ACT Civil and Administrative Tribunal|2015-08-10|Before: Re J, Professor P

The applicant invited the Tribunal to give effect to the legislative intention of the Heritage Act by considering its purpose. The applicant argued that the purpose must be gleaned by considering both the statutory provisions themselves and the real-world contexts within which the Act operates. The applicant referred to the joint judgment of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation[9] where their Honours noted the importance of departing from the literal interpretation of statutes in various contexts. Certainly one of those contexts is where the operation of the statute is absurd, extraordinary, capricious, irrational or obscure but a departure from the literal interpretation is not confined to these situations.

In particular, it extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intention as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.[10]

The applicant discussed the factors to be taken into account when interpreting section 37 of the Heritage Act and in particular noted that section 37 invites people to make comments within a prescribed period as well as tasking the Council with the job of inviting people to make comments. The applicant argued that the legislature intended that the Council should not be a mere functionary but rather a responsible agency that is obliged to deal with the public in a way that meets the objectives of both certainty and simplicity. The only way that this could be done is to do what the Council did in this case i.e. to set a period and to invite public comment within that period. Although the period was slightly longer than the four-week period stipulated by the literal words of the statute, the actions are nevertheless permissible because otherwise there is a risk of invalidity flowing from an erroneous statement of the period in the notice and an invalidity of the notice might 'bring down the house of cards'. The applicant noted that there are three agencies involved in notifying the public consultation period for heritage registrations and the legislature would not wish to risk the validity of the process by requiring literal adherence to the four week period.
As a consequence, the applicant invited the Tribunal to read words into the statute, relying upon the judgment of McHugh J in _Bermingham v Corrective Services Commission of New South Wale_s[11] who paraphrased the remarks of Lord Diplock in Wentworth Securities Ltd v Jones[12] as follows:

First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.[13]

The applicant invited the Tribunal to read the following words into section 37 of the Heritage Act to ascertain the public consultation period:

by a date which is 4 weeks after the date on which the Council expects the notice will be notified.

The applicant argued that section 37 is a command to the Council to invite public comment and to state the relevant period for public consultation. The legislature would expect the Council to do the necessary calculations to ascertain the appropriate date and state the relevant date in the notice, which the Council has done in the present case. The applicant contended that the legislature intended as a matter of common sense that the Council would ascertain the appropriate date and include that date in the notice so the language of section 37 is capable of being seen as a shorthand way of expressing a prediction that is to be made by the Council about the requisite period.
The applicant further argued that a literal interpretation requires a person who may want to make a comment to go through an onerous process of determining the relevant date. This onerous process involves six separate steps requiring the potential commentator to, inter alia, find the legislation register, locate the relevant notifiable instrument and then to calculate, with the assistance of section 151 of the Legislation Act, the due date for comment.[14] The applicant emphasised that it is incredible to think that the Legislative Assembly would place all these obstacles in the way of a member of the public who wishes to a comment in a public consultation process.
The applicant recognised that by asking the Tribunal to read words into section 37 it is necessary to adopt a text-based approach to the interpretive exercise. Therefore the applicant relied upon the judgment of Spigelman CJ in Austral Monsoon Industries Pty Ltd v Pittwater Council[15] where his Honour read the word 'so' into a transitional provision of Environmental Planning and Assessment Regulation 2000 (NSW)[16] and the remarks of Justice Kourakis in R v Byerley[17] where his Honour read text into a provision of the Criminal Law Consolidation Act 1935 (SA) but ensured that the words so read into the section 'operate ... consistently with [the] manifest purpose of the section and are implied by the text, context and purpose of the provision.'[18]
The applicant contended that the context of the four-week stipulation in section 37 is an instruction from the legislature to agencies that is capable of being understood as the legislature allowing the agency to work out the relevant period of time that will become the consultation period for the Act. In this respect the applicant argued that the provision was 'aspirational rather than dictatorial'.

In reply, the respondent argued that the applicant seeks a material substitution of words to cause a different period to apply under section 37 and this is not permitted because the existing words are unambiguous and they enable precise calculation of the public consultation period to be made. Further, the respondent argued that nothing in section 37 conveys an intention on the part of the legislature that the Council would calculate the public consultation period as commencing from when the Council 'expected' or 'predicted' that the notice would be notified. The respondent submitted that, to the contrary, the legislature's intention is best understood from the words used in section 37 which state that the period commences from when the notice is notified. Furthermore, the respondent argued that the proposed interpretation would cause the commencement of the public consultation period to depend on the subjective and uncertain circumstances of the Council's 'expectation' about when a notice would be notified, so as to convert an unambiguous period into an ambiguous one. It contended that would be difficult to ascertain the Council's expectation without knowing what is in the collective mind of the Council.
The respondent submitted that the cases relied upon by the applicant such as Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation[19] and Austral Monsoon Industries Pty Ltd v Pittwater Council[20] should be distinguished because there are no ambiguities in the legislative provisions in the present case and therefore no legitimate question of construction that needs to be resolved.

With some reluctance, the Tribunal accepts most of the submissions made by the respondent, with the exception of its reliance upon Grant v Westpac.[21] Grant v Westpac involved a statutory demand under the Corporations Act 2001 and is an example of a time stipulation that applies under insolvency statutes. Strict adherence to the letter of such provisions is generally required. Because the present case concerns a heritage issue and not insolvency, the Tribunal considers that Grant v Westpac is of limited assistance.
The Tribunal concludes that the words 'within 4 weeks after the day the notice is notified' in section 37 of the Heritage Act are clear. There is no ambiguity or question of construction that needs to be resolved in this case. The Tribunal considers that the legislative intention is observed by the literal interpretation. A contextual reading of the provision also supports this interpretation. For example, section 34 of the Heritage Act provides a flexible 'best endeavours' test which is in close proximity to section 37. This leads the Tribunal to conclude that the legislative intention was to provide a clear and readily ascertainable period which constitutes the public consultation period under section 37. The Tribunal recognises the applicant's arguments that the ascertainment of the period is complex and requires several onerous steps but the period is nevertheless readily calculable, therefore the Tribunal should resist the temptation that was referred to by Connolly J in DJ v RHS to read words into a provision that is clear on its face.[22] Therefore, in the Tribunal's view Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation[23], Austral Monsoon Industries Pty Ltd v Pittwater Council[24] and R v Byerley[25] are distinguishable.
The relevant provisions do not confer discretion upon either the Council to extend the public consultation period, or the Tribunal 'standing in the shoes' of the Council on a merits review application. The Minister has discretion to extend the period of provisional registration,[26] but this does not assist the applicant in bringing the application for review to the tribunal.
The Tribunal concludes that the applicant has failed to comment within the requisite period and is therefore not an interested person and therefore the tribunal lacks jurisdiction. As a creature of statute, the tribunal's jurisdiction is defined by the relevant statutory provisions and the Heritage Act provides a very clear framework within which the tribunal's powers may be exercised. The Tribunal notes the applicant's arguments that the provisions are aspirational rather than dictatorial but the Heritage Act, together with the Planning and Development Act 2007, is characterised by strict timeframes, particularly timeframes involving reviewable decisions.
The Tribunal has concluded that it lacks jurisdiction to hear the application because the applicant does not satisfy the requirement of 'interested person' under the relevant republication of the Heritage Act - Republication 17. The applicant must establish that it is an 'interested person' in order to apply for review to the tribunal under section by 114 of the Heritage Act. Section 112 of the same Act requires that an interested person for a decision under section 40 is 'anyone who made comments to the Council about the decision before the end of the public consultation period for the decision'.
It is a concern that the applicant has been barred from pursuing an application in ACAT because it relied upon an error made by the respondent about the public consultation period. On one argument, the error made by the respondent is a substantial error which may result in the consultation period itself being invalid. This argument is based on a proposition that the notice under section 34 (being a notice of decision about provisional registration) did not include 'an invitation to make comments about the registration of the place to the Council within 4 weeks' (as required by section 37) because the period stipulated was too long. This not only barred the applicant from bringing proceedings in the tribunal, it may have flow on effects to the registration of the Precinct on the Heritage Register itself, which is predicated upon a valid consultation period under section 37 and a report to the Minister under section 38 of the Heritage Act.
Although a finding of invalidity (which the Tribunal expressly declines to do on this occasion) may provide some solace to the applicant, it will not assist it to bring proceedings in the tribunal because a finding of invalidity would result in there being no reviewable decision to found the tribunal's jurisdiction.
Furthermore, if the applicant had been a natural person, it may have been able to argue a right to fair hearing under section 21 of the Human Rights Act 2004 (Human Rights Act) because there is clearly been a failure in the composite process which might trigger a different interpretation of the tribunal's jurisdiction.[27] However, the issue was considered in the tribunal's prior decision in Law Society of the ACT & Treasury Directorate and NRMA Insurance[28] and it is clear that, as stated explicitly in section 6 of the Human Rights Act, '[o]nly individuals have human rights'. The word 'individual' is defined in the Legislation Act Dictionary as meaning a 'natural person'. The applicant in this case is a company limited by guarantee and is therefore not a 'natural person', therefore cannot rely upon the right provided by section 21 of the Human Rights Act.

The applicant may consider other remedies that might be available in other fora, but the Tribunal concludes that it lacks jurisdiction for this application and therefore the application is dismissed.

[1] Para [6] Respondent's submissions dated 15 May 2015

[12] [1980] AC 74 at 105-106

[13] (1988) 15 NSWLR 292 at 302, cited by D Pearce and R Geddes, Statutory Interpretation in Australia, 10th edn 2014 p 70

[14] Applicant's submissions dated 7 May 2015 at [6]

[27] Thomson v ACT Planning and Land Authority [2009] ACAT 38

Development Act 2007

Planning and Assessment Regulation 2000

Law Consolidation Act 1935

NATIONAL TRUST OF AUSTRALIA (ACT) v ACT HERITAGE COUNCIL (Administrative Review) [2015] ACAT 52 (10 August 2015)

Cases cited: Austral Monsoon Industries Pty Limited v Pittwater Council [2009] NSWCA 154; [2009] 75 NSWLR 169

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297

David Grant and Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265

Rudolphy v Lightfoot [1999] HCA 61; (1999) 197 CLR 500

Thomson v ACT Planning and Land Authority [2009] ACAT 38

Wentworth Securities Ltd v Jones [1980] AC 74

Whitby v Garlett [2000] FCA 245; (2000) 98 FCR 585

NATIONAL TRUST OF AUSTRALIA (ACT) v ACT HERITAGE COUNCIL

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NATIONAL TRUST OF AUSTRALIA (ACT) v ACT HERITAGE COUNCIL (Administrative Review) [2015] ACAT 52 (10 August 2015)