37. Rockvale did submit an amended proposal. But first it consulted the Darling Harbour Authority. On 16 July the Authority wrote to the Foreign Investment Review Board stating that the Authority, the Chairman of the Quality Review Committee and the Authority's design and architectural consultants had now had the opportunity to examine some amendments to the proposal. The letter included the following comments:

". Reduction of the commercial tower height by 10

floors, from 36 to 26 levels is acceptable.

. Redistribution of lost floor space in the

remaining 26 tower floors and the podium level is

supported in principle.

. How this floor space will be distributed will be

subject to pre-permit consultation with the Authority

and the Quality Review Committee and through

fulfillment of conditions which will be attached to any

amended permit approval. A reduction in floor space

may be necessary."

38. The evidence does not establish whether the drawings apparently examined by the Authority were the same as those apparently shown to Mr Keating on 6 July. Nor are those drawings in evidence. Apparently they were never sent to the Board or to anyone else involved in the matter on behalf of the Commonwealth Government. So far as the evidence reveals, the only Commonwealth officer who saw the amended proposal before Mr Keating's revocation decision was Mr Keating himself, during the course of the meeting of 6 July.

39. Also on 16 July, Giam and De Rubeis wrote to the Executive Member of the Foreign Investment Review Board referring to the Authority's letter and stating that the observations made in that letter "are noted and are acceptable to Rockvale". The letter concluded:

"In the light of recent discussions and the observation

in the last paragraph of your letter of 6th June I

would be obliged if consideration would be given to the

alternative proposal embraced in the DHA's letter of

the 16th ..."

40. Upon receipt of that letter, the Board prepared a further minute to the Treasurer. That minute, which was dated 25 July 1990, stated that Rockvale "has resubmitted a proposal to acquire real estate known as Paddy's Market site, Hay Street, Haymarket, Sydney for a consideration of $72 million and to redevelop the site as a commercial/retail/entertainment complex known as 'Market City' at a cost of up to $250 million". The decision of 6 June was recited and the minute proceeded:

"Following your discussions with the parties, Rockvale

has asked for the earlier decision to be reconsidered

on the basis of a change of height to the tower

development from 36 to 26 storeys and a redistribution

of the lost space in the remaining storeys and the podium."

41. The Board summarised the content of the Darling Harbour Authority's letter of 16 July and referred to an earlier letter in which the Authority had expressed concern about delay in the reinstatement of the site as a market. Reference was made to a further letter received from Mr Saggers:

"6. We have received further representation from Mr

Colin Saggers who represents the Paddys Market

Stallholders Association (copy of letter is attached).

Mr Saggers claims that a financial feasibility study

for an alternative one storey development by the

stallholders has been completed and that there is

strong public support for the stallholders proposal.

However the 'opportunities test' which enabled

alternative proposals by Australian bidders to be

considered was removed some years ago. It is apparent

that the Stallholders Association would only be viable

on the basis of a much lower purchase price for the

land than Rockvale is prepared to pay."

42. (The letter from Mr Saggers referred to in this paragraph is in evidence. It is undated but its content shows that it must have been written after 6 June. The letter made no reference to the price which the Stallholders Association would be prepared to pay for the land. It read:

"According to local newspaper reports the Rockvale

Group intend lodging a further application for FIRB

approval for their proposal despite your initial refusal.

Accordingly I thought it prudent from our point of view

to update you with regards to our proposal for the

site, as it just may have some bearing on your decision

making process, if another application is lodged.

1/ The financial feasibility study has been completed

by Ms Jenny Rand of Price Waterhouse Urwick, management

consultants. Our project could be completed in 2 1/2

years with the markets plus car park back in 18 months.

It would show a 30% profit return on completion, which

I believe is quite satisfactory.

2/ We have been fortunate enough to be able to have

signed up the original Girvan development team from the

Studio City days, as the developmet/project managers.

3/ Our project managers having dealt with the State

Bank over the previous Girvan project, are meeting

tomorrow with State Bank representitives, where our

proposal will be discussed. We are also in contact

with the receivers who are being most helpful under the

circumstances.

4/ Several developers are looking at our project with

enthusiasm, one you may know of is Essington Ltd.

Since making our proposal public, the response has been

overwhelmingly supportive from all works of life here

in Sydney, unlike the concept of an office tower which

in a recent survey received only a dismal 7% approval

from those interviewed.

If you require any further information about our

project I will be only to happy to oblige you.")

43. The Board's minute noted, in para.7, that the final prohibition might be revoked "provided you are satisfied that the proposal is not contrary to the national interest. Under policy, proposals for the acquisition of vacant real estate for commercial development are normally approved unless judged contrary to the national interest".

"8. The main issue in this proposal has been the

opposition of the Australian Heritage Commission (AHC)

to the tower and design aspects of the podium. The AHC

believes the 36 level tower and podium would adversely

affect the national estate value of the site. Rockvale

and DHA claim that the tower development is necessary

to make the redevelopment commercially viable. In its

examination of the original application the Board

formed the view that there was no prudent or feasible

alternative to the proposal put forward by Rockvale and

recommended it for conditional approval.

9. We have not consulted the AHC again on this

variation to the proposal since its views are well

known. In our view, a 26 storey development is not

inconsistent with foreign investment policy or your

responsibilities under the Heritage Act."

Finally, the Board set out its recommendation:

"10. The Board recommends that you sign the attached

order revoking the Final Order dated 6 June 1990 and

authorise advice to the parties that there are no

objections in terms of the Government's foreign

investment policy to Rockvale's acquisition of the

Paddys Market site and to the development of the

proposal to a maximum of 26 levels along the lines of

the 'Market City' plans on condition that:

(i) redevelopment of the site commences

within twelve months;

(ii) a heritage architect is briefed with

terms of reference approved by the Australian

Heritage Commission (AHC) to prepare a

conservation management plan to assist in

minimising adverse effects on the National Estate

of the 'Market City' concept and to deal with

technical aspects of conserving the buildings;

(iii) the parties provide an archaelogical

investigation commensurate with the potential

established by the baseline (archaelogical

report); and

(iv) regular reports are provided to AHC on

progress with the project."

45. Mr Keating accepted this recommendation. On 26 July 1990 he made an order in these terms:

"I, PAUL JOHN KEATING, Treasurer, hereby REVOKE the

order under subsection 21A(2) of the Foreign

Acquisitions and Takeovers Act 1975 ('the Act') dated

the sixth day of June 1990, published in the

Commonwealth of Australia Gazette dated the thirteenth

day of June 1990, prohibiting the acquisition of an

interest in Australian urban land by Rockvale Pty Ltd."

46. On the following day Mr Pooley wrote to Mr De Rubeis advising him in terms of the advice recommended by the Board, including the conditions. He intimated that a formal revocation order was expected to be gazetted on 1 August 1990.

47. This proceeding was commenced on 10 August 1990 when the applicant filed an Application naming as respondents only Mr Keating and Rockvale. The Application sought the following relief:

"1. Declaration that the area known as Paddy's

Markets, Haymarket, Sydney, New South Wales, is a place

within the Register within the meaning of the

Australian Heritage Commission Act, 1975.

2. Declaration that before purporting to revoke the

order made under Section 21A(2) of the Foreign

Acquisitions and Take-Overs Act, 1975 dated 6 June,

1990 published in the commonwealth of Australia Gazette

dated 13 June, 1990, prohibiting the acquisition of the

leasehold property known as Paddy's Markets by Rockvale

Pty. Limited the First Defendant was bound to inform

the Australian Heritage Commission of his proposal to

do so and to give the Australian Heritage Commission a

reasonable opportunity to consider the said proposal.

3. Declaration that the purported revocation by the

First Defendant of the said order was void.

4. Declaration that in deciding to revoke the said

prohibition the First Defendant took into account

circumstances other than the national interest, and

thereby took into account irrelevant circumstances.

5. Order that the First Defendant be prohibited from

giving effect to the said purported revocation.

6. Costs."

48. The matter came before Morling J for directions on 23 August 1990. On that occasion counsel appeared on behalf of Valtone and sought an order that his client be joinded as an additional respondent. By consent, Morling J so ordered. I gather that there was a reference to the urgency of the matter, with a suggestion that it would be ready for final hearing within a couple of weeks. As Morling J had no prospect of hearing the case so soon, arrangements were made for the matter to be mentioned before me on the following day. On that day there was discussion about an early hearing but doubt emerged as to whether the case could be ready within two weeks. Accordingly, I merely made directions regarding the production and inspection of certain documents and stood the matter over for further mention on 29 August.

49. On 29 August there was a lengthy discussion about the future course of the matter. By that time it had become apparent that the amount of evidence to be adduced would exceed that contemplated by counsel when the matter was before Morling J. It was agreed by all counsel that the earliest practical date for a hearing was the last week in September. During the course of the discussion I asked about the urgency of the case. Mr Oslington QC, for Rockvale, said:

"Might I just explain the urgency, your Honour. From Mr

Hilton's point of view the amount of money which my

client is prepared to pay for the lease is probably

just about sufficient to pay out the secured creditor

of the State Bank which appointed the receiver but the

rate at which interest is running, if that is delayed

much longer, there is likely to be a shortfall. From my

client's point of view ...

His Honour: So, he is going down hill every day is he?

Mr Oslington: Yes. From my client's point of view, it

has drawn down a very very large sum of money, the

verification order having been made and it is incurring

interest charges on that money and not being able to

utilize that money in the development of the site,

which it had planned to.

His Honour: And I assume your client is unwilling to

pay money to Mr Hilton's client until this situation

has been clarified.

Mr Oslington: That is being considered at the moment,

your Honour, but that is one point, but the second

point is whether my client is prepared to go along and

spend money on development until the situation is

clarified but it has already drawn down the funds.

His Honour: Well, I can understand that, Mr Oslington,

that is a fairly typical position for any developer.

Mr Oslington: Yes, but that is the urgency, your

Honour, from my point of view and also from Mr Hilton's

point of view."

51. In the result, I fixed Monday, 24 September for the commencement of the hearing.

52. When the matter came on for hearing I was informed that, on the previous Monday, 17 September, the contract for the sale of the lease had been completed. As the matter is relevant to one submission made by Rockvale, I record the circumstances, as they subsequently emerged. It appears that, on 4 April 1990, a deed of variation of the agreement had been executed by Valtone and Rockvale. That deed dealt primarily with the circumstances under which the agreement would fall due for completion. New special conditions 36 and 37 - dealing respectively with FIRB approval and completion - were substituted. I need not quote the terms of the new condition 36. The new condition 37 relevantly provided:

"37(a) Completion of this Agreement shall take

place on the expiration of 7 days of the last to occur of:

(i) the date that FIRB Approval has been obtained as

contemplated by special condition 36; and

(ii) the date that the DHA Consent is granted as contemplated

by special condition 35; and

(iii) the first to occur of:

(A) the date the DHA Warranty is furnished as contemplated by

by Special Condition 38.1;

(B) the date a Positive Yates Settlement has been achieved as determined

in accordance with Special Condition 38.2; and

(C) the date the Purchaser by notice in writing waives the benefit

of Special Conditions 38.1 and 38.2(a).

(b) In the event that either FIRB Approval has

not been received as contemplated by special condition

36 or DHA Consent has not been furnished (in accordance

with special condition 35) on or before 7 June 1990

then either party may rescind this Agreement by not

less than fourteen (14) days' notice in writing served

on the other party whereupon the provisions of clause

19 hereof shall apply.

(c) In the event that the Yates Proceedings are

determined by the Land and Environment Court of New

South Wales or by the Court of Appeal or by the High

Court of Australia in the circumstances contemplated by

Special Condition 38.2, upon a basis which involves the

Lease being declared void or voidable, then either

party may rescind this Agreement whereupon the

provisions of clause 19 hereof shall apply.

(d) ... "

53. The reference in para (c) of this condition to "the Yates Proceedings" was a reference to a proceeding in the Land and Environment Court initiated by Ian Yates, the principal of the present applicant company, seeking a declaration that the lease granted by the Darling Harbour Authority to Valtone was invalid. That proceeding was listed for hearing in the period 5-7 September. But sometime about 29 or 30 August, although after the mention before me of the present case on the morning of 29 August, Mr Yates discontinued the Land and Environment Court proceeding. Apparently, those advising Valtone then took the view that the requirements of special condition 37 were satisfied. By a letter dated Friday, 14 September, the solicitors for Valtone requested the solicitors for Rockvale to make an appointment to complete the agreement. The letter was not a formal notice to complete but, as I have said, Rockvale completed the transaction on the next working day. Two days later, on 19 September, a provisional liquidator of Valtone was appointed.

54. When he learned of these events, the solicitor for the applicant discussed their consequences with the solicitor for Valtone. That solicitor took the attitude that his client was no longer a necessary party to the proceeding. He intimated that his client would seek to be dismissed from the case when it came on for hearing. The applicant's solicitor contended that Valtone remained a necessary party, in the sense that it be bound by any declaration or order made in this proceeding. But there was the further complication, in view of the appointment of a provisional liquidator, that the applicant required the leave of the Supreme Court of New South Wales to maintain the action against Valtone: see s.371(2) of the Companies Code (NSW).

55. On 21 September the present applicant sought that leave. The matter came before Hodgson J. Being informed that the principal proceeding was listed for hearing in this Court on the following Monday, his Honour held that it would be better for the leave application to be dealt with in the context of other issues falling for determination in this Court. Accordingly, he made an order, under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), transferring the leave application to this Court.

56. On the Monday morning, after hearing argument, I said that, on my then knowledge of the case, I was not prepared to hold that Valtone was not a necessary party; accordingly, its application for dismissal from the proceeding ought to be refused. I also granted leave under s.371(2). I gave reasons. I will not repeat them now. It is enough to say that I was influenced by the fact that s.35 of the Foreign Acquisitions and Takeovers Act empowers the Treasurer to make application to a Supreme Court for rectification of a contravention of the Act. If there was a contravention in this case, it was possible that the Treasurer would make such an application. That application might involve Valtone and it was undesirable that Valtone be at liberty to relitigate the question whether the contravention had occurred. Counsel for Valtone had submitted that it was unlikely that any such application would be made, so that it was unreasonable to put their client to the expense of contesting the present proceeding. But it seemed to me that, if this was a fair assessment of the position, the solution was in the hands of the provisional liquidator himself. He could instruct counsel to submit to the order of the Court and to withdraw from further participation in the case. Counsel for the applicant had already indicated that, if this course were taken, their client would not seek any order against Valtone in respect of costs incurred after the date of its submission.

57. Following the making of these orders, counsel for Valtone indicated that their client submitted to the order of the Court, except as to costs. They were granted leave to withdraw. Counsel reappeared once or twice during the hearing of the matter in order to deal with problems which arose, principally in connection with the production of documents. But they did not take an active part in the proceeding, leaving its defence to the other two respondents. For convenience, I will use the term "the respondents" hereafter to refer only to the first and second respondents.

58. Notwithstanding their knowledge, prior to the hearing, of the completion of the agreement between Valtone and Rockvale, the legal representatives of the applicant made no application for interlocutory relief until the second day of the hearing. When the matter was called on that day, counsel sought leave to file in Court a notice of motion, returnable immediately. Counsel offered the usual undertaking as to damages. After hearing argument, I made the following orders:

"1. That the Registrar General of New South Wales be

added as a respondent to these proceedings.

2. That until further order, the second respondent be

restrained from taking any step or doing anything for

the purpose of having registered any transfer of lease

No. X572866 over the land contained in Certificates of

Title 1/562950, 2/562950, 3/562950 pursuant to the Real

Property Act 1900 (NSW).

3. That until further order, the Registrar General be

restrained from taking any step or doing any thing for

the purpose of having registered any transfer of lease

No. X572866 over the land contained in Certificates of

Title 1/562950, 2/562950, 3/562950 pursuant to the Real

Property Act 1900 (NSW)."

59. I granted liberty to any respondent to apply for rescission of any of those orders on one hour's notice to the applicant. Notice of the orders was served upon the Registrar General, who subsequently appeared to consent to any order which the Court might make.

60. No application for rescission of the interlocutory orders was made. In due course, the applicant amended its Statement of Claim so as to seek permanent orders in similar terms.

61. As I indicated at the beginning of these reasons, the respondents challenge the applicant's standing to maintain this proceeding. Before dealing with counsels' submissions on this issue I should summarise the evidence regarding the applicant's interest in the site.

62. On the first day of the hearing counsel read two affidavits sworn by Mr Yates. These affidavits revealed that Mr Yates has had a personal interest in developing the site since 1982. When, in June 1987, the Darling Harbour Authority called for expressions of interest, both Mr Yates personally and the liquidator of another company in the Yates group submitted expressions of interest. In the result, of course, the site went to Valtone. But Mr Yates said in his first affidavit, of 9 August 1990, that, if Rockvale is:

"unable to obtain approval under the Foreign

Acquisitions and Take-overs Act and Valtone Pty.

Limited remains unable or unwilling to carry out the

development pursuant to the lease with the Darling

Harbour Authority, Yates Security Pty. Limited or its

nominee proposes to negotiate with the receiver of

Valtone Pty. Limited and/or the State Bank as well as

the Darling Harbour Authority with a view to the

development of the markets 1 and 2 site in general

conformity with the development proposal a copy of

which I have exhibited."

63. Mr Yates went on to say that, between January 1990 and the date of his affidavit, the applicant had incurred expenditure in excess of $100,000 "in respect of the formulation and pursuit of a proposal for the development" of the site. He annexed to his affidavit a letter dated 20 July 1990 from the applicant's financial advisers to the receiver of Valtone in which they indicated the applicant's interest in acquiring the site. In July 1990 the applicant published a booklet setting out a development proposal for the site. The preparation of this booklet involved the obtaining of advices from consultants upon a number of matters. The booklet was tendered, but merely as evidence of the nature of the applicant's proposals and not as evidence of the truth of any matters asserted therein.

64. During the reading of other affidavits, the question arose whether the feasibility of the applicant's proposed development was an issue in this case. I expressed the view that, as the pleadings then stood, this matter was in issue; the applicant having asserted that feasibility and this having been denied by each respondent. Subsequently, counsel for the applicant announced that their client had decided to abandon the particular proposal described in the booklet, but nonetheless maintained its interest in the site. They obtained leave to amend their Statement of Claim and sought to read a further affidavit sworn by Mr Yates and dated 25 September. I rejected some portions of this affidavit. But I admitted the following passages into evidence:

"2. In light of the completion last week of the

Agreement for Sale of Lease between the Third

Respondent as Vendor and the Second Respondent as

Purchaser and as a result of legal advice that has been

received, the Applicant now proposes to acquire the

Paddy's Market Site, to restore the buildings on the

Site in a manner consistent with the advice received

from the Applicant's heritage consultant and enable the

subsequent operation within the Markets buildings of

markets either under the control of the Sydney Markets

Authority or independently operated.

3. ...

4. I am aware that the present sub-lease to the

Sydney Market Authority provides for a minimum rental

of $1.25 million. If the Third Respondent holds title

to the lease notwithstanding the purported transfer or,

alternatively, if no tower development is able to be

permitted upon the Paddy's Market Site, I intend to

deal with the Third Respondent or, if it does not

retain title to the lease, with the Second Respondent

to acquire the lease with a view to restoring the

buildings and operating the Markets in the manner that

I have suggested."

65. Mr Yates was not cross-examined. His evidence must be accepted. But counsel for the respondents argue that, accepting it unreservedly, this evidence is insufficient to establish the applicant's standing to maintain the proceeding. In that connection, they rely principally upon the High Court decision in Australian Conservation Foundation v Commonwealth of Australia (1980) 146 CLR 493 ("ACF"). In that case the plaintiff sought to challenge an approval granted under the Banking (Foreign Exchange) Regulations on the basis that it involved a contravention of the Environment Protection (Impact of Proposals) Act 1974 and of the Administrative Procedures decreed thereunder. The subject transaction involved the provision of funds for the development of a tourist resort. The plaintiff was a conservation organisation which had commented upon a draft environmental impact statement published pursuant to the Environment Protection (Impact of Proposals) Act. The plaintiff did not assert a private right or claim any special interest in the observance of the statute. It sued to prevent a public wrong. At p 526 Gibbs J said:

"It is quite clear that an ordinary member of the

public, who has no interest other than that which any

member of the public has in upholding the law, has no

standing to sue to prevent the violation of a public

right or to enforce the performance of a public duty.

There is no difference, in this respect, between the

making of a declaration and the grant of an injunction."

injunction."

"A person is not interested within the meaning of the

rule, unless he is likely to gain some advantage, other

than the satisfaction of righting a wrong, upholding a

principle or winning a contest, if his action succeeds

or to suffer some disadvantage, other than a sense of

grievance or a debt for costs, if his action fails. A

belief, however strongly felt, that the law generally,

or a particular law, should be observed, or that

conduct of a particular kind should be prevented, does

not suffice to give its possessor locus standi."

66. The principles enunciated by Gibbs J have to be considered in the light of the later decision in Onus v Alcoa of Australia Limited [1981] HCA 50; (1981) 149 CLR 27. In that case the High Court unanimously accorded standing to two plaintiffs to seek an injunction to restrain a threatened breach of Victorian legislation designed to protect, amongst other things, Aboriginal relics. The plaintiffs claimed not only that the relics had cultural and spiritual significance for them but that they were custodians of them according to the laws and customs of their people and that they actually used them. Gibbs C.J., at p 37, said that their position "is very different indeed from that of a diverse group of white Australians associated by some common opinion on a matter of social policy which might equally concern any other Australian." Stephen J, at p 42, commented that the distinction between the subject case and ACF -

"...is not to be found in any ready rule of thumb,

capable of mechanical application; the criterion of

'special interest' supplies no such rule. As the law

now stands it seems rather to involve in each case a

curial assessment of the importance of the concern

which a plaintiff has with particular subject matter

and of the closeness of that plaintiff's relationship

to that subject matter."

67. Onus was followed and applied in Full Courts of this Court in Ogle v Strickland (1987) 13 FCR 306 and United States Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR 79.

68. The nature of the interest asserted by the present applicant is very different from the interests considered in ACF and Onus. Although the applicant claims a desire to see the preservation of the significant buildings on the Paddy's Market site and the restoration of the use of those buildings as a market, its interest in the issues raised by the present case goes beyond what Gibbs J in ACF called "a mere intellectual or emotional concern". This applicant desires to redevelop the site itself. It hopes that success in this proceeding will provide it the opportunity to do so. The interest which it claims is perhaps more akin to that asserted in Robinson v Western Australian Museum (1977) 138 CLR 283, a decision whose authority remains unimpaired by the later decisions in ACF and Onus. In Robinson the plaintiff called into question the constitutional validity of the Museum Act 1959 (WA). That Act purported to vest in the Western Australian Museum the wrecks of certain ships, including a wreck located by the plaintiff. In upholding the plaintiff's standing, Barwick C.J. said, at p 292, that he "has a greater interest than any other member of the public to seek the assistance of the Court to determine the validity of the legislation". His Honour referred to the plaintiff's "claims to have done such acts as would entitle him either to salvage in the strict sense of the word or to fair compensation for his efforts if the Acts in question were not operative." At p 327 Mason J postulated that "the plaintiff must be able to show that he will derive some benefit or advantage over and above that to be derived by the ordinary citizen if the litigation ends in his favour". See also per Jacobs J at p 340 and per Murphy J at p 344.

69. The facts supporting standing in Robinson were stronger than those in the present case. Success in the present case would not enable the applicant to make a financial claim. But it would confer upon the applicant a commercial benefit, the opportunity to negotiate for the acquisition and development of the site. That benefit would not be unique to the applicant; other developers would also have the opportunity to negotiate, if they wished. But, as Gibbs J made clear in ACF at p 527, it is no objection to a claim of special interest that the claimed advantage is shared with some others. The benefit would be limited, in a practical sense, to a handful of persons. It is a benefit which is both more direct than, and different in kind to, the general benefit which is realised by members of the community when the law is vindicated and a property listed on the Register of the national estate is protected.

70. During the course of their submissions regarding standing, counsel for the respondents referred to the decision of Davies J in Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70. That case was a challenge to the validity of a decision granting a licence for the export of woodchips made from logs cut in national estate forests. The second applicant, Harewood, owned a property near one of the affected forests, access to which was gained along the road used to transport logs to the woodchip mill. He deposed to concerns that logging this forest would affect his future livelihood, safety and enjoyment of life, increase the frequency of damaging floods and the risk of uncontrollable fires, and lead to silting of the river on his property. He said that timber trucks had already caused damage to the windscreens of his motor vehicles; that the noise of chip boats at night was disturbing and that, when he visited the logged areas, he was upset by the loss of old trees and the destruction of plants and animal habitat.

71. Despite this evidence, Davies J held that Mr Harewood had no standing. He said, at p 75:

"These facts do not show that Harewood has a special

interest in the issue which is raised in the present

proceedings, namely whether the action taken by the

Minister has adversely affected the National Estate.

Harewood's interest in the National Estate is little

more than that of any ordinary member of the community.

Harewood has an objection to logging and its aftermath.

But these proceedings are not concerned with the effect

of logging inside the National Estate on property

outside the National Estate. As to the effect of

logging on the National Estate, Harewood's interest is

not a special interest but is that of an ordinary

member of the community."

72. The respondents argue that I should follow this approach in denying standing to the present applicant.

73. I respect any view expressed by Davies J, especially on a matter of administrative law. But I cannot accept the reasoning contained in the quoted passage.

74. On the facts accepted by his Honour, the logging of at least one of the national estate forests caused Mr Harewood difficulties and disadvantages different from those sustained by ordinary members of the community. Although others may have shared Mr Harewood's distress at the loss of trees and the destruction of habitat, they did not share the disturbances to their way of life and property suffered by Mr Harewood. With respect, the statement that the "proceedings are not concerned with the effect of logging inside the National Estate on property outside the National Estate" begs the relevant question. The substantive issue in the case was the lawfulness of the logging of the national estate forests. But, in relation to standing, the Court was concerned with the effect of logging on a property outside the national estate. Mr Harewood's claim that he suffered special damage from the unlawful activity depended upon that effect, which had to be evaluated. If, as Davies J found, the logging cast upon Mr Harewood a disadvantage which was both greater than, and different in kind to, the disadvantage suffered by ordinary members of the community, Mr Harewood suffered special damage. To apply the test of Gibbs J in ACF, Mr Harewood stood to gain a particular advantage if his action succeeded and to suffer a particular disadvantage if it failed.

75. In my view the applicant has standing to maintain the present proceeding.

The application of the Australian Heritage Commission Act

76. Before going to the question whether the actions taken in this case contravened the requirements of s.30 of the Australian Heritage Commission Act, it is appropriate to consider a more fundamental submission made by the respondents: that s.30 had no application to the decision which the Treasurer had to make. The submission is put in two ways. Firstly, counsel suggest that, as a matter of construction of the relevant statutory provisions, s.30 did not apply. Secondly, they say that, even if, as a matter of construction, the section could apply to a decision made under the Foreign Acquisitions and Takeovers Act, it was inapplicable to a decision which merely involved the acquisition of an interest in land, as distinct from an application for approval of a development activity. These submissions, of course, conflict with the Foreign Investment Review Board's understanding of the position. But they are none the worse for that; they are open to the respondents and must be considered on their merits.

77. The first submission requires reference to some of the provisions in the Foreign Acquisitions and Takeovers Act. Part II of that Act deals with "Control of Takeovers and Other Transactions". It includes s.21A, which deals with acquisitions of interests in Australian urban land. Section 21A(2) provides:

"Where the Treasurer is satisfied that:

(a) a foreign person proposes to acquire an interest

in Australian urban land; and

(b) the proposed acquisition would be contrary to the

national interest;

the Treasurer may make an order prohibiting the

proposed acquisition."

78. Subsections (3) to (6) are presently immaterial. But subs.(7) is relied on by Rockvale. It provides:

"The Treasurer shall not refuse to approve a person for

the purposes of subsection (4) unless the Treasurer is

satisfied that the person is a foreign person and that

it would be contrary to the national interest for that

person to acquire the interest concerned."

79. As mentioned, s.22 deals with interim orders. Section 23 provides that the Treasurer may at any time make an order revoking an order made, amongst other provisions, under s.21A. Section 24 requires orders made by the Treasurer under Part II to be published in the Commonwealth Gazette. Orders under ss.21A(2) and 23 take effect upon the date of that publication.

80. Part III of the Act deals, amongst other matters, with the effect of Part II orders. It is an offence to contravene or fail to comply with an order: see s.30. As mentioned, s.35 provides for applications by the Treasurer for rectification orders. Section 38 provides:

"38. An act is not invalidated by the fact that it

constitutes an offence against this Act."

81. Section 23 does not specify any criterion for a decision whether or not to revoke a prohibition order made under s.21A(2). However, it is accepted by the present parties that the criterion stipulated by s.21A(2) in respect of the making of a prohibition order, that is whether the acquisition of the land "would be contrary to the national interest", is also applicable to a decision about revocation. I think that this is correct; but, as I shall elaborate, on one view there is a difference between prohibition and revocation because of a difference in the form of ss.21A and 23.

82. Counsel for the respondents build upon the proposition that the criterion for revocation is the national interest, saying that, once it is accepted that the Treasurer's decision about revocation must be made by reference to the national interest, there is no room for the application to that decision of s.30 of the Australian Heritage Commission Act. The terms of that section have already been quoted. It will be recalled that subs.(1) speaks of all such directions being given and all such things being done "as, consistently with any relevant laws, can be given or done" etc. Counsel say that it would be inconsistent with a relevant law, namely the Foreign Acquisitions and Takeovers Act and its "national interest" criterion, to require observance of s.30(1) in the making of a decision regarding the revocation of a prohibition order. This does not mean, say counsel, that, in deciding whether or not to revoke a prohibition order, the Treasurer is precluded from environmental considerations; it is open to him to regard environmental protection as an aspect of the national interest. But they say that he is not obliged to consider environmental matters. Independently of the reference in s.30(1) to "any relevant laws", the respondents submit that the subject matter of Part II of the Foreign Acquisitions and Takeovers Act - which Part relates also to the acquisition of shares in, or control of, corporations and of assets of businesses - is so remote from the subject matter of s.30 that s.30's application to Part II, and to s.21A in particular, could never have been intended.

83. Insofar as the respondents rely upon the reference in s.30(1) to "any relevant laws" their submission runs into the immediate difficulty that these words apply, in express terms, to only one of the three duties which are cast upon Ministers by s.30; and that duty is the one duty of the three which is not alleged to be contravened in this case. To make myself clear, I must analyse sub-ss.(1) and (3).

84. Subsection (1) of s.30 imposes on each Minister two separate duties. The first duty is to "give all such directions and do all such things as, consistently with any relevant laws, can be given or done by him for ensuring" that his Department etc "does not take any action that adversely affects, as part of the national estate, a place that is in the Register unless he is satisfied that there is no feasible and prudent alternative to the taking of that action and that all measures that can reasonably be taken to minimise the adverse effect will be taken." This first duty is a duty to put in place procedures, a system of control, to guard against actions by the Department or an authority which adversely affects a place on the Register, unless the Minister is satisfied about the specified matters in the particular case. That duty is limited to the extent, and only to the extent, that the directions given, and the things done, by the Minister in putting into place the necessary procedures must be consistent with any relevant laws. For example, the Minister is not required to give a direction which would conflict with any restriction placed upon him or her under another statute.

85. The second obligation cast upon each Minister by s.30(1) is "not himself (to) take any such action" - that is, an action which will adversely affect, as part of the national estate, a place on the Register - "unless he is so satisfied" - that is, satisfied that there is no feasible and prudent alternative etc.

86. The third duty cast about Ministers by s.30 is a procedural one. Ministers, amongst others, are required by subs.(3), before taking "any action that might affect to a significant extent, as part of the national estate, a place that is in the Register", to "inform the Commission of the proposed action and give the Commission a reasonable opportunity to consider it."

87. In the present case, the applicants complain of breaches of the second and third duties which I have identified. Neither of those duties are expressed to be subject to other laws. But if the commands contained in s.30 are inconsistent with other applicable statutory provisions, questions arise as to their application to this case.

88. In my opinion, this is not a case for the application of the principle of statutory construction which is sometimes expressed in the Latin maxim generalia specialibus non derogant - general provisions will not abrogate special provisions. Firstly, the Australian Heritage Commission Act - Act 57, 1975 commencing 19 June 1975 - took effect before the Foreign Acquisitions and Takeovers Act - Act 92, 1975 commencing 1 January 1976. Secondly, even if the order of the statutes had been reversed, both are general statutes dealing with general subject matters.

89. However, there remains another principle, which was expressed by Griffith C.J. in Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 at p 7 in this way:

"...where the provisions of a particular Act of

Parliament dealing with a particular subject matter are

wholly inconsistent with the provisions of an earlier

Act dealing with the same subject matter, then the

earlier Act is repealed by implication. It is

immaterial whether both Acts are penal Acts or both

refer to civil rights. The former must be taken to be

repealed by implication. Another branch of the same

proposition is this, that if the provisions are not

wholly inconsistent, but may become inconsistent in

their application to particular cases, then to that

extent the provisions of the former Act are excepted or

their operation is excluded with respect to cases

falling within the provisions of the later Act."

90. It is not suggested that the Australian Heritage Commission Act and the Foreign Acquisitions and Takeovers Act deal with the same subject matter, so as to fall within the first branch of Griffith C.J.'s proposition. But it is suggested that, in the case of an application for approval of the acquisition by a foreign person of urban land which is entered in the Register of the national estate, an inconsistency may arise between s.30(1) of the Australian Heritage Commission Act and s.21A of the Foreign Acquisitions and Takeovers Act. Counsel submit that s.21A(2) specifies its own criterion for the making of a prohibition order; namely, that the Treasurer is satisfied that the proposed acquisition would be contrary to the national interest. They submit that it would be inconsistent with the application of this criterion to apply s.30(1), requiring the Treasurer to refrain from approving an application under s.21A(2) if the effect of approval would be adversely to affect a place in the Register. They add that, although s.23 of the Foreign Acquisitions and Takeovers Act does not specify any criterion for the making of a revocation order, once it is accepted that the national interest criterion also applies to that section, a similar result enures.

91. I do not think that s.30(1) should be denied application to a decision made under another enactment simply because the other enactment specifies, or implies, its own decision criteria. As s.30(4) makes apparent, the section was intended to apply to actions which take the form of the making of decisions. By their very nature, those decisions will be decisions made otherwise than under the Australian Heritage Commission Act; usually under some other Act. But many statutes specify criteria for the decisions which they authorise. Where they do not, the relevant criteria are implied by the statute's subject matter, scope and purpose: see The Queen v Australian Broadcasting Tribunal; ex parte 2HD Proprietary Limited [1979] HCA 62; (1979) 144 CLR 45 at p 49. To hold that s.30(1) had no application to statutes which specified or implied criteria would be to deprive that subsection of much of its effect. The intention of Parliament, as it seems to me, was to ensure that when Ministers came to make a decision which might adversely affect a place on the Register, whilst having regard to the matters relevant to their consideration under any other legislation, they would not make a decision adverse to the protection of the place unless satisfied that there was no feasible and prudent alternative and that all reasonable minimisation measures would be taken.

92. Cases may, of course, arise where there is a true inconsistency between the command of s.30(1) and that of the statute by which the statutory discretion is conferred. If it is impossible for a Minister to obey both commands, in the particular case, it may be assumed to be the intention of Parliament that the statute conferring the discretion should prevail. But that is not this case. Accepting that, in determining whether or not to revoke a prohibition order, the Treasurer is bound to consider the national interest, there is no inconsistency between that requirement and a prohibition on his taking action to revoke - that being an action which will adversely affect a place on the Register - unless he is satisfied that there is no feasible and prudent alternative. It is not as if s.23 imposes any positive duty to make a revocation order.

93. Turning to s.30(3), the position is even clearer. There can be no suggestion of an inconsistency between this subsection and s.23 of the Foreign Acquisitions and Takeovers Act. There is no conflict between a mere requirement for consultation, especially on a matter which it is conceded may be relevant to the ultimate decision criterion, and a provision specifying that criterion.

94. However, the second respondent puts an additional argument, based on s.21A(7). Counsel suggest that this subsection operates as a limitation on the Treasurer's decision under s.21A(2), so that an actual inconsistency may arise. The argument assumes that the reference in subs.(7) to subs.(4) is a printing error and that Parliament intended to refer to subs.(2).

95. I do not think that there is any printing error in subs.(7). Subsection (7) forbids the Treasurer "to approve a person". But subs.(2) is not concerned with the approval of a person. It deals with the making of prohibition orders. Subsection (4), on the other hand, empowers the Treasurer under certain circumstances to "make an order directing the foreign person to dispose of that interest within a specified period to any person or persons approved by the Treasurer".

96. In any case, to say that subs.(7) limits the power of the Treasurer in relation to an initial application for approval of an acquisition is to say nothing relevant to this case, where the relevant decision was a revocation under s.23.

97. I reject the respondents' submission that, as a matter of construction, s.30 had no application to the revocation decision made by Mr Keating.

98. The second argument put by the respondents on this aspect of the case is that the environment could not be affected by the subject decision. They say that the revocation of the prohibition did no more than allow Rockvale to acquire an interest in land, an acquisition which did not, in itself, affect the environment in any way. They refer to an example given by Stephen J in ACF, suggesting that the present case applies a fortiori.

99. Stephen J's example was given during the course of a discussion of the effect of the Administrative Procedures made under the Environment Protection (Impact of Proposals) Act. At p 544 his Honour made the point that the Procedures were "not a code of procedure, such as is familiar in town planning legislation, designed to ensure that those who are likely to be affected by the grant of some permit or the rezoning of some land are given a right to object and to have their objection heard and determined". On the contrary, he said, referring to s.5 of the Act, the Procedures were designed to ensure that "matters affecting the environment to a significant extent" are fully examined and taken into account. After referring to the Procedures in some detail, he summarised the position - and gave his example - at p 545:

"As the terms of s.5 of the Act and the definition of

'proposed action' in the Procedures make clear, it is

action proposed by the Executive arm of government with

which an E.I.S. is concerned. Occasionally, as in the

present case, that executive action will consist of the

granting of some executive consent, the grant of which

is itself incapable of direct environmental detriment

but which may produce that result at second-hand, by

permitting some development by private enterprise which

could not proceed without it."

100. With respect to counsel, it seems to me that the example given by Stephen J supports, rather than detracts from, the view that it was relevant for the Treasurer to have regard to the intended use of the Paddy's Market site, and not merely its intended acquisition. Stephen J treated the grant of an executive consent - which could not, of course, itself directly affect the environment - as a matter capable of "affecting the environment to a significant extent". In other words, for the purposes of the Environment Protection (Impact of Proposals) Act the granting of a consent was not to be divorced from its implementation.

101. A similar approach should be taken to the interpretation of s.30 of the Australian Heritage Commission Act. Subsection (4) of that section makes clear that various types of executive decisions, including decisions relating to work to be undertaken by others, may constitute the "taking of action" within the meaning of the section; that is, action which is capable of adversely affecting a particular place. So, for example, the section catches a decision to grant financial assistance to a State to enable it to carry out work in a place entered on the Register, notwithstanding that the Commonwealth decision itself could not have an adverse effect on the place. This conclusion is consistent with the view taken by Davies J in Australian Conservation Foundation v Minister for Resources. It appears that counsel submitted to his Honour that the grant of an export licence did not, and could not, in itself adversely affect the national estate. At pp 75-76 Davies J responded to that argument in this way:

"However, legislation which seeks to protect the

environment must be read in a way which promotes that

end and not so as to frustrate achievement of proper

protection. Therefore, when s.30(1) speaks of action

that adversely affects a part of the National Estate,

it must be read as encompassing not merely action that

has a direct adverse impact upon the National Estate

but also action which has a tendency indirectly to

impact adversely upon the National Estate. The grant

of a licence which assists the taking of action adverse

to a part of the National Estate, which promotes or

facilitates that action, is itself action that

adversely affects that part of the National Estate."

102. No doubt cases arise, from time to time, in which foreign persons seek merely to acquire land, having no proposal for its development or for any change of use. If, in such a case, the Treasurer is satisfied that the applicant's intentions are so limited, s.30 would seem to have no practical application to his decision under the Foreign Acquisitions and Takeovers Act. The Treasurer's approval would not be action "that might affect to a significant extent" the place: see subs.(3). Still less would it be "action that adversely affects" the place: subs.(1). But where the application made under the Foreign Acquisitions and Takeovers Act is for approval of the acquisition of a parcel of land with a view to its development for a particular purpose, it would be artificial to separate the acquisition from its consequences. The whole point of s.30 is to require consideration by Commonwealth authorities of the consequences, for any place on the Register, of the exercise of their powers. In the present case, both the initial applications and the application for revocation of the prohibition order were based upon Rockvale's proposal to carry out particular development, the economic consequences of which were said to be a factor supporting the application. At all times, all the parties acted on the basis that the acquisition of the lease was linked to the various development proposals, both for the purposes of the contractual obligations inter se of Valtone and Rockvale and in connection with the desirability of approval under the Foreign Acquisitions and Takeovers Act.

103. Counsel for Rockvale suggest that the effect of treating the development proposal as part of the application made under the Foreign Acquisitions and Takeovers Act would be to require Commonwealth authorities to become involved in the minutiae of development of national estate land; even down to the point of having to approve the detailed building plans submitted to the local council under Part XI of the Local Government Act 1919 (NSW) or its equivalent. I do not agree. The extent of the issue presented to the Treasurer must depend upon the terms of the application. Where an application to the Treasurer includes a proposal to carry out a particular form of development, the Treasurer is concerned with that development, looking at it as described in the application. If the relevant land is entered on the Register of the national estate, the Treasurer must apply s.30 the proposal as so described, asking himself or herself whether that development would adversely affect the land, as part of the national estate, and, if so, whether there is any feasible and prudent alternative to the approval of the applicant's acquisition for the purpose of that development. The Treasurer must determine that question on its merits. Subject only to the possible enforcement of any conditions, the Treasurer is not thereafter concerned with the development. The Treasurer has no role in respect of the building approval or the carrying out of the development proposal. Of course, if a proposal is so ill-defined that the Treasurer is unable, in any meaningful way, to carry out the duty of consultation cast upon him by s.30(3), or is unable to reach the satisfaction required by the concluding words of s.30(1), he will have no option other than to refuse his approval.

104. Section 30(3) applies to any case where there is a proposed "action that might affect to a significant extent, as part of the national estate, a place that is in the Register". Whether a particular action falls within that description is a matter of objective fact. It is not something committed to the determination of the relevant Minister, Department or authority; although, obviously, the Minister, Department or authority will have to make a preliminary judgment about the matter in order to decide whether or not to apply the subsection. But, ultimately, the question is one for the Court, to be determined on evidence.

105. In the present case the evidence is clear. Indeed it is undisputed. Referring to the drawings of both the 36 storey proposal and the 26 storey modification, Mr Lucas said in his affidavit:

"I am of the opinion that both proposals upset the

scale of the buildings presently standing upon the Site

and the surrounding streetscape. They trivialize the

heritage value of the facades and turrets. In my

opinion the proposals have been drawn without any clear

understanding of the heritage value of the facades and

turrets and the reasons that they should be conserved.

The small tower which provides a focal point in the

photograph comprised in annexure 'B' is an important

part of the streetscape and should be conserved. It

should not be overpowered."

106. Detailed criticisms of the 26 storey proposal, as it affected the site and surrounding area, were offered by Kenneth Maher, a highly qualified architect and landscape architect. Neither Mr Lucas nor Mr Maher were cross-examined.

107. It follows that, before revoking the prohibition order, and so clearing the way for the Rockvale development to proceed, the Treasurer was bound to consult with the Australian Heritage Commission.

108. Counsel for the respondents accept that there was no communication between the Treasurer, or his advisers, including the Foreign Investment Review Board, between the date of the application for revocation - indeed, after the prohibition order on 6 June - and the making of the decision to revoke. But they say that there was substantial compliance because the Commission had been consulted at earlier stages and its views were known.

109. I do not find it necessary to determine whether prior consultation with the Commission upon the same development proposal, but in respect of an earlier application, would constitute a substantial compliance with s.30(3). The development proposed in the conference with the Treasurer of 6 July, and in the formal application of 16 July, differed in two significant respects from that previously discussed with the Commission. Firstly, the height of the tower was to be reduced from 36 storeys to 26 storeys, a change which the Treasurer might reasonably have assumed the Commission would welcome. But, secondly, the floorspace previously intended to be located in the top 10 storeys was to be relocated in the remaining 26 storeys. The effect would be greatly to increase the typical floor area, adding to the bulk of the building when viewed from the street. If the whole of the lost space was relocated, as a matter of mathematics, the typical area of the remaining floors would be increased by 38%. This would be a very substantial increase in bulk, about which the Commission should have been consulted. Particularly having regard to the Commission's earlier concern about streetscape, it is even conceivable that the Commission would have preferred, if there had to be a tower, that it be tall and slim rather than shorter and squat. Whether or not this is so, it seems to me that the variation was of such significance that it cannot properly be said that the consultation relating to the earlier proposal amounted to a substantial compliance with the duty to consult regarding the later. I find that the decision of the Treasurer to revoke the prohibition order, without first consulting the Commission, contravened s.30(3) of the Australian Heritage Commission Act.

Compliance with s.30(1): feasible and prudent alternatives

110. Fundamental to s.30(1) is the phrase "feasible and prudent alternative". It is a phrase derived from United States legislation. So far as I am aware, its earliest use was in the Department of Transportation Act of 1966, followed closely by the Federal-Aid Highway Act of 1968. Those two statutes contained provisions in similar terms. It is enough to note part of s.4(f) of the former Act:

"After August 23, 1968, the Secretary shall not approve

any program or project which requires the use of any

publicly owned land from a public park, recreation

area, or wildlife and waterfowl refuge of national,

State, or local significance as determined by the

Federal, State, or local officials having jurisdiction

thereof, or any land from an historic site of national,

State, or local significance as so determined by such

officials unless (1) there is no feasible and prudent

alternative to the use of such land, and (2) such

program includes all possible planning to minimize harm

to such park, recreational area, wildlife and waterfowl

refuge, or historic site resulting from such use."

111. The United States Supreme Court considered this provision, and s.138 of the later statute, in Citizens to Preserve Overton Park Inc. v Volpe [1971] USSC 41; (1971) 401 US 402; 28 L Ed 2d 136. The Bureau of Public Roads had approved an interstate highway route which would have destroyed 26 acres of a 342 acre park and severed the remainder into two sections. The respondent, the Secretary of the Department of Transportation, approved the route, without making any finding as to the existence of feasible and prudent alternative routes. The United States Supreme Court unanimously allowed an appeal by opponents of the highway route. In delivering the opinion of the Court, Marshall J said at 411-413; 150-151:

"Despite the clarity of the statutory language,

respondents argue that the Secretary has wide

discretion. They recognize that the requirement that

there be no 'feasible' alternative route admits of

little administrative discretion. For this exemption

to apply the Secretary must find that as a matter of

sound engineering it would not be feasible to build the

highway along any other route. Respondents argue,

however, that the requirement that there be no other

'prudent' route requires the Secretary to engage in a

wide-ranging balancing of competing interests. They

contend that the Secretary should weigh the detriment

resulting from the destruction of parkland against the

cost of other routes, safety considerations, and other

factors, and determine on the basis of the importance

that he attaches to these other factors whether, on

balance, alternative feasible routes would be

'prudent'.

But no such wide-ranging endeavor was intended. It is

obvious that in most cases considerations of cost,

directness of route, and community disruption will

indicate that parkland should be used for highway

construction whenever possible. Although it may be

necessary to transfer funds from one jurisdiction to

another, there will always be a smaller outlay required

from the public purse when parkland is used since the

public already owns the land and there will be no need

to pay for right-of-way. And since people do not live

or work in parks, if a highway is built on parkland no

one will have to leave his home or give up his

business. Such factors are common to substantially all

highway construction. Thus if Congress intended these

factors to be on an equal footing with preservation of

parkland there would have been no need for the statutes.

Congress clearly did not intend that cost and

disruption of the community were to be ignored by the

Secretary. But the very existence of the statute

indicates that protection of parkland was to be given

paramount importance. The few green havens that are

public parks were not to be lost unless there were

truly unusual factors present in a particular case or

the cost or community disruption resulting from

alternative routes reached extraordinary magnitudes.

If the statutes are to have any meaning, the Secretary

cannot approve the destruction of parkland unless he

finds that alternative routes present unique problems."

112. The phrase "feasible and prudent alternative" has been used in other American environmental legislation for the purpose of defining defences. For example, s.3(1) of the Michigan Environmental Protection Act 1970 provided a defence "that there is no feasible and prudent alternative to defendant's conduct and that such conduct is consistent with the promotion of the public health, safety and welfare in light of the state's paramount concern for the protection of its natural resources from pollution, impairment or destruction"; the burden of establishing the defence being cast upon the defendant, although only on the balance of probabilities. This defence was described by the Court of Appeals of Michigan, in Wayne County Department of Health v Olsonite Corporation (1978) 263 NW Rep. 2d 778 at p 795, as "a heavy burden of environmental justification". In dealing with the concept of feasibility, at p 796, the Court accepted a passage from a judgment of the Court of Appeals for the District of Columbia Circuit, in Industrial Union Department AFL-CIO v Hodgson [1974] USCADC 381; (1974) 162 US App DC 331 at pp 341-342:

"(P)ractical considerations can temper protective

requirements. Congress does not appear to have

intended to protect employees by putting their

employers out of business - either by requiring

protective devices unavailable under existing

technology or by making financial viability generally

impossible.

This qualification is not intended to provide a route

by which recalcitrant employers or industries may avoid

the reforms contemplated by the Act. Standards may be

economically feasible even though, from the standpoint

of employers, they are financially burdensome and

affect profit margins adversely. Nor does the concept

of economic feasibility necessarily guarantee the

continued existence of individual employers. It would

appear to be consistent with the purposes of the Act to

envisage the economic demise of an employer who has

lagged behind the rest of the industry in protecting

the health and safety of employees and is consequently

financially unable to comply with new standards as

quickly as other employers."

113. After referring to the Supreme Court decision in Overton Park, the Michigan Court, at p 797, concluded:

"...that the defendant has failed to show the

technical, economic infeasibility and the imprudence of

alternatives to defendant's conduct. Although the

adoption of additional pollution controls may

financially burden Olsonite and adversely affect its

profit margin ... we believe, in light of the revenue

data noted, ... that the company is fully able to

finance the added cost of restraining odorous

emissions. The costs involved do not approach

extraordinary magnitude and no truly unusual factors

... refute the demonstrated prudence of alternative

systems."

114. Manchester Environmental Coalition v Stockton (1981) 441 Atl. Rep. 2d 68 concerned the Connecticut Environmental Protection Act 1971, which confers a defence in similar terms to those of the Michigan statute. In a case challenging a decision by the respondent to approve an industrial park, the Connecticut Full Supreme Court referred to Overton Park and noted that the concept of feasibility, as expounded in that case, had been applied to environmental protection legislation. At p 76 the Court made a comment about an argument that the respondent had failed to consider the alternative of a mass transit system to the highway which was proposed by the approved plan:

"The trial court stated, in its discussion of

alternatives, '(l)ikewise, the plaintiffs' argument

that mass transit should be considered as an

alternative component of the project plan is

unrealistic and an attempt to have the commissioner

take into consideration nonexistent factors. There is

no Connecticut transportation plan in effect. There is

no plan or funding for mass transit to the site. To

require the commerce commissioner to consider

impractical or nonexistent alternatives imposes

shackles on his performance and if followed through

would bring economic development in Connecticut to a

screeching halt.' This is not the proper standard by

which to measure 'feasible and prudent' alternatives.

'Prudent' alternatives are those which are economically

reasonable in light of the social benefits derived from

the activity. See Citizens to Preserve Overton Park,

Inc. v Volpe, supra. Mass transportation may surely be

a prudent alternative to reliance on the automobile for

transportation to this site. The social benefits to be

derived from mass transportation are obvious. Cost may

be considered in deciding what is 'prudent'. A mere

showing of expense, however, will not mean that an

alternative is imprudent. To do so would eviscerate

the EPA."

115. In a footnote the Court made the comment: "The fact that there is no plan or funding for mass transit to the site is not a justification for the defendants' conduct; rather, this is the very problem which the plaintiffs seek to remedy."

116. It is against this background that I turn to the question whether, in the present case, there was material before Mr Keating which, as a matter of law, was capable of satisfying him that there was no feasible and prudent alternative to the revocation of the prohibition orders. It will be recalled that, in each of their first two minutes regarding the site, the Foreign Investment Review Board referred to the question whether there was a feasible and prudent alternative to approval of the application by Rockvale. In the minute of 27 February 1990 the Board noted the Commission's advice that Stage 2 of the project will adversely affect the national estate and commented that it would therefore be necessary for the Treasurer to be satisfied that " no feasible and prudent alternative is available to the development" and that all reasonable minimisation measures have been taken. The Board referred to oral advice from the Attorney General's Department "that the general question is not so much one of alternative sites but of prudent or feasible alternatives available to the Treasurer." These comments are unexceptional. But the Board seems not to have grasped their significance. It apparently did not appreciate that the effect of that advice was that the critical question for the Treasurer was whether or not there existed a feasible and prudent alternative to approval, so that an investigation of alternatives would have to be made before any approval could be granted. In the absence of an investigation showing that there was no feasible or prudent alternative, the application of the Department's advice must have led to rejection. Yet, although no investigation had occurred or was proposed, the Board declined to recommend that course. Instead, it recommended an approval, subject to conditions. In doing so, it was actuated by economic considerations. In effect, the Board treated s.30(1) of the Australian Heritage Commission Act as merely introducing a heritage aspect into the overall decision, an aspect capable of being negotiated with the Commission and overborne, if the Treasurer saw fit, by economic considerations.

117. The Board's misunderstanding of s.30(1) is reflected also in its second minute. I have already noted the Board's report that it had contacted the New South Wales government "on whether all prudent and feasible alternative sites and designs had been investigated". The reference to alternative designs is unexceptionable; in considering whether there was a feasible and prudent alternative to the development proposed for this site, it was essential to consider whether any new development might be designed in a different way. But the reference to alternative sites suggests that the Board started from the proposition that this development had to be accommodated somewhere, and then enquired whether it could be accommodated somewhere else. Except, perhaps, in the case of a development so unusual and important that it would not be feasible or prudent for the community entirely to forego that development, an answer to the question posed by the Board, one way or the other, would not assist the determination of the question whether there was a feasible and prudent alternative to a particular proposed development on a particular site. Except in the postulated case, it would be consistent with feasibility and prudence to forego the development altogether.

118. Secondly, in its May minute, the Board mentioned Mr Saggers' alternative proposal for the site. It also reported that the Australian Heritage Commission had informed it that "there is likely to be a feasible and prudent alternative to a high rise tower, as the Commission is aware of another proposal with no tower". Presumably this was a reference to the applicant's proposal. As the evidence demonstrates, the applicant had been in contact with the Commission in early May. But the Board dismissed both of these alternatives from further consideration. In para.17, quoted above, it said that "the question of an alternative purchaser of the site is irrelevant to the Government's consideration of the present application". It gave two reasons: that foreign investment policy had been changed so as to remove a former requirement to take into account Australian bidders and the lack of evidence of commercial viability of the alternative proposal. The statement made in relation to the first reason was, no doubt, true. But, whatever its relevance to issues normally arising under the Foreign Acquisitions and Takeovers Act, it overlooked the requirement of s.30(1) of the Australian Heritage Commission Act to consider alternatives in respect of decisions affecting places on the Register of the national estate.

119. As to the second reason, the Board's approach overlooked the fact that the Minister was under a duty to be satisfied that there was no feasible and prudent alternative. If necessary, he had to seek out and evaluate information on alternatives, in much the same way as, in Manchester Environmental Coalition, the commerce commissioner had to investigate, and find against, the possibility of a mass transit system. Contrary to a submission put in this Court on behalf of Rockvale, s.30(1) is not satisfied merely by the absence, at the time when the relevant action is being first considered, of an alternative of demonstrated feasibility and prudence. Further, the Board was prepared to accept, as a possible alternative, only a development which was commercially viable after bearing the same land cost. This limitation was imposed in deference to Valtone's creditors and shareholders; but, as both Overton Park and Wayne County make clear, mere economic considerations cannot determine what is "feasible and prudent" in a statutory context such as this. If s.30(1) were so interpreted it would fail of its purpose. The most economically advantageous proposal would prevail.

120. In its July minute the Board did not mention the obligation conferred on the Minister by s.30(1). It did again refer to Mr Saggers, enclosing a copy of his more recent letter and noting his claim that a financial feasibility study for a one storey development had been completed. But, once again, this alternative was dismissed because of the removal of the "opportunities test" and the price which the Stallholders Association would be likely to pay.

121. When the Treasurer came to make his decision about revocation, he had before him the Board's July minute and a copy of its May minute. He was therefore aware of the existence of at least two alternative proposals for the development of this site. Mr Keating had access to both Mr Saggers' letters. He may have read them. He had access to the Commission's report of 22 May, in which it mentioned the existence of an alternative to a high-rise tower. He may have read this report. But he also knew that, for the reasons which it had given, the Board had not investigated or assessed either of those proposals. There was no material before the Treasurer to establish the truth of the Board's assumption about the price which would be paid by an alternative developer. But, even if this had been established, there would not have ben material upon which the Treasurer could be satisfied that there existed no feasible or prudent alternative to the revocation of the prohibition. As the American cases demonstrate, and they only apply the words "feasible" and "prudent" in their ordinary meaning, a proposal ought not to be regarded as infeasible or imprudent simply because it is more costly or less profitable.

122. Furthermore, the Treasurer knew that the Board had not made any more general inquiry about alternatives; perhaps involving yet a different proposal or form of development or leaving the site as it was. Except, perhaps, in a case where a place is in such a condition as to be dangerous, or to constitute a nuisance, to others, the "do nothing" option might ordinarily be thought to be a feasible and prudent alternative to action which will adversely affect a place entered on the national estate Register. But this was not considered.

123. There is no suggestion in the evidence that, when he took his decision to revoke the prohibition order, Mr Keating had before him any material regarding alternatives other than the inadequate material supplied by the Board. It is true that the Treasurer had had a discussion with the Rockvale representatives on 6 July. But we know from Mr Keating himself that this discussion was confined to that company's proposals; it did not touch on alternatives.

124. In my judgment, the applicant has made good its contention that there was no basis upon which Mr Keating could reasonably be satisfied as to the lack of a feasible and prudent alternative to revocation of the prohibition order.

Compliance with s.30(1): minimisation of adverse effects

125. The applicant further contends that, even if the Treasurer could have reasonably been satisfied that there was no feasible or prudent alternative to the revocation of the prohibition, so as to facilitate the Rockvale development, he could not reasonably have been satisfied that measures could reasonably be taken to minimise the adverse effect of that development. In its amended Statement of Claim, under this heading, the applicant refers to the failure of the Treasurer to make adequate enquiries as to the appropriate measures and the limited knowledge which the Treasurer had of the proposal itself. But the question of minimisation of adverse effects only arises if a decision maker first reaches the conclusion that there is no feasible and prudent alternative to the action which he is asked to take. I think that these complaints go to that initial matter rather than to minimisation.

126. Counsel also criticise the conditions imposed by the Treasurer, on the Board's recommendation. They are rather puzzling. Condition (iii) is unintelligible to me. It is not explained by any of the documents which are in evidence and counsel was not able to assist. The remaining three conditions are intelligible, as a matter of English, but it is difficult to see what purpose was intended to be achieved by conditions (ii) and (iv). A condition requiring a conservation management plan to be prepared after approval of the design of a particular building for a particular site within the management area has the logical appeal of the Queen's decree, in "Alice's Adventures in Wonderland", "Sentence first, verdict afterwards". And all the reports in the world could hardly assist the Australian Heritage Commission to minimise the adverse effects of the building. It would have no continuing role in the project.

127. To make matters worse, no action was taken to build even these conditions into the planning process. The Darling Harbour Authority was not informed of the conditions or asked to include them in the conditions to be imposed by that authority in any development consent, pursuant to the Environmental Planning and Assessment Act. The general manager of the Darling Harbour Authority, Ms Diana Talty, said in her evidence that she did not regard the Authority as having any responsibility to ensure compliance with the conditions laid down by the Treasurer. The only sanction for failure to comply with the conditions would be a prosecution under s.25(IC) of the Foreign Acquisitions and Takeovers Act; but a prosecution would not necessarily affect what happened on site.

128. However, it is one thing to be critical of the conditions imposed by the Treasurer and his failure to make them effective. It is another thing to say that he could not reasonably have been satisfied "that all measures that can reasonably be taken to minimise the adverse effect will be taken". The Authority's position as a planning authority had been seriously compromised by its position as lessor and the guidelines which it had issued to elicit tenders for the lease. But, looking at the position as at July 1990 and accepting - as one must for the purposes of this branch of the Treasurer's s.30(1) obligation - that there was no feasible or prudent alternative to the development proposed by Rockvale, there was no reason to doubt that the Authority would do what it could to minimise the adverse effects of the development on the places listed in the Register. On the evidence, and on the view taken by the Australian Heritage Commission, there was not much which could be done about those effects. The conditions imposed by the Treasurer were not going to make much difference. The essential problem was that the scale of the development was incompatible with the retention, in any meaningful way, of the buildings whose significance had caused the listing of the site on the Register. The Treasurer accepted that scale, although he required some relocation of the floor space. Once he did, the scope for amelioration was likely to be limited, perhaps cosmetic; but there was no reason to doubt that the Darling Harbour Authority, through its Quality Review Committee, would do what it could.

129. I am not prepared to uphold this aspect of the applicant's case.

The effect of non-compliance with s.30(3) and s.30(1): the Australian Heritage Commission Act itself

130. During the course of argument there was debate whether the duties cast upon the Treasurer by s.30(3) and s.30(1) should be classified as mandatory or directory. Reference was made to Montreal Street Railway Company v Normandin (1917) AC 170, in the Privy Council; the High Court decisions of Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242, Victoria v The Commonwealth of Australia [1975] HCA 39; (1975) 134 CLR 81 and Hunter Resources Limited v Melville [1988] HCA 5; (1988) 164 CLR 234 and the decision of a Full Court of this Court in Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 81 ALR 687. As these cases demonstrate, the task of determining whether a particular statutory duty is mandatory or directory frequently occasions difficulty. But I do not think that, in the present case, it is necessary for me to enter upon that task. Subject to one qualification, it is clear that there must be substantial compliance even with a directory requirement: see, especially, Scurr at p 256. It is equally clear that, in the present case, there was no substantial compliance by the Minister with either subsection. The Australian Heritage Commission was not consulted at all regarding the application for revocation; and the earlier consultation, regarding the initial application, involved a significantly different development proposal. As regards s.30(1), I have already indicated my view that there was no material before the Treasurer upon which he could have been satisfied of the matters therein specified.

131. The qualification which I mentioned arises out of a comment of Stephen J in Victoria v Commonwealth. At p 179, his Honour referred to the possibility of a statutory stipulation which is so relatively unimportant to the attainment of the general object of the statutory provision that even a total non-compliance may not matter. See also Attorney-General (NSW); ex rel. Franklin's Stores Pty Ltd v Lizelle Pty Ltd (1977) 2 NSWLR 955 and the reference to those cases by Dawson J in Hunter Resources at pp 249-250. Whatever the scope of this exception from the general rule - and it is clear that Stephen J, who had written the leading judgment in Scurr only two years earlier, regarded the requirement of substantial compliance as the general rule - it has no application to this case. The stipulations contained in s.30 of the Australian Heritage Commission Act go to the very heart of that statute. Section 30 provides the only statutory protection of places entered on the Register. Without the duties imposed by that section, there would be little purpose in the creation of the Register; or, indeed, in the establishment of the Commission itself.

132. The respondents do not suggest that this case falls within the exception mentioned by Stephen J in Victoria v Commonwealth. But they do submit that the case falls within what is, in effect, another exception from the general rule that substantial compliance is required. They say that, even if there was no compliance with the requirements of s.30(3) and s.30(1), the decision reached by the Treasurer was valid in law because those subsections merely constitute statutory directions to the Treasurer, whose disregard does not invalidate any decision. They refer to Australian Broadcasting Corporation v Redmore Proprietary Limited [1989] HCA 15; (1989) 166 CLR 454.

133. In Redmore, the issue was whether an agreement negotiated between the Corporation and Redmore, to resolve a tenancy dispute, was enforceable at the suit of Redmore. Section 25(1)(a) of the Australian Broadcasting Corporation Act 1983 empowered the Corporation to enter into contracts for the performance of its functions. Section 70(1) provided that the "Corporation shall not, without the approval of the Minister - (a) enter into a contract under which the Corporation is to pay or receive an amount exceeding $500,000". The total liability of the Corporation under the agreement would exceed $500,000, but the Minister's approval was not obtained. By majority (Mason C.J., Deane and Gaudron JJ, Brennan and Dawson JJ dissenting) the High Court held that the agreement was enforceable by Redmore. At p 457 the majority stated the relevant question as being "whether s.70(1) should be construed as confining power or as directory of the manner of its exercise". In coming to the latter conclusion, they were influenced by two considerations: the structure of the Act - and, in particular, the inclusion of s.70 amongst provisions dealing with the provision of funds and the institution of a system of expenditure controls, checks and supervision - and the contrast between its wording and that of s.62 of the Broadcasting and Television Act 1982, which it had replaced and which was expressed in terms clearly constituting a limitation on power. But, at p 457, their Honours did mention some other matters, which the respondents say apply equally to the present case: that the direction of s.70 was to the Corporation, and not to an innocent outsider having dealings with it who would be likely to act upon the basis that all necessary approvals had been obtained, that no particular procedure for the communication of the Minister's consent was required and that the Act did not spell out the consequences of a failure to comply with s.70. Their Honours commented:

"If the statutory direction to the A.B.C. not to enter

into a contract of the specified kind without the

approval of the Minister has the effect either of

confining the actual powers of the A.B.C. or of

invalidating any contract with an innocent outsider

entered into otherwise than in compliance with its

terms, it must be by reason of a legislative intent to

be discerned in the words of the sub-section construed

in the context of the Act as a whole."

134. Upon analysis of the Act, the majority Justices were unable to discern such an intention.

135. The minority Justices, at p 463, set out their understanding of the position:

"Prima facie, a statutory direction to one party not to

enter into contracts of a particular class must be

construed as having some legal effect. If

contravention of the direction is not an offence and if

there be no other penalty for contravening the

direction, the only legal effect which can be

attributed to the direction is that contracts entered

into in contravention of the direction are void. If it

were otherwise, the parties could with impunity enter

into the contract with full knowledge of the

contravention and the contract would none the less be

valid. The direction would be nugatory. Of course, if

the contract is rendered void by the statute and one of

the parties is innocent of any personal contravention

of the statute, it is or will often be unjust to that

party to allow the other party to avoid his obligations

under the contract: ...

There is a natural reluctance to attribute an unjust

operation to a statute which does not expressly

prohibit a contract of a particular class when a party

who enters into such a contract in breach of the

statute relies on the statute to avoid his contractual

obligations. Whether the statute has that operation

depends on its purpose. If the purpose of prohibiting

entry by a party into contracts of a particular class

is the protection of the public interest and if the

purpose would be frustrated by giving effect to

contracts of that class, the statute sterilizes those

contracts. The public interest prevails over the

private interest of the contracting parties."

136. I do not discern any difference of principle between the majority and the minority judgments. Rather, as it seems to me, the division between the members of the Court arose out of differing perceptions of the intention of the legislation. In considering that matter, the courts will bear in mind the possibility of an innocent party being disadvantaged by a failure of someone else to comply with a statutory requirement, a failure of which the innocent party might be unaware. But, if the intention of the statute is clear, that possibility has to be accepted.

137. As the division of opinion in the High Court demonstrates, the issue in Redmore was not easy of resolution. It is even more difficult in a case where the power is conferred by one statute, here the Foreign Acquisitions and Takeovers Act, but its exercise is circumscribed by another, the Australian Heritage Commission Act. It seems to me that the problem can only be determined by reference to the legislative intention in enacting the limiting legislation, s.30 of the Australian Heritage Commission Act, the present equivalent of s.70 of the Australian Broadcasting Corporation Act. The difficulty, of course, is that Parliament has not explicitly expressed its intention, in connection with invalidity. Accordingly, one must seek to discern a legislative intent in the words of s.30 "construed in the context of the Act as a whole" - to use the words of Mason C.J., Deane and Gaudron JJ - or "the purpose" of the prohibition - to apply Brennan and Dawson JJ.

138. In my judgment, s.30 evinces an intention to ensure that actions by Commonwealth officers do not adversely affect places entered on the Register of the national estate unless a positive conclusion is reached by the responsible Minister that such affectation is, in practical terms, inescapable and all reasonable minimisation measures are taken. As I have already suggested, this objective is central to the statute, there being little point in compiling a Register unless places entered in it are protected, at least from adverse Commonwealth actions. In aid of this objective, s.30(3) requires notice to the Commission; expert advice being important to good decision making. In further aid of this objective, the first branch of s.30(1) requires Ministers to set in place appropriate procedures within their Departments; and, critically, the second branch of s.30(1) limits the exercise by Ministers of their own powers, given under any Act. The objective which I have identified is one which was adopted in vindication of the public interest, as perceived by Parliament, in protecting places of established heritage value.

139. If I am correct in this analysis, it must follow that s.30 is to be read as evincing a legislative intention to invalidate actions taken in contravention of its commands. To treat the section, as is suggested on behalf of the respondents, as a mere instruction to Ministers and bureaucrats without legal consequences would be materially to restrict its utility. The section would fail of its purpose in the very cases where it was most needed, cases where Commonwealth functionaries were disposed to act in a manner insensitive to the protection of a listed place. And this would be so even in cases where all parties were aware of the failure to comply with the section.

140. I recognise that there may be cases in which interested third parties are unaware of the failure of a Commonwealth functionary to observe s.30. They may be disadvantaged by a curial determination that the decision of that functionary is invalid. But the answer to that problem lies in the discretion of the Court as to the granting of relief, not in the adoption of a rule which would benefit the innocent and non-innocent alike.

141. In my opinion, the effect of a failure to comply with the requirements of either s.30(3) or s.30(1) will ordinarily be to render invalid the relevant decision; in this case the decision to revoke the prohibition order. But this general rule must always be applied subject to any specific provisions of the legislation conferring the power whose exercise is in question. In the present case, that legislation is the Foreign Acquisitions and Takeovers Act, to which I once again turn.

The effect of non-compliance: the Foreign Acquisitions and Takeovers Act

142. I have already referred to s.38 of the Foreign Acquisitions and Takeovers Act, which provides that "(a)n act is not invalidated by the fact that it constitutes an offence against this Act". Does this affect the conclusion just stated? I do not think so. Section 38 says nothing about the validity of any decision which might be made by a Minister under that Act; it deals only with the legal effect of actions by others. In my view, the proper analysis of the position is that the Treasurer's failure to comply with s.30(3) and s.30(1) of the Australian Heritage Commission Act rendered invalid his revocation order under s.23 of the Foreign Acquisitions and Takeovers Act, with the result that the prohibition order made by Mr Dawkins on 6 June 1990 remained in force. The acquisition by Rockvale of the lease, in breach of that order, constituted a contravention of Part II of the Foreign Acquisitions and Takeovers Act, and so an offence against s.30 of that Act. But s.38 operates to save that acquisition from invalidity. Although it would be open to the Court to make a declaration that the acquisition was a contravention of the Act, it would not be correct to declare that the acquisition was invalid or to order Rockvale and Valtone to take steps to reverse what they have done.

143. But the acquisition is not yet complete. The transfer of the lease has not yet been registered. The applicant argues that s.38 saves from invalidity only acts in contravention of the Act which are complete, that it does not derogate from the Court's normal power to restrain by injunction the commission of further acts in contravention of a statute. I think that this is correct. Because I held that view, I granted an interlocutory injunction restraining the registration of the transfer. However, the policy embodied in s.38, and in s.35(4A) dealing with disposal orders, is an important factor for consideration in determining what order ought to be made, in the exercise of the Court's discretion.

144. On behalf of Rockvale, the submission is made that, as a matter of discretion, no order ought to be made which will impede the company in completing its acquisition of the lease, through the registration of the transfer; and that the interlocutory order ought to be dissolved. It is contended, correctly I think, that Rockvale was not responsible for any failure by the Treasurer to observe the requirements of s.30 of the Australian Heritage Commission Act. It is further said that Rockvale will be seriously disadvantaged if it is left in a state of limbo, unable to force Valtone to repay the purchase price but also unable to consummate its acquisition by registration of the transfer of lease. This contention is obviously correct.

145. More controversially, Rockvale says that it did not bring its present plight upon itself. Rockvale concedes that its decision to complete the purchase was undertaken voluntarily, in the sense that no notice to complete had been issued on behalf of Valtone. But it says that, given the expressed attitude of Valtone, it was only a matter of time before a notice to complete was served. Condition 29 of the agreement permits the issue of a 14 day notice to complete at any time after the expiration of the completion date calculated in accordance with condition 37. Counsel argue that it would have been difficult for Rockvale to resist an action for specific performance or for forfeiture of its deposit; the agreement made no reference to a situation where the FIRB approval, though granted, was challenged. They proceed in their written submissions:

"But even if Rockvale had been willing to risk a

specific performance action or proceedings for

forfeiture of its deposit, the agreement carries a

further hazard for non-completion, namely, the payment

of liquidated damages pursuant to Special Conditions

30, namely, interest at the rate of 20% per annum on

$65 million (being the total of $41 million referred to

in Special Condition 39(b) and $24 million referred to

in Special Condition 39(c) and (d)). For every week

which Rockvale failed to complete after 14 September

1990, it ran the risk of having to pay roughly $250,000

per week to Valtone."

146. I think that counsel's submissions overstate Rockvale's predicament. It is true that the agreement made no provision for the events which in fact occurred, but it would have been very difficult for Valtone to contend that FIRB approval had been obtained if that approval had been held invalid by a Court. However, it is not necessary to decide whether Rockvale would have been entitled to resist a suit for specific performance or for forfeiture of its deposit. No such suit was ever brought, or threatened. No notice to complete was issued. If a notice to complete had been issued, after 14 September, it could not have expired before the commencement of the hearing of this action. If the need had arisen, steps could have been taken to ensure a decision before the expiration of a notice to complete. Rockvale was aware that the Court recognised the urgency of the matter. As to the matter of liquidated damages, the terms of the agreement do not support an apprehension that Rockvale might have been obliged to pay liquidated damages in respect of the period between 14 September 1990 and completion. Condition 30 provides for the payment of liquidated damages at the rate of 20% per annum on any moneys payable by the purchaser under the agreement which are not paid by the due dates for payment. The purchase price of $41,000,000, referred to in condition 39(b), was payable on completion date. The total of $24,000,000 referred to in condition 39(c) and (d) was payable in instalments of $17,000,000 and $7,000,000 respectively on the first and second anniversaries of the agreement. The first anniversary would not occur until 16 November 1990. To my mind, the inference is irresistible that Rockvale completed when it did because of an assessment made by it that this would improve its position in relation to this case. No doubt with s.38 of the Foreign Acquisitions and Takeovers Act in mind, it wished to present the Court with a fait accompli.

147. However, notwithstanding this opinion, I have come to the conclusion that it would not be appropriate for me to make an order permanently restraining the registration of the transfer. Whatever its motive for doing so, Rockvale was entitled to complete the purchase when it did. Whether or not it could have resisted a suit for specific performance on the basis that the revocation order was invalid, so that there was no valid FIRB approval, it has now paid to Valtone the full purchase price. Whatever order is made in this case, it would not be entitled to obtain a refund of its payment. Although the additional powers given to the Supreme Court, to be used in aid of orders made under s.35(4A), are extremely wide - see s.35(5) - it is highly unlikely in the circumstances of this case and its financial position that Valtone would be compelled to disgorge. So there is no advantage in retaining Valtone as the registered owner of the lease. It is, I think, appropriate that I make declarations, along the lines suggested by the applicant, to the effect that the revocation order was invalid and that the acquisition of the lease by Rockvale constituted a contravention of the prohibition order under s.21A(2) made on 6 June 1990. That would open the way for the Treasurer, if he sees fit, to institute an application under s.35 for an order directing Rockvale to dispose of the lease. It is not for me to say whether, under all of the circumstances, the Treasurer will decide to make such an application or, if so, whether a Supreme Court would so order. For present purposes, it is enough to note that this remedy is available and that it will not be impeded if, in the meantime, Rockvale is able to procure the registration of its transfer; indeed, to the contrary, registration is likely to facilitate disposal to another party.

148. I have no doubt that many people will consider that the situation revealed by this case, or its result, is unsatisfactory. Some may argue that the Commonwealth has no legitimate role to play in connection with decisions about urban development. I do not express any view about that matter. It is a political question which is answered for me, at least in my judicial capacity, by the decision of Parliament embodied in s.30 of the Australian Heritage Commission Act. But others, accepting that policy, may argue that there is little logic in the present system, whereby the Commonwealth becomes involved in the acceptability of a particular development proposal only if that development involves the exercise of some Commonwealth power, and then only "at the heel of the hunt" after the availability of other options has been compromised by decisions made by others, both within the State government and in the private sector. If a particular form of development is incompatible with the proper protection of the national estate, it is equally undesirable if carried out by an Australian.

149. These comments are not intended to criticise the policy enshrined in s.30. But I do suggest that, in cases where development of a national estate property is likely to be carried out by the private sector without any certainty of Commonwealth involvement, more may be required than the present reactive approach. If the national estate is worth protecting, perhaps the Commonwealth should develop a proactive approach, identifying those parcels of land on the Register what are likely to come under development pressures and influencing the relevant State authorities to put in place planning controls which will ensure that the development of those parcels will not adversely affect their national estate values. Such a course would have two advantages. Firstly, the controls would apply to development by any developer, foreigner or Australian, and whether or not the Commonwealth government became involved in the acquisition of the land or its development. Secondly, and most importantly, developers would know the development constraints in advance. Experience shows that developers can cope with stringent constraints which are known before they enter into a commitment to a project more readily than lesser constraints imposed at a later stage. If land is purchased on one basis and the rules are then changed, developers sometimes suffer such a degree of hardship that it becomes impossible for public authorities to insist upon these constraints, to the detriment of the public interest which the new rules were designed to achieve.

150. In the result, I propose to dispose of the matter by making two declarations: that the purported decision of the first respondent of 28 July 1990 to revoke the prohibition order made on 6 June 1990 in respect of the application of the second respondent is void; and that the acquisition by the second respondent of the lease was an act in contravention of the said order of 6 June 1990.

151. The interlocutory injunction made on 25 September 1990 will be dissolved. In relation to costs, the applicant has succeeded generally, though it has failed to obtain injunctive relief. I do not think that this failure should affect its right to obtain a general order for costs. However, the application for injunctive relief, with the associated application for amendment of the Statement of Claim, did have the effect of prolonging the length of the hearing. So I propose to allow only 90% of the costs.

152. In addition, the costs recovered by the applicant should exclude the amendments to its Statement of Claim. The applicant should pay the costs of the Registrar General, whose joinder was related only to the claim for injunctive relief.

153. In its operation against Valtone, the order for costs will be limited to the costs incurred by the applicant prior to the announcement by counsel that Valtone would submit to the order of the Court, except as regards costs.