DPP v Brown [1998] VSC 117

(b) the lawful carrying out of forest operations.

Penalty: 20 penalty units".

By sub-section (2), "forest operations" is defined as meaning the taking, or activities associated with the taking, of forest produce from Crown land.

11. It was alleged that each such offence had taken place at Freddy Creek. Freddy Creek is part of the Goolengook River System in East Gippsland. The hearing of the charges against the three respondents was heard by the Magistrates' Court sitting at Moe on three separate days over a three month period. At the conclusion of the prosecution case, Counsel for the respondents made a no case submission on two grounds: first, that there was no "obstruction" of the lawful carrying out of forest operations and, secondly, that the forest operations were unlawful. On 27 February 1998, the Magistrate ruled against the first submission of the respondents that there was no "obstruction". However, he accepted the no case submission on the second ground, namely, that the forest operations were unlawful. The best evidence of what he said is as follows:

"I will confine myself to the lawfulness of forest operations. The lawfulness of forest operations depends on if the logging licences are void subject to s.15(2) of the Heritage Rivers Act. It is not for me in these proceedings to decide if the licences are void. The land shown bordered in blue on plan LEGL/91-10 is the area described by Schedule 1 as part of the heritage area: see s.5. Evidence from prosecution witnesses - using the scale map - is that the area extended some metres west into the subject coupe.

The words on map LEGL/91-10 are that the boundary is the natural features defined in the forest management plan. These words seem to be explanatory only, not open for boundary to be altered by the forest management plan or by existing ...

It is conceded that there was no forest management plan as at 1992 when the Heritage Rivers Act came into existence. Neither prosecution nor defence has shown a provision enabling the Heritage River Area to be defined by a subordinate body. Therefore I must have doubt about the lawfulness of the forest operations regarding each defendant - that is, whether forest operations were lawful. In Brown v. Coles [1970] V.R. at 874:

`If there is ambiguity in words ... ambiguity will be resolved in favour of the person charged, by far the most important instance of construction of a penal statute'.

I note that this statute is not penal and not strictly on point because it's not a penal statute but the standard of proof - my interpretation of the words on the map is that they are descriptive and do not alter the line prescribed by Parliament. In that case, I must find there is no case to answer and I do not think that any further evidence will alter that".

19. The contention of the appellant in these appeals is that the Magistrate was wrong in law in finding that the forest operations were not "lawful" within the meaning of s.95A of the Conservation Act. I would rather gather that what the Magistrate decided was that he was not satisfied that the prosecution had established, to the requisite degree of proof, the lawfulness of the relevant forest operations. The issue for determination as to whether the forest operations were properly established as lawful is a surprisingly easily stated issue. The issue is whether the forestry operations in question were shown to be taking place within an area of land adjacent to the Goolengook River system in East Gippsland which land was not protected from timber harvesting. Regrettably, the determination of this simple issue is, in my view, a most difficult exercise in statutory interpretation.

22. The statutory provisions relevant to the issue of interpretation are as follows.

Heritage Rivers Act 1992

Section 1 of the Act provides that the purpose of the Act is to:

"... make provision for Victorian heritage rivers by providing for the protection of public land in particular parts of rivers and river catchment areas in Victoria which have significant nature conservation, recreation, scenic or cultural heritage attributes ...".

"Each area of land described in a part of Schedule 1 is a heritage river area under the name specified in that part".

Part 8 of Schedule 1 to the Act specifies the Bemm, Goolengook, Arte and Errinundra Rivers Heritage Area in the following terms:

"All those pieces of land along the Bemm, Goolengook, Arte and Errinundra Rivers and Errinundra River (East Branch) shown bordered in blue on the plan lodged in the Central Plan Office and numbered LEGL/91-10".

For convenience I will refer to that plan hereafter as "the map". Section 10(5) of the Act provides that timber harvesting is not to be carried out in any heritage river area specified in Column 4 of Schedule 3. Column 4 includes the Bemm, Goolengook, Arte and Errinundra River Heritage Area. Section 15 provides that the Act prevails over any other Act and that any instrument made under another Act in contravention of the Act is void.

33. It is an element of the offence with which the respondents were charged that the forest operations in question were lawful. It was necessary for the prosecution to establish that element. The forest operations in question were defined by the prosecution as being "the removal of timber in accordance with coupe plan 513/10". That coupe plan provided for removal of forest in the area of the plan up to a 100 metre buffer on the Goolengook heritage river. The appellant submits that the coupe plan complied with the Heritage Rivers Act in permitting forestry operations to be undertaken up to 100 metres from the edge of the Goolengook River. The respondents submit that the Heritage Rivers Act does not permit timber harvesting within 200 metres of the Goolengook River in the area of the forest coupe in question. The appellant concedes that if the heritage river area in question encompassed a width of more than 100 metres from the bank of the river, then the forest operations in question were not shown to be lawful.

36. Accordingly, as I have already stated, the issue for determination by the Magistrate can be simply stated: What was established as the boundary of the relevant heritage river area and was this shown to be not more than 100 metres from the river bank?

39. The contention of the respondent before the Magistrate was that the forest operations were being conducted or were permitted in the heritage river area. Accordingly it was contended that the forest operations were not lawful because they were being conducted in a heritage river area contrary to the provisions of ss.10(5) and 15 of the Act. Central to the decision of the Magistrate was the determination of the boundary of the relevant heritage river area. This determination required consideration of the map.

42. It is apparent from the affidavit material before this Court that at the hearing before the Magistrate there was a considerable amount of evidence given about the map in the course of both examination-in-chief and in cross-examination of a number of witnesses called on behalf of the prosecution. In particular, evidence relevant to the map was given by one Gary Featherstone and one Alan Hooley, both of whom were officers of the Department of Natural Resources and Environment.

The map was produced before the Magistrates' Court in the course of cross-examination of Mr. Featherstone as "the plan lodged in the Central Plan Office and numbered LEGL/91-10". That is the office of this name established by Section 4 of the Survey Co-ordination Act 1958. The map produced before the Magistrates' Court was certified by the Surveyor-General as being a copy of the original map lodged with the office. It is drawn to a scale of 1:100,000. The heritage river corridors as they appear on the map vary in width in a variety of places. Both Mr. Featherstone and Mr. Hooley, who gave evidence for the prosecution, agreed that the width of the relevant heritage river area as depicted on the map in the vicinity of the subject coupe was 400 metres, being 200 metres from the bank on either side. However, in four places on the plan a notation appears that contains the words:

"Boundary, is the natural features zone defined in the forest management plan".

These words were referred to by Senior Counsel for the appellant, Mrs. Crennan QC, in the course of her submissions as being "the rubric". That is a convenient short reference to the notation which I shall adopt. It should be noted that no such rubric appeared on the map immediately adjacent to the point where the coupe the subject of the place at which the alleged offences were stated to have occurred.

There was also produced a Forest Management Plan for the East Gippsland Forest Management Area. This was published in December 1995; more than three years after the Heritage Rivers Act 1992 came into operation on 10 September 1992. At page 52 the following passage may be found in the Forest Management Plan:

"Natural Features and Heritage Rivers. The Land Conservation Council (LCC 1983a, 1983b, 1986) identified Natural Features Zones along a number of rivers and streams in the FMA and recommended they be managed to conserve their natural and scenic values. More recently the Rivers and Streams Special Investigation (LCC 1991a), led to the inclusion of some of these streams on the Schedule of the Heritage Rivers Act 1992. With the exception of a small stand or regrowth forest on the lower Snowy River (within which harvesting was permitted - LCC 1991a), all natural features zones and Heritage River corridors in State forests have been included in the SPZ. ..."

The reference to SPZ is a reference to special protection zone. Following this passage there appears Table 5:

"Table 5 Stream protection in the Forest Management Area

Heritage Rivers as recommended by the Land Conservation Council LCC (1991a)

64. Accordingly, the appellant submits that the Forest Management Plan defines the width of the relevant heritage river area as 100 metres. The submission of the appellant is that the Forest Management Plan gave effect to Parliament's intention that the heritage river area would be defined by reference to the map which was diagrammatic and which contained on it the rubric. Furthermore, Mrs. Crennan submits in the alternative that the map was a subordinate instrument within the meaning of the Interpretation of Legislation Act 1984 and in consequence of the provisions of s.35(a) of that Act a construction of the map that would promote the purpose or objects of the Heritage Rivers Act should be preferred to a construction which would not. It is submitted that had the learned Magistrate given consideration to "all indications provided by ... the ... subordinate instrument" as he was entitled to do under s.35(b)(i) of the Interpretation of Legislation Act 1984, he would not have treated the rubric as being "explanatory only".

67. The submission of the respondents is that the learned Magistrate was correct to dismiss the informations on the ground that there was no case to answer. It is accepted by the respondents that a court should prefer a construction of the legislation which promotes the purpose underlying the Act. However, they contend that the purpose of the Act is clearly defined by s.1 of the Act, which it is convenient to restate:

"The purpose of this Act is to make provision for Victorian heritage rivers by providing for the protection of public land in particular parts of rivers and river catchment areas in Victoria which have significant nature conservation, recreation, scenic or cultural heritage attributes and to make related amendments to other Acts."

71. It is submitted on behalf of the respondents that it is inconsistent with this stated intention to hold that Parliament did not adequately particularise the heritage river areas and intended that the extent of the heritage river areas envisaged by the Act would be defined, amended, varied or extinguished by an administrative act. The respondents rely upon s.15 of the Act and submit that it prevails over inconsistent provision in other instruments. Section 15(1) provides:

"Nothing in Section 7 in this Act or in any other Act or in any instrument made, granted or issued under another Act is to be taken to authorise the carrying out of activities in a heritage river area or natural catchment area to the extent that the activities are prohibited, or the manner of carrying out the activities is regulated by or under -

(c) a Land Conservation Council recommendation referred to in Schedule 4 or 5".

78. At the time of the commencement of the prosecution there were no regulations under the Act, nor was there any approved management plan.

81. The respondents further rely upon s.15(2) of the Act which at the relevant time provided that:

"An instrument made, granted or issued under any Act in contravention of sub-section (1) is void."

85. The respondents emphasise that at the time of the commencement of the Act (ie. 1992) no forest management plan existed. They submit that no meaning can therefore be given to the rubric when it refers to the "natural features zone" defined in the forest management plan". Mr. Walters of Counsel for Senator Brown argued that the 1995 Forest Management Plan could not alter the position as it was when the Act came into force. Furthermore, he submits that if the 1995 Forest Management Plan authorises the carrying out of timber harvesting within the boundary marked on the map (ie. by scale 200 metres from the bank of the river) then it is, by virtue of s.15(2) of the Act, void. It is submitted that the rubric cannot be taken to delegate the power to vary the heritage river area at some later time. If the appellant's submission is correct, Mr. Walters contends that despite the border in blue which Parliament provided, by Part 8 of Schedule 1 of the Act as the boundary, in fact the boundary at the relevant point was undefined and subject to later definition.

88. The respondents submit that if this is so the Act made no proper provision for the delegation of such legislative power and it cannot be concluded that there was such delegation. Even if there had been some form of delegation, Mr. Walters submits that statutory provision would be necessary in order for the statute to be qualified by subordinate legislation made pursuant to such delegation. The respondents argue that the effect of the appellant's submission is that the words of the Act left the boundary of the heritage river area at the relevant point unascertainable for over three years before the boundary was defined by the Forest Management Plan (ie. in December 1995). Mr. Walters submits that such a conclusion was untenable in the absence of clear words in the statute justifying such a result.

91. The conflicting submissions in this case each have merit and I have not reached my conclusions without considerable difficulty. It is indeed regrettable that the legislation in question was so unclear as to permit two conflicting interpretations of substance to be advanced. I note that Parliament has recognised the difficulty of interpretation by amending (inter alia) part of Schedule 1 of the Act by the passage of the Heritage Rivers (Amendment) Act 1998. However, I am required to determine the issues presently before the court by interpretation of the Act as it was at the time of the alleged offences. In that task, it is not legitimate to have regard to later legislation which may be seen to be intended to counteract a perceived loophole: see generally Deposit Protection Board v. Dalia [1994] 2 All E.R. 577 at 585.

94. In order to interpret what the Act means in relation to the extent of the heritage river area, it is necessary to determine whether it is permissible to make reference to a Forest Management Plan brought into existence at a later date. As I have said, the Forest Management Plan in question was published in December 1995; some three years after the Act was enacted.

97. As a starting point it is clear that Part 8 of Schedule 1 of the Act, where it defines the heritage river area in question as being "All those pieces of land ... shown bordered blue on ..." the map, forms part of the Act (see s.36(2) of the Interpretation of Legislation Act 1984). The Act is to be read as a whole. As Mason, J. said in K. & S. Lake City Freighters Pty. Ltd. v. Gordon & Gotch Ltd. [1985] HCA 48; (1985) 60 A.L.R. 509 at 514:

"... To read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the word of a statute to be read in that context ... . The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise."

101. Part 8 of Schedule 1 incorporates, by express reference, the map. There is no reason to prevent legislation incorporating by reference identifiable documents. That is the position with subordinate legislation: see Medcroft v. City of Box Hill [1959] VicRp 98; [1959] V.R. 768 at pp.783-4, and the authorities there cited. The position applies a fortiori to legislation itself. What is required is that the provision to be incorporated must be identifiable: Osborne v. The Commonwealth of Australia [1911] HCA 14; (1911) 12 C.L.R. 221. The map is sufficiently identified and there is no uncertainty as to it: see paragraph 9 above. Accordingly, in my view the map forms part of the Act. The rubric is included on the map. So are a number of other matters such as statements as to the width of the heritage river corridor as being "200 m from bank" and "100 m from road" in certain places.

104. Section 35 of the Interpretation of Legislation Act 1984 provides that in the interpretation of an Act:

"(a) A construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and

(b) consideration may be given to any matter or document that is relevant including but not limited to:

(i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuations;"

It is permissible, even where there is no apparent ambiguity to have recourse to parliamentary debate to assist in the determination of the purpose or object of legislation: see R v. Boucher [1995] VicRp 7; (1993) 70 A Crim.R. 577 at 592.

112. It is apparent from the reading of the second reading speech of Mr. Crabb, the then Minister for Conservation and Environment (see Hansard, 24 October 1991, p.1352-1354) that the Heritage Rivers Bill was introduced to protect:

"... those remaining rivers with outstanding natural conservation, recreation, scenic or cultural heritage attributes; provide opportunities for recreation, landscape appreciation and education associated with those rivers; maintain certain rivers in a free flowing state, and maintain certain catchments in an essentially natural condition."

116. In the course of the debate the Minister said further, at p.1353 of Hansard:

"The detailed provisions for each river and catchment are set out in a series of schedules accompanying the Bill." "The provisions of the Bill apply only to public land in Victoria and a range of uses will continue to be permitted provided they are consistent with the approved Land Conservation Council recommendations above upon which the Bill is based."

120. The question which falls to be answered is what area of land is it which comprises the relevant heritage river area? I return to the provisions of the Act. Section 3 of the Act defined "Heritage river area" as meaning:

"... land that is a heritage river area under section 5".

"5. Heritage river areas Each area of land described in a part of Schedule 1 is a heritage river area under the name specified in that part."

126. As stated above, Part 8 of Schedule 1 describes the relevant heritage river area as being:

"All those pieces of land ... shown bordered in blue on the plan lodged in the Central Plan Office and numbered LEGL/91-10".

Those words in my view expressly define the area of the land which forms the heritage river area. In the absence of any other indication by Parliament as to its intention, it would be clear that the only way to determine the extent of the heritage river area would be by reference to the "land ... shown bordered in blue" on the map and to the scale of the map. On the evidence, this produces a width of 400 metres (200 metres from each bank) at the area of the coupe under consideration in this case.

131. The appellant submits, however, that reference to the rubric leads one to the Forest Management Plan published in 1995 which includes a table referring to the width of the Goolengook River (upstream of its confluence with the Arte River) as 100 metres.

134. In my view there are insuperable difficulties in accepting the submission that it was Parliament's intention to make reference to the Forest Management Plan in the circumstances of this case. First there is the issue of when the Forest Management Plan came into existence. The effect of the submission of the appellant is that the Act left the boundary of the heritage river area at the relevant point incapable of being ascertained until the Forest Management Plan came into effect in 1995. As stated by Brinsden, J. in Yager v. R (1976) 27 F.L.R. 475 at 486:

"Generally speaking, the words of an Act should be understood in the sense which they bore when the Act was passed. They are to be construed, it is said, 'as if we had to read it the day after it was passed'."

This is not to say that an Act may not have an ambulatory effect. But the primary task is to consider the effect of the Act at the time of its enactment: see, eg.: Attorney-General v. Prince Ernest Augustus of Hanover [1957] A.C. 436.

139. Had the prosecution of the respondents to this proceeding taken place prior to December 1995, there would have been no forest management plan in existence. There is nothing in the Act which provides for the definition of a forest management plan or for the later creation of such a plan. The rubric refers to the forest management plan in the present tense. For example, the rubric does not say "Boundary will be the Natural Features Zone defined in the Forest Management Plan"; nor does it say that the "Boundary is the Natural Features Zone to be defined in the Forest Management Plan". In such circumstances, it appears to me that a Court dealing with the matter before December 1995 would have been bound to conclude that Parliament intended to establish heritage river areas as at the day of the commencement of the Heritage Rivers Act 1992 and that, in the absence of a forest management plan providing any alternative clear definition of the boundary of a heritage river corridor, reference must be made to the scale of the map to determine the area bordered in blue on it.

142. In my view it cannot be that Parliament intended a two-stage definition of the boundary of a heritage river area, nor can it be that Parliament intended that the boundary of a heritage river should stay undefined for an uncertain period following the proclamation of the Act.

145. However, even if Parliament, contrary to my conclusion, did intend that the boundary of the heritage river area would be defined by a forest management plan in the future, serious difficulties nevertheless remain as to how such a forest management plan would be created, defined and interpreted. Save for the words "the forest management plan" appearing in the rubric on the map, there is no further definition of it in the Act. The Forest Management Plan relied upon by the appellant is a document published by the Department of Conservation and Natural Resources in December 1995. Its status was not clearly established. It was not clearly identified in the rubric or any other part of the Act.

148. It is apparent from a reading of it that the production of the Forest Management Plan had been a result of quite substantial community consultation. For example, in the foreword to the plan the then Secretary of the Department of Conservation and Natural Resources stated:

"An advisory committee drawn from the local community has helped review options and given valuable comment on drafts. Interested groups and individuals were also involved from early on in the project. A proposed plan released in March this year" (ie. 1995) "provided the basis for further comment and subsequent refinement of the plan ... In managing our native forests we must be responsive to new information as well as changes in government policy, community expectations, technology and market conditions. One of the features of this Plan is that it establishes mechanisms and an orderly process for responding to such changes".

152. The manner in which the Forest Management Plan came into existence makes it more unlikely that Parliament would have intended that a document which:

(a) came into existence three years after the Act;

(b) was not approved by Parliament, any Minister of the Crown or the Governor-in-Council;

(c) could have apparently increased or decreased the area "shown bordered in blue" on the map without reference to Parliament;

was intended to define the boundary of a heritage river area pursuant to the Act.

159. In my view, it would be inconsistent with the express provisions and purpose of the Act to find that the Act did not adequately particularise the heritage river area and left that task to the authors of the Forest Management Plan.

162. Furthermore, it should be noted that Table 5 appearing in Chapter 5 of the Forest Management Plan refers to a "minimum" buffer width of 100 metres for the Goolengook River. Accordingly, the Forest Management Plan is there concerned with a minimum distance from the bank for stream protection of the Goolengook River. This contemplates a possible greater distance. This, in my view, does not establish a "defined" boundary as stated in the rubric.

165. Moreover, it does not seem to me that the part of the Forest Management Plan relied upon by the appellant or, indeed, any part of it, is actually concerned with defining zones or areas. It is based on zones identified by the Land Conservation Council and appears to be concerned with permitted activities in those areas.

168. It may be observed that the Land Conservation Council is a body actually recognised by the Act. It is defined in Section 3. If Parliament intended to prescribe a heritage river area by reference to a zone identified or recommended by the Council, it may be expected that it would have done so.

171. Accordingly, I conclude that Parliament provided and intended that the relevant heritage river area established by the Act was those pieces of land shown bordered in blue on the map numbered LEGL/91-10. In the absence of any clear indication to the contrary appearing on the map, it must follow that it was intended by Parliament that the scale of the map would be applied to the defined area. I am unable to conclude that the rubric is a clear intention to the contrary for the reasons set out above. Certainly it cannot be said to clearly identify the Forest Management Plan and to contain no ambiguity. Accordingly, I conclude that the application of the scale to the map results, on the evidence, in the relevant heritage river area having a boundary of more than 100 metres in the area of the relevant forestry coupe. It is conceded by the appellant that such a finding would have the consequence that the Magistrate's finding that the prosecution had failed to establish a necessary element of the charge, ie. that the forest operations in question were lawful, should be upheld.

174. The appeal should, accordingly, be dismissed with an order that the costs of the respondents be paid by the appellant.