SUPREME COURT OF NORFOLK ISLAND
Grube v Minister for Lands and the Environment [2005] NFSC 4
ADMINISTRATIVE LAW — appeal from the Administrative Review Tribunal on a question of law — nature of an appeal on a question of law — whether grounds of appeal raise questions of law — whether Tribunal misconstrued its role — whether Tribunal’s decision was irrational or unreasonable — whether Tribunal took into account irrelevant considerations or failed to take into account relevant considerations — whether Tribunal made an error of fact that was essential to the exercise of its jurisdiction
WORDS AND PHRASES — ‘appeal on a question of law’
Administrative Appeals Tribunal Act 1975 (Cth), ss 44(1), 46(1)(a)
Conciliation and Arbitration Act 1904 (Cth), s 88F
Family Law Act 1975 (Cth), ss 93A, 94
Federal Court of Australia Act 1976 (Cth), s 27
Income Tax and Social Services Contribution Assessment Act 1936 (Cth), s 196
Repatriation Act 1920 (Cth), s 107VZZH(1)
Administrative Review Tribunal Act 1996 (NI), ss 31(1), 31(2), 34, 37(1)(a)
Planning Act 1996 (NI), s 28(1)
Supreme Court Act 1960 (NI), s 5
Norfolk Island Plan 1997 (NI), cll 27, 28(b)
Court of Appeal Act 1964 (Bermuda), s 17(2)
Abebe v Commonwealth (1999) 197 CLR 510 cited
Allesch v Maunz (2000) 203 CLR 172 cited
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 applied
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 discussed
Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 cited
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 cited
Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 cited
Brown v Repatriation Commission (1985) 7 FCR 302 followed
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 cited
Coal and Allied Industries Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 cited
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 cited
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 referred to
Comcare Australia v Rowe (2002) 35 AAR 410 cited
Copperart Pty Ltd v Federal Commissioner of Taxation (1993) 26 ATR 327 followed
Director of Public Prosecutions Reference (No 1 of 1984) [1984] VR 727 cited
Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431 cited
Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 cited
Military Superannuation and Benefits Board No 1 v Stanger (2002) 68 ALD 12 cited
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 cited
Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 cited
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited
Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195 cited
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited
Minister for Immigration and Multicultural and Indigenous Affairs v W306/01A [2003] FCAFC 208 cited
NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 cited
Neal v Secretary, Department of Transport (1980) 29 ALR 350 followed
Parks Holdings Pty Ltd (trading as Gladstone Chemicals) v Chief Executive Officer of Customs (2004) 81 ALD 365 cited
Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 cited
Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 cited
R v District Court; Ex parte White (1966) 116 CLR 644 cited
Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267 cited
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 discussed
Servos v Repatriation Commission (1995) 56 FCR 377 followed
Smith v The Queen [2000] 1 WLR 1644 distinguished
Stefanovski v Murphy [1996] 2 VR 442 cited
Sullivan v Department of Transport (1978) 20 ALR 323 cited
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 followed
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 cited
Van Cong Huynh v Secretary, Department of Social Security (1988) 18 FCR 402 cited
Victorian Workcare Authority v Hillgrove (unreported, Supreme Court of Victoria, McDonald J, 29 August 1994) cited
W280 v Minister for Immigration and Multicultural Affairs [2001] FCA 1606 cited
Waterford v Commonwealth (1987) 163 CLR 54 cited
M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action, 3rd ed, Sydney, Lawbook Co, 2004
HWR Wade and CF Forsyth, Administrative Law, 9th ed, Oxford, Oxford University Press, 2004
RAYMOND DAVID GRUBE, KIM VANESSA PARTRIDGE, ROBERT TERRY RYAN, DAVID KENDALL PITCHER AND MICHELLE JAN SAAL PITCHER v MINISTER FOR LANDS AND THE ENVIRONMENT AND ISLAND INDUSTRIES PTY LIMITED
SC 6 OF 2005
WEINBERG CJ
MELBOURNE
2 SEPTEMBER 2005
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IN THE SUPREME COURT OF NORFOLK ISLAND |
SC 6 OF 2005 |
ON APPEAL FROM THE ADMINISTRATIVE REVIEW TRIBUNAL
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BETWEEN: |
RAYMOND DAVID GRUBE FIRST APPELLANT
KIM VANESSA PARTRIDGE SECOND APPELLANT
ROBERT TERRY RYAN THIRD APPELLANT
DAVID KENDALL PITCHER FOURTH APPELLANT
MICHELLE JAN SAAL PITCHER FIFTH APPELLANT
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AND: |
MINISTER FOR LANDS AND THE ENVIRONMENT FIRST RESPONDENT
ISLAND INDUSTRIES PTY LIMITED SECOND RESPONDENT
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WEINBERG CJ |
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DATE OF ORDER: |
2 SEPTEMBER 2005 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The parties file and serve written submissions regarding the question of costs on or before 16 September 2005.
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IN THE SUPREME COURT OF NORFOLK ISLAND |
SC 6 OF 2005 |
ON APPEAL FROM THE ADMINISTRATIVE REVIEW TRIBUNAL
|
BETWEEN: |
RAYMOND DAVID GRUBE FIRST APPELLANT
KIM VANESSA PARTRIDGE SECOND APPELLANT
ROBERT TERRY RYAN THIRD APPELLANT
DAVID KENDALL PITCHER FOURTH APPELLANT
MICHELLE JAN SAAL PITCHER FIFTH APPELLANT
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AND: |
MINISTER FOR LANDS AND THE ENVIRONMENT FIRST RESPONDENT
ISLAND INDUSTRIES PTY LIMITED SECOND RESPONDENT
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JUDGE: |
WEINBERG CJ |
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DATE: |
2 SEPTEMBER 2005 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
Introduction
1 This is an appeal from a decision of the Administrative Review Tribunal (“the ART”), constituted by its President, delivered on 14 March 2005. That decision had the effect of granting approval, subject to certain conditions, to the second respondent, Island Industries Pty Limited (“Island Industries”), to construct and operate a rock-crushing and screening plant on portion of land 49b2, Stockyard Road, Norfolk Island (“the portion”).
the planning application process
2 At all relevant times, the planning regime on Norfolk Island was governed by the Planning Act 1996 (NI) (“the Planning Act”), and the Norfolk Island Plan 1997 (NI) (“the Plan”) made pursuant to Pt II of the Planning Act. Under the Plan, the portion is designated “rural” land. A consequence of this designation is that activities such as the operation of a rock‑crushing and screening plant are “ordinarily prohibited” on the portion. However, approval to undertake ordinarily prohibited activities can be obtained by making a successful “category 3” planning application.
3 The process for considering a “category 3” planning application is described in s 26 of the Planning Act. In essence, the section provides for a three stage process: a public meeting to discuss the application, consideration by the Planning Board and the making of a recommendation to the first respondent (“the Executive Member”), and ultimate approval (with or without conditions) or refusal by the Executive Member.
4 It is relevant to note at this point that s 28(1) of the Planning Act also provides that in the course of this process:
“The executive member may, by instrument notified in the Gazette, direct that an environmental impact statement be carried out in relation to a planning application —
(a) on the recommendation of the [Planning] Board; or
(b) if the executive member otherwise considers it desirable.”
5 Sections 35(e) and 36 of the Planning Act provide that a decision of the Executive Member to approve a “category 3” planning application subject to conditions is reviewable by the ART.
The role of the Administrative Review Tribunal
6 The ART is established by the Administrative Review Tribunal Act 1996 (NI) (“the ART Act”). Its purpose is to provide for the review of certain decisions made by Norfolk Island administrative decision-makers under enactments of the Territory: s 14 of the ART Act. In that capacity, the ART performs what is commonly termed “merits review” of administrative decisions in a fashion broadly similar to that performed by comparable tribunals in other Australian jurisdictions. As is the case in those jurisdictions, the decisions of the ART are subject to judicial review in the Supreme Court of Norfolk Island.
7 When conducting a review, s 31(2) of the ART Act provides that the ART:
“may exercise all of the powers and discretions conferred by the relevant enactment on the person who made the decision.”
The ART therefore “stands in the shoes” of the original decision‑maker when it conducts a review of an administrative decision.
8 Finally, s 31(1) of the ART Act provides that:
“After considering an application for review of a decision, the Tribunal shall make a decision —
(a) affirming or varying the decision under review; or
(b) setting aside the decision under review and —
(i) substituting another decision; or
(ii) remitting the decision for reconsideration in accordance with its direction or recommendation.”
the relevant decisions of the Administrative Review Tribunal
9 The appeal before this Court is complicated somewhat by the fact that the ART has actually delivered three separate decisions in relation to planning applications made by Island Industries.
The first decision of the Administrative Review Tribunal
10 The Executive Member first approved, subject to conditions, a planning application in relation to the portion on 8 October 1999. No Environmental Impact Statement (“EIS”) was prepared in relation to the application. Several of the appellants in the present proceeding, together with a number of other individuals, applied to the ART for review of the Executive Member’s decision to conditionally approve the planning application (applications 2–12, 14 and 15 of 1999).
11 In its first decision, dated 21 January 2000 (“the first decision”), the ART, constituted by its President, dealt with, and rejected, a contention that the preparation of an EIS was a mandatory requirement of the process in the particular circumstances of this planning application. The President also considered the consequences of a finding that a particular member of the Legislative Assembly had been invalidly elected, and whether that had any impact upon the subsequent decisions of the Planning Board. He considered the adequacy of the procedures followed by the Planning Board in dealing with this application and making its recommendation, and the subsequent decision of the Executive Member, and held that minor procedural errors did not affect the validity of the Executive Member’s decision. He also dealt with, and disposed of, an argument regarding the validity of the decision based upon its having been taken outside the time limit imposed by the Planning Act for such decisions.
12 Importantly, the President said on this occasion, at 163, that he was satisfied that there would
“still remain considerable environmental impact upon individual [sic] residing in the vicinity of the proposed operation.”
He continued that:
“The effectiveness of the company’s efforts to decrease the impact is uncertain and untested.”
“Alternative sites have been generally canvassed in this hearing without any particular detailed assessment of the appropriateness of those sites. This issue, at its highest, in my consideration of this review, amounts to background information only.”
14 Ultimately the President ordered, pursuant to s 31(1)(b)(ii) of the ART Act, that the Executive Member’s conditional approval be set aside, and that the application be remitted to the Executive Member for further consideration in accordance with a number of directions and recommendations. Amongst these, recommendation 4 was in the following terms:
“It is recommended that the Executive Member refer these matters back to the Planning Board for further consideration and recommendation to him.”
The second decision of the administrative Review Tribunal
15 The Executive Member approved, subject to conditions, a further planning application in relation to the portion on 5 May 2000. Thereafter, a second series of applications (applications 2–11 of 2000) were made to the ART for review of the Executive Member’s decision.
16 On 10 December 2001, the President delivered his decision and reasons in that matter (“the second decision”). After setting out the Executive Member’s decision, the President noted that this was the second approval in relation to the portion. He then referred to his first decision. I do not have before me all of what the President then said. However, I do have before me the Orders made by the President on that day.
17 On this occasion, the President exercised the ART’s powers under s 31(1)(a) of the ART Act to vary the decision of the Executive Member in the following terms:
“The application is approved with the following amendments to the conditions of approval:
1. The noise conditions are to provide as follows:
- There be an upper limit of 55DbA
- The method to be adopted to measure noise is as contained in AS 1055.1 – 1997, Acoustics — Description and measurements of environmental noise, Part 1: General Procedures.
A penalty adjustment is to be made for tonality and impulsiveness of noise levels based on the Australian standard.
2. The conditions relating to the Environmental Management Plan need to be more specific concerning the lodgement of such a plan prior to the formal approval of this application. The plan should include architectural landscape details to the satisfaction of the Executive Member.
3. The monitoring process be amended to precisely reflect the division of responsibility between the Norfolk Island Administration, the company and consultants. The role of monitoring and enforcing the conditions of approval needs to be precisely determined. The conditions must contain detailed reference to adequate monitoring equipment and the availability and operation of such equipment. Further, the issue of training and accreditation of persons operating that equipment should be covered in the conditions. All of this should be amplified and approved to the satisfaction of the Executive Member.”
18 Even though at a purely formal level the ART approved the application, it appears that the practical effect of the President’s decision was to return the application to the Executive Member for him to incorporate, in more precise and expansive terms, new conditions into the planning approval.
The third decision of the administrative review tribunal
19 The Executive Member then conditionally approved a further application on 4 September 2002. An application was again made to the ART for review of this decision (application 8 of 2002).
20 Exactly what happened next is unclear. However, it appears that as a result of discussions between the parties before the ART and the President, and in an attempt to progress towards resolution of the dispute, the President directed the Executive Member to cause his solicitors to prepare two documents, a draft “Statement of Reasons” (“the draft statement”) and “Conditions of Approval” (“the draft conditions”), that would form the basis of the ART’s forthcoming orders in relation to the application.
21 The draft statement did not differ (as far as I can ascertain) in any respect from the actual Statement of Reasons signed by the Executive Member on 4 September 2002.
22 In addition to correcting some typographical errors and making changes to the expression and formatting of the original Conditions of Approval, the draft conditions incorporate almost the entirety of the Executive Member’s original Conditions of 4 September 2002. However the draft conditions extend upon and supplement the original Conditions in several respects by providing:
· more detail about the preparation, approval and implementation of an Environmental Management Plan (“EMP”);
· that the relevant standard for assessing noise will be Australian Standard 1055.1-1997;
· more specificity to the conditions dealing with continual noise monitoring, the complaint based noise monitoring protocol, the noise monitoring protocol, dust monitoring and meteorological monitoring;
· a new condition relating to the monitoring of equipment and the training of individuals in the use of monitoring equipment; and
· an addition to the procedure for six-monthly assessments of compliance with the conditions of approval and the EMP.
23 The draft statement and conditions were finalised on 29 January 2004, and filed in the ART on 23 February 2004.
24 On 23 April 2004, the President proposed a number of orders that would dispose of the matter. He delivered oral reasons for this decision on 30 November 2004. However, he ordered that the time within which any appeal could be brought would not run until full, expanded reasons were delivered. On 14 March 2005, he produced a document entitled “Expanded Reasons for Decision”. I consider that this document constitutes the ART’s third and final decision in these proceedings (“the third decision”).
25 In that decision, the President noted that the history of the matter went back several years, and that he personally had been involved in a number of hearings and decisions concerning this project. After setting out some of the provisions of the ART Act, the President noted that his second decision was “pivotal”. He said, at 3:
“All evidence and decisions, including orders, since the hearing commenced, are a relevant part of my consideration here. They present the factual matrix upon which this matter must be considered.”
26 The President went on to refer to the “proposed orders” of the ART that he had foreshadowed on 23 April 2004. By those proposed orders “[t]he statement of reasons and conditions of approval dated 29 January 2004, filed with the Tribunal on 23 February 2004” were to be varied by deleting certain mandatory environmental conditions and substituting for them other conditions that were contained in Appendix A to a report prepared by Richard Heggie Associates (“RHA”) dated 20 April 2004.
27 After setting out some of the recommendations in the RHA report, and summarising the review applicants’ and Island Industries’ submissions regarding the report and the Executive Member’s reply to those submissions, the President indicated that he would not reconsider some of the limits approved in his orders of 23 April 2004. He said that he regarded his decision as “finalised” at that date. He reiterated that the issues involved in this matter were largely dealt with in his second decision, and that the present matter dealt with the ultimate resolution of Order 3 of that decision, which related to the monitoring and enforcement of the approval conditions. It was to that end, and after the parties had failed to reach agreement, that RHA had been commissioned to provide a report.
“Should normal Australasian standards for example be applied, many activities that are necessary for the development and maintenance of Norfolk Island life could not be achieved. Decisions have to be reached by Government and others based on the prevailing conditions that exist in this small isolated place.”
“In matters such as this there can never be an ideal set of environmental conditions. To enable the present activity to occur, certain specific compromises need to be made in the light of the conditions extant in Norfolk Island. I am satisfied that the latest RHA Report resulting in the amended environmental conditions set out above, reach [sic] the appropriate balance between the interests of those requiring the activity to occur and the interests of the applicant close by residents [sic] and the intervening company who conduct [sic] the activity. I find relevant reference has been made to Australasian standards for noise and air quality with the appropriate adaptation for Norfolk Island conditions. In short, the ART approves the recommendations made in the RHA Report dated 20 April 2004 and the mandatory conditions contained in Appendix A to that report which are now included in the amended conditions approved by the Executive Member.”
30 He then formally made the orders that he had foreshadowed on 23 April 2004, and made a fourth Order that declared that the Orders would be final and effective from 14 March 2005.
The appeal to this court
“(1) The learned President erred in law in his approval of the application of Island Industries Pty Limited made under the Planning Act 1996 in that he misconceived, misconstrued and misapplied his functions and powers under the Administrative Review Tribunal Act 1996 upon the review of the several Minister’s approvals purporting to be made under the Planning Act 1996.
(2) The learned President erred in law in that his determination that the Administration of Norfolk Island required the application to be approved, subject to certain conditions, for the operation of a noxious, hazardous and offensive industry on a site in very close proximity to family residences was not in accord with, or properly made, under the provisions of the Planning Act 1996 relating to consideration of planning principles set out in the said Act.
(3) The learned President erred in law in that he failed to give any, or any proper, consideration to the alternative siting of a noxious, hazardous and offensive industry so as to avoid or substantially reduce the risk of harm to the health, or damage and loss of amenity to the properties of residents, including the appellants, living in close proximity to the site, the subject of application for approval to conduct such an operation.
(4) The learned President erred in law in that he failed to give any, or any proper, consideration to whether the application of Island Industries Pty Limited made under the Planning Act 1996 should be refused.
(5) The learned President erred in law in that he was required, under proper and acceptable planning principles, to refuse to approve the application of Island Industries Pty Limited which was contrary to and in contravention of all such principles.
(6) The learned President erred in law in that such conditions as he determined should apply to his approval of the application in and for Norfolk Island exceeded or altered safe standards and limits laid down by recognised and accepted government bodies elsewhere charged with establishing such safe standards and limits in the operation of noxious, hazardous and offensive industries.
(7) The learned President erred in law in that his approval subject to conditions of the application of Island Industries Pty Limited exposed and intended to expose residents including the appellants to the risk of harm and damage resulting from the operation of a noxious, hazardous and offensive industry intended to be carried on for private commercial gain.
(8) The learned President erred in law in that he failed to ensure in his approval, subject to certain conditions, of the application of Island Industries Pty Limited that a final, strict and necessary compliance with all plans, specifications and requirements justifying and permitting such an approval, was provided for and was essential to such approval.
(9) The learned President erred in law in that the provisions in his conditions of approval relating to further decisions thereon being made to the satisfaction of the Minister was contrary to and not in accordance with his powers and functions set out in the Administrative Review Tribunal Act 1996.
(10) The learned President erred in law in treating a draft document dated 29 January 2004 and filed with the Tribunal on that date as a planning approval and statement of reasons under the Planning Act 1996 that was the subject of the review before the learned President under the Administrative Review Tribunal Act 1996 in ART Proceedings ART8/2002.
(11) The learned President erred in law in purporting to exercise the Tribunal’s powers under the Administrative Review Tribunal Act 1996 to vary a draft document dated 29 January 2004 and filed with the Tribunal on that date as if that document were a planning approval and statement of reasons under the Planning Act 1996.”
The jurisdiction of the Court
32 The starting point for the identification of this Court’s jurisdiction to undertake judicial review is the Supreme Court Act 1960 (NI) (“the Supreme Court Act”). Section 5 of that Act relevantly provides:
“(2) …the jurisdiction of the Supreme Court includes jurisdiction —
…
(f) with such exceptions and subject to such conditions as are provided by any law, to hear and determine appeals from the judgments of inferior courts and tribunals for the Territory.
(3) The jurisdiction of the Supreme Court includes jurisdiction conferred on it by a law other than this Act.”
33 The ART is, undoubtedly, one of the “tribunals for the Territory” within the meaning of s 5(2)(f). Therefore, prima facie, the jurisdiction of this Court includes, subject to such exceptions and conditions as are provided by any law, jurisdiction to hear and determine appeals from the ART.
34 Section 34 of the ART Act deals with this jurisdiction in more specific terms. It relevantly provides:
“Appeals to the Supreme Court
(1) A party to a proceeding before the Tribunal may appeal on a question of law from a decision of the Tribunal in the proceeding to the Supreme Court.
…
(3) An appeal under subsection 34(1) or 34(2) shall be instituted —
(a) not later than 28 days after the decision of the Tribunal was furnished to the person or within such further time as the Supreme Court (whether before or after the end of that day) allows; and
(b) in accordance with the Rules of the Supreme Court.
(4) The Supreme Court has jurisdiction to hear and determine appeals instituted in that Court in accordance with subsection 34(1)…
(5) The Supreme Court shall hear and determine the appeal and may make such order as it thinks fit, including an order —
(a) affirming or setting aside the decision of the Tribunal; or
(b) remitting the case to be heard and decided again, either with or without the hearing of further evidence by the Tribunal in accordance with the directions of the Court. …”
35 Section 34(1) of the ART Act apparently operates to limit the scope of appeals that may be brought to the Court from the ART. The qualification within s 34(1) that parties “may appeal on a question of law from a decision of the Tribunal in the proceeding” may be seen as one of the exceptions and/or conditions provided by law that is contemplated by s 5(2)(f) of the Supreme Court Act. If this interpretation is correct, the Court would not possess any general “appellate” jurisdiction, whether by rehearing or otherwise, from decisions of the ART. Rather the Court’s jurisdiction would be confined to entertaining appeals that deal only with questions of law.
36 It will be seen that the grounds of appeal reproduced at [31] of these reasons for judgment are expressed in very broad terms. A number of them, though alleging errors of law, appear on their face simply to challenge various findings of fact made by the ART. I specifically raised with Mr Cook QC, who appeared for the appellants, the question whether these grounds, even if made good, would permit the Court to set aside the ART’s decision. There was then lengthy debate about this matter.
37 At least two preliminary issues need to be determined. Firstly, what is the nature of the Court’s power under s 34 of the ART Act? Secondly, what is meant by “a question of law”, at least in the context of that section?
the court’s power under section 34
38 The word “appeal”, left unqualified, is a word of indeterminate scope. In Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 (“Turnbull”), Glass JA noted at 297 that the word encompasses “different litigious processes which have few unifying characteristics”. However, the exact nature of the particular “litigious process” in an “appeal on a question of law” from the ART to this Court may be of considerable importance to the disposition of this appeal.
The parties’ submissions
39 The appellants submitted that once an appeal on a question of law had been instituted, the Court’s role was to conduct the appeal by way of “rehearing” of the matter, and not as an appeal strictu sensu. If that submission were to be accepted, the Court would be required to have regard to the evidence that was before the ART, and would be entitled to set aside any erroneous findings of fact made by it.
40 This contention rested to some extent upon the appellant’s interpretation of s 34(5) of the ART Act, and especially the requirement therein that the Court make such order “as it thinks fit” in determining the appeal. The appellants referred to the High Court authorities of Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267 (“Coldham”) and Allesch v Maunz (2000) 203 CLR 172 (“Allesch”) for the proposition that a statutory provision empowering an appellate body to make such orders “as it thinks fit”, when coupled with the ability to receive new evidence, amounted to a direction to that appellate body to conduct the appeal by way of rehearing.
41 This submission also rested upon an inference that the appellants sought to draw from s 37(1)(a) of the ART Act, which relevantly provides that, in the event that an appeal is instituted in the Court, the ART is to
“cause to be sent to the Court all documents or objects that were before the Tribunal in connection with the proceeding to which the appeal … relates…”
This requirement was said to support the appellants’ submission that the role of the Court was to conduct the appeal by way of rehearing.
42 The appellants referred to several other Norfolk Island statutes that provide for appeals from decisions of inferior courts and tribunals of the Territory to the Court, some of which were contended to be appeals by way of rehearing, or even by way of hearing de novo. The provision of those types of appeal in those statutory instruments was said to support an inference that an appeal from the ART to the Court on a question of law was intended to be of a like nature, and certainly broader than the mere determination of the questions of law raised.
43 Mr Cook also argued that “the unique and special situation of a small community in its earliest days of responsible self government [sic]” required the Court to exercise a broader supervisory jurisdiction over the inferior courts and tribunals of the Territory than might be appropriate for “larger and more sophisticated” polities. This argument was said to support the view that the Court should not adopt a narrow construction of s 34(1) of the ART Act.
44 Conversely, Mr MacSporran, who appeared for the Executive Member, submitted that the Court could be guided by the jurisprudence of other Australian courts that had considered statutes that included similar provisions for appeals from tribunals to courts on questions of law. The considerable case law on the meaning of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) was said to be especially relevant in this regard. He contended that, as with s 44(1) of the AAT Act in respect of the Federal Court, s 34 of the ART Act vested in this Court original, and not appellate, jurisdiction. He also submitted that an “appeal” under s 34 was not an appeal by way of “rehearing”, still less an appeal by way of hearing de novo. Rather, its closest analogy was with an appeal strictu sensu, but even there it was confined to a consideration of the questions of law raised. In particular, the Court had no power to correct errors of fact, or to deal with any matters that were not relevantly questions of law.
Consideration
45 In determining the exact nature of the appeal from the ART to this Court on a question of law, it is useful to bear in mind the comments of Kirby J in Coal and Allied Industries Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [69]:
“In every case where the issue is that of the duty and function of an appellatecourt or tribunal, the only safe starting point is a careful examination of the language and context of the statutory provisions affording the appellate right, together with a consideration of the powers enjoyed by, and duties imposed on, the body to which the appeal lies.”
46 This passage draws attention to the need to guard against the tendency to attempt to classify each legislative provision conferring a right of “appeal” into a fixed, pre-existing category, such as “appeal by rehearing” or “appeal strictu sensu”. Rather, the primary question must always be, what was the intention behind the creation of the right of appeal, as expressed through the relevant legislative instrument, read and construed in context?
47 However, that is not to say that the authorities dealing with the nature of an appeal in similar contexts will not be of considerable assistance in ascertaining the true nature of an appeal on a question of law under the ART Act.
48 In Brown v Repatriation Commission (1985) 7 FCR 302 (“Brown”), a Full Court of the Federal Court (Bowen CJ, Fisher and Lockhart JJ) considered the nature of an appeal from the Repatriation Review Tribunal to the Federal Court. Section 107VZZH(1) of the Repatriation Act 1920 (Cth) provided for a right of appeal:
“to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.”
The question that arose in that case was whether the appeal was limited to consideration of the question of law only, or whether, once that question had been sufficiently identified to engage the Court’s jurisdiction, the appeal extended to a rehearing of the whole matter.
49 The appellant in Brown argued that the appeal was by way of rehearing. This contention was said to find support in the fact that the appeal to the Federal Court lay in its original jurisdiction. Accordingly, it was submitted that the parties should not be limited in the presentation of their respective cases to the material that had been before the Tribunal. Rather they should be able to adduce fresh evidence before the Federal Court. In support of that submission, the appellant relied upon a line of High Court authority that held that the nature of an appeal from a Taxation Board of Review to a State Supreme Court under s 196(1) (since repealed) of the Income Tax and Social Services Contribution Assessment Act 1936 (Cth) “from any decision of the Board that involves a question of law” was by way of rehearing.
50 The appellant’s submission was, however, rejected by the Full Court in Brown. The Court held that the language of the Repatriation Act 1920 (Cth) was materially different from that of the Income Tax and Social Services Contribution Assessment Act 1936 (Cth). The former provided for an appeal “on a question of law” (emphasis added), whereas the latter provided for an appeal “from any decision … that involves a question of law” (emphasis added). Referring to the right of appeal provided for in the Repatriation Act 1920 (Cth), the Full Court said, at 304:
“The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it.”
51 The Full Court went on to say, at 305:
“… the appeal to this Court from the decision of the Tribunal … is limited to questions of law and did not extend to a general rehearing of the matter.”
52 A significant number of authorities have dealt with the nature of an appeal on a question of law from the Administrative Appeals Tribunal (“the AAT”) to the Federal Court. That right of appeal is provided by s 44(1) of the AAT Act:
“A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.”
53 It is well established that an appeal under s 44(1) involves an exercise of the original jurisdiction of the Federal Court, and not its appellate jurisdiction.
54 In Neal v Secretary, Department of Transport (1980) 29 ALR 350, Franki J had occasion to state, at 354, with respect to s 44(1), that:
“There is no appeal to this court on anything other than a question of law and therefore the court is not concerned with whether or not it would have come to the same conclusion as the Tribunal came to, but only with the question of whether the Tribunal erred in law.”
55 Five years later, the Full Court of the Federal Court in Brown noted by way of obiter, at 305, that its observations in respect of s 107VZZH(1) of the Repatriation Act 1920 (Cth) were equally applicable to s 44(1) of the AAT Act, which employed an identical statutory formula.
56 In TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175, Gummow J adopted the same reasoning as had been expressed by the Full Court in Brown. His Honour said, at 178:
“The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself.”
Gummow J’s comments in this respect have recently been considered and approved by Branson and Stone JJ in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [11] and [16].
57 To the same effect, in Copperart Pty Ltd v Federal Commissioner of Taxation (1993) 26 ATR 327, Hill J noted, at 328–9, that an appeal to the Federal Court from the AAT
“is an appeal “on” and therefore limited to, a question of law: s 44(1) of the Administrative Appeals Tribunal Act 1975. It follows from this that this Court is not at liberty to find for itself the relevant facts from which the question of law might emerge. That task is entrusted to the Tribunal and the Tribunal alone.”
58 And in Servos v Repatriation Commission (1995) 56 FCR 377, Spender J reiterated, at 385, that:
“As s 44 of the Administrative Appeals Tribunal Act makes plain, only questions of law are to be considered at the Federal Court level. The policy of the legislation in my opinion is to make the decision of the Tribunal final on questions of fact.”
59 The authorities dealing with the nature of an appeal from an administrative tribunal to a courton a question of law are all broadly consistent. Such an appeal is limited to the consideration of the questions of law raised. Once those questions of law have been determined by the court, the law as stated is either applied by the court to the facts as found by the tribunal, or the matter is remitted to the tribunal for further determination according to law. Appeals on questions of law have not, in any case that I have been able to identify dealing with statutory language of this kind, extended to a rehearing of the matter.
60 This view of the nature of the appeal is consistent with the proposition put by Mr MacSporran that an appeal on a question of law is sui generis, and distinct from the other types of “litigious processes”, including even an appeal strictu sensu. That proposition is also confirmed by authority. See, for example, Turnbull at 297.
61 Further, it is by no means clear that this Court is empowered to receive further evidence when it conducts an appeal on a question of law from the ART. The position of this Court is therefore different to that of bodies such as the Full Bench of the Australian Industrial Relations Commission, as identified by the High Court in Coldham. In that case, the powers conferred on the Commission to “make such order as it thinks fit” and to “take further evidence for the purposes of an appeal under this section” were regarded as strong indications that the appeal given by s 88F of the Conciliation and Arbitration Act 1904 (Cth) was by way of rehearing. See also Allesch at [20]–[23] per Gaudron, McHugh, Gummow and Hayne JJ and [44] per Kirby J re ss 93A and 94 of the Family Law Act 1975 (Cth); and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [75] per Gleeson CJ and Gummow J (Hayne J concurring) and [128] per Kirby J re s 27 of the Federal Court of Australia Act 1976 (Cth). However, the fact that intermediate courts of appeal generally have the power to receive further evidence on appeal, and that appeals to those courts are usually regarded as being by way of rehearing, cannot assist the appellants in their contention that an “appeal” to this Court, exercising original jurisdiction under s 34(1), is of a similar nature.
62 Additionally, the requirement of s 37(1)(a) of the ART Act that the ART transmit to the Court “all documents or objects that were before the Tribunal” does not assist the appellants in their submission that the appeal must operate by way of rehearing. A near-identical requirement exists in s 46(1)(a) of the AAT Act. That provision has not dissuaded the Federal Court from consistently deciding that its jurisdiction on an appeal from the AAT is confined to a consideration of the questions of law raised. Indeed, a statutory requirement of this kind is perfectly consistent with the nature of the appeal being limited to a determination of the questions of law raised, given that (as will be elucidated later in these reasons) some reference to the evidence may be necessary in order to determine whether the ART has committed an error of law in the course of making its decision.
63 Given that the line of authority discussed earlier in these reasons for judgment has dealt comprehensively with legislative provisions phrased in essentially the same terms as those used in the ART Act, there is no reason not to apply the same principles to s 34(1).
64 The appellants have argued that the “unique and special” political and legal circumstances of the Territory ought to lead the Court to adopt a broader view of the nature of an appeal from the ART than has been adopted by other courts considering their jurisdiction on appeals under similar legislative provisions. There appears to be an unstated assumption underlying this argument that some persons who exercise administrative decision-making and review functions on Norfolk Island may not have training or qualifications appropriate to the exercise of those functions. Accordingly, the Court ought construe its powers on appeals from the ART more expansively than it would otherwise do. This would include reviewing findings of fact made by the ART, provided only that the process of review was confined to evidence that was before the ART.
65 I am unable to accept such a submission. Even if the level of training, legal or otherwise, of administrative decision-makers in the Territory were a relevant matter (and I do not think that it is), there is nothing to suggest that the members of the ART are incapable of performing their task of merits review without undue interference by this Court.
66 Legal or other training of a fact-finder is not a pre-requisite to competent fact-finding. Even if it were, the President of the ART must be the Chief Magistrate of Norfolk Island: s 4(3) of the ART Act. The current President also happens to be the Chief Magistrate of the Australian Capital Territory. The Deputy President and the senior member of the ART must be legal practitioners of not less than five years’ standing: ss 4(4) and 4(5). The ART must be either constituted by the President, Deputy President or senior member sitting alone; or as a multi-member tribunal, at least one of whose members must be the President, Deputy President or senior member: s 7(1). In these circumstances, I cannot accept a submission that the “unique and special” circumstances of the Territory mean that the Court is required to depart from clear and persuasive authority, and interpose itself as more competent or better-placed than the ART to conduct the task of fact-finding.
67 The clear legislative policy of the ART Act is that that the task of fact-finding is assigned to the ART, subject to the Court having jurisdiction only to determine the questions of law raised in appeals before it.
what is a question of law?
The parties’ submissions
68 The appellants did not address arguments to the specific issue of what constitutes a question of law. They did, however, submit that the Court should not adopt an artificially narrow interpretation of that term, and referred the Court to one of the leading English administrative law texts, HWR Wade and CF Forsyth, Administrative Law, 9th ed, Oxford, Oxford University Press, 2004, in support of that view. In that text, the learned authors observed, at p 947, that the right to appeal on a point of law “is clearly intended to be a wide and beneficial remedy.”
69 The appellants also directed attention to the decision of the Privy Council in Smith v The Queen [2000] 1 WLR 1644 (“Smith”), in which their Lordships considered the meaning of the expression “a question of law alone” in the context of a right of appeal afforded to the prosecution in criminal trials by s 17(2) of the Court of Appeal Act 1964 (Bermuda).
70 The first respondent’s submissions were somewhat more expansive on the issue of what constitutes a question of law. Mr MacSporran readily acknowledged that the term “question of law” should not be read narrowly, and that there were a number of ways in which a decision of the ART could be vitiated by an error of law. These included if the ART misconstrued legislation, denied procedural fairness, misapprehended or failed to take into account a material fact, failed to consider a policy that it was bound to consider, or failed to consider a submission of substance that had been advanced and relied upon. However, he submitted that merely attacking a finding of fact could not possibly be said to raise a question of law. And he warned again of the dangers of this Court becoming embroiled in merits review.
The authorities
71 In Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 (“Agfa-Gevaert”), the High Court referred, in the context of an appeal on a question of law under s 44(1) of the AAT Act, to the notorious difficulty in distinguishing between questions of law and fact. The Court commented, at 394:
“The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated.”
Whilst the search for a clear and universal statement of what will constitute a question of law has proved elusive, it is possible to identify several broad categories of questions that courts have accepted as being appropriately characterised as questions of law.
Questions of law arising from the decision-maker’s fact-finding
72 The obvious starting point for any discussion of what constitutes a question of law in the context of judicial review of administrative decision-making is the general principle that there is no error of law in simply making a wrong finding of fact. See Waterford v Commonwealth (1987) 163 CLR 54 at 77 per Brennan J. Further to this, questions of fact cannot be transmuted into questions of law. See Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 709 per Lockhart J. Nor can questions that are truly questions of fact be transformed into questions of law simply by employing, when drawing the grounds of appeal, the formulation “erred in law”. See for example Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 per Ryan J.
73 However, findings of fact, and inferences drawn from facts found, are susceptible to attack as errors of law on the grounds that there is no evidence to justify or support the findings or inferences. The relevant principles and cases on this point have been succinctly summarised by Mason CJ (Brennan, Toohey and Gaudron JJ concurring) in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (“Bond”) at 355–6 (citations omitted):
“The question whether there is any evidence of a particular fact is a question of law: McPhee v. S. Bennett Ltd.; Australian Gaslight Co v. Valuer-General. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gaslight; Hope v. Bathurst City Council. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden.”
See also Military Superannuation and Benefits Board No 1 v Stanger (2002) 68 ALD 12 at [20] per Kiefel J; and Parks Holdings Pty Ltd (trading as Gladstone Chemicals) v Chief Executive Officer of Customs (2004) 81 ALD 365 at [62] and [66] per Goldberg J.
74 Merely demonstrating that other findings of fact were merited, or that the decision was against the weight of the evidence, does not raise a question of law. See Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 (“Collins”) at 601 per Fox, Deane and Morling JJ.
75 In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, Kirby P in dissent argued, at 151, that fact-finding that is manifestly erroneous or illogical, or indicates “unexplained perversity”, ought to be considered an error of law. His Honour maintained that view in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [78] (“Applicant S20”), where he argued, again in dissent, that factual findings that were perverse, illogical or marred by patent error were susceptible to correction as errors of law in circumstances where an appeal was itself limited to questions of law.
Questions of law arising from statutory interpretation
76 The issue of whether the proper interpretation of the words of a statute raises a question of law has traditionally been regarded as particularly complex. See for example Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287–8 per Neaves, French and Cooper JJ. In that case, a Full Court of the Federal Court distinguished between the meaning of terms in a statute (which was said to be a question of fact) and their construction (which was said to be a question of law).
77 However, this distinction has been the subject of criticism by the High Court. In Agfa-Gevaert, Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ commented, at 396, that it was “artificial, if not illusory”. The better view now appears to be that issues of statutory interpretation will ordinarily raise questions of law.
Questions of law arising from procedural fairness and matters that the decision-maker is bound to take into consideration or ignore
78 A majority of a Full Court of the Federal Court in Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28 was of the view that the question whether a party was denied procedural fairness was properly characterised as a question of law. See at [6]–[8] per Gray ACJ and North J; cf the reservations expressed on this issue in the context of s 44 of the AAT Act by Gyles J at [67].
79 In Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483, I held that a claim of denial of procedural fairness raised a question of law within the meaning of s 44 of the AAT Act, and permitted the reception of evidence not before the AAT for the limited purpose of making good that contention. I cited Stefanovski v Murphy [1996] 2 VR 442 at 451, and Victorian Workcare Authority v Hillgrove (unreported, Supreme Court of Victoria, McDonald J, 29 August 1994) as authority for that proposition.
80 A question of law will also be raised when an appellant contends that a decision-maker has overlooked a submission worthy of serious consideration that, if accepted, is capable of affecting the outcome of the case. See Comcare Australia v Rowe (2002) 35 AAR 410 at [12] per Merkel J, and the cases cited therein.
81 In addition, a question of law will be raised where a decision-maker has misapprehended or failed to take into account a consideration that he or she was bound (in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (“Peko-Wallsend”) at 39–40) to take into account. See also Sullivan v Department of Transport (1978) 20 ALR 323 (“Sullivan”) at 333 per Smithers J, 348–9 per Deane J and 350 per Fisher J. Whilst Sullivan suggests that failure to take into account a material fact is capable of constituting an error of law, more recent authority doubts that evidence per se is capable of constituting a mandatory consideration. See Abebe v Commonwealth (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”) at [74] per McHugh, Gummow and Hayne JJ (Gleeson CJ concurring). Rather, a failure to consider obviously relevant evidence may be used as a basis for inferring some underlying error of law. See Yusuf at [44] per Gaudron J and [69] and [78] per McHugh, Gummow and Hayne JJ (Gleeson CJ concurring); W280 v Minister for Immigration and Multicultural Affairs [2001] FCA 1606 at [26] per French J; Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195 at [44] per Wilcox and Marshall JJ.
82 Finally, whether a decision-maker has taken into account an impermissible consideration also raises a question of law. See Van Cong Huynh v Secretary, Department of Social Security (1988) 18 FCR 402 at 407 per Morling J and 413–4 per Burchett J; and see also Collins at 602–3 per Fox, Deane and Morling JJ.
Questions of law arising from serious deficiencies in a decision-maker’s reasoning
83 Whether the decision of a decision-maker is unreasonable in the sense described in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 is clearly a question of law. See for example Federal Commissioner of Taxation v McCabe (1990) 26 FCR 431 at 442 per Davies J. However, until recently it was thought that mere want of logic in a decision-maker’s reasoning did not constitute an error of law. In Bond, Mason CJ (Brennan, Toohey and Gaudron JJ concurring) quoted Menzies J in R v District Court; Ex parte White (1966) 116 CLR 644 at 654, and went on to say, at 356:
“[A]t common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference — in other words, the particular inference is reasonably open — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.” (emphasis in original)
84 Whilst a Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 (“Epeabaka”) held that the position in Bond was still good law, the Court was of the view that want of logic in a decision-maker’s reasons may put an appellate body on inquiry as to whether there was any basis for the inferences drawn, or whether there was only a purported, rather than a real, exercise of power by the decision-maker: at 422 per Black CJ, von Doussa and Carr JJ.
85 The learned authors of M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action, 3rd ed, Sydney, Lawbook Co, 2004, suggest that the principle in Bond may not have survived the decision of the High Court in Applicant S20. They take the view that Applicant S20 now stands as authority for the proposition that extremely irrational or illogical fact-finding processes, conclusions or inferences may constitute errors of law capable of correction on an appeal on a question of law. See especially their discussion at 247–51, and also Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [43] and [57]–[66] per Santow JA.
86 However, this reading of Applicant S20 has not been universally endorsed. Some members of the Federal Court have analysed the judgment as standing for no more than an affirmation of the principle expressed in Epeabaka, that is, that engaging in reasoning or coming to a conclusion that is illogical or irrational is not an error of law per se, but may give rise to an inference that the decision-maker has made some underlying error of law. See Minister for Immigration and Multicultural and Indigenous Affairs v W306/01A [2003] FCAFC 208 at [46] per French and Hill JJ and [78] per Marshall J; NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [22]–[29] per Tamberlin, Emmett and Weinberg JJ.
Conclusion
87 The foregoing, necessarily incomplete, review of the kinds of questions that can properly be described as questions of law is intended to provide a framework within which to assess which, if any, of the appellants’ claims properly engage the jurisdiction of this Court.
88 Before proceeding to consider the grounds of appeal individually, I should say something further about the decision of the Privy Council in Smith that was cited to me by the appellants. In that case, the Privy Council held, at 1650–2, that the phrase “a question of law alone” had to be construed in the context of the use elsewhere in the same Act of the formula “a question of mixed law and fact”. The Privy Council concluded that the decision of a judge in a criminal trial to uphold a “no case” submission on the part of the defence (with the consequence that the jury were directed to enter a verdict of acquittal) necessarily involved the trial judge weighing the evidence against the accused. Therefore, their Lordships held, that in this statutory context, the question whether the trial judge was entitled to uphold the “no case” submission was not “a question of law alone” (emphasis added), and hence no right of appeal lay against the judge’s decision.
89 It should also be noted that in Director of Public Prosecutions Reference (No 1 of 1984) [1984] VR 727 at 729–30, the Full Court of the Supreme Court of Victoria (Young CJ, Murphy and Hampel JJ) discussed in some detail the nature of a Crown appeal that was limited to obtaining the opinion of the Full Court on a “point of law” which had arisen in a particular criminal trial. The Full Court held that a contention that the trial judge had exercised an exclusionary discretion erroneously did not give rise to a point of law.
90 In my view, the Privy Council in Smith clearly confined its views on the proper construction of the expression “a question of law alone” to the unusual statutory context of the Court of Appeal Act 1964 (Bermuda). Not only is such a statutory context absent in the case of the ART Act, but also the expression “a question of law alone” (emphasis added) is different from that presently under consideration, ie, “a question of law”. The principle enunciated in Smith therefore provides little guidance as to the appropriate construction of s 34(1) of the ART Act.
91 I turn now to consider what questions of law, if any, are raised in the grounds of appeal to this Court, and consider whether any of those grounds are well-founded.
the questions of law raised by the notice of appeal
Ground 1
92 Ground 1 of the notice of appeal claims to raise the question whether the ART fell into error by misconceiving, misconstruing or misapplying its functions and powers under the ART Act. On its face, the question raised by ground 1 is plainly a question of law.
93 In the course of their written submissions, the appellants contended that this ground was founded on five separate errors made by the ART in these proceedings. Additionally, in the course of the hearing, Mr Cook indicated that ground 1 encapsulated a sixth misapprehension on the part of the ART of its powers and functions. I now turn to deal with each in turn.
94 The first alleged error was that the ART had no power to make recommendation 4 contained in its first decision. This recommendation was to the effect that the Executive Member should refer certain matters to the Planning Board “for further consideration and recommendation to him”. The question of whether the ART had the capacity to make such a recommendation is one of power, and, so characterised, is a question of law.
95 However, I am of the view that it would be inappropriate for me to determine this question in the context of these proceedings. Section 34(3)(a) of the ART Act provides that an appeal must be instituted in this Court within 28 days of the publication of the decision under challenge. It is of no consequence that each of the three decisions of the ART involved a planning application in respect of the same site, or that the President referred to and considered each of his previous decisions in the course of arriving at each of his subsequent decisions. The subject of the present proceeding is the review finalised by the ART on 14 March 2005 of the Executive Member’s decision to grant conditional approval on 4 September 2002. Referral to his previous decisions simply relieved the President of recapitulating the factual background to the application in each of his subsequent decisions. It did not have the effect of “restarting” the time in which to appeal those earlier decisions. This aspect of the challenge has been brought seriously out of time, and has been overtaken by events.
96 The second alleged error was that, even if recommendation 4 was within the ART’s power, upon the referral of the application to the Planning Board, that Board was required to convene a second public meeting for the purposes of reconsidering the application before it could make a recommendation on the application. This alleged failure on the part of the Planning Board was said to constitute a denial of procedural fairness to the appellants. As I have determined earlier in these reasons, the current state of authorities is that such a question is properly viewed as a question of law.
97 Once again however, it is not one that I propose to determine in these proceedings. Alleged procedural defects leading up to the earlier decision of the Executive Member to grant conditional approval on 5 May 2000 are irrelevant to the later decisions that are the subject of the present appeal, being those of the Executive Member on 4 September 2002 and the ART on 14 March 2005. And even if such alleged defects were present in relation to the later decision of the Executive Member, I am certainly not convinced that such a failure on the part of Planning Board would be amenable to challenge in an appeal from the ART to this Court on a question of law. Accordingly, I consider this argument to be misconceived.
98 The third alleged error on the part of the ART was that it misunderstood its task by failing to give appropriate consideration to refusing the planning application, and operating under an assumption that the Administration of Norfolk Island required the proposed rock-crushing and screening activities to occur in the Territory.
99 I consider the first limb of this attack to be nothing more than an attempt to engage this Court in merits review of the ART’s decision, which, for the reasons I have given above, I consider to be impermissible in an appeal on a question of law. There is no evidence to suggest that the ART did not approach its task fully cognisant of the alternative courses of action open to it under s 31(1) of the ART Act. The mere fact that it elected one course over the others, and a course that the appellants were dissatisfied with, does not constitute an error of law.
100 I consider that, giving it its most generous interpretation, the second limb of this attack could be described as an allegation that the ART took into account an irrelevant consideration, or operated under a mistaken belief as to a policy that it was bound to give effect to. If the ground is made out, then this may disclose that the ART made an error of law by impermissibly fettering the exercise of its jurisdiction. So characterised, this raises a question of law that I am required to determine.
“I am satisfied that the latest RHA Report resulting in the amended environmental conditions set out above, reach [sic] the appropriate balance between the interests of those requiring the activity to occur and the interests of the applicant close by residents [sic] and the intervening company who conduct [sic] the activity.”
The appellants contend that the only party that could be encompassed by the expression “those requiring the activity to occur” was the Administration.
107 The fifth alleged error was that ART failed to consider adequately the possibility of alternative sites for the activities proposed in the application. I view this question as being one of the ART’s jurisdiction on a review application. Accordingly, it raises questions of law.
108 I have already reproduced at [13] the President’s comments to the effect that the information relating to alternative sites was “at its highest … background information only”. In my view, the President was correct in refusing to give substantive consideration to other possible sites for the proposed activities. The ART’s jurisdiction was confined to review of the Executive Member’s decision before it. The relevant decision related solely to the portion, and therefore the ART was authorised to affirm, vary or set aside the conditional planning approval only in respect of the portion. It was not authorised to conduct a broad-ranging inquiry as to the relative merits of other portions in the Territory that may or may not be more suitable for the activities. Had it done so, the ART would have exceeded its jurisdiction. It was no error of law to fail to evaluate alternative sites.
109 The sixth and final error alleged under ground 1 was that the ART misunderstood its task when, in light of its findings that the activities proposed in the planning application were likely to cause considerable environmental impact, it failed to consider whether it was desirable to cause an EIS to be conducted pursuant to s 28 of the Planning Act. The proper construction of s 28 of the Planning Act, and the functions of the ART under that section, raise questions of law.
110 As has been noted earlier in these reasons at [12], the ART made findings that the proposed activities were likely to cause considerable environmental impact. The President of the ART, in his first decision, made the following comments, at 159:
“The preparation of an Environmental Impact Statement (EIS), in respect of applications such as these, would be a normally accepted practice. Nevertheless, as submitted by Ms Cowles to me, the Executive Member has a discretion to direct that EIScan be obtained by an independent party, one was not so obtained in the present case. [sic] The Executive Member had regard to reports … as well as the Minutes of the Planning Board and its detailed recommendations. The question of the preparation of an EIS or otherwise, remains in the discretion of the Planning Board and in particular, the Executive Member.
The absence of an EIS however, does not relieve the Executive Member of a full consideration of environmental and other impacts of the application and the ultimate responsibility of granting approval subject to appropriate conditions and particular, environmental conditions as he sought to do in this case. A note in Part 4, section 28b(ii) of the Plan, indicates as follows:
“An Environmental Impact Statement assists in determining planning approval, it does not in itself determine planning approval”.
The preparation of an EIS for the consideration of the Executive Member, is not a mandatory requirement of the process. Nevertheless, the impacts across the board of the application need appropriate consideration and coverage in any such decision concerning this application.”
111 Even though these comments were made in the context of the President’s first decision, I am of the view that the question of whether the ART was obliged to order an EIS was a live issue throughout each of the subsequent decisions. It can be inferred that the President’s views on this question, as exposed above, continued to operate upon him on each subsequent occasion that he gave consideration to a planning application in respect of the portion. Therefore even though the above comments were made in the context of the first decision, I consider that they formed part of the sub-stratum of findings of fact and law upon which the President made his third decision. Accordingly, a challenge to them has been instituted within time.
Ground 2
114 On its face, ground 2 asserts that the ART erred in law in that its determination was not in accordance with, or properly made under the Planning Act and the planning principles contained therein. In the course of written and oral submissions, the appellants amplified this assertion to claim that the ART’s decision was deficient in four respects.
115 The first alleged error was that the ART should not have approved the application in its second decision, as the application did not meet the requirements of cl 27 of the Plan, which required that a planning application be accompanied by certain information. This allegation lacks sufficient particulars and evidence for me to consider it properly. However, even if there were evidence before me upon which I could proceed to decide this matter, it relates to the ART’s second decision. There is certainly no material before me to suggest that any procedural defect that may have affected that decision has been carried through to the subsequent third decision. This attack is, therefore, out of time.
116 The second alleged error was that the ART dispensed with an EIS in circumstances where it was “needed”, in that the planning application fulfilled some or all of the criteria enumerated in cl 28(b)(ii) of the Plan. The proper interpretation of cl 28(b)(ii) of the Plan, and its relationship to s 28(1) of the Planning Act, raise questions of statutory construction, and hence give rise to questions of law.
117 Clause 28(b) of the Plan provides as follows:
“Two types of assessment will be applicable to development proposals where they are considered to be potentially environmentally significant:
(i) A Preliminary Assessment (PA) is a relatively brief assessment of a proposal to identify potential issues and concerns relating to a proposal’s environmental sensitivity.
(ii) An Environmental Impact Statement (EIS) is needed where impacts may be widespread, long term and of great magnitude, and broad in range. An EIS assists in determining planning approval, it does not, in itself, determine planning approval. …” (emphasis in original)
(There is evidence before the Court that a Preliminary Assessment was conducted in relation to this application.)
118 As discussed earlier in these reasons at [112]–[113], s 28 of the Planning Act is clearly cast in discretionary terms. It confers upon the Executive Member legal authority to direct that an EIS be undertaken in respect of an application, but neither requires the Executive Member to cause, nor even to give consideration to causing, an EIS to be carried out.
119 Whilst the language of cl 28(b)(ii) of the Plan uses language that, in isolation, may be considered mandatory once the qualifying conditions are met, the passage “is needed” must be read in the context of the subjective nature of those conditions, and the discretionary character of s 28(1) of the Planning Act. I cannot accept that unspecific criteria in a piece of subordinate legislation such as the Plan are capable of converting what is a clear discretion in the enabling Act into a mandatory requirement. To the extent that the words “is needed” in cl 28(b)(ii) of the Plan purport to fetter the discretionary nature of the power in s 28(1) of the Planning Act, they ought be read down in accordance with the ordinary principles of statutory interpretation. This attack on the ART’s decision must fail.
120 The third alleged error was that the ART had dispensed with an EIS in circumstances where it was irrational and unreasonable for it to do so. In my view, it cannot be characterised as irrational, or unreasonable, for the ART to fail to exercise a discretion in circumstances where the statutory language makes it clear that there was no obligation on its part to do so.
121 The fourth and final error alleged under ground 2 was that the ART took into account an irrelevant consideration when it found that the Administration of Norfolk Island required the activity to occur on the Island. For the reasons that I gave at [101]–[103], I do not consider this alleged error to be made out.
Ground 3
122 Ground 3 alleges that the ART erred in law by failing to give proper consideration to alternative sites for the activities proposed in the planning application. As such, it deals with the same subject matter as the fifth error alleged under ground 1. However rather than alleging that the ART misapprehended its function when it failed to consider alternative sites for the activities, the appellants posited the failure to consider alternative locations as irrational and unreasonable. Despite this re-characterisation of the claim, this ground must also fail, and for the same reasons that I gave at [108]. It is neither irrational nor unreasonable for the ART to decline to embark upon an inquiry outside of its jurisdiction.
Ground 4
123 Ground 4 alleges that the ART erred in law by failing to give any, or any proper, consideration to refusing the planning application. The appellants expanded upon this allegation in their written submissions when they said that the ART fell into an error “when it endeavoured to “enable” the approval of the application by laying down conditions for its operation which were uncertain or untested”. In the course of the hearing, Mr Cook explained that this ground was intended to make the argument that the ART was operating under a misapprehension, and took into account irrelevant considerations, by finding that it had to “enable” or facilitate the approval of the application, rather than considering refusal.
124 In my view, this ground is merely a re-characterisation of aspects of the third and fourth errors alleged under ground 1. For the reasons that I gave at [99]–[104] and [106], it must also fail.
Ground 5
125 The appellant’s written and oral submissions were to the effect that ground 5 raised questions of law whether it was irrational or unreasonable for the ART to approve the planning application in circumstances where there were risks to the health, safety and amenity of those who would be exposed to the activities at the proposed plant. Alternatively, the appellants contended that the ART, in reaching its decision, took into account irrelevant considerations, namely, the need to try to find compromise and balance between the competing interests of residents and the proponents of the planning application. Grounds of this nature raise questions of law.
128 I am also of the view that there is no substance to the alternative contention put by the appellants. The purpose of any planning regime is to reconcile the competing interests of a community in respect of its environmental resources. Some in the community might wish to have Norfolk Island preserved in a “frozen-in-time” condition. Others may wish to have all environmental resources exploited so that the community might achieve its maximum economic potential. The Planning Act provides a means by which a middle‑ground between these extreme positions can be identified. In many instances, the competing interests of development proponents and those that may be affected by those proposals are reconciled by the granting of a conditional approval. In other instances, where the interests cannot be reconciled, one group in the community’s objectives must be subordinated to the interests of the broader community. Either way, balancing different groups’ competing objectives is an essential component of decision-making in planning processes.
129 The Legislative Assembly has seen fit, in enacting ss 35 and 36 of the Planning Act, to, in limited circumstances, involve the ART in the planning processes of the Territory. That the ART, once it became involved in this particular planning decision, strove to achieve a balance between the competing interests represented in the proceedings before it, was entirely proper. The need to achieve such a balance cannot, in a planning context, be described as an irrelevant consideration. This ground of appeal is therefore unsuccessful.
Ground 6
130 The appellants’ written and oral submissions were to the effect that ground 6 raised questions of law as to whether the ART’s alleged departure from noise and dust standards recognised and accepted in other jurisdictions was irrational or unreasonable. So characterised, ground 6 raises questions of law.
131 However, as I noted at [28]–[29] and [126]–[127] above, the ART relied upon the expert advice of RHA in formulating the noise and dust standards that would be applicable to the activities to be carried out on the portion. The conditions that the ART ultimately imposed are extremely detailed, and include specific provisions for compliance monitoring. The assertion that those noise and dust standards may be less stringent than those imposed in other Australian jurisdictions was considered by the ART. However, the ART was of the view that the unique environmental conditions of Norfolk Island justified a departure from conditions applicable elsewhere.
132 Norfolk Island’s very status as a self-governing Territory within the Australian federation is premised upon the recognition that the Norfolk Island community operates in different conditions and has different needs from those of other Australian communities. It appears to me that the ART had regard to the noise and dust standards applicable in other Australian jurisdictions, but considered it appropriate in the circumstances to depart from those standards. In formulating the conditions that were to be applicable to this application, the ART relied upon the advice of expert consultants. I am far from satisfied that it was irrational or unreasonable for the ART so to act. This ground of appeal must therefore fail.
Ground 7
133 Ground 7 was said by the appellants to raise the question whether the ART failed to take into account a relevant consideration, namely, that the activities proposed in the planning application were to be undertaken for private commercial gain, rather than for any public purpose. In the course of the hearing, Mr Cook also put this ground on the basis that it was irrational or unreasonable to approve this application in circumstances where the proposed activities were not for any public utility. Couched in these terms, the ground raises questions of law.
134 However, there is no evidence before me to suggest that the private or public nature of the enterprise was a relevant consideration that the ART was required, in the Peko-Wallsend sense of that word, to take into account in the course of making its decision. Nor is there any foundation for an argument that it is either irrational or unreasonable for planning applications for facilities operated for private purposes to be assessed against the same criteria applicable to those operated for public purposes. This ground of appeal must also fail.
Ground 8
135 Ground 8 was ultimately abandoned at the hearing.
Ground 9
136 Ground 9 was said to raise the question whether the ART fell into error by misconstruing its role. The misunderstanding on its part was said to arise from its delegation, in the Orders that resulted from its second decision, to the Executive Member of certain functions relating to the finalisation of the approval of the application. This was said by the appellants to be inconsistent with the ART’s statutory function to review the Executive Member’s decision and finally and conclusively determine the matter itself. In the alternative, the directions for the further consideration of the planning application were said to be void, as being vague or uncertain.
137 The question is simply whether the ART had power to refer certain matters to the Executive Member for further consideration rather than determining them for itself. Put that way, the issue is one of power, and accordingly gives rise to a question of law. However, I am of the view that I should refuse to answer the question in the circumstances of this case. The ground relates to the second decision of the ART. The Orders made on that occasion have been superseded by the subsequent decisions of the Executive Member on 4 September 2002 and the ART on 14 March 2005 that are the subject of the present appeal. There is nothing to indicate that any alleged deficiencies in the Orders made by the President on 10 December 2001 have infected those later decisions. The attack made under this ground of appeal is, therefore, also out of time.
Grounds 10 and 11
138 Grounds 10 and 11 allege that the ART erred in law in treating the draft statement and conditions as a valid statement of reasons and planning approval under the Planning Act. The question to be determined is whether the ART erroneously treated those documents as a “decision”. If the ART did make such a mistake, it would constitute an error of fact that was essential to the exercise of its jurisdiction. Such an error would give rise to a question of law.
139 The President opened his third decision, at 2, as follows:
“The subject of the review in this case is specifically the approval by the Executive Member and statement of reasons dated 29 January 2004.”
“By virtue of the broad range of powers and discretions granted to the Tribunal under sections 31(1) and 31(2) of the Administrative Review Tribunal Act 1996, the Tribunal is empowered to:
…
· set aside the decision of the Respondent [the Executive Member] made on 4 September 2002 and substitute for it the statement of reasons and conditions of approval dated 29 January 2004 as amended…”
“2. The decision of the Executive Member in planning application No.80/1999 dated 4 September 2004 [sic] be set aside and substituted with the statement of reasons and conditions of approval dated 29 January 2004, as amended in accordance with order 1.”
142 Later, at 4, the President said:
“At a later stage following discussion, the Executive Member involved made a fresh approval and statement of reasons dated 2 September 2002 [sic]. Subsequent discussion and argument to that failed to resolve the issue as far as the parties were concerned. The Executive Member, following discussion between the parties, again endeavoured to resolve the matter by a fresh approval and statement of reasons dated 29 January 2004. It is that last approval and statement of reasons that is the subject of this review.”
143 And finally, in disposing of the application at 19–20, the President made the following Orders:
“1. The statement of reasons and conditions of approval dated 29 January 2004, filed with the Tribunal on 23 February 2004, be varied by:
i deleting mandatory environmental conditions 3.1 to 3.8 and substituting for them mandatory environmental conditions contained as Appendix A to the report prepared by Richard Heggie Associates dated 20 April 2004; and
ii making any other changes necessary to give full and proper effect to the mandatory environmental conditions contained in Appendix A to the report prepared by Richard Heggie Associates dated 20 April 2004 and to this order.
2. The decision of the Executive Member in planning application No.80/1999 dated 4 September 2004 [sic] be set aside and substituted with the statement of reasons and conditions of approval dated 29 January 2004, as amended in accordance with order 1. …”
144 It will be seen from the foregoing that the President, on several occasions, variously:
(a) incorrectly identified the date of the Executive Member’s decision that was the subject of the present application for review (the correct date was 4 September 2002) (at [141]–[143] above);
(b) misidentified the actual decision that was the subject of the review (that of 4 September 2002, and not any real or purported decision of 29 January 2004) (at [139] and [142] above); and
(c) failed to accurately indicate the “draft” status of the draft statement and conditions dated 29 January 2004 that were filed with the ART (at [140]–[143] above).
145 These errors were indeed unfortunate, and entirely apt to create confusion in the mind of the reader. However, I do not consider that they demonstrate an error of law on the part of the ART.
146 There was clearly a decision of the Executive Member amenable to review by the ART (that of 4 September 2002). The review application proceeded on the basis that that decision was the subject matter of the review. Order 2 of the ART, despite describing the Executive Member’s decision by reference to an incorrect date, clearly indicates that the ART disposed of the proceedings by setting aside the Executive Member’s decision of that date and substituting for it an amended version of the draft statement and conditions.
147 The President was obviously of the opinion that, given the limited resources available to the ART, the most expedient course of action would be to have one of the parties bring in a draft statement and conditions that he could then, after amending them to include the recommendations of the RHA report, fashion into final Orders that would dispose of the proceedings. It would obviously have been preferable for the President to refer to the draft statement and conditions as such, and avoid using terminology that could potentially mislead readers into thinking that those documents constituted an actual decision. However, when one reads his decision in the context of the entire proceedings, it can be seen that the errors here are really ones of misdescription. I do not believe that the President became so confused as to mistakenly treat the draft documents as the actual decision that he was reviewing. He therefore committed no relevant error of law.
Conclusion
148 The appellants have been unsuccessful in relation to each ground of appeal. The appeal must therefore be dismissed.
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I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Weinberg. |
Associate:
Dated: 2 September 2005
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Counsel for the Appellants: |
A Cook QC |
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Solicitor for the Appellants: |
WD Richards |
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Counsel for the First Respondent: |
PH MacSporran |
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Solicitor for the First Respondent: |
Crown Counsel for Norfolk Island |
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Counsel for the Second Respondent: |
JT Brown |
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Solicitor for the Second Respondent: |
McIntyres |
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Dates of Hearing: |
6 and 7 July 2005 |
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Dates of Final Written Submissions: |
21, 25 and 29 July, 11 August 2005 |
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Date of Judgment: |
2 September 2005 |
