From a consideration of the definition of national estate in s 4, two observations of significance for the present case may be made at this stage. The first is that the term "national estate" is an artificial construct, whose existence, as the opening words of s 4(1) make plain, is "[f]or the purposes of this Act". The second is that, given the terms of s 4, particularly sub-s (1A), any consideration of whether a particular place is included in the national estate would involve matters of opinion and degree, making it difficult to show that the decision-maker has erred in such a fashion as to attract judicial review [5] .
In its appeal to this Court, the Commission contends that the correct answer to question (e) is as follows:
An entry may be made by [the Commission], pursuant to s 23 of the Act, in the Register of any place that [the Commission] determines, according to law, is part of the national estate as that term is defined in the Act. This was the answer given in his dissenting judgment by Black CJ in the Full Court of the Federal Court [6] . It reflects an unease with the terms in which question (e) is drawn, a matter to which it will be necessary to make further reference later in these reasons. 1. Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 468.
At first instance, Drummond J had answered question (e) as follows [7] :
That a place which [the Commission] intends to enter in the Register objectively answers the description in s 4 of the Act is a fact upon which the jurisdiction of [the Commission] to make a decision to so enter the place depends. In the Full Court, the majority (Beaumont and Beazley JJ) varied the answer given by Drummond J so as to provide this answer [8] : [The Commission] has the power, and in some circumstances, the duty to enter a place in the Register if that place answers the description in s 4 of the Act. The status of a particular place as one having significance or other special value for future generations as well as for the present community, as provided in s 4, is an objective fact, ascertainable by reference to its qualities. In ascertaining whether a particular place has those qualities, [the Commission] is bound to make an evaluation of the particular place which will involve matters of judgment and degree. 1. Mount Isa Mines (1995) 56 FCR 219 at 234. 2. Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 482.
In resisting the appeal by the Commission to this Court, MIM submits that Pt IV does not provide for the listing of places identified by the Commission as part of the national estate; rather, it provides for the listing of places which are part of the national estate and which the Commission, giving utmost consideration to the significance of the place in question as part of the national estate, considers should be registered so as to attract the protection of the Act. It is said that Pt IV assumes that "in truth" the place in question is part of the national estate and then prescribes a decision-making process which depends upon that preliminary or "jurisdictional" fact. The consequence is said to be that "it is competent to the Courts of law, in appropriate proceedings, to inquire into and determine whether [that fact does] exist" [9] .
On the other side, the Commission emphasises that s 23(1) of the Act requires it to enter the place in question in the Register where it considers that the place should be recorded as part of the national estate. The Commission submits that the legislature has not made the authority of the Commission under s 23(1) contingent upon the actual existence of a state of fact, as distinguished from the opinion or determination of the Commission that the facts do exist [10] . It contends that s 23(1) is one of that category of laws whose operation is made conditional upon the opinion or satisfaction as to certain matters of a designated authority or person, with the consequence that the merits of the matter are not examinable upon judicial review. There is no reviewable error simply in making a wrong finding of fact [11] .
Judicial review may be available in such a case at general law or under s 75(V) of the Constitution on the grounds expressed in numerous authorities. These include the judgment of Gibbs J in Buck v Bavone [12] . In respect of a decision to which the AD(JR) Act applies, s 5(1) of that Act provides for an order of review on various grounds, set out in pars (a)-(j), and in the case of pars (e) and (h) elaborated by s 5(2) and s 5(3) respectively. These include grounds that the person who purported to make the decision did not have jurisdiction to make it (par (c)), that the decision was not authorised by the enactment in pursuance of which it was purported to be made (par (d)), and that the decision involved an error of law (par (f)). It is upon these grounds that MIM founds its case here.
It should be noted that in this Court MIM does not contend there was no evidence or other material to justify the making of the decision by the Commission (ss 5(1)(h), 5(3) of the AD(JR) Act) or that the making of the decision was an improper exercise of power, being so unreasonable that no reasonable person could have so exercised the power (ss 5(1)(e), 5(2)(g)). Rather, MIM seeks to demonstrate that the Commission did not have jurisdiction to make its decision, that the decision was not authorised by the Act or that the decision involved an error of law, within the meaning of the respective pars (c), (d) and (f) in s 5(1) of the AD(JR) Act. The Commission submits that it fell into no such error.
In our view, the submissions of the Commission should be accepted, with the consequence that in the Full Court the matter should have been disposed of in the manner indicated in the dissenting judgment of Black CJ. The Commission correctly contends that question (e) was ill-drawn and suggests a false dichotomy between, on the one hand, a place which "objectively answers" the description in s 4 and, on the other, a place which the Commission considers should be recorded as part of the national estate. Nevertheless, the Commission supports the answer given by Black CJ [13] .
Black CJ concluded that the power of the Commission to enter a place upon the Register depended upon the Commission's own view of the matter rather than the "objective" ascertainment of a "jurisdictional fact", namely the identity of the place in question as part of the national estate. His Honour concluded [14] :
In determining, according to law, whether or not a place is part of the national estate, the Commission will of course need to make a proper assessment to determine whether a place is, in fact, within the definition of the national estate in s 4. In doing so it will need to make assessments and value judgments but its ultimate task is to determine whether, in fact, a place is within the definition. The final determination of that question is however one that is committed by the Act to the Commission. It is not, in my view, a jurisdictional fact. 1. Australian Heritage Commission (1995) 60 FCR 456 at 468.
It is convenient to consider two points relating to the framework of the Act.
The first concerns the consequences of entry of a place in the Register. These appear principally from Pt V and Pt VA of the Act. They are of great significance for the administration of the laws of the Commonwealth and are significant also for the financial relations between the Commonwealth, the States and internal Territories.
Part V (ss 28-31) is headed " Protection of the National Estate ". Section 30(1) imposes certain obligations upon each Minister with respect to the Department that Minister administers [15] and any authority of the Commonwealth [16] in respect of which the Minister has ministerial responsibilities. Those obligations are to give such directions and do all such things as, consistently with any relevant laws, can be given or done by the Minister for ensuring that the Department and any such authority do not take any action that adversely affects, as part of the national estate, a place that is in the Register, unless the Minister attains a certain state of satisfaction. This is that there is no feasible and prudent alternative to the taking of the action in question and that all measures that can reasonably be taken to minimise the adverse effect will be taken. Further, the Minister is obliged not to take any such action on his or her part unless so satisfied.
Section 30(2) is directed to authorities of the Commonwealth. It requires an authority not to take any action that adversely affects, as part of the national estate, a place that is in the Register unless the authority be satisfied that there is no feasible and prudent alternative, consistent with any relevant laws, to the taking of that action and that all measures that can reasonably be taken to minimise the adverse effect will be taken.
Before a Minister, a Department or an authority of the Commonwealth takes any action which might affect to a significant extent, as part of the national estate, a place that is in the Register, s 30(3) imposes an obligation to inform the Commission of the proposed action and to give to the Commission a reasonable opportunity to consider and comment upon it.
The phrase "take any action" appears in sub-ss (1), (2) and (3) of s 30. For the purposes of those sub-sections, the making of a decision or a recommendation (including a recommendation in relation to direct financial assistance granted, or proposed to be granted to a State), the approval of a programme, the issue of a licence or the granting of a permission are deemed to be the taking of action (s 30(4)).
Part VA (ss 31A-31E) is headed " National Estate Grants Program ". It was inserted by the Australian Heritage Commission Amendment Act 1990 Cth. It provides for financial assistance, out of money appropriated by the Parliament for the purpose, to a State, an internal Territory or an approved body in respect of "National Estate projects". This term is defined in s 3(1) so as to include the identification of a place included in the national estate and the conservation, improvement or presentation of a place entered in the Register.
The second aspect of the statutory scheme requiring further comment is the procedures for the entry of places in the Register and the maintenance of the Register. Section 23(2) requires the Commission not to enter a place in the Register unless public notice of its intention to do so has been given and due consideration has been given to any written objections to that course which have been received in response to that notification. If, after the giving of public notice of its intention but before entry, the Commission "becomes of the opinion" that the place in question should not be recorded as part of the national estate, the Commission is obliged by s 23(3) to give public notice that it has decided not to make the entry. Should written objection to this course then be received, the Commission is obliged to reconsider its decision, giving due consideration to the objection (s 23(3)). In addition to the public notice provisions, the Commission is obliged by s 23A to give notice of its intention to enter a place in the Register to the local government authority for the area in which the place is situated and to all owners of real property situated at that place. Finally, the Minister may appoint assessors to assist and advise the Commission in its consideration of any written objection made in accordance with s 23(2) (s 23B).
Section 24 deals with the removal of a place from the Register. The Commission may, of its own motion, inquire whether a place or part of a place that is in the Register is to continue to be recorded as part of the national estate (s 24(1)(a)). The Commission must so inquire if directed by the Minister (s 24(1)(b)). Where, after inquiring into the matter, the Commission "considers that" a place or part of a place that is in the Register should not be so recorded, the Commission must remove it from the Register (s 24(1A)) and give public notice thereof (s 24(3)). However, the Commission is required not to remove a place from the Register in accordance with s 24(1A) unless it has given public notice of its intention to do so and has given due consideration to written objections to that course which have been received by it (s 24(2)).
In certain circumstances, the Minister is empowered by s 25 to direct the Commission to enter a place in the Register (s 25(2)), not to enter a place in the Register without the consent of the Minister (s 25(3)), not to remove a place from the Register without the consent of the Minister (s 25(4)), and to remove a place from the Register (s 25(5)).
The construction of the Act proposed by MIM would produce the result that, notwithstanding the detailed provisions made in this legislation for the giving of public notices and the receipt and consideration of objections, and notwithstanding the significant steps which may have been taken in public administration for a wide variety of laws by reason of the existence of an entry in the Register, a decision of the Commission to register will at all relevant times remain liable to challenge for absence of the requisite "jurisdictional fact" to enliven the obligation of the Commission to make the entry.
Those detailed mechanisms for public consultation and consideration by the Commission provide guidance on the ultimate issue in this litigation. They suggest that, on the proper construction of the Act, the Commission is given the power conclusively to determine whether or not a place should be recorded as part of the national estate and its determination of that question is not subject to review provided the Commission otherwise conducts itself in accordance with the law [17] .
The crucial provisions for the present litigation are found in Pt IV, in certain sub-sections of s 22 and in s 23(1). The text is as follows:
22(1) The Commission shall keep a register, to be known as the Register of the National Estate, in which will be listed places included in the national estate.
(2) A place shall not be entered in the Register otherwise than in accordance with section 23 or subsection 25(2).
(3) The Commission shall enter a place in the Register by causing to be entered in the Register a description of the place sufficient to identify it and the date on which the entry is made.
(4) A place shall not be removed from the Register otherwise than in accordance with section 24 or subsection 25(5).
23(1) Subject to this section and to section 25, where the Commission considers that a place that is not in the Register should be recorded as part of the national estate it shall enter the place in the Register.
MIM also relies upon s 7 of the Act. This lists what it identifies as the functions of the Commission. These include (s 7(c)):
to identify places included in the national estate and to prepare a register of those places in accordance with Part IV. Section 7 is included in Pt II (ss 6-10) which deals with the establishment, functions and powers of the Commission. Section 10 empowers the Commission to do all things that are necessary or convenient to be done for or in connection with the performance of the functions [18] . Section 7(c) does not assist the conclusion for which MIM contends as to the construction of ss 22 and 23. Rather, par (c) describes, in short form, the involvement of the Commission in the procedures and processes for which provision is made in Pt IV. The phrase in par (c) "in accordance with Part IV" is descriptive of all of those procedures and processes, not merely so much of the paragraph as refers to the preparation of the Register. The paragraph conveys a compound notion, expressed, as was suggested in argument, as a hendiadys. 1. cf Kathleen Investments (Aust) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117.
Section 22(1) obliges the Commission to keep the Register "in which will be listed places included in the national estate" (emphasis added). MIM submitted that the use of the participle "included" indicated that what was to be listed in the Register were places which, as a matter of objective fact, answered the definition of national estate in s 4. That submission should not be accepted. Rather, the term "included" is employed in s 22(1) to identify those places which from time to time are entered in compliance with the injunction in s 22(2) that places are not to be entered otherwise than in accordance with s 23 or s 25(2). In this way, "included" is to be taken as "constantly speaking in the present" [19] .
The point may be illustrated with reference to s 25(2) which we have referred to earlier in these reasons. The text of that section may be compared with s 23(1) and is as follows:
Where, after considering an environment report in relation to a place that is not in the Register, the Minister is satisfied that the place should be recorded as part of the national estate, the Minister may direct the Commission to enter that place in the Register, and the Commission shall comply with that direction and shall not remove that place from the Register without the consent of the Minister. In circumstances where the Minister attains the requisite satisfaction referred to in s 25(2) and gives the appropriate direction to the Commission, then, upon compliance with that direction, the place is recorded as part of the national estate. Section 22(1) then speaks to that situation, namely to the Commission keeping a register in which there is listed the place in question as one included in the national estate by reason of the direction of the Minister under s 25(2).
Section 22(1) relates in corresponding fashion to places entered in the Register in accordance with s 23. Section 23(1) requires (i) a place; (ii) that is not in the Register; and (iii) which the Commission considers should be recorded as part of the national estate. As indicated earlier in these reasons, there is no dispute before this Court as to the satisfaction of (i) and (ii). The remaining requirement, the consideration of any matter by the Commission, turns upon the satisfaction that the place should be recorded as answering the complex description of national estate in s 4. The decision reached by the Commission is not entirely immune from judicial review. The various grounds under s 5(1) of the AD(JR) Act which may be presented in a particular case are considered earlier in these reasons. However, those grounds do not include re-opening of the merits of the decision reached by the Commission on a ground which in substance expresses a contention that there was an absence of jurisdictional fact.
The appeal should be allowed with costs. Order 1 made by the Full Court of the Federal Court on 24 November 1995 should be set aside. In place thereof it should be ordered that the answer given by Drummond J to question (e) should be set aside and replaced by an answer in the following terms:
(e) An entry may be made by the Australian Heritage Commission pursuant to s 23 of the Australian Heritage Commission Act 1975 Cth, in the Register of the National Estate of any place that the Australian Heritage Commission determines, according to law, is part of the national estate as that term is defined in the Act.
The appeal to the Full Court by the Commission was not confined to the issue before this Court, namely that concerning the answer to question (e). By its Order 1, the Full Court gave, as we have indicated, a different answer to question (e) from that given by Drummond J and by Order 2 it provided that otherwise the appeal be dismissed. Drummond J had ordered "[c]osts of the hearing are costs in the proceeding". The Full Court did not set aside that order. However, Order 3 of its orders reserved liberty to either party to apply in writing for costs within twenty-eight days of the publication of its reasons. Order 3 should be varied so as to reserve liberty to either party to apply in writing to the Full Federal Court for costs in that Court within twenty-eight days of the publication of the reasons of this Court. In dealing with any such application, the Full Court will take into account the success of the appeal to this Court with respect to Order 1 of its orders.
Australian Heritage Commission
Mount Isa Mines Ltd
(1995) 56 FCR 219
(1976) 135 CLR 110
(1995) 60 FCR 456
(1925) 35 CLR 404
(1938) 59 CLR 369
(1987) 163 CLR 54
(1990) 170 CLR 321
(1996) 185 CLR 259
(1996) 187 CLR 1
(1977) 139 CLR 117
(1929) 42 CLR 481
(1954) 90 CLR 13