1. Section 52(6) of the AH Act is very clear and does not provide a discretion in applying the sections, whereas Clause 62 of Schedule 1 allows the Tribunal to exercise its discretion 'if it considers it is in the interests of justice to do so'. In Hillpalm Pty Ltd v Heaven's Door Pty Ltd[10] Kirby K (in dissent) stated:

It is elementary under our system of law, that if a written law is valid, clear and applicable, it must be given effect according to its terms. Where there is conflict between the commands of written laws enacted by the same Legislature, courts endeavour to reconcile the texts, if they cannot do so in other ways in terms of their language, they have resort to established canons of construction. Here, these canons include obedience to the law made later in time; priority to the law on the subject classified as more specific over one regarded as more general; and precedents to public over purely private rights.

1. A conflict arises in relation to the two provision. Section 52(6) AH Act overrides Clause 62 of Schedule 1. It is a specific provision, made later in time, it is a specific provision which applies only to section 52 AH Act, unlike the general provision of Clause 62 of Schedule1 and does not allow the Tribunal to exercise any discretion.

1. No CHMP has been approved therefore the prescribed time of 60 days under section 79 PE Act has not commenced to run. For the purposes of section 79 PE Act the time does not run until an approved CHMP is provided to the Responsible Authority, the decision maker.
2. The applications lodged with the Tribunal pursuant to section 79 PE Act are premature and therefore misconceived. The Tribunal has no jurisdiction to hear and determine the applications as the prescribed time allowing for such applications to be lodged with the Tribunal has not commenced to run.
3. The applications are struck out as being misconceived.

[1] I have considered all submissions presented by the parties although I do not recite all of the contents in these reasons.

[2] Section 21U(5) Aboriginal and Torres Strait Islander Heritage Protection Act 1984

[3] Aboriginal Affairs Victoria Register Numbers 7921/743 and 7921/744

[4] Aboriginal Affairs Victoria Register Number 7921/742

[5] Letter dated 26 February 2007 Minister for Aboriginal Affairs to Tardis Enterprises Pty Ltd

[6] Regulation 22 Aboriginal Heritage Regulations 2007

[7] The Tribunal was advised a draft CHMP was resubmitted to the Wurundjeri Tribe Land & Compensation Cultural Heritage Council Inc and the Bunurong Land Council Aboriginal Corporation in June 2011 but not as yet to AAV.

[8] Harvey v Mustaers [2011] VSC 23

[9] [1991] HCA 21; (1991) 172 CLR 1 at 17; [1991] HCA 21; 100 ALR 193 at 204

[10] [2004] HCA 59; (2004) 220 CLR 472 at [100]