Department of Environment, Climate Change and Water v November Foxtrot Sierra Pty Limited

Judgment 1A departmental officer, Katrina O'Reilly, issued a Direction under section 21B(1)(b) of the Water Act 1912 (NSW) on the defendant company to remove a dam wall within 30 days. The defendant failed to comply with the Direction. The defendant was charged with failing to comply with the Direction given to it by the Water Administration Ministerial Corporation. The case was listed for hearing on 1 February 2011. At the hearing a preliminary point of law was raised by the defendant about the delegation, pursuant to which the Direction was given by the officer. An agreed Brief of Materials was handed up in the Court by the parties and submissions made on the legal question. 2The Instrument of Delegation was signed by the Minister on 14 August 2004 and it delegated certain powers and functions on behalf of the Water Administration Ministerial Corporation, pursuant to section 377 of the Water Management Act 2000. Powers were delegated "to members of staff of the Department ... holding (on a permanent, temporary or acting basis) the positions specified in the Delegates Column". Table B to the Instrument described staff groupings by reference to 'Levels 1 to 6' and to whom the staff groupings reported by reference to the next 'level'. Section 377 provides that "The Ministerial Corporation may delegate to any person the exercise of its functions, other than this power of delegation". No issue was taken about the Minister's power to sign the Instrument of Delegation. 3The defendant company submitted that the delegation was unlawful because it did not comply with section 49 of the Interpretation Act 1987. Section 49(1) provides: If an Act or Instrument confers a power on any person to delegate a function, the person or body may, in accordance with the Act or Instrument, delegate the function to a person or body by name or to a particular officer or the holder of a particular office by reference to the title of the officer concerned. 4The delegation in this case did not specify the person or body by name and, with the exception of the Director General, did not specify a particular officer or a holder of particular office by reference to the title of the office. The defendant contends that the provisions of the Interpretation Act 1987 have not been excluded from applying to delegations under the Water Act 1912. The provision referred to by the defendant amounted to a codification of the Common Law as expressed in Owerdale Pty Ltd v Anthony [1967] HCA 52. 5In that case Windeyer J, when referring to the validity of a purported delegation to an unnamed person described as the holder of a specified office, said at [61]: ... there might perhaps have been some room for argument, were it not for the decision of Starke J. in Noble and Bear v. The Commonwealth (1943) 17 ALJ 184. Since then, delegations to the holders of specified offices have become commonplace in the administrative system of the Commonwealth; and provided that there be an identifiable person the holder of the office, I consider they are a valid exercise of a statutory power to delegate "to any person". 6References were also made by the defendant's Counsel to Roehrich v NSW Medical Board [2004] NSWSC 1264 and to Bhatia v NSW Medical Board [2007] NSWSC 1316, which he distinguished on the facts from the case before the Court. 7The prosecution submits that section 49 of the Interpretation Act 1987 does not apply in this situation and the Delegation was a valid exercise of the power embodied in section 377 of the Water Act 1912. Reference was made to the presumption in section 153(3) of the Evidence Act 1995 which says that "if a document purports to have been signed by an office holder in his or her official capacity, it is presumed, unless the contrary is proved, that the document was signed by the office holder in that capacity and the office holder held the valid office when the document was signed". The Minister can delegate to "any person" the powers and functions contained in the Water Act 1912. No qualifications on the power apply. On this basis the prosecutor contends the delegation was lawful, if the Court is against this preliminary submission, the prosecutor's Counsel contended that the Delegation complied in any event with section 49 of the Interpretation Act 1987 having regard to the definitions and their provisions in that Act. 8The Interpretation Act 1987 applies to all Acts and Instruments whether enacted before or after its commencement (section 5(1)), except insofar as the contrary intention appears in the Interpretation Act 1987 or in the Act or Instrument concerned (section 5(2)). Reference to an officer, office or statutory body in any Act or Instrument is a reference to such an entity or person in and for the State of NSW (section 12(1)). The word "person" is defined to include an "individual, a corporation or body corporate or politic". "Individual" means a natural person. "Office" includes a position (section 21). Using these provisions, the prosecutor contends that the provisions of section 49 of the Interpretation Act 1987 were complied with, in any event. 9There was agreement between the parties that a common sense approach should be taken by the interpretation of legislative provisions, having regard to the purpose of the legislation. Reference was made to the judgment of Justice Basten in DPP v Yigit [2008] NSWCA 226. Reference was made by the Court to a paper on statutory interpretation by the Chief Justice of NSW, the Hon JJ Spigelman AC, on the "Intolerable Wrestle" (September 2010). 10The Second Reading Speech to the Interpretation Act 1987 explains that one objective of that legislation was to give effect to the notion that the purpose of the legislation should be considered in its construction. In relevant part, the Second Reading Speech contains the following: The last comment I wish to make about the provisions of the Bill is that it contains a number of provisions designed to shorten Acts and Statutory Rules. These are standard provisions which would otherwise have to be repeated in individual Acts. An example is Clause 49 of the Bill which contains a standard delegation provision. The inclusion of these provisions in the Bill does not, of course, prevent Acts and Statutory Rules from adopting different provisions where this is considered necessary. It simply means that in the cases where these provisions are appropriate they will apply automatically without having to be repeated. (Legislative Assembly NSW Parliament 3 December 1986, 7924) 11The Court has examined the Second Reading Speech and Explanatory Memorandum to the Water Management Bill 2000. There is nothing, however, in either document which assists to better understand the relevant delegation power in the Act and how wide it is intended to be. However, the Act does not in its terms exclude the application of the Interpretation Act 1987. 12The Court understands that the officer, Katrina O'Reilly, who issued the Direction pursuant to the delegated powers was a Level 3 member of staff who reported to a Level 2 position as stipulated in Table B of the Instrument Delegation. The Delegation provides that a Level 3 officer can issue direction under section 21B of the Water Act 1912. 13Powers of delegation must be exercised carefully to ensure that Instruments of Delegation are lawful. The Instrument should identify those officers and/or persons to whom power is delegated with some precision and the delegation must be made by a person who can exercise the power. In this case, the issue is whether the delegation in 2004 by the Minister describes the delegatees with sufficient precision. The prosecution contends the delegation is lawful but the defendant company submits otherwise. 14The presumption in section 150 of the Evidence Act would apply to the case before the Court but not where the defendant company establishes that the delegation made in 2004 was not lawful. If section 49 of the Interpretation Act 1987 prevails and governs the exercise of the power to delegate in section 377 of the Water Management Act 2004, it is arguable that the description of the delegatees in the Instrument of Delegation is unlawful. The prosecutor, though, argued that the delegation complies with section 49 of the Interpretation Act 1987. In that Act reference to an "officer or office" includes a reference to a "person". A "person" is defined to include an "individual". An "individual" means a "natural person". The staff falling within the levels stipulated in the Minister's delegation are natural persons and by a process of deduction fall within the designation of "officer or office". However, section 49 makes references to the office and/or officers and requires the officer or the title of the office to be named. The 2004 delegation does not do this except insofar as it refers to the Director General. The delegation refers to staff in levels and, while officers falling within these levels may be easily discovered, reference to levels of staff in the context of reporting relationships is not a reference to the title of officers. So, it is argued by the defendant company that the delegation is not lawful and the charge against the defendant company must fail. 15The Court prefers a different interpretation. The power of delegation exercisable by the Minister under section 377 of the Water Management Act 2004 is broad in its terms. It is not qualified and the power to delegate on behalf of the Ministerial Corporation is not even confined to staff of the Department. Nothing in the Second Reading Speech suggests constraints of this power. Whilst the Interpretation Act 1987 is not specifically excluded, a wide power of delegation is given to the Minister by the legislation. 16In the Court's view, section 49 of the Interpretation Act 1987 should not be interpreted in a way which qualifies the power in the Water Management Act 2004 largely because of the comments in the Second Reading Speech which suggests that the provisions in section 49 should apply where appropriate, such as where the legislation does not specify different provisions. Section 49 is not intended to override the intention of Parliament to confer wide powers of delegation in legislation. On this view, the power delegated by the Minister in the 2004 Instrument of Delegation was intra vires. The delegation to officers described in levels falls within the Minister's power of delegation to "any person". Accordingly, the Court finds that the delegation made by the Minister in 2004 under the Water Management Act was lawful. Magistrate M Richardson Armidale Local Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2012