CATCHWORDS

ADMINISTRATIVE LAW - Statutory bodies - powers and duties of Australian Heritage Commission - jurisdictional fact - decision to enter area in Register of National Estate - whether entry depends on area objectively satisfying statutory description of national estate - Australian Heritage Commission Act 1975

 

ENVIRONMENT - Australian Heritage Commission - powers and duties of Commission - heritage legislation - meaning of national estate - decision to enter area in the Register of the National Estate - statutory description must be satisfied before area entered in Register - nature of duty imposed on Commission before entering area in Register - Australian Heritage Commission Act 1975

 

 

Australian Heritage Commission Act 1975, ss.23, 24A

UNESCO Convention for the Protection of the World Cultural and National Heritage (Articles 3, 4 and 11(2))

Cases considered:

 

Architects Registration Board of Victoria v Hutchison (1925) 35 CLR 404

Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369

Lovell v Lovell (1950) 81 CLR 513

Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589

R v Gray; Ex parte Marsh (1985) 157 CLR 351

Queensland v Commonwealth (The Queensland Rainforest Case) (1989) 167 CLR 232

Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86

Tasmanian Conservation Trust Inc v Minister for Resources (1995) 127 ALR 580

THE AUSTRALIAN HERITAGE COMMISSION v MOUNT ISA MINES LIMITED

No. QG 99 of 1994

BLACK C.J., BEAUMONT AND BEAZLEY JJ.

SYDNEY

24 NOVEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA           )

                                                                                    )

QUEENSLAND DISTRICT REGISTRY       )                       No.QG 99 of 1994

                                                                                    )

GENERAL DIVISION                                                )

                            ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

                                                              OF AUSTRALIA

                                                            BETWEEN:     THE AUSTRALIAN HERITAGE COMMISSION

                                                                                    Appellant

                                                                AND:           MOUNT ISA MINES LIMITED

                                                                                    Respondent

 

 

CORAM:         BLACK C.J., BEAUMONT AND BEAZLEY JJ.

PLACE:           SYDNEY

DATE:  24 NOVEMBER 1995

                                                         MINUTES OF ORDER

THE COURT ORDERS:

1.         Vary the answer given at first instance to question (e) as follows:

            "Q.(e)   Whether, on the true construction of the Act, an entry may be made by AHC, pursuant to s23 of the Act, in the Register of the National Estate of any place within the meaning of the Act which AHC considers should be so recorded, or whether only a particular place which, objectively, answers the description in s4 of that Act can be so recorded?"

            "A.(e)   The AHC has the power, and in some circumstances, the duty to enter a place in the Register of the National Estate if that place answers the description in s.4 of the Act.  The status of a particular place as one having significance or other special value for future generations as well as for the present community, as provided in s.4, is an objective fact, ascertainable by reference to its qualities.  In ascertaining whether a particular place has those qualities, the AHC is bound to make an evaluation of the

                                                                        - 2 -

                                    particular place which will involve

                                    matters of judgment and degree."

                       

2.         Appeal otherwise dismissed.

3.         Reserve liberty to either party to apply in writing for costs, any such application to be lodged in writing within 28 days of the publication of these reasons.

  Note:              Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

                       

IN THE FEDERAL COURT OF AUSTRALIA           )

QUEENSLAND DISTRICT REGISTRY                    ) No.  QG 99 of 1994

GENERAL DIVISION                                                )

             ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

                                                                          

                        BETWEEN:     THE AUSTRALIAN HERITAGE COMMISSION

                                                Appellant

                        AND:               MOUNT ISA MINES LIMITED

                                                Respondent

COURT:          BLACK CJ, BEAUMONT AND BEAZLEY JJ

 

PLACE:           SYDNEY (heard in Brisbane)

 

DATE:  24 November 1995

                                                   REASONS FOR JUDGMENT

BLACK CJ:

This is an appeal brought by leave from interlocutory orders made by a judge of this court, Drummond J, by way of answers to preliminary questions.  The questions were the subject of an order made by Cooper J for their separate determination as preliminary questions.  In the principal proceedings the respondent to the present appeal, Mount Isa Mines Limited ("MIM"), seeks judicial review of a decision made by the appellant, the Australian Heritage Commission ("the Commission"), that an area of approximately 300,000 hectares, comprising the entire Sir Edward Pellew Group of islands, surrounding waters and a coastal strip on the mainland south of the island group, should be entered in the Register of the National Estate under the
Australian Heritage Commission Act 1975 ("the Act").  The application for judicial review is made under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act").

The Sir Edward Pellew Group comprises five large islands and more than 50 small sandy islets, reefs and rocks in the south west part of the Gulf of Carpentaria.  According to the Encyclopedia Brittanica, they were named by Matthew Flinders in 1802 after another officer in the Royal Navy.  The Sir Edward Pellew Group lies near the mouth of the McArthur River, in the vicinity of a mining project in which MIM is concerned.

The Act is concerned with Australia's national estate, a term that is defined by s.4 as follows:

                "4.           (1)           For the purposes of this Act, the national estate consists of those places, being components of the natural environment of Australia or the cultural environment of Australia, that have aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community.

 

                                (1A)        Without limiting the generality of subsection (1), a place that is a component of the natural or cultural environment of Australia is to be taken to be a place included in the national estate if it has significance or other special value for future generations as well as for the present community because of any of the following:

 

                                                (a)           its importance in the course, or pattern, of Australia's natural or cultural history;

                                                (b)           its possession of uncommon, rare or endangered aspects of Australia's natural or cultural history;

                                                (c)           its potential to yield information that will contribute to an understanding of Australia's natural or cultural history;

                                                (d)           its importance in demonstrating the principal characteristics of:

                                                                (i)            a class of Australia's natural or cultural places; or

                                                                (ii)           a class of Australia's natural or cultural environments;

 

                                                (e)           its importance in exhibiting particular aesthetic characteristics valued by a community or cultural group;

                                                (f)            its importance in demonstrating a high degree of creative or technical achievement at a particular period;

                                                (g)           its strong or special association with a particular community or cultural group for social, cultural or spiritual reasons;

                                                (h)           its special association with the life or works of a person, or group of persons, of importance in Australia's natural or cultural history.

 

                                (2)           For the purposes of this section, Australia includes the territorial sea of Australia and the continental shelf of Australia.

 

                                (3)           A place may form part of the national estate for the purposes of this Act notwithstanding that the conservation, improvement or presentation of the place is dealt with by another Act."

It will be seen that the national estate, as defined by s.4, consists of "places" having particular qualities.  "Place" is defined by s.3 of the Act to include:

                "(a)         a site, area or region;

 

                (b)           a building or other structure (which may include equipment, furniture, fittings and articles associated with or connected with such building or other structure); and

 

                (c)           a group of buildings or other structures (which may include equipment, furniture, fittings and articles associated with or connected with such building or other structures);

 

                and, in relation to the conservation or improvement of a place, includes the immediate surroundings of the place."

 

Part I of the Act having defined "the national estate", Part II of the Act provides for the establishment, functions and powers of the Commission.  One of those functions, provided for by s.7(c), is to:

                "identify places included in the national estate and to prepare a register of those places in accordance with Part IV."

Within Part II there are also provisions requiring the Commission to consult with other bodies, including Commonwealth and State authorities, in the performance of its functions (s.8) and requiring all authorities of the Commonwealth to give to the Commission such assistance in the carrying out of its functions as is reasonably practicable (s.9(1)).  A specific obligation is placed upon all Departments and authorities of the Commonwealth to comply with all reasonable requests for information made to them by the Commission in the performance of its functions (s.9(2)).  Power is conferred on the Commission to do all things that are necessary or convenient to be done for the performance of its functions (s.10(1)).

Part III provides for the constitution and meetings of the Commission.  Given the functions of the Commission in relation to the national estate, it is not surprising to find that Commissioners, other than those described as "the representative Commissioners" (of whom there may be no more than two at any one time: see s.12(1A) and the definition in s.3), must be persons having "qualifications relevant to, or special experience or interest in, a field related to the functions of the Commission" (s.12(4)).

Part IV provides for the keeping of a Register of the National Estate.  Section 22 provides:

                "22.         (1)           The Commission shall keep a register, to be known as the Register of the National Estate, in which will be listed places included in the national estate.

 

                                (2)           A place shall not be entered in the Register otherwise than in accordance with section 23 or subsection 25(2).

 

                                (3)           The Commission shall enter a place in the Register by causing to be entered in the Register a description of the place sufficient to identify it and the date on which the entry is made.

 

                                (4)           A place shall not be removed from the Register otherwise than in accordance with section 24 or subsection 25(5).

 

                                (5)           .  .  .

 

                                (6)           .  .  ."

 

Section 23, which is of critical importance to the exercise of the Commission's function "to identify places included in the national estate and to prepare a register of those places in accordance with Part IV", is in the following terms:

                "23.         (1)           Subject to this section and to section 25, where the Commission considers that a place that is not in the Register should be recorded as part of the national estate it shall enter the place in the Register.

 

                                (2)           The Commission shall not enter a place in the Register in accordance with subsection (1) unless:

 

                                                (a)           it has, by public notice:

 

                                                                (i)            stated that it intends to enter the place in the Register;

                                                                (ii)           given a description of the place sufficient to identify it;

                                                                (iii)          notified persons of their right to make written objection to the entry of the place in the Register;

                                                                (iv)          specified the date by which such objections are to be made, not being earlier than 3 months after the date of publication of the notice in the Gazette;

                                                                (v)           stated that although such objections may be made on any ground, the Commission will, in dealing with any objection, give upmost consideration to the significance of the place as part of the national estate;

                                                                (vi)          stated that the Commission will supply, on request:

                                                                                (A)          if the location of the place cannot otherwise be readily understood - a map of the place; and

                                                                                (B)           a statement regarding the significance of the place as part of the national estate; and

                                                                (vii)         specified an address to which such objections or requests may be forwarded;

 

                                                (b)           the date specified in that notice has passed; and

                                                (c)           if a person has, not later than the date specified in that notice, made written objection to the Commission to the entry of the place in the Register, the Commission has given due consideration to that objection.

 

                                (2A)        If:

                                                (a)           a person has, in accordance with a notice under paragraph (2)(a), made written objection to the entry of a place in the Register; and

 

                                                (b)           the Commission has not:

 

                                                                (i)            if subparagraph (ii) does not apply - within a period of 12 months from the date specified in the notice; or

                                                                (ii)           if, before the end of the period specified in subparagraph (i), the Minister has, at the request of the Commission, extended that period - within that period as so extended;

                                                                made a decision whether or not the place is to be entered in the Register;

 

                                                the Commission is to be taken to be of the opinion that the place should not be recorded as part of the national estate.

 

                                (3)           Where, after the giving of a public notice referred to in paragraph (2)(a) in relation to a place but before the place has been entered in the Register, the Commission becomes of the opinion, whether by reason of its consideration of objections or otherwise, that the place, or a place forming part of the place, should not be recorded as part of the national estate, the Commission shall:

 

                                                (a)           by public notice:

 

                                                                (i)            state that it has decided not to enter the place, or that part of the place, in the Register;

                                                                (ii)           notify interested persons of their right to make written objection to the decision;

                                                                (iii)          specify the date by which such objections are to be made, not being earlier than 3 weeks after the date of publication of the notice in the Gazette;

                                                                (iv)          state that, the Commission will, in dealing with any objection, give upmost consideration to the significance of the place as part of the national estate;

                                                                (v)           state that the Commission will supply, on request;

                                                                                (A)          if the location of the place cannot otherwise be readily understood - a map of the place;

                                                                                (B)           a statement regarding the significance of the place as part of the national estate; and

                                                                                (C)           a statement of the reasons for the Commission's decision in relation to the place;

                                                                (vi)          specify an address to which such objections or requests may be forwarded; and

 

                                                (b)           if a person has, not later than the date specified in that notice, made written objection to the Commission to the decision, reconsider that decision giving due consideration to the objection:

 

                                                                (i)            if subparagraph (ii) does not apply - within a period of 12 months from the date specified in the notice; or

                                                                (ii)           if before the end of the period specified in subparagraph (i), the Minister has, at the request of the Commission, extended that period - within that period as so extended.

 

                                (4)           Where a place is entered in the Register in accordance with subsection (1) or subsection 25(2), the Commission shall by public notice state:

 

                                                (a)           that the place has been so entered; and

 

                                                (b)           that the Commission will supply on request sent to the address specified in the notice:

 

                                                                (i)            if the location of the place cannot otherwise be readily understood - a map of the place; and

                                                                (ii)           a statement regarding the significance of the place as part of the national estate; and

                                                                (iii)          a statement of the reasons for the Commission's decision in relation to the place."

Section 23A provides for the giving of notice to land owners and local authorities and s.23B makes provision for the appointment of assessors to assist and advise the Commission in the consideration of a written objection.

Section 24 makes provision for an inquiry by the Commission as to whether a place is to continue to be recorded as part of the national estate.  If the responsible Minister so directs, such an inquiry must take place (s.24(1)(b)) and if, after inquiring into the matter "the Commission considers that a place that is in the Register ... should not be recorded as part of the national estate, it must remove that place from the Register" (s.24(1A)).  Provision is made in s.24(2) for public notice of the Commission's intention to remove a place from the Register and for objections to such removal.

Section 24A provides:

                "When dealing with an objection to any of its decisions under section 23 or 24, the Commission must give upmost consideration to the significance, as part of the national estate, of the place to which the decision relates."

               

Section 25 contains provisions dealing with the situation where an inquiry has been conducted under s.11 of the Environment Protection (Impact of Proposals) Act 1974 and the report includes a recommendation that a place be recorded as part of the national estate or a recommendation that the place should not be, or continue to be, so recorded.  The Minister, after considering the report, may give directions to the Commission. For example, if the Minister is satisfied that the place should be recorded as part of the national estate he may direct the Commission to enter that place in the Register.  Part IV concludes with sections making provision for an Interim List for the Register of the National Estate (s.26) and for the inspection of the Register (s.27).

Part V is concerned with the protection of the national estate.  A distinction is drawn in Part V, as it is elsewhere in the Act, between the national estate and places that are in the Register of the National Estate.  Section 30 is concerned only with places that are or are deemed to be in the Register.  It operates to protect, as part of the national estate, places that are in the Register by imposing duties on Commonwealth Ministers, Departments and authorities.  The presently relevant parts of s.30 are in the following terms:

                "30.         (1)           Each Minister shall 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 the Department administered by him or any authority of the Commonwealth in respect of which he has ministerial responsibilities 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 and shall not himself take any such action unless he is so satisfied.

 

                                (2)           Without prejudice to the application of subsection (1) in relation to action to be taken by an authority of the Commonwealth, an authority of the Commonwealth shall not take any action that adversely affects, as part of the national estate, a place that is in the Register unless the authority is satisfied that there is no feasible and prudent alternative, consistent with any relevant laws, to the taking of that action and that all measures that can reasonably be taken to minimise the adverse effect will be taken.

 

                                (3)           Before a Minister, a Department or an authority of the Commonwealth takes any action that might affect to a significant extent, as part of the national estate, a place that is in the Register, the Minister, Department or authority, as the case may be, shall inform the Commission of the proposed action and give the Commission a reasonable opportunity to consider and comment on it.

 

                                (3A)        .  .  .

 

                                (4)           .  .  ."

 

 

Part VA makes provision for financial assistance in respect of National Estate projects.  Such a project is defined by s.3 to mean a project relating to:

                "(a)         the identification of a place included in the National Estate; and

 

                 (b)          the conservation, improvement or presentation of a place entered in the Register or in the Interim List."

The remaining parts of the Act are not presently relevant.

The preliminary questions and answers with which this appeal is concerned are as follows:

Question 1(d):       Did s.24 of the Australian Heritage Commission Act, 1975 (the "AHC Act") give rise to any requirement obliging the Respondent to:

 

                                (i)            have compared the significance of SEPGS [the Sir Edward Pellew Group and surrounds] as part of the National Estate with other parts of the National Estate; and

                                (ii)           consider issues other than the significance of SEPGS as part of the National Estate?

 

Answer:There is insufficient evidence to answer Question (d)(i).

 

Question 1(e):       Whether, on the true construction of the AHC Act an entry may be made by the Respondent pursuant to s.23 of the AHC Act in the Register of the National Estate of any place (having a description sufficient to identify it) which the Respondent considers should be so recorded or whether only a particular place which, objectively answers the description in s.4 of that Act can be so recorded ?

 

 

Answer:That a place which the Australian Heritage Commission intends to enter in the Register of the National Estate objectively answers the description of the Act is a fact upon which the jurisdiction of the Australian Heritage Commission to make a decision to so enter the place depends.

I turn first to the Commission's submission that Question (d)(i) should have been answered in the negative.

In essence, the argument was that on the true construction of the Act the function of the Commission is to identify places that are part of the national estate and, when it has done so, to enter those places in the Register of the National Estate in accordance with a duty imposed by s.23(1).  The learned judge was wrong, it was argued, in concluding that the Commission had a discretion not to enter in the Register a place that it had identified as forming part of the national estate.

The fundamental difficulty the Commission's argument encounters is that presented by the objection provisions of s.23.  The Commission's function under s.7(c) of identifying places included in the national estate and preparing a register of "those places" is a function to be performed "in accordance with Part IV".  Section 7(c) so provides.  This is reinforced by s.22(2) which provides explicitly that a place is not to be entered in the Register otherwise than in accordance with s.23 or s.25(2).

As I have pointed out, s.23(2) requires the giving of public notice of the Commission's intention to enter a place in the Register.  A place is not to be entered in the Register unless the Commission has given a public notice in conformity with the requirement of that sub-section.  The notice must, amongst other things, notify persons of their right to make written objections to the entry of the place in the Register.  Parliament might have provided that objections could only be made on the ground that the place in question was not part of the national estate, but this is not the policy revealed by the section.  A quite different approach is revealed by s.23.  There is a right to make written objections to the entry of the place in the Register and to do so on any ground, but "although such objections may be made on any ground, the Commission will, in dealing with any objection, give upmost consideration to the significance of the place as part of the national estate" : see s.23(2)(a)(v) and s.24A.  Section s.23(2)(c) makes it clear that the Commission must give "due consideration" to all written objections made within time.  Since objections may be made on any ground the objections to which the Commission must give due consideration must include those made on grounds other than the ground that the
place was not in truth part of the national estate as defined in the Act.  Whatever limits there might be to the obligation to give due consideration to an objection made on "any ground", the obligation must extend to an objection that rationally argues that, despite the Commission's obligation to give the upmost consideration to the significance of a place as part of the national estate, nevertheless circumstances exist such as should lead the Commission to conclude that the place should not be entered in the Register.

The learned primary judge reasoned, in my view correctly, that a requirement to give the upmost consideration to matter of a particular nature suggests that there will be other matters that may be taken into account: cf.  Lovell v Lovell (1950) 81 CLR 513 at 521-2.  There is no basis for thinking that the right to object "on any ground" and to have objections "duly considered" was intended to be an illusory right, so that no matter how powerful the objection might be in a particular case, no objection to recording could ever succeed unless made on the ground that the place was not in truth part of the national estate.

Other provisions of the Act also point to the conclusion that the Commission has the power to decide not to enter a place in the Register notwithstanding that it is part of the national estate.  For example, s.23(2A), which operates when there has been an objection and the Commission has not made a decision within the period limited for the purpose, uses the expression "the Commission is to be taken to be of the opinion that the place should not be recorded as part of the national estate" (my emphasis) and
not an expression such as "the Commission is to be taken to be of the opinion that the place is not part of the national estate."  Likewise, s.23 contemplates not only that an objection may be made on any ground, but it also contemplates the possibility that the Commission might, by reason of its consideration of an objection, "become of the opinion" that a place which it has previously considered should be recorded should nevertheless "not be recorded as part of the national estate" : see s.23(3).

In this context, the Commission's duty under s.23(1) to enter a place in the Register  if it "considers that a place that is not in the Register should be recorded as part of the national estate" can be seen as arising subsequently to, and separately from, the identification of a place as part of the national estate.

I should add that I do not accept the submission made on behalf of the Commission that before the 1991 amendments to the Act it had no discretion to decline to register a place it had identified as part of the national estate and that the amendments should not be seen as effecting a fundamental change in approach.  In my view the Commission has always had such a discretion.

I therefore reject the submission that the primary judge was in error in concluding that the Commission had a discretion not to enter in the register a place that it had identified as part of the national estate.  I would not disturb the primary judge's answer to Question (d)(i) or his answer to Question (d)(ii).   In connection with the answer to Question (d)(ii) I note that the written objections of MIM were not in
evidence before the primary judge but it was not suggested that any of them were not proper objections in response to the Commission's notice.

It remains to consider the answer to Question (e).  The context in which this question arises should be noted at the outset.  In its application for judicial review under the ADJR Act MIM claims, as its first ground, that the Commission did not have jurisdiction to make the decision to enter in the Register the Sir Edward Pellew Group of islands and surrounding areas ("the whole area") because neither the whole area nor a smaller area, described as the coastal area, was part of the national estate within the meaning of the Act.  The particulars given of this ground assert that neither the whole area nor the coastal area has aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community of Australia.  By claiming, as it does, that only a place that objectively, in actual fact, answers the description of the national estate in s.4 of the Act can be entered in the Register of the National Estate, and by claiming that the Commission acted outside its jurisdiction by proceeding, wrongly, on the footing that the whole area does answer that description, MIM invites the Court to embark upon a factual inquiry of potentially very wide scope.

Subject to constitutional limitations (and none were suggested in the present case) an Act may commit to an administrative body the power to investigate and conclusively to determine the existence of certain facts upon which the exercise of a power to proceed further, such as the power to enter a place in the Register of the National
Estate, may depend.  In such circumstances, the capacity of a court to review a decision by an administrative body that the facts do exist will be limited, in accordance with the ordinary principles of judicial review, and there will be no question of the court making its own decision as to the true facts.  On the other hand, the legislature may make the power to do such an act contingent upon the actual existence of a state of facts:  see, for example, the discussion by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391.  Where the legislature has made the exercise of a power contingent upon the actual existence of a state of facts the existence or non-existence of those facts may be determined by a court having jurisdiction to review the decision.  Although in some cases it may be very difficult to decide upon which side of the line a particular provision falls, the question is one of construction:  see for example Architects Registration Board of Victoria v. Hutchison (1925) 35 CLR 404 esp at 412 per Starke J;  R v. Gray; Ex parte Marsh (1985) 157 CLR 351 at 372-373, 376-377, 378-379 and 390-391.

In considering the present question it is appropriate to examine first the nature of the task committed to the Commission under the Act.  Reference to the definition of the national estate in s.4 of the Act reveals that the task of determining whether a place is part of the national estate may be a difficult and complicated one, involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially very wide range of matters.  Questions of science, history and aesthetics may well need to be considered.  Many branches of science, from biology to geology, may be involved.  A wide range of historical and cultural issues
might need to be considered if, to take just one example, it were necessary to determine whether a place had a special value for future generations by reason of a strong association with a particular cultural group for social, cultural or spiritual reasons:  see s.4(1A)(g).

In such circumstances the very nature of the task of identifying places that are part of the national estate is suggestive of an intention that the body established by the Parliament with the function of identification is to have the power to make a conclusive determination of that matter.  What the respondent argues is "a jurisdictional fact", namely the identity of a place as part of the national estate, is a conclusion of fact and one that must often rest on a range of potentially difficult and complicated facts, assessments and value judgments.  If the conclusion that a place is part of the national estate were to be seen as a jurisdictional fact, one of the Commission's most important functions, and a key function in the overall scheme of the Act, would be performed only provisionally.  Even where none of the familiar grounds of judicial review could be made out, and there was no suggestion that the Commission had acted otherwise than according to law, the identification of a place as part of the national estate could still be challenged on the facts.  Despite the possible application of the principle that weight is given to the findings of fact of a specialist tribunal concerning a jurisdictional fact, there would be something approaching merits review of the Commission's decision since the matter for factual review would be, essentially, the performance of the whole function of identification. 

The inconvenience of such a result, an inconvenience that would be of a large dimension having regard to the subject matter of the "jurisdictional fact", is a powerful indication that it was not the intention of the Parliament that the finding should, in effect, be only provisional.  Rather it suggests that it was the Parliament's intention that the power of the Commission to enter a place in the Register of the National Estate was to be contingent upon the Commission's own view of the matter.  Inconvenience is a matter to be considered in ascertaining the intention of the Parliament in this area:  Parisienne Basket Shoes v. Whyte at 393 per Dixon J;  cf. Tasmanian Conservation Trust v. Minister for Resources (1995) 127 ALR 580 at 600-601 per Sackville J.   

Moreover, as I have pointed out, the identification of places included in the national estate is one of the functions specifically given to the Commission by s.7 of the Act and in the performance of that and its other functions the Commission is to be given, by all Commonwealth authorities and Departments, such assistance in the carrying out of its functions as is reasonably practicable (s.9(1)).  I have also mentioned its duty to consult in the performance of its functions.  These circumstances also tell against the identification of the national estate being a jurisdictional fact:  see Hutchison at 412-413 per Starke J.

As well as having the specific function of identifying places included in the national estate and having the benefit of provisions such as s.9 and s.10 to assist it in the performance of that and other functions, it is relevant that the membership of the
Commission is the subject of quite detailed provision in Part III and that the Commissioners, other than the representative Commissioners, must be persons having qualifications relevant to, or special experience or interest in, a field related to the functions of the Commission.  This is not to say that the Commissioners, or indeed any of them, will necessarily have qualifications or experience relevant to the identification of the national estate in any particular case, but the requirement that the body whose function it is to identify the national estate is to consist of commissioners, not fewer than half of whom are to possess the qualifications provided for by s.12(4), gives some additional indication that the Commission is intended to have the power to decide finally the matter of identification:  cf. Hutchison per     Starke J at 412.

There is another matter that tells against the jurisdictional fact conclusion.  The function of the Commission is to identify places and prepare a register in accordance with Part IV of the Act.  That part assumes a right to make written objections to the entry of a place in the Register and, as I noted when considering the first question, the Commission must give due consideration to a timely objection.  Such an objection could of course be made on the ground that a place was not in fact within the definition of the national estate.  The circumstance that the Commission is obliged to give due consideration to such an objection rather suggests that it is the Commission which is to have the final say on the question whether, in fact, a place is part of the national estate.

The situation being considered here is of course quite different to that considered in cases such as Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589 where Lockhart J (at 601-602), pointing to policy considerations of fair and humane treatment as giving added weight to a construction he would in any event have been disposed to accept, observed that it was for the courts to determine whether it had been established as an objective fact that a passenger card produced to an immigration officer contained false or misleading information (see also per Fox J at 590-591).  An inquiry as to the truth of a fact stated on a passenger card is of quite a different character and arises in quite a different context from the inquiry that would often need to precede a decision about whether a place is part of the national estate.

Counsel for MIM based an argument on the provisions of s.25.  He drew attention to the fact that the Minister could direct the Commission to enter a place in the Register without the Commission having identified the place as part of the national estate and he submitted that, in such circumstances, the identity of the place as part of the national estate was a jurisdictional fact for the purposes of s.25 and that a consistent approach should be taken with respect to the powers of the Commission as well.   I do not accept that submission because even if the identity of a place as part of the national estate were a jurisdictional fact for the purposes of s.25, that would not displace the conclusion to which the other provisions of the Act point with respect to the question in issue in the present case.  In any event, having regard to the terms of s.25, I am far from persuaded that the identity of a place as part of the national
estate is a jurisdictional fact for the purposes of that section.  It seems to me far more likely that the legislature intended that the Minister's decision, reached after considering an environment report in relation to the place, was to be conclusive, subject to judicial review on other grounds.

In these circumstances I would give a different answer to Question 1(e) from that given by the learned primary judge.  I would answer the question:

                "(e)         An entry may be made by the AHC, pursuant to s.23 of the Act, in the Register of the National Estate of any place that the AHC determines, according to law, is part of the national estate as that term is defined in the Act."

In determining, according to law, whether or not a place is part of the national estate, the Commission will of course need to make a proper assessment to determine whether a place is, in fact, within the definition of the national estate in s.4.  In doing so it will need to make assessments and value judgments but its ultimate task is to determine whether, in fact, a place is within the definition.  The final determination of that question is however one that is committed by the Act to the Commission.  It is not, in my view, a jurisdictional fact.

I would therefore dismiss the appeal to the extent that it relates to the first question.  I would allow the appeal in respect of the second question which I would answer in the way I have indicated.

I would reserve liberty to either party to apply for costs, any such application to be lodged in writing within 28 days of the publication of the Court's reasons.

                                                                                    I certify that this and the preceding 20 pages are a true copy of the reasons for judgment herein of the Honourable Chief Justice Black.

                                                                                    Associate:        

                                                                                    Date:  24 November 1995

IN THE FEDERAL COURT OF AUSTRALIA  )

                                  )

QUEENSLAND DISTRICT REGISTRY       )       No.QG 99 of 1994

                                  )

GENERAL DIVISION                  )

 

 

         ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

                        OF AUSTRALIA

 

                        BETWEEN:  THE AUSTRALIAN HERITAGE COMMISSION

 

                                  Appellant

 

                            AND:  MOUNT ISA MINES LIMITED

 

                                  Respondent

 

 

CORAM:    BLACK C.J., BEAUMONT AND BEAZLEY JJ.

 

DATE:     24 NOVEMBER 1995

 

                    REASONS FOR JUDGMENT

 

 

BEAUMONT AND BEAZLEY JJ.         

INTRODUCTION

          The context of this appeal, by leave granted from interlocutory orders made by Drummond J., is that, in the principal proceedings, the respondent ("MIM") has applied to the Court for judicial review of the decision of the appellant, the Australian Heritage Commission ("the AHC") to enter an "area", generally described as the Sir Edward Pellew Group of Islands and Surrounds ("SEPGS"), in the Gulf of Carpentaria, in the Register of the National Estate under the provisions of the Australian Heritage Commission Act 1975 ("the Act").  In the proceedings, Cooper J. made orders for the determination of certain preliminary questions of construction of key provisions of the Act.  Some of these questions were determined adversely to the AHC by Drummond J.
(see reasons reported at (1995) 128 ALR 509).  The AHC now appeals from selected parts of that judgment.

 

BACKGROUND

          The background to the original enactment of the Act which was substantially amended in 1990, as explained by Mr. Uren, the Minister for Urban and Regional Development, in his Second Reading Speech (Hansard, House of Representatives, 14 May 1975 at 2243-4), was as follows. 

 

          In 1973, the Australian Government set up a committee of inquiry under Hope J.  Its task was to investigate and report to the Government "on the nature and condition of the National Estate, and the ways in which all bodies in Australia - both Government and non-government - could work together to preserve and enhance it".  The committee was asked "to view the National Estate as made up of such things as national parks, nature reserves, historic buildings and structures, buildings and structures of architectural merit, areas of special scientific interest, the coastline and inland waters, and urban parks".  The Government sought "an inventory of our natural and man-made heritage".  The Minister explained that the aims of the legislation, stated broadly, were (1) to set up an Australian Heritage Commission "on a broad and representative basis to advise the Government and the Parliament on the condition of the National Estate and how it should be protected";  (2) to establish and
maintain a register "of the things that make up the National Estate"; and (3) to require that the Australian Government, its departments and agencies, and those acting on its behalf, "respect the National Estate and do all that they can to preserve it". 

 

          The Commonwealth's powers in relation to world heritage have been considered by the High Court (see Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1;  Richardson v Forestry Commission (The Lemonthyme Case) (1988) 164 CLR 261;  Queensland v Commonwealth (The Queensland Rainforest Case) (1989) 167 CLR 232;  see also, on the justiciability of such an issue, Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd. (1987) 15 FCR 274 per Wilcox J. at 306-7).  There has not, to date, been any consideration by the courts in this country of the notion of the "national estate", notwithstanding the perception that it is linked to the concept of heritage (see Kenneth Wiltshire, "Heritage" in R.L. Mathews (Ed.), Federalism and the Environment, (1985) at p.47).  To some extent, the notions of world heritage and the national estate would, presumably, overlap.  The Australian Constitution is, as Wiltshire (above, at p.47) observes, relatively silent regarding responsibility for environmental matters in general and heritage in particular,  most direct responsibility over matters related to physical property being under the jurisdiction of State governments.  The possible application in this area of

 

specific heads of Commonwealth legislative power is discussed by Leslie Zines in "The Environment and the Constitution" in Federalism and the Environment, above, at p.13 (see also The Final Report of the Constitutional Commission (1988) at pp.757-760;  James Crawford "The Constitution and the Environment", (1991) 13 Syd. L. Rev. 11 at 27).  Although, as Zines notes (above at p.25) there are many uncertainties in this area, it is not suggested in these proceedings that the Act exceeds the powers of the Commonwealth Government;  nor is it contended here that the present issues are not justiciable, at least in any strict sense (cf. M. Allars, Introduction to Australian Administrative Law at pp.50-6;  P. Bayne, "Natural Justice, Public Policy and Justiciability" (1988) 62 ALJ 225;  G. Lindell, "The Justiciability of Political Questions:  Recent Developments" in H.P. Lee and G. Winterton (Eds.), Australian Constitutional Perspectives at pp.207-212).

 

          Earlier this century, other countries, including the U.K. and the U.S.A., enacted heritage legislation (see Wiltshire, above, at p.47).  It appears that the term "The National Estate" was given great currency by President Kennedy (Wiltshire, above, at p.49).  In its report, the Hope Committee said:

 

     "1.1The term `The National Estate' was first adopted as an objective of Australian Government policy by the Prime Minister in his Policy Speech in 1972. The term is general but most people will recognise it as a brilliant
compression of much in little.  As to what it comprises, the Premier of Tasmania, in an equally concise compression, described it to our Chairman as `the things that you keep'.

 

     1.2  The question of what and how much the concept should finally include obviously could not be wholly established by the brief reconnaissance the Committee could make.  It has become clear that the size of Australia and its offshore components, the state of knowledge about its immense variety of landscapes and ecosystems, and even about its man-made features from Aboriginal and archaeological sites to Europe-derived buildings and townscapes, and the brief time in which the Committee has been employed, demand that this work be taken up and extended by a continuing body.  We suggest that the concept must be applied with flexibility and sympathy."

 

 

          The recommendations included the establishment of what later became the AHC.  It was recommended that its functions include the following:

 

     "To organise and commission any studies, research work and investigations it considers necessary.

 

     To prepare formal registers of National Estate property based on these studies."

 

          The Hope Committee went on to say:

 

     "10.24    The organisation of research work on a national basis is essential for the protection of the National Estate.  We cannot see how the work is likely to be done if not begun and supported by the Australian Government.  The great importance of a comprehensive national approach to the identification of different natural and cultural elements in Australia is evident to us.  The theme technique used in the United States and Canada is impressive.  Central government action in these countries and elsewhere emphasises the depth and extent of the research and investigation work carried out nationally and the considerable skills which national governments have assembled to do this work.

 

     10.25     We therefore believe that the essential functions of the ... Commission include

 

              identifying the important elements or themes within Australia's natural and cultural history;

 

              examining to what extent these important elements or themes are protected and preserved;

 

              organising detailed research wherever it is required (the research work need not be carried out by the Commission itself but it must be responsible for seeing that it is done)."

 

 

          In order to understand the questions that arise on the appeal, it will be necessary to provide the relevant detail of the applicable legislative scheme.

 

THE LEGISLATIVE SCHEME

          Part I of the Act deals with "Preliminary" yet important matters. 

 

          By s.4(1) it is provided that, for the purposes of the Act, "the national estate" consists of -

 

     "... those places, being components of the natural environment of Australia or the cultural environment of Australia, that have aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community." 

 

 

          (By s.3(1), "place" includes:

 

          "(a)  a site, area or region; 

 

          (b) a building or other structure (which may include equipment, furniture, fittings and articles associated with or connected with such building or other structure); and

 

          (c)  a group of buildings or other structures (which may include equipment, furniture, fittings and articles associated with or connected with such group of buildings or other structures); 

 

     and, in relation to the conservation or improvement of a place, includes the immediate surroundings of the place".)

 

 

          By s.4(1A) (inserted in 1990) it is provided, without limiting the generality of s.4(1), that a place that is "a component of the natural or cultural environment" of Australia is to be taken to be a place "included in the national estate" if it has "significance or other special value for future generations as well as for the present community" because of any of the following:

 

     "(a)its importance in the course, or pattern, of Australia's natural or cultural history;

      (b)its possession of uncommon, rare or endangered aspects of Australia's natural or cultural history;

      (c)its potential to yield information that will contribute to an understanding of Australia's natural or cultural history;

      (d)its importance in demonstrating the principal characteristics of:

          (i)  a class of Australia's natural or cultural places; or

          (ii)a class of Australia's natural or cultural environments;

      (e)its importance in exhibiting particular aesthetic characteristics valued by a community or cultural group;

      (f)its importance in demonstrating a high degree of creative or technical achievement at a particular period;

      (g)its strong or special association with a particular community or cultural group for social, cultural or spiritual reasons;

      (h)its special association with the life or works of a person, or group of persons, of importance in Australia's natural or cultural history."

 

 

          Part II of the Act deals with the establishment, functions and powers of the AHC. 

 

          Section 7 prescribes the functions of the AHC as, inter alia, the giving of advice to the Minister on matters relating to the national estate; the encouragement of public interest in, and understanding of, issues relevant to the national estate; the identification of places to be included in the national estate and the preparation of a register of those places in accordance with Part IV (which deals with the Register of the National Estate); and the furnishing of advice and reports in accordance with Part V (which deals with the Protection of the National Estate).

 

          Section 8 provides that the AHC shall, in the performance of its functions, "and so far as it considers appropriate", consult with Departments and authorities of the Commonwealth and of the States, local government authorities and community and other organisations.  By s.9, Commonwealth Departments and authorities are obliged to assist the AHC both generally and by the provision of information.          

 

          Part III of the Act deals with the constitution of
the AHC. 

 

          By s.12(4), the Commissioners, other than the "representative" Commissioners (i.e. the Secretary of a Commonwealth Department or the Chair of a Commonwealth authority), shall be persons having "qualifications relevant to, or special experience or interest in, a field related to" the functions of the AHC.  In recommending their appointment, the Minister shall:  (a) have regard to the desirability of the membership of the AHC including persons resident in different parts of Australia;  and (b) consult, so far as he considers appropriate, with Ministers and authorities of the States, local government authorities and community and other organisations (s.12(5)). 

 

          Part IV of the Act, which is central to this litigation, deals with the Register of the National Estate ("the Register").

         

          Provision is made for the Register in ss.22(1) to (4) as follows:

 

     "22(1)  The Commission shall keep a register, to be known as the Register of the National Estate, in which will be listed places included in the national estate.

 

          (2)  A place shall not be entered in the Register otherwise than in accordance with section 23 or subsection 25(2).

 

          (3)  The Commission shall enter a place in the Register by causing to be entered in the Register a description of the place sufficient to identify it and
the date on which the entry is made.

 

          (4)  A place shall not be removed from the Register otherwise than in accordance with section 24 or subsection 25(5)."

 

 

          By s.23(1), it is provided that where the AHC  considers that a place that is not in the Register should be recorded as part of the national estate, it shall enter the place in the Register.  Section 23(2) provides that the AHC shall not enter a place in the Register unless it has, by public notice:

 

     "...(v) stated that although such objections may be made on any ground, the Commission will, in dealing with any objection, give upmost consideration to the significance of the place as part of the national estate; ..."

 

 

and the date specified in that notice has passed; and if a person has, not later than the date specified in that notice, made written objection to the AHC to the entry of the place in the Register, the AHC has given due consideration to that objection.  By s.23(3) where, after the giving of a public notice, the AHC becomes of the opinion that the place, or a place forming part of the place, should not be recorded as part of the national estate, it shall by public notice:

 

     "...(iv) state that, the Commission will, in dealing with any objection, give upmost consideration to the significance of the place as part of the national estate; ..."

 

 

and if a person has made written objection to the AHC to the decision, reconsider that decision giving due consideration to that objection.

 

          Section 23A was inserted in 1990.  Section 23A(1) provides that the AHC must give notice of its intention to enter a place in the Register to all owners of real property situated at the place and to the local government authority for the area in which the place is situated, seven days before a public notice in respect of that place is published.  Section 23A(2) provides that, where the number of owners does not exceed 50, notice is to be given by personal letter sent to each owner.  Section 23A(3) provides that, where the number of owners exceeds 50, the notice may be given by advertisement in local newspapers; by letters addressed to "The owner" and left at the address of each owner at the place; or by displays in public buildings at or near the place.  Section 23A(4) provides that notice to a local government authority is to be given by letter sent to the authority at its address.

 

          Section 23B (inserted in 1990) provides for the appointment of assessors where a written objection to the entry of a place in the Register has been made.

 

          By s.24(1) it is provided that the AHC "may" by its own motion, or "must", if so directed by the Minister, inquire whether a place is to continue to be recorded as part of the
national estate.  Section 24(1A) provides that where the AHC determines that a place should not be recorded as part of the national estate, it must remove that place from the Register.  Under s.24(2), the AHC must not remove a place from the Register unless it has by public notice

 

     "...(v)  stated that the Commission will, in dealing with any objection, give upmost consideration to the significance of the place as part of the national estate; ..."

 

 

and the date specified in that notice has passed; and if a person has made written objection to the AHC to the removal of the place from the Register, the AHC has given due consideration to that objection.

 

          Section 24A (inserted in 1990) provides that:

 

     "When dealing with an objection to any of its decisions under section 23 or 24, the Commission must give upmost consideration to the significance, as part of the national estate, of the place to which the decision relates."

 

          By s.25(2), it is provided that where, after considering an "environment report" (being a report of a Commissioner who has conducted an inquiry under s.11 of the Environment Protection (Impact of Proposals) Act 1974 ("the E.P. Act") which includes a finding or recommendation that the place be recorded as part of the national estate or a finding or recommendation that the place should not be, or continue to be, recorded as part of the national estate) in relation to a

place that is not in the Register, the Minister is satisfied that the place should be recorded as part of the national estate, the Minister may direct the AHC to enter that place in the Register.  The AHC is required to comply with that direction; and shall not remove that place from the Register without the consent of the Minister (see also s.44 of the Act which provides for inquiries and is considered below).  

 

          (By s.11(1) of the E.P. Act, the Minister may direct that Commissioners conduct an inquiry in respect of the "environmental aspects" of certain matters.  "Environment" is defined (s.3) to include "all aspects of the surroundings of human beings, whether affecting human beings as individuals or in social groupings".  The Commission (a general commission) is to report its findings and recommendations to the Minister (s.11(4).) 

 

          By s.25(5) of the Act, it is provided that where, after considering an environment report in relation to a place listed in the Register, the Minister is satisfied that the place should not be recorded as part of the national estate, the Minister may direct the AHC to remove that place from the Register. 

 

          By s.26(1), provision is made for the AHC to keep a list of places to be known as the "Interim List for the Register of the National Estate".  Where a public notice is issued pursuant to s.23(2)(a), the AHC shall enter on the list a description of the place sufficient to identify it (s.26(2)).  The AHC must strike out the description when (a) the place is entered on the Register;  (b) when the AHC has decided not to enter the place in the Register;  or (c) the Minister so directs under s.25(3) (see s.26(3)). 

 

          Part V of the Act deals with the "Protection of the National Estate". 

 

          Section 30(1) provides that each Minister must, inter alia, give such directions and do such things as can be done for ensuring that no action is taken that adversely affects, as part of the national estate, a place that is in the Register unless the Minister is first satisfied that there is no feasible and prudent alternative to the taking of that action, and that all measures which can reasonably be taken to minimise the adverse effect will be taken.

 

          Part VA of the Act (added in 1990) provides for a National Estate Grants Program.

 

          Under this Part, the Minister may approve the grant of financial assistance, to a State or Territory for expenditure by that State or Territory or by an approved body, in respect of an approved "National Estate project" (s.31C).  Such a project is defined in s.3(1) to mean "a project relating to":

 

     "(a)  the identification of a place included in the National Estate;  or

 

      (b)  the conservation, improvement or presentation of a place entered in the Register or in the Interim List... ."

 

 

          By s.44 of the Act (in Part VIII, dealing with the miscellaneous matters) the following provision, previously mentioned, is made with respect to inquiries under the E.P. Act:

 

     "44. (1)  For the purposes of sub-section 11(1) of the Environment Protection Act, a matter relating to the national estate shall be taken to be a matter in respect of which the Minister administering that Act may, under that subsection, direct that an inquiry be conducted.

 

        (2)  The Commission may request the Minister administering the Environment Protection Act to direct, under subsection 11(1) of that Act, that an inquiry be conducted in respect of a specified matter relating to the national estate.

 

        (3)  For the purposes of this section, the question whether or not any place should be recorded, or continue to be recorded, as part of the national estate is a matter relating to the national estate."

 

 

THE PROCEEDINGS AT FIRST INSTANCE

          As previously mentioned, MIM seeks judicial review under the Administrative Decisions (Judicial Review) Act 1977, of the decision of the AHC to enter SEPGS in the Register, being an "area" comprising the Sir Edward Pellew Group of Islands in the Gulf of Carpentaria, surrounding waters and seabed, and a coastal strip on the mainland south of the Island Group.  Amongst other grounds, MIM seeks judicial review of the AHC's decision on the ground of lack of
jurisdiction; it submits that SEPGS was not part of the national estate within the meaning of s.4 of the Act, on the footing, it is claimed, that it does not have aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community of Australia.  It is also contended, inter alia, that there was no evidence or other material from which the AHC could reasonably be satisfied that the area was part of the national estate for the purposes of s.4.  Further, it is claimed, inter alia, that the decision was so unreasonable that no reasonable person could have made it, for the reason, amongst others, that the AHC did not rely upon any evidence comparing the significance of the area with other places which are part of the national estate.  In its application, MIM claimed an order that the decision be set aside;  a declaration that the area is not part of the national estate within the Act;  and an order that the AHC remove the area from the Register. 

 

          An interlocutory order was made by Cooper J. for the determination of certain preliminary questions, including the following:

 

     "(d)Did s.24A of the Act give rise to any requirement obliging AHC to:

          (i)  have compared the significance of the Sir Edward Pellew Group as part of the national estate with other parts of the national estate; and

          (ii)consider issues other than the significance of the Sir Edward Pellew
Group as part of the national estate?

 

     (e)  Whether, on the true construction of the Act, an entry may be made by AHC, pursuant to s.23 of the Act, in the Register of the National Estate of any place within the meaning of the Act which AHC, considers should be so recorded, or whether only a particular place which, objectively, answers the description in s.4 of that Act can be so recorded?"

 

          In so ordering, Cooper J. noted that, for present purposes, the parties agreed on the following, amongst others, facts:

 

     "BACKGROUND

     5.  Entry of SEPGS in the Register was sought in a nomination dated 15 December, 1986 to the AHC made by the Environment Centre, Darwin.

 

     6.  MIM was advised by the AHC of this nomination.  The AHC was aware that the SEPGS general area in the Gulf of Carpentaria had been identified prior to 1978 by MIM as a port site for the export of ore from a proposed mine at McArthur River.  After such advice had been given, a meeting was held between AHC staff and MIM staff to discuss the matter and MIM subsequently wrote to the AHC opposing registration of SEPGS.

 

     7. During 1987, the nomination of SEPGS was assessed.  At a meeting of the AHC held over the period 3/4 December 1987, the AHC decided that it should enter the SEPGS in the Register. ... MIM was informed of this decision by the AHC on 11 February 1988.

 

     8.  The intention of the AHC to enter the interim area in the Register was notified in the Commonwealth Gazette on 26 April 1988.  MIM submitted an objection to the entry on 21 July 1988.  That objection was amplified in a further letter from MIM of 18 August 1988.  At that time, s.23(2A) did not appear in the Australian Heritage Commission Act 1975 (`the AHC Act').

 

     ...

     11.  In August 1988, the AHC also received objection letters from both the Conservation Commission of the Northern Territory ... and the Northern Territory Department of Mines. ..."

 

 

THE DECISION AT FIRST INSTANCE

          Drummond J. answered the preliminary questions as follows:

1.   QUESTION (d):

 

     Q.  "Did s.24A of the Act give rise to any requirement obliging AHC to:

          (i)  have compared the significance of the Sir Edward Pellew Group as part of the national estate with other parts of the national estate; and

          (ii)consider issues other than the significance of the Sir Edward Pellew Group as part of the national estate?"

 

      

     A.  "(i)  There is insufficient evidence ... to answer question (d)(i).

 

          (ii)The AHC is obliged by s24A to consider issues other than the significance of the Sir Edward Pellew Group as part of the national estate, viz, the issues raised by each of the objections lodged in response to the public notice of intention to list the Group in the Register given by the AHC."

 

     2.  QUESTION (e)

 

     Q.   "Whether, on the true construction of the Act, an entry may be made by AHC, pursuant to s23 of the Act, in the Register of the National Estate of any place within the meaning of the Act which AHC considers should be so recorded, or whether only a particular place which, objectively, answers the description in s4 of that Act can be so recorded?"

     A.   "That a place which the AHC intends to enter in the Register of the National Estate objectively answers the description in s4 of the Act is a fact upon which the jurisdiction of the AHC to make a decision to so enter the place depends."

 

          Turning first to Q.(d)(i), Drummond J. found that "the significance, as part of the national estate, of the place" to which the AHC is required to give "upmost consideration" under s.24A, involves an examination of certain characteristics of the place in question that are more extensive than those characteristics that comprise the enduring aesthetic or other significance the place has which makes it a part of the national estate.  Section 24A was addressed to the AHC when it was dealing with an objection to the place in question being entered in the Register, that being after the AHC had formed the opinion referred to in s.23(1) that the place should be recorded in the Register as part of the national estate.

 

          Drummond J. found that, by s.23(2)(a)(vi)(B), the AHC was put under a duty to explain why it had taken action to enter a particular place, which it had previously identified as part of the national estate, in the Register.   The AHC did not necessarily have to "embark on a comparison of the place with any other places in the national estate, before entering it in the Register" (at 516). There was nothing with which places, which are recognisably unique, could meaningfully be compared to ascertain their significance as part of the national estate.  The existence of some places, such as a place which has scientific significance for the present and

 

future Australian communities, may be unknown to the AHC and comparison would for that reason be impossible.  Drummond J. concluded that what the AHC has to do in a particular case to comply with s.24A will depend upon the circumstances of that case.   His Honour said (at 516) that:

    

     "MIM's objection to the Commission's notice of intention to enter the Sir Edward Pellew Group in the Register was not in evidence ...; nor was ... any evidence [adduced] which would enable ... a view on whether the characteristics of the Sir Edward Pellew Group ... were such as to require the AHC to compare the range of features possessed by that place which made it worthy ... of entry in the Register, with the features of any other place in Australia that [could] be identified as forming part of the national estate, whether already entered in the Register or not."

 

 

          His Honour held that because of the limited material before the Court, he was unable to say whether the AHC was required by s.24A to compare the Sir Edward Pellew Group with other parts of the national estate.

 

          With respect to Q.d(ii), Drummond J. found that the only impediment to the AHC's intention to enter a place in the Register was constituted by the existence of any objections to entry; and that, by s.23(2)(c), the AHC was bound to give "due consideration" to each objection. The only matters s.24A required the AHC to consider, before deciding whether to enter a place in the Register, was the subject matter of the objections, if any, against the background of the charge in s.24A to give "upmost consideration" to the place's significance as part of the national estate, something about which the AHC must have formed its opinion before it gave the public notice required by s.23(2)(a).  

 

 

          Turning to Q.(e), his Honour accepted (at 520-1) that the criteria identified in s.4 as those which must be satisfied before a place could be identified as forming part of the national estate "involve[d] the formation of a range of views on which opinions can reasonably differ, as well as the ascertaining of objective facts.  But that does not mean that those criteria cannot involve jurisdictional facts ..." (in the sense that the AHC's decision on that kind of fact "will not be conclusive" (at 517)). 

 

          Drummond J. went on to hold that the criteria which govern whether a place forms part of the national estate were precisely identified, and the task of determining whether they were satisfied in a particular case was no more difficult than that which courts undertake when they have to decide whether or not to grant various forms of discretionary relief.  His Honour said (at 521-2) that "it must frequently happen that the [AHC] will be in no better position than a judge to make the decision whether a place satisfies [the] criteria and so should be regarded as part of the national estate...".

 

          The fact that the AHC, by s.23(2) and s.23B, would be bound to have regard to unsolicited assistance and advice was inconsistent with the AHC's submission that the Legislature had treated the AHC as a body intended to make decisions in reliance on its own expertise.

 

          His Honour further held that a mere objection to the AHC's jurisdiction to enter a place in the Register on the ground that the place is not part of the national estate could not bring to a halt the carrying out by the AHC of its functions under s.23.  Drummond J. said (at 523) that:

 

     "... the investigation the AHC must carry out under s.24A before it can enter a place in the Register involves ... the determination of issues more wide ranging than those involved in determining whether a place is part of the national estate... . The Commission, when it makes a decision with respect to the entry of a place in the Register, has responsibility for forming what will often be a much more complex opinion than that which it has to form when it decides to identify a place as part of the national estate."

 

          Drummond J. concluded that the inconveniences which existed from his construction of the Act were not sufficient to justify setting aside all the other considerations indicating that the Act gave power to the AHC to enter a place in the Register only if, as a matter of objective fact, the place was part of the national estate.

 

THE AHC'S GROUNDS OF APPEAL

          By its amended notice of appeal, the AHC contends:

 

  .  That his Honour's answer to question (d)(i) was predicated upon what is claimed to be a misconception of the true meaning of s.24A which, on its true meaning, did not oblige the AHC to compare the significance of the SEPGS as part of the national estate with other parts of the national estate.  All that s.24A obliges the AHC to do is to give the utmost consideration to the significance of the particular place when dealing with an objection to any of its decisions. 

 

  .  That his Honour's answers to questions (d)(ii) and (e) were also predicated, it is said,  on a misconception of the true function of the AHC under the Act.  On the proper construction of the Act, the function of the AHC was to record in the Register those places which it had concluded formed part of the national estate.

 

  .  That the jurisdiction of the AHC to enter a place in the Register does not, it is argued, depend upon whether, as an objective fact, that place answers the description in s.4 of the Act.

 

          AHC now seeks, in lieu of the orders appealed from, an order that questions (d)(i) and (ii) be answered in the negative; and an order that question (e) be answered thus:  "On the true construction of the Act, the jurisdiction of the AHC to enter a place in the Register of the National Estate does not depend upon whether as an objective fact that place answers the description in s.4 of the Act."

CONCLUSIONS ON THE APPEAL

     Question (e)

     It will be convenient to consider Q.(e) first.

 

          As has been noted, in the absence of any suggestion of constitutional invalidity or of any lack of jurisdiction in the Court to entertain the present claims (that is justiciability in the strict sense) it must follow that the issues now to be determined are questions of statutory interpretation only.

 

          In this connection, guidance is, we think, provided by the general approach taken in the High Court to the World Heritage List in the cases previously cited.   It is true that the World Heritage List has international, as well as domestic, aspects.  But, in terms of the general approach of the courts to these matters, it does provide an appropriate analogy for present purposes.

 

          Article 3 of the UNESCO Convention for the Protection of the World Cultural and National Heritage provided that each State Party was "to identify and delineate the different properties situated on its territory" which fall within the "cultural" or "natural" heritage, there defined (in Arts. 1 and 2) as being property "of outstanding universal value".  By Art. 4, each State Party "recognized that the duty of ensuring the identification, protection, conservation,
presentation and transmission to future generations of the cultural and natural heritage ... situated on its territory, belongs primarily to that State".  By Art. 11(1) each State Party is bound to submit to the World Heritage Committee "an inventory of property forming part of the cultural and natural heritage, situated in its territory and suitable for inclusion in the List [to be kept by the Committee under Art. 11(2)] ..." ("the List").  By Art. 11(2), on the basis of the inventories submitted by the States, the Committee shall establish, under the title of "World Heritage List" a list of properties forming part of the cultural and natural heritage which it considers as having outstanding universal value.

 

          In the Queensland Rainforest Case, above, the plaintiffs contended that a Proclamation under s.6(3) of the World Heritage Properties Conservation Act 1983 was invalid.  By s.6(2), a Proclamation may be made if a property is an "identified property", which is defined to include, inter alia, a property on the list. In a case stated to the Full Court, the following questions were asked:  "(1)  Is the inclusion of the property in the ... List conclusive of the validity of the Proclamation?  (2)  If not, what is the relevant inquiry to determine the validity of the Proclamation?"  The High Court, by a majority, Dawson J. dissenting, answered Q. 1 in the affirmative, finding it unnecessary to answer Q.2.

 

          Mason C.J., Brennan, Deane, Toohey, Gaudron and McHugh JJ. said (at 239) that it was necessary in determining whether the regime of control imposed by the statute was supported by the external affairs power, to decide whether an international duty to protect or conserve the property exists. The existence of that duty depends upon the construction which the international community would attribute to the Convention and on the operation which that community would accord to it in particular circumstances (at 240).  Their Honours said (at 240):

 

     "Articles 3 and 4 of the Convention cast on each State Party the responsibility of identifying and delineating properties on its own territory which are part of the cultural heritage or natural heritage.  To discharge this responsibility, an evaluation must be made of the qualities of properties in order to ascertain whether there are properties of `outstanding universal value' in the territory of the State Party.  In one sense, the status of a particular property as one of outstanding universal value forming part of the cultural heritage or natural heritage is an objective fact, ascertainable by reference to its qualities;  but, as evaluation involves matters of judgment and degree, an evaluation of the property made by competent authorities under the Convention is the best evidence of its status available to the international community."   (Emphasis added)

 

 

          Their Honours went on to say (at 240):

 

     "Not all properties which are part of the cultural heritage or natural heritage may be included by the Committee in the World Heritage List but, under Art. 11, par. 2, all property included in the World Heritage List must be part of the cultural heritage or natural heritage and must also meet the special criteria for listing established by the Committee.  Unless the Committee is satisfied on both aspects, the property is not included in the World Heritage List.  By including a property in the World Heritage List, the Committee declares its satisfaction that the property is part of the cultural heritage or natural heritage.  As the procedures for evaluation adopted by the Committee are extensive, the Committee's decision to include a property in the World Heritage List assures the international community that the property has outstanding universal value as part of the cultural heritage or natural heritage."

 

 

          Their Honours later (at 241) continued:

 

     "Although the status of a property as part of the cultural heritage or natural heritage follows from its qualities rather than from their evaluation either by the relevant State Party or by the World Heritage Committee (as Gaudron J. recognized in Richardson v Forestry Commission ...) a State Party which evaluates a property as part of the cultural heritage or natural heritage and submits it to the Committee for listing thereby furnishes the international community with evidence of that status.  And inclusion of the property in the World Heritage List is an international acknowledgment by the Committee of that status which carries with it the benefits of help by other States Parties and the prospect of the grant of international assistance.

     (Emphasis added)

 

     From the viewpoint of the international community, the submission by a State Party of a property for inclusion in the World Heritage List and inclusion of the property in the List by the Committee are the means by which the status of a property is ascertained and the duties attaching to that status are established.  The State Party's submission of a property is some evidence of its status but the Committee's listing of a property is conclusive, for the benefits of listing are available only to properties having the status of being part of the cultural heritage or natural heritage."

 

          Whether property does enjoy world heritage characteristics involves, as Mason C.J. observed, referring to the nomination of an area for listing:

 

     "...the making of a value judgment by government in the light of expert opinion and a variety of
considerations on an issue which falls pre-eminently within the competence of government and the Committee to determine."  (Emphasis added)

 

 

(See the earlier proceedings of the Queensland Rainforest Case, in Queensland v Commonwealth (1988)  62 ALJR 143 at 145.)

 

 

          In our opinion, having regard to the language used when taken in context and as well as a matter of construction in a purposive sense, the Act should be interpreted in a similar way.  That is to say, the Act recognises that, in one sense, the status of a particular place as one of significance or other special value for future generations as well as for the present community is an objective fact, ascertainable by reference to its qualities; but, as evaluation necessarily involves matters of judgment and degree, an evaluation of the place made by a competent authority, such as the AHC, is the best evidence of its status available to our community.

 

          This interpretation is supported by the history of the legislation and the mischief with which it seeks to deal, to which reference has already been made.  Such a construction may also be derived from the words used in the Act when given their ordinary meaning.

 

          As has been noted, the functions of the AHC include (s.7(c)) -

 

     "(c)to identify places included in the national
estate and to prepare a register of those places in accordance with Part IV... ."   (Emphasis added)

 

 

          The primary dictionary meaning of "identify" is -

 

     "... to recognise or establish as being a particular person or thing;  attest or prove to be as purported or asserted: to identify handwriting;  identify the bearer of a cheque."

 

     (Macquarie Dictionary, 2nd ed.)

 

          The process of identification of a place as one having significance or other special value for future generations of Australians, as well as for our present community, necessarily involves the making of a value judgment in performing the act of recognition involved.  The description of "the national estate" in s.4 itself uses the phrase "other special value".  Clearly, values are involved and to determine whether they are "special" must call for an exercise in judgment and degree.

 

          But none of this is to say that the status of a place described in s.4 is not an objective fact, ascertainable by reference to its qualities.  In other words, the Act is not framed as, and should not be interpreted as, subjective in its operation.  Neither in form nor in substance does the legislation depend upon the mere opinion of the AHC (cf. Buck v Bavone (1976) 135 CLR 110 per Gibbs J. at 118-9;  Minister for Immigration and Ethnic Affairs v Teo, Black C.J., Gummow and Beazley JJ., 13 April 1995, unreported, at 6-7).  It is one thing to say that a degree of evaluation is necessarily implicit in, as here, the formal act of recognition, by entry in the Register, of a place which, in objective terms, has national estate qualities.  It is a different thing to say that whether a place is deemed to be part of the national estate is entirely at the discretion of the AHC.  The language of ss.4 and 7 and the context, history and purpose of the legislation indicate that the former is the better construction.

 

          Other provisions of the Act, which explicitly refer to the opinion of the AHC as a condition precedent to the exercise of a particular power on the part of the AHC, also support this interpretation.  For instance, it is provided by s.23(3) that where, in the circumstances there stated, the AHC "becomes of the opinion ... that the place ... should not be recorded as part of the national estate", (emphasis added) the AHC shall take the steps there prescribed.  By way of contrast with the process of identification previously mentioned, this function is expressly made dependent upon the formation by the AHC of a particular opinion.

 

          Another example of an explicit dependence upon the formation of a particular opinion or view on the part of the AHC is to be found in s.23(1), where it is relevantly provided that -

 

     "... where the [AHC] considers that a place that is not in the Register should be recorded as part of the national estate it shall enter the place in the
Register."  (Emphasis added)

 

 

          It will be noted that s.23(1) does not provide that the recording should occur because the place in question is, in the opinion or view of the AHC, something which is part of the national estate.  On the contrary, the language of the Act assumes that this is an objectively ascertainable fact, even if a process of evaluation is necessarily involved.

 

          It follows that we are substantially in agreement with the approach to this question taken by the learned primary Judge.  His Honour discussed several of the authorities in this area, particularly Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86 and Tasmanian Conservation Trust Inc. v Minister for Resources (1995) 127 ALR 580.  But those decisions depended upon the interpretation of legislation which was not similar to the Act in form or in substance.  On the other hand, although the language of the World Heritage legislation may be different, there are substantial similarities in context for present purposes.  For this reason, as has been noted, the approach there taken by the High Court provides a proper analogy here.

 

          It follows that, whilst we would accept, as Drummond J. held, that the status of a place as part of the National Estate is an objective fact ascertainable by reference to its qualities (rather than something dependent upon the mere opinion of the AHC), we would for completeness add that, in performing its function of identification, the AHC has the responsibility of evaluating the place in order to judge whether it has the required qualities.  In making that evaluation in the course of the process of identification of a place as part of the National Estate, the AHC will provide evidence of its status, as in the case of a World Heritage listing, already mentioned.  Of course, none of this is to say that the decision of the AHC is not amenable to judicial review, in a particular case, for failing to address the correct question, as a matter of statutory construction, or for other legal, as distinct from factual, error.

 

          We would therefore vary his Honour's answer to Q.(e) as follows:

 

     "Q.(e)    Whether, on the true construction of the Act, an entry may be made by AHC, pursuant to s23 of the Act, in the Register of the National Estate of any place within the meaning of the Act which AHC considers should be so recorded, or whether only a particular place which, objectively, answers the description in s4 of that Act can be so recorded?"

 

     "A.(e)    The AHC has the power, and in some circumstances, the duty to enter a place in the Register of the National Estate if that place answers the description in s.4 of the Act.  The status of a particular place as one having significance or other special value for future generations as well as for the present community, as provided in s.4, is an objective fact, ascertainable by reference to its qualities.  In ascertaining whether a particular place has those qualities, the AHC is bound to make an evaluation of the particular place which will involve

              matters of judgment and degree."

 

 

     Question (d)(i)

 

          It will be recalled that his Honour declined to answer this question because of the lack of evidence.

 

          To some extent, this question overlaps with Q.(e) in terms of the general approach to be taken by the AHC.  It is not necessary to restate the response to that question.  That response was, of necessity, framed in general terms.  We agree with Drummond J. that there are difficulties in attempting to take the particular matter raised by Q.(d)(i) further until all the relevant circumstances are before the Court.  We are not persuaded that we should disturb his Honour's response at this stage.

 

     Question (d)(ii)

          Again, to some extent, the consideration of this question overlaps with the response to be given to Q. (e).

 

          As has been noted, Drummond J. held that the AHC is obliged to consider, inter alia, the issues raised by the objections.  So far as that specific answer goes, it cannot be seriously disputed, since, for instance s.23(2)(c) expressly so provides.

 

 

ORDERS PROPOSED

     Costs

     Although we would vary the orders made by the primary Judge to the extent indicated, we would otherwise dismiss the appeal.  We would reserve liberty to either party to apply in writing for costs, any such application to be lodged in writing within 28 days of the publication of these reasons.

 

              I certify that this and the preceding thirty-three (33) pages are a true copy of the Reasons for Judgment herein of their Honours Justice Beaumont and Justice Beazley.

 

              Associate

 

              Date:     24 November 1995

 

 

 

 

Counsel and Solicitors       Mr. D.T. McGill with

for Appellant:               Mr. J. Logan

                             instructed by Australian

                             Government Solicitor

 

Counsel and Solicitors       Mr. P. Keane Q.C.

for Respondent:              instructed by Feez Ruthning

 

Date of hearing:             28 April 1995

 

Date Judgment delivered:          24 November 1995