Discussion
35There is a tension between s 6(1) and (1A) of the Fluoridation Act and ss 111(1) and 112(4) and (6) of the EPA Act . Is a duty or discretion to fluoridate a water supply conferred by a direction or approval under ss 6(1) and (1A) of the Fluoridation Act , which in terms apply "notwithstanding anything contained in any other Act", fettered by the provisions of ss 111(1) and 112(4) and (6) of the EPA Act , which in terms apply "notwithstanding the provisions of ... any other Act"? The construction issue is more complex than if the "notwithstanding" provision appeared in only one of those statutes.
36In my opinion, the specific provisions of ss 6(1) and (1A) of the Fluoridation Act should first be construed without the introductory words "Notwithstanding anything contained in any other Act". Then, if the general provisions of ss 111 and 112 of the EPA Act contradict the operation of ss 6(1) and (1A) so construed , ss 111 and 112 must yield: Parks and Playgrounds at [102] and [106].
37At issue in Parks and Playgrounds was the interplay between s 88 of the Roads Act 1993 and ss 111 and 112 of the EPA Act . Section 88 provided that a roads authority "may, despite any other Act or law to the contrary, remove or lop any tree or other vegetation that is on or overhanging a public road if, in its opinion, it is necessary to do so for the purpose of carrying out road work or removing a traffic hazard". Having regard to the urgency purpose of s 88, its text and established canons of constructions, I decided that the specific provisions of s 88 were not subject to the general provisions of ss 111 and 112 in Part 5 and of Part 4 of the earlier EPA Act . Thus, the roads authority could in its discretion remove trees if, in its opinion, it was necessary to do so for the purposes of removing a traffic hazard, without having to comply with the requirements of ss 111 and 112. After reviewing relevant principles of statutory construction, I said:
97 In my opinion, the purpose and text of s 88 and established canons of construction weigh in favour of the conclusion that it is intended to exhaustively describe the only planning condition for the exercise of power to which it refers and therefore is not subject to the said planning constraints of Parts 4 or 5 of the EPA Act. According to those canons, priority may be attributed to a statute dealing with the specific (s 88 Roads Act) over one dealing with the general (Parts 4 and 5 EPA Act) and to a statute that is later in time (s 88 Roads Act) over one that is earlier (Parts 4 and 5 EPA Act ): see [81] - [85] above.
98 The purpose of s 88 is to empower a roads authority to deal with a situation which, in its opinion, is dangerous or hazardous. By its nature, a dangerous or hazardous situation may need to be addressed quickly, even urgently. The ongoing hazard or danger to the public which results from holding that s 88 is subject to the delay involved in obtaining development consent if required under Part 4 of the EPA Act (including taking account of all the mandatory matters in s 79C) or in satisfying the requirements of ss 111 and 112 in Part 5, suggests a construction that s 88 is not subject to those requirements of Parts 4 and 5.
99 As for the text, the words in s 88 "despite any other Act or law to the contrary" suggest that s 88 exhaustively states the planning condition of power which it confers and is not subject to any other statutory planning requirements or restrictions.
...
102 The process of analysis for legislation containing such a phrase was set out in In re Bland Brothers and the Council of the Borough of Inglewood (No 2) [1920] VLR 522 where the Full Court construed a section of an Act commencing "Notwithstanding anything in this Act contained". It was held at 533:
As to the introductory words, the section should first be construed without them, and then, if there is anything in the other provisions of the Act inconsistent with the interpretation so arrived at, these other provisions must yield. This was in effect decided, as we understand, by all of the justices of England in Sir Thomas Cecil's Case [1597] 7 Rep, where it was said that the Act otherwise was to be no impediment to the interpretation of a section containing the words 'notwithstanding' etc.
...
106 Applying the process of analysis in Bland to s 88 of the Roads Act :
(a) the first step is to construe s 88 without the words "despite any other Act or law to the contrary";
(b) the second step is to ask whether s 76A in Part 4 and ss 111 and 112 in Part 5 of the EPA Act contradict the operation of s 88 so construed;
(c) the third step is to obey the directive contained in the word "despite" and ignore what would otherwise be a contradiction from the entitlement provided by s 88.
...
38The principles discussed in Parks and Playgrounds are relevant but the decision is factually distinguishable. There the urgency purpose of s 88 of the Roads Act , which is absent in the present case, strongly influenced the decision. I also note that Parks and Playgrounds concerned a right but not an obligation to carry out an activity. The present case concerns not just a right to carry out an activity pursuant to an approval but an obligation to do so pursuant to a direction.
39The construction of s 6 of the Fluoridation Act relevantly focuses on the distinction between a direction and an approval. There is a great difference in the nature of the obligation to fluoridate under s 6(1A) created by a direction and the nature of a discretionary right to fluoridate under s 6(1) created by an approval. The question of inconsistency with ss 111 and 112 of the EPA Act should be approached with a clear eye to the difference.
40Term 3 of the Richmond Valley Direction required the upward adjustment of fluorine to commence by 31 December 2008, which was extended to 30 June 2012: see [9] - [11] above. Section 6A(5) of the Fluoridation Act provides that any water supply authority contravening any terms attached to a direction is guilty of an offence against that Act. The respondents submit that if compliance with ss 111 and 112 of the EPA Act causes an authority to breach a commencement date requirement of a direction, it would be guilty of an offence, which demonstrates that ss 111 and 112 are inconsistent with s 6A of the Fluoridation Act. I do not accept the submission.
41In my opinion, s 6A(5) of the Fluoridation Act should be construed as not applying to a contravention where compliance is impossible without contravening another law (provided the other law is not inconsistent with the more specific provisions of the Fluoridation Act ) : Commercial Radio Coffs Harbour Ltd v Fuller [1986] HCA 42, 161 CLR 47 at 50.
42In Commercial Radio a question arose as to inconsistency between Commonwealth and State laws. Under s 109 of the Constitution the State law was invalid to the extent of any inconsistency. The Commonwealth law, the Broadcasting and Television Act 1942, prohibited operation of a radio broadcasting transmitter without a licence, which could be granted on conditions. Section 89c required the holder of the licence to commence the service in pursuance of a licence on such date as was determined by the Tribunal. Section 132(1) made it an offence to fail to comply with any provision of the Act. The NSW State law, the EPA Act , provided for the preparation of environmental planning instruments which might prohibit the construction of buildings on land without the consent of the relevant authority. The concurrence of the Minister was required for the erection of a building of a height greater than 25 metres. Failure to comply with a planning instrument or with a condition subject to which consent was granted was an offence under the EPA Act . The applicant argued that if the NSW planning laws made it unlawful for the licence holder to do what has to be done in order to comply with the conditions of the licence and commence the licensed service on the specified date, then simultaneous obedience to the Commonwealth Act and the State planning laws is impossible, and they are inconsistent. The High Court held that there was no inconsistency within the meaning of s 109 of the Constitution.
43As to the offence provision, Gibbs CJ and Brennan J said at [4]:
...The better construction is to read s 132(1) as not applying to a failure to comply with a condition or with the requirements of s 89c where compliance is impossible without contravening another law (provided, of course, that the other law is not inconsistent with the more specific provisions of the Act). In our opinion, s 132(1) stops short of authorizing a contravention of a State planning law.
44Wilson, Deane and Dawson JJ, concurring in the result, said at [22]:
...despite the breadth of its language, we do not think that s 132(1) makes a criminal offence of a mere failure to institute the service on the date determined by the Tribunal...
45The reasoning in Commercial Radio is also of some assistance on the general approach to the issue of inconsistency, although caution is required because
(a)it was decided in a different context of inconsistency between Federal and State legislation under s 109 of the Constitution, whereas the present case concerns two pieces of legislation by the same State legislature with relevant provisions of the Fluoridisation Act being enacted both before and after the EPA Act ; and
(b)the legislation in Commercial Radio dealt with a wholly different subject matter.
46On the issue of inconsistency, Wilson, Deane and Dawson JJ said at [19]-[20]:
...our construction of the Commonwealth Act leads us to conclude that it does not purport to state exclusively or exhaustively the law with which the operation of a commercial broadcasting station must comply. The Act prohibits broadcasting without a licence. The prohibition is removed upon the grant of a licence, subject to certain conditions. Failure to comply with the conditions may result in a revocation or suspension of the licence thereby reinstating the prohibition. The licence confers on the grantee a permission to broadcast. There is nothing in the Act which suggests that it confers an absolute right or positive authority to broadcast so that the grantee, because he has a licence, is immune or exempt from compliance with State laws. On the contrary, in concentrating on the technical efficiency and quality of broadcasting services, the Act leaves room for the operation of laws, both State and Commonwealth, dealing with other matters relevant to the operation of such services. For example, the applicant was required to obtain, as it in fact did before the issue of the licence, the consent of the Department of Aviation to the erection of two radio antennas, subject to conditions relating to marking and lighting under reg 92 of the Air Navigation Regulations. Another example is the purchase or lease of the land, upon which the broadcasting station is to be built, in accordance with State property laws. So also is the obtaining of development consent pursuant to the State Act for the building and use of the broadcasting station.
In Airlines of NSW Pty Ltd v New South Wales , the issue before the Court was whether the provisions of the State Transport (Co-ordination) Act 1931 (NSW), as amended, relating to the licensing of aircraft operating solely within New South Wales, were inconsistent with provisions of the Air Navigation Act 1920 (Cth), as amended. The combined effect of both statutes was to require an operator of an intrastate airline service which operated partly within "controlled airspace", as defined in the latter Act, to obtain licences under both Acts. The Court unanimously held that there was no inconsistency between the two statutes since each employed a licensing system to serve a different end. The Air Navigation Act was concerned with the safety, regularity and efficiency of the flight of aircraft in air transport operations, while the State Transport (Coordination) Act focused on the economic control of the transport for reward of passengers and cargo within the State. Windeyer J. concluded:
The combined results constitute a generally uniform law governing air navigation throughout Australia, based upon a system of complementary and reciprocal enactments.
47Their Honours added at [23]:
If a local council withholds its consent to a development application made under the State Act, the grantee of a licence under the Commonwealth Act may be unable to exercise the authority conferred by the licence. However, the fact that the combined operation of two laws, each of which deals with a different topic, may create a situation of deadlock does not give rise to inconsistency: see Airlines of NSW Pty Ltd v New South Wales (No 2) ...A resolution of the difficulty may be found in particular instances in the variation of a licence condition pursuant to s 85 of the Commonwealth Act, but even if this cannot be done, the result is at most one of inconvenience rather than inconsistency.
48Relevantly, the most enduring canon of construction is that which requires the court "to endeavour, to the fullest extent permitted by the language, to read the two statutes so that each, within its own sphere, can continue to operate, such that no part of either is taken to be separated or inoperative, for Parliament has not said so": Ferdinands v Commissioner for Public Employment [2006] HCA 5, 225 CLR 130 at [108].
49In my view, the fluoridation statutory regime is not exhaustive. It is only concerned with providing a system of approvals and directions for the addition of fluorine to public water supplies and with a detailed technical regime of how that is to be carried out: see [19] - [27] above. The Fluoridation Code , which is incorporated by reference in the Fluoridation Regulation , reinforces this view. The Fluoridation Code states that the Fluoridation Act , Regulation and Code do not contain all legislative requirements with which an authority may have to comply. The Fluoridation Code notes that a water supply authority must comply with the Occupational Health and Safety Act , the Dangerous Goods Act and the Protection of the Environment Operations Act : see [ 25] - [26 ] above. The Fluoridation Code does not expressly mention the EPA Act, but is itself not exhaustive when mentioning other specific Acts.
50The Fluoridation Act and Part 5 of the EPA Act generally serve different ends. As stated, the Fluoridation Act is concerned with approvals and directions for the addition of fluorine to public water supplies and provides a detailed technical regime of how that is to be carried out. The purpose of Part 5 of the EPA Act is to assist an authority to make an informed decision, by reference to environmental considerations, whether to carry out an activity and, if so, how to carry it out: cf Prineas v Forestry Commission of NSW (1983) 49 LGRA 402 at 417. The statutory ends interlock, however, where the addition of fluorine is required by a direction under s 6A of the Fluoridation Act .
51It is relevant to construction that the fluoridation statutory regime is dealing with the specific whereas the EPA regime in ss 111 and 112 is dealing with the general, and that s 6(1A) of the Fluoridation Act was introduced after ss 111 and 112.
52The question of inconsistency with s 6(1A) which obliges an authority to obey a fluoridation direction and the question of inconsistency with s 6(1) which empowers an authority to fluoridate if it has received an approval, raise different considerations.
53I turn first to the question of inconsistency with s 6(1A) concerning a direction. Under s 112(4) and (6) of the EPA Act , if an authority is satisfied that the activity of fluoridating a water supply will detrimentally affect the environment, the authority may refrain from undertaking the activity or may modify the proposed activity so as to eliminate or reduce its detrimental effect on the environment, notwithstanding s 6(1A) of the Fluoridation Act which obliges the authority to obey a direction to undertake the activity . Clearly, those provisions of the two Acts are contradictory. The inconsistent general provisions of s 112(4) and (6) (as well as s 112(5) with which they are intertwined) must yield in my opinion to the specific and later provisions of s 6(1A) of the Fluoridation Act .
54Section 112(1) prohibits an authority from carrying out a fluoridation activity under the Fluoridation Act that is likely to significantly affect the environment, threatened species etc unless (inter-alia) it has considered an environmental impact statement. Unlike s 111(1), s 112(1) is not subject to a "to the extent possible" qualification. In my opinion, s 112(1) contradicts the operation of s 6(1A) of the Fluoridation Act. It is then necessary to obey the directive contained in the s 6(1A) words "notwithstanding the provisions of any other act" and ignore what would otherwise be a contradiction provided by s 112(1). Unlike ss 111(1) and 112(4), s 112(1) is not governed by such a "notwithstanding" provision. The "notwithstanding" provision in s 112(6) is only applicable to s 112(4).
55In my opinion, s 111 of the EPA Act is not inconsistent with s 6(1A) of the Fluoridation Act . The words in s 111 "in its consideration of an activity" are wide enough to include consideration of whether to carry out an activity and consideration of how to carry out an activity. A direction under s 6A of the Fluoridation Act obliges an authority to carry out a fluoridation activity regardless of the environmental impacts: s 6(1A). The authority cannot stay to consider whether it should carry out the fluoridation activity. However, it can, and necessarily has to, consider how to carry out the activity. For example, if that consideration showed that fluoridation would impact on the receiving environment, such as an endangered ecological community downstream of the fluoridation plant, that would raise the possibility of operational change so that fluoridated water does not reach the endangered ecological community. Such an operational change would not breach the obligation to obey a s 6A direction. The requirement under s 111 is to examine to the "fullest extent possible" all matters affecting or likely to affect the environment by reason of the fluoridation activity. The qualifying word "possible" permits account to be taken of any term of the direction which requires fluoridation to commence by a certain time. If the time is short it may not be possible to do an examination as fully as if the time is long.
56I turn to the question of inconsistency with s 6(1) concerning an approval. In my opinion, ss 111 and 112 of the EPA Act are not inconsistent with s 6(1) where the authority has only received an approval, as distinct from a direction, to carry out the activity of adding fluorine to the water supply. In that situation the authority is not obliged to carry out the activity but is empowered to do so. In the approval context, the fluoridation statutory regime leaves room, in my view, for the operation of ss 111 and 112 of the EPA Act . The combined effect of both statutes is to permit the authority to add fluorine and to comply with the requirements of ss 111 and 112 before doing so.
57As an additional reason why there is no conflict between the Fluoridation Act and the EPA Act , the applicant submits that at the time of Rous Water's Lismore Resolution and Ballina Resolution, respectively, the Lismore Approval and the Ballina Approval had lapsed because the time limit in condition 3 had expired: Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317, 106 LGERA 243. I do not see how lapsing is relevant to the preliminary questions. In any event, it is answered so far as Rous Water is concerned by the extension of time that was granted: see [10], [11], [15] above. In Coalcliff the Court of Appeal held that a development consent lapsed where work had not commenced by the time stipulated in a condition of the consent. Coalcliff is distinguishable because in the present case condition 3 of each approval and direction empowered the Chief Dental Officer to extend the time, which he did.