[2010] TASSC 68

Statutes - Acts of Parliament - Interpretation - Obligatory and discretionary provisions - General principles - Validity of act done in breach of statutory provision.

Historic Cultural Heritage Act 1995 (Tas), s15(4)(a) - (d).

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, applied.

Second Respondent: Has submitted to the jurisdiction of the Court

Third Respondent: Has submitted to the jurisdiction of the Court

Second Respondent: Has submitted to the jurisdiction of the Court

Third Respondent: Has submitted to the jurisdiction of the Court

Judgment Number: [2010] TASSC 68

TASMANIAN HERITAGE COUNCIL v CITA PROPERTY GROUP PTY LTD

1 This is an appeal from a decision of the Resource Management and Planning Appeal Tribunal ("the Tribunal") concerning an entry within the Tasmanian Heritage Register of a building at 2 - 4 Salamanca Place, Hobart. The Register is established by the Historic Cultural Heritage Act 1995 ("the Act"), which stipulates certain requirements relating to the entry of places in the Register. The building at 2 - 4 Salamanca Place was entered in the Register but not all the statutory requirements regarding entry have been fulfilled. The Tribunal determined that the entry was invalid. The determination is contentious and is the subject of this appeal.

2 The background which is referred to in the Tribunal's decision is not in issue and may be briefly stated.

3 The building at 2 - 4 Salamanca Place has been entered in the Heritage Register. As a matter of interest, the historic and heritage significance of the building as noted in the entry includes that it demonstrates the "principal characteristics of an Inter-War Art Deco office building" and is a "rare intact" Tasmanian example of this style of architecture. As a consequence of being a registered building any works to be done to it must be approved by the Heritage Council.

4 There is a proposal to redevelop an area known as Parliament Square. The area is bounded by Salamanca Place, Davey Street and Murray Street, and immediately to the north west of Parliament House, Hobart. It contains a number of buildings, one of which is 2 - 4 Salamanca Place. The redevelopment proposal is that the building be demolished. A works approval has been granted by the Heritage Council subject to conditions. The approval authorises the demolition of the building. Appeals have been brought challenging the approval and conditions. Those appeals were instituted before the Tribunal.

5 During the hearing of the appeals an issue regarding compliance with the Act with regard to the entry within the Register was raised. After hearing submissions from counsel on this point, the Tribunal delivered a written decision providing reasons for the determination that there had not been a valid entry of the property at 2 - 4 Salamanca Place within the Register. The Tribunal held that as a consequence of that conclusion the "purported decision of the Heritage Council is a nullity and it is axiomatic that from a nullity no lawful appeal may lie". The Tribunal went on to hold that "The consequence of all this is that the Tribunal is of the view that it is without jurisdiction to continue to hear and determine the heritage appeals relating to Parliament Square."

6 The Tribunal's conclusion regarding the invalidity of the entry within the Register was based on a consideration of the Act and the view that compliance with the Act, s15(4), was obligatory, and that there had been a failure to comply with all of the requirements in s15(4). The Tribunal concluded that this meant that there was no valid entry within the Register. Section 15(4) of the Act provides:

"(4) An entry of a place in the Heritage Register is to -

(a) identify the place by reference to its rectangular grid co-ordinates on the Australian Map Grid or its latitude and longitude on the Australian Geodetic Datum; and

(b) define the boundaries of the place by reference to a plan registered under the Survey Co-ordination Act 1944; and

(d) state the historic cultural heritage significance of the place."

7 In this case the difficulty of compliance with the provision lies with subpar(4)(b). The entry does not contain a reference to a plan registered under the Survey Co-ordination Act 1944 defining the boundaries of the place.

8 It seems that there may also have been non-compliance with subpar(a) of s15(4) which requires identification of the place by reference to its rectangular grid co-ordinates on the Australian Map Grid or its latitude and longitude on the Australian Geodetic Datum. The entry in the Register contains just two grid co-ordinates, two eastings and two northings. Whether there is a second instance of non-compliance with the Act, s15(4), does not much matter in the context of this appeal. It is clear and uncontentious that there has not been compliance with the Act, s15(4).

9 The Tribunal's decision has been appealed by the Heritage Council pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s25, on the basis that the Tribunal made an error of law. The grounds of appeal are:

"1 The Tribunal erred in law in construing the terms of s15(4) of the Historic Cultural Heritage Act 1995 as being obligatory such that failure to comply with each of the requirements in that sub-section results in there being no valid entry within the Heritage Register established by the Act.

2 The Tribunal erred in law in failing to construe the terms of s15(4) of the Historic Cultural Heritage Act 1995 correctly, which is that the terms thereof are not obligatory and any failure to comply with one or more of the requirements in that sub-section does not of itself result in there being no valid entry within the Heritage Register."

These grounds are encapsulated in the question set out below.

10 The question that arises on this appeal is whether the entry of the property at 2 - 4 Salamanca Place within the Tasmanian Heritage Register is invalid due to non-compliance with s15(4) of the Act.

11 The focus of my consideration in this appeal is whether a breach of the Act, s15(4), had the effect of rendering invalid the relevant entry within the Register. The approach to be taken is clear and well-settled. The High Court case of Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 establishes that the approach that should be taken is to examine the legislation to ascertain whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.

12 In the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky, their Honours stated, at par[91]:

"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."

13 Their Honours went on to note there is little further guidance that can be offered in ascertaining the legislative purpose:

"Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue."

14 Their Honours went on to note that traditional approaches to determining invalidity such as distinctions between mandatory and directory provisions, and concerns with substantial compliance of directory commands, are no longer to be regarded as useful classifications. The following was stated at par[93]:

"They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid."

15 After some further discussion about outdated classifications their Honours stated:

"A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'."

16 In considering the issues identified by the majority judgment in Project Blue Sky (supra) I am conscious of the significance of the text and the language used in ascertaining the intention of Parliament. This principle and other general principles regarding statutory construction and the task of ascertaining the legislative purpose have been recently restated in Nau v Kemp & Associates [2010] NSWCA 164. McColl JA referred to these general principles at pars[21] and [22]:

"21 Notwithstanding judicial gloom about the construction of s5(1), the task of construing s5(1)(b) must begin with a consideration of its text, which, if clear, as the High Court has recently said, cannot be displaced by historical considerations and extrinsic materials: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 (at [47]) per Hayne, Heydon, Crennan and Kiefel JJ. At the same time, the Court cannot lose sight of the statutory direction to prefer a construction that would promote the underlying purpose or object of s5(1)(b): Interpretation Act 1987 (NSW), s33. As will be recalled, the literal meaning of a provision may 'wear a very different appearance' in the light of the context, the mischief which the statute was designed to overcome and the objects of the legislation: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 (at 408) per Brennan CJ, Dawson, Toohey and Gummow JJ; see also Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 (at [11]) per McHugh A-CJ, Gummow and Hayne JJ.

22 Section 5(1)(b) must also be construed as far as possible so that it is consistent with the language and purpose of all the provisions of the statute and on the prima facie basis that its provisions are intended to give effect to harmonious goals. Conflict which 'appears to arise from the language of particular provisions ... must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions': Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (at [69], [70]) per McHugh, Gummow, Kirby and Hayne JJ."

17 I am mindful of these general principles, as well as the Acts Interpretation Act 1931, s8A, which requires that regard be paid to the underlying purpose and object of the Act. I now turn to a consideration of the question of whether it was intended that an act done in breach of s15(4) of the Act should be invalid.

18 Applying Project Blue Sky, the approach I take is to ascertain the legislative purpose with reference to the following:

•

The language of s15.

•

The scope, subject-matter and objects of the whole statute.

•

The consequences of holding acts done in breach of the condition to be void.

The language of s15

1">19 Section 15 should be considered in its entirety. It provides:

"15 Heritage Register

(1) The Heritage Council is to keep a register to be known as the Tasmanian Heritage Register.

(2) The Heritage Register -

(a) is to be in any form the Heritage Council considers appropriate; and

(b) may consist of more than one document or record.

(3) The Heritage Council is to enter in the Heritage Register details of the following:

(a) any place provisionally entered under section 18(2);

(b) any place entered on a permanent basis under section 21(1);

(e) any variation of a heritage agreement under section 49;

(f) the termination of a heritage agreement under section 49;

(h) any shipwreck entered under section 65;

(j) any certificate issued under section 83;

(k) any other information the Heritage Council considers appropriate.

(4) An entry of a place in the Heritage Register is to -

(a) identify the place by reference to its rectangular grid co-ordinates on the Australian Map Grid or its latitude and longitude on the Australian Geodetic Datum; and

(b) define the boundaries of the place by reference to a plan registered under the Survey Co-ordination Act 1944; and

(d) state the historic cultural heritage significance of the place.

(5) Any person may inspect the Heritage Register during normal business hours.

(6) The expressions 'Australian Geodetic Datum' and the 'Australian Map Grid' -

(a) have the meanings assigned to those expressions by the National Mapping Council of Australia; and

(b) may be read as a reference to any other similar expressions relating to any geodetic reference system which may replace the system represented by those expressions."

20 The submissions of counsel focussed on the following:

•

The words "is to" in s15(4) contrasted with "must" appearing elsewhere in the Act.

•

The meaning of "place" and whether the section covers places that if sought to be entered on the Register are of such a nature that they could not comply with all of the conditions in s15(4)(a) - (d).

1">21 Before turning to these specific issues, I note the following matters about the terms s15(4) subpars(a) - (d). The subparagraphs are conjunctive, joined by the word "and". The content of the subparagraphs clearly indicates that they are meant to be read in that way. It seems clear that it would not suffice to comply with just one of the subparagraphs. It could not be enough to only enter a description of the place in the Register without any other information, or only a statement of the historic cultural heritage significance of the place, without entering the other information. The subparagraphs apply in a complementary fashion. It also appears that the purpose of the Register is for a record to be kept identifying the places entered and their significance.

22 Submissions from counsel traversed the Act collating a list of the use of the words "is to" and "must" in the Act. On the one hand it was argued that it can be seen that a pattern emerges from the use of the words "is to" throughout the Act suggesting compliance is not obligatory. On the other hand it was submitted that the phrases "is to" and "must" are used in the Act interchangeably and both phrases indicate an obligation, and they are to be contrasted with the word "may" that indicates a discretion.

23 It may be noted that a provision in the Acts Interpretation Act, s10A, assists with the meaning of the words "must" and "is to" and "may", but does not apply here because of its restricted application to legislation passed after 14 November 2000 (s10A(2)).

24 Having considered the use of "is to" and "must" in the Act, I accept that they are used interchangeably and sometimes the context suggests compliance would be essential, and in other provisions, that compliance would not be of importance. I do not consider that any particular significance attaches to the selection of the words "is to" in s15(4) as a contrast to "must". I do note at least, that the words used are not indicative of a discretion. By contrast the word "may" appears elsewhere in the Act, and the context in which it appears suggests a discretion rather than obligation (for example, see the Act, ss16 and 17).

25 It is submitted on behalf of the appellant that because of the wide meaning of "place" in the Act, and that the word covers moveable items and not just property and buildings, then necessarily there cannot be strict compliance with the Act, s15(4), in all cases. It is submitted that it would not make sense to impose the requirements in subpars(a) and (b) of s15 to some kinds of moveable items covered by the Act.

26 It is submitted for the first respondent that while moveable items fall within the meaning of "place" they do so only by reference to or in association with a site, precinct or parcel of land which would be capable of identification as required in accordance with the requirements of subpars15(4)(a) and (b).

27 The word "place" is defined in the Act, s3, as follows:

"'place' includes -

(a) a site, precinct or parcel of land; and

(b) any building or part of a building; and

(c) any shipwreck; and

(d) any item in or on, or historically or physically associated or connected with, a site, precinct or parcel of land where the primary importance of the item derives in part from its association with that site, precinct or parcel of land; and

(e) any equipment, furniture, fittings and articles in or on, or historically or physically associated or connected with, any building or item;".

28 I mention that it is apparent that the Act, s15(4), covers shipwrecks, and it is obvious that in the case of shipwrecks there could not be compliance with all subparagraphs of that provision. There is however an express dispensation in relation to shipwrecks (s65(2)). It seems that it was anticipated that shipwrecks fall into a special category because the location and a description of a shipwreck is only known in general terms. This exception does not assist in the interpretation of s15.

29 The application of the definition of "place" (s3) to s15, means that s15 could potentially apply to items that are associated with a "place" as defined but not located on a site that would qualify as a "place". The Act could apply to an item that is historically associated with a site or precinct of land (s3(d)), and could apply to equipment, furniture, fittings and articles historically associated with a building or item (s3(e)). Thus an item such as a piece of furniture that has historical association with a precinct or historic building, but that is no longer within the precinct or historic building, could be entered. It is not necessarily the case that only items that are permanently located at a "place" as defined may be entered within the Register.

30 In the case of such moveable items with an historical association with a site or building, the Act, s15(4)(a) and (b), requires that its rectangular grid co-ordinates and boundaries, by reference to a registered plan, be entered. Counsel for the first respondent urged a view that the Act here refers to the land, site or building historically associated with the moveable item, and it requires the rectangular grid co-ordinates or the boundaries of the building or site that the item is associated with, be provided. The difficulty I have with this construction is that it gives a fluid meaning to "place" in s15(4), sometimes meaning the item of value and other times meaning the land or the site associated with the item of value: (a) and (b) relating to the land, site or precinct, and (c) and (d) meaning the item of value. I reject the argument. As a consequence it is plain that moveable items with mere historical association could not comply sensibly with pars(a) and (b).

31 The Act, s15(4), is broad enough in its terms to capture some "places" that necessarily cannot comply with all the requirements regarding entries. This is an indication that Parliament did not intend absolute compliance with the Act, s15(4)(a) - (d), in the case of all entries. It indicates a statutory purpose that it would suffice if the survey plan or the rectangular grid co-ordinates were provided in relation to the building or site, as the case may be, and hence is an indication of some latitude.

32 If circumstances may arise where compliance is not possible then that is relevant in considering whether Parliament intended that non-compliance would result in invalidity: Tasker v Fullwood [1978] 1 NSWLR 20 at 24. This may be described as the possibility of impossibility (Statutory Interpretation in Australia, 6th ed (2006), Pearce and Geddes, at 349). It is an indication that it is not the statutory purpose that a consequence of non-compliance with s15(4) is that the entry should be void.

33 Counsel for the first respondent made submissions regarding the importance of defining the boundaries of the place by reference to a plan registered under the Survey Co-ordination Act. A number of different examples were advanced illustrating the value of defining the boundaries of a place by reference to a registered plan and where that level of accuracy would be required. There may be multiple buildings at a particular street address, there may need to be certainty about the particular buildings that are included in the Register, or a question about whether the land surrounding a building is included and, if so, what part of the land. An example of such a situation giving rise to uncertainty was the case of Widdowson Building Consultants Pty Ltd obo J Winspear v Tasmanian Heritage Council [2004] TASRMPAT 138 involving an annex to a building, the subject of a works application, which was not disclosed in the entry.

34 An argument was presented before the Tribunal regarding the Survey Co-ordination Act and the availability of plans. That argument is relied upon by counsel for the appellant but it was not developed beyond referring me to the transcript of the argument before the Tribunal. The argument mentioned matters such as difficulties with the availability of plans and that pursuant to the Survey Co-ordination Act inspection of registered plans is restricted. It was submitted that the purpose of the requirement under the Historic Cultural Heritage Act, s15(4)(b), is effectively to facilitate the provision of information to the Surveyor-General. The points made in the submission are not all evident from the legislation and are contested by counsel for the first respondent.

35 The point of the arguments made before the Tribunal seemed to be to demonstrate that compliance with the Act will not always be possible because of the terms of the Survey Co-ordination Act or the way in which it operates. That provides more argument on the point of the "possibility of impossibility", and because of matters canvassed above in relation to problems complying with the Act in another respect regarding "moveable items", I do not need to consider it.

The scope, subject matter and objects of the Act as a whole

36 I have considered the entirety of the Act. There are various provisions that assist in ascertaining the objects and scope of the Act. The preamble of the Act stipulates that it is:

"An Act to promote the identification, assessment, protection and conservation of places having historic cultural heritage significance and to establish the Tasmanian Heritage Council"

37 The word "conservation" is defined in the Act, s3:

"'conservation', in relation to a place, includes -

(a) the retention of the historic cultural heritage significance of the place; and

(b) any maintenance, preservation, restoration, reconstruction or adaptation of the place;".

38 The phrase "historic cultural heritage significance" is also defined:

"'historic cultural heritage significance', in relation to a place, means significance to any group or community in relation to the archaeological, architectural, cultural, historical, scientific, social or technical value of the place;".

39 The Act establishes a Heritage Council (s5). The Heritage Council consists of 15 people, including four people who together have expertise in at least four of the areas of architecture, archaeology, engineering, history, planning and building surveying, and nine people representing various interests, organisations and industries (s6).

40 It is evident that the functions and powers of the Heritage Council are foremost to conserve and protect Tasmania's historic cultural heritage. Section 7 sets out the general functions and powers of the Council in these terms:

"7 General functions and powers of Heritage Council

(1) The functions of the Heritage Council are -

(a) to advise the Minister on matters relating to Tasmania's historic cultural heritage and the measures necessary to conserve that heritage for the benefit of the present community and future generations; and

(b) to work within the planning system to achieve the proper protection of Tasmania's historic cultural heritage; and

(c) to co-operate and collaborate with Federal, State and local authorities in the conservation of places of historic cultural heritage significance; and

(d) to encourage and assist in the proper management of places of historic cultural heritage significance; and

(e) to encourage public interest in, and understanding of, issues relevant to the conservation of Tasmania's historic cultural heritage; and

(f) to encourage and provide public education in respect of Tasmania's historic cultural heritage; and

(g) to assist in the promotion of tourism in respect of places of historic cultural heritage significance; and

(h) to keep proper records, and encourage others to keep proper records, of places of historic cultural heritage significance; and

(i) to perform any other function the Minister determines.

(2) The Heritage Council may do anything necessary or convenient to perform its functions."

41 It can be seen that the correct keeping of records is an aspect of conservation and protection of that heritage.

42 The criteria for entry of a place in the Heritage Register also reveal the purpose of the Act. Section 16 provides:

"16 Required criteria for entry in Register

The Heritage Council may enter a place of historic cultural heritage significance in the Heritage Register if, in its opinion, it meets one or more of the following criteria:

(a) it is important in demonstrating the evolution or pattern of Tasmania's history;

(b) it demonstrates rare, uncommon or endangered aspects of Tasmania's heritage;

(c) it has potential to yield information that will contribute to an understanding of Tasmania's history;

(d) it is important as a representative in demonstrating the characteristics of a broader class of cultural places;

(e) it is important in demonstrating a high degree of creative or technical achievement;

(f) it has strong or special meaning for any group or community because of social, cultural or spiritual associations;

(g) it has a special association with the life or work of a person, a group or an organisation that was important in Tasmania's history."

43 The Heritage Council, on its own initiative or on application to it by any person, may enter a place in the Register on a provisional basis (s17). Before entering a place in the Register on a provisional basis, the Heritage Council may invite written submissions from people with special interest or knowledge as mentioned in s18. There is a process enabling objections to the Heritage Council's intention to enter a place in the Heritage Register on a permanent basis: s19. There is provision for "any person" to make a submission in relation to entry of a place on a permanent basis (s20).

44 A similar procedure exists for removal of an entry from the Register, including the inviting of submissions and an opportunity for "any person" to object: ss22, 23. There is provision for any person who lodged an objection or made a submission to appeal to the Tribunal against a decision of the Council regarding the entry of a place in the Register on a permanent basis or removal of an entry: s27.

45 The Act also provides for the Minister to declare an area to be a heritage area which may contain any place of historic cultural heritage significance: s29. There is a prohibition against carrying out certain works within a heritage area in certain circumstances: s30.

46 Section 32(1) prohibits works in relation to a registered place or a place within a heritage area unless the works are approved by the Heritage Council:

"32 Application for approval to carry out works

(1) A person must not carry out any works in relation to a registered place or a place within a heritage area which may affect the historic cultural heritage significance of the place unless the works are approved by the Heritage Council.

Penalty:

In the case of -

(a) a corporate body, a fine not exceeding 10,000 penalty units; or

(b) an individual, a fine not exceeding 5,000 penalty units."

47 Submissions may be made in relation to a works application: s35. There is provision for appeals to the Tribunal regarding approvals or refusals to approve a works application: s43. The Act provides for heritage agreements and enforcement proceedings, ss47 and 53.

48 There is provision in the Act for the Heritage Council or the Minister to make a stop work order in respect of a registered place or a place, which, in the opinion of the Heritage Council, should be a registered place (s57). A stop work order is generally in place for 14 days unless extended by the Tribunal (s58). There is also power for the Heritage Council to serve on the owner of a registered place a notice to cease any action or complete any specified works if the owner is likely to affect the historic cultural heritage significance of the place (s60). There is an appeal provision regarding such notice (s61).

49 There is provision for the Minister to make an order prohibiting the owner of a registered place convicted of an offence relating to the destruction of, or damage to, the place, from carrying out any works in relation to the place (s74).

50 There is a scheme for the Heritage Council to issue a certificate stating that the place is not a registered place: Part 11 (s80).

51 Section 90 is a general provision that governs the exercise of any powers or functions under the Act:

"90 Matters to take into account

In exercising any powers or performing any functions under this Act in relation to a place, a person must take into account -

(a) the retention of the historic cultural heritage significance of the place; and

(b) the objectives of the resource management and planning system and the planning process set out in Schedule 1 to the Land Use Planning and Approvals Act 1993; and

(c) any relevant provisions of the Building Act 2000."

52 There is provision that the Heritage Council may amend an entry in the Register to update any details or correct an error in the entry (s94).

53 Having considered the Act as a whole, it is evident that the primary purpose of the Act is to conserve and protect Tasmania's historic cultural heritage.

54 The accurate identification of sites and places of such heritage value is an aspect of that purpose. Accurate identification of places is important so that it is clear what falls within the Register and what is not included. It gives certainty in relation to the limits of the protection provided by the Register. Accurate identification is a means to an end, it furthers the purpose of protection and conservation.

55 It can also be seen that the general policy of the Act is to operate in a precautionary or inclusive fashion in terms of the protection provided by the Act. The Heritage Council has a role in extending the protection of the Act and the protection offered by the Register, rather than merely passive gate-keeper in relation to the Register: ss57, 17.

56 The precautionary approach is hardly surprising, given the potential application of the Act in relation to important historical places and rare instances of Tasmania's heritage: s16. If the protection afforded by the Act is not in place at a critical time, a consequence may be that places of significant heritage value are damaged or demolished.

57 Another consideration is the operation of ss16 - 21 of the Act. It is apparent that there is a staged process regarding the entry of a place within the Register involving provisional entry and objections, submissions and notifications. Interestingly, the requirements of s15(4)(a) - (d) are not pre-conditions for entry within the Register. The required criteria that must be addressed before entry within the Register are limited to considerations relating to the significance of the place: s16 of the Act. Parliament could have expressed the requirements in s15(4) to be essential prerequisites to entry, but that was not done. This suggests a tolerance by Parliament for the prospect that not all information stipulated in s15(4) must be contained within the Register contemporaneously with registration.

58 Counsel for the appellant relied upon the power of the Council to amend and update the Register. It is noted that although the power exists, it gives power to update any details originally contained in the entry, rather than provide details not contained in the entry. I find consideration of this provision is of limited assistance in ascertaining Parliament's intention.

59 Counsel for the first respondent referred to the process in the Act for seeking approval for works to be done to places that are registered, and provision for penalties to apply if that is not done. This requirement for approval and provision for prosecution and penalties, absent approval, is relied upon as an indication that accuracy and definition of places registered are of importance. There is merit in this submission. However, I also note that the provision prohibiting such works without approval is to be regarded in the context of the Act as a whole and the objects of the Act. The purpose of creating an offence and providing penalties for breach is to further the purpose of the Act. I return to the point that the primary purpose of the Act is to protect and conserve places of historic cultural heritage significance.

The consequences of holding entries in breach of the Act to be a nullity

60 The consequences of holding that entries that do not comply with the Act are null and void must also be considered. This involves an assessment of the various consequences of holding such entries to be a nullity and the level of inconvenience caused to the public. In some cases where that assessment has been undertaken, the judgments advert to whether neglect of a statutory duty is a matter that the public, or those reliant on the proper exercise of the duty, have any control over. In R v Resource Management and Planning Appeal Tribunal; ex parte Gary James Wilson [2000] TASSC 101; (2000) 9 Tas R 203, Underwood J (as he then was) considered some of the authorities regarding the consequences of holding acts done in neglect of a statutory duty to be null and void, at par[15]:

"There is nothing new in the above statement of principle. In Montreal Street Railway Co v Normandin [1917] AC 170, the Privy Council said at 175:

'When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only.'"

61 Further, Underwood J considered the consequence of inconvenience and injustice in the context of the principle that regard must be had to the purpose and object of each statute. At par[17] Underwood J stated as follows:

"Although all provisions have to be construed in the context of the statute in which they are enacted, and regard must be had to the purpose and object of each statute, the Full Court of Victoria decision in Accident Compensation Commission v Murphy [1988] VicRp 52; [1988] VR 444 is particularly in point. In that case the Full Court was concerned with the meaning of the Accident Compensation Act 1985 (Vic), s117(5)(a), which provided:

'A Tribunal division shall commence to hear an application -

(a) within 60 days of an application under this Part for a determination by a Tribunal division being lodged with the Tribunal ... '

The court held that failure to comply with the section was an irregularity which did not affect the validity of what the Tribunal had done or might yet do upon the hearing of an application. The application of the following principle underpinned that result:

'The authorities make it plain that this question is answered by determining the whole scope and purpose of the enactment. A construction given one enactment is unlikely to be of assistance in the interpretation of another. It is "the importance of the provision that has been disregarded, and the relation of that provision to the general object to be secured by the Act" that must be assessed: Howard v Bodington (1877) 2 PD 203, at p 211. It is also of assistance to ascertain whether failure to adhere strictly to the requirement has caused prejudice to those for whose benefit the requirement was introduced or whether the public interest would suffer a disservice if it were held to be mandatory.'"

See also the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky (supra), at par[97].

62 In this case, to hold that entries that do not comply with the Act are null and void would have significant ramifications. The protection offered by the Register would no longer be in place for those places that were registered, but where the entries did not comply with the Act, s15(4). Places that had previously been afforded the protection of the Register would no longer be protected. It is also likely that there would be widespread uncertainty for the owners of registered places as to whether the entries were valid or not. Until the situation is rectified there is likely to be a period of uncertainty surrounding the status of entries on the Register. It is likely that significant inconvenience will be caused to the owners of places entered within the Register, and also members of the public who have acted in reliance on the Register. It is a consequence out of the hands and control of the owners of places that are registered and the public inconvenienced.

63 As a consequence of entries within the Register being void, and in other cases, uncertainty regarding the status of entries, there may be opportunistic development or work done which would not otherwise be approved by the Heritage Council, or perhaps not even applied for if the entry was valid or certainty existed. There is the potential for the wider community and future generations of Tasmanians to lose some of Tasmania's cultural and historic heritage. Such a consequence is potentially far-reaching and clearly at odds with the purpose of the Act in a fundamental sense.

64 The language of s15(4) of the Act and the context of the provision lead me to the conclusion that the statutory purpose was to impose a legal requirement upon the Heritage Council to comply with each of the subparagraphs of s15(4), and that all the information stipulated in those sub-paragraphs should be contained within the entry in the Register. This purpose is evident from the terms of s15(4) of the Act. Further, there is undoubted value in all of the information being included in the entry and it is evident that compliance promotes the purpose of the Act in various ways. However, this conclusion leaves unanswered the question of whether a failure to comply with the requirements of s15(4) of the Act has the effect of invalidating the entry.

65 I conclude that it is clear and certain that it was not the legislative purpose that a failure to comply with the requirements set out in s15(4)(a) - (d) should lead to the entry being invalid. The various considerations that I have referred to, set out above, weigh heavily in favour of the conclusion that non-compliance with s15(4) of the Act was not intended to result in invalidity of an entry in the Register. In particular, the purpose of the Act to conserve and protect places having historic cultural heritage significance in Tasmania and the consequences of entries being rendered invalid in cases of non-compliance by the Heritage Council are compelling indications of Parliament's intention. A construction of the Act that non-compliance with the Act, s15(4), renders an entry in the Register invalid is contrary to the purpose and policy of the Act.

66 Other considerations that I have referred to such as the precautionary approach to entries in the Register, the failure of the legislature to express the requirements in s15(4)(a) - (d) as pre-conditions of entry in the Register, the statutory role of the Heritage Council, and the capacity of the Council to act on its own initiative to apply the protection of the Register, are all indications that invalidity was not intended.

67 I conclude that while there is a legal requirement for the Heritage Council to comply with s15(4)(a) - (d) of the Act with regard to the entry of the building at 2 - 4 Salamanca Place, an entry that does not comply with that requirement is not invalid. The Tribunal erred in law in holding that failure to comply with s15(4) resulted in there being no valid entry within the Heritage Register.

68 The appeal is allowed. The Tribunal's decision that it lacked jurisdiction to hear the appeals before it, amounts to an error of law. It seems implicit in the Tribunal's determination that an order was made by the Tribunal dismissing the appeals. I will hear from counsel as to that matter and, assuming that to be so, the order will be set aside.