SUPREME COURT OF NORFOLK ISLAND

Administrator of Norfolk Island v Jope [2006] NFSC 9

ADMINISTRATIVE LAW – application for judicial review of determination of Administrative Review Tribunal – jurisdiction of Tribunal to conduct review – whether Tribunal failed to discharge statutory duty to give reasons

Held - s 102 of the Planning Act 2002 (NI), and its definition of the expression “planning approval” as extending to a “planning approval” given under the Planning Act 1996 (NI) incorporates by reference all elements of a planning approval given under the earlier Act.  Accordingly, the Tribunal had power to conduct the review.  However, the Tribunal failed to give adequate reasons for its decision.  Appeal allowed in part and proceedings remitted to the Tribunal

Administration of Norfolk Island v Walsh [2005] NFSC 6referred to

Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 referred to

Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 referred to

Brackenreg v Comcare Australia (1995) 56 FCR 335 referred to

Cabal v Attorney-General (2001) 113 FCR 154 referred to

Cabal v Attorney-General [2001] FCA 1234referred to

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323referred to

Trajkovski v Telstra Corp Ltd (1998) 81 FCR 459referred to

Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229discussed

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 referred to

Repatriation Commission v O’Brien (1985) 155 CLR 422 referred to

Riordan v Parole Board (ACT) (1981) 34 ALR 322 referred to

ADMINISTRATOR OF NORFOLK ISLAND v TERENCE JOPE

SC 9 OF 2005

WEINBERG CJ

27 SEPTEMBER 2006

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeal be allowed in part.

2.         The proceeding be remitted to the Administrative Review Tribunal in order for it to provide adequate reasons for its decision.

3.         The parties file written submissions relating to costs on or before 11 October 2006.

REASONS FOR JUDGMENT

1                     This is an appeal by the Administrator of Norfolk Island from a decision of the Administrative Review Tribunal (“the Tribunal”) given on 29 April 2005.  The Tribunal purported to set aside a decision of the Administrator made on 13 September 2004 that an “in-principle approval” for a residential subdivision, granted by his office on 27 July 2001, had lapsed.

2                     The Administrator concluded that the legislative scheme operating as at 27 July 2001 deemed any consent to have lapsed if “substantial progress” had not been made.  He determined that no such progress had been made and notified the respondent, Mr Terence Jope, accordingly.  The Administrator’s decision that the in-principle approval had lapsed has ultimately given rise to this appeal.

3                     Mr Jope, the beneficiary of the original approval, brought proceedings in the Tribunal for a review of the Administrator’s decision that that approval had lapsed.  After lengthy hearings, the Tribunal upheld his challenge.  On 14 April 2005 it delivered short ex tempore reasons for its decision.  It published supplementary reasons on 29 April 2005. 

4                     In its published reasons, the Tribunal formulated a declaration in the following terms:

“Pursuant to Section 31 of the Administrative Review Tribunal Act 1996 the Tribunal sets aside the decision of the Administrator made the 13^th day of September 2004 and declares that the approval by the then Administrator given the 27^th day of July, 2001 remains in force and that such is still subject to the conditions stated therein and in accordance with the provisions of the Interpretation Act 1979 is to be carried out pursuant to the provisions of the Subdivision Act 1996, the Planning Act 1996 and the Norfolk Island Plan prepared under Part II of the Planning Act 1996.”

5                     The Administrator contends that the Tribunal lacked power to review his decision of 13 September 2004 and seeks an order that it be affirmed.  He claims, in the alternative, that the Tribunal’s reasons for setting aside his decision were wholly inadequate, and that the matter should be remitted with a direction that proper reasons be provided. 

6                     The parties agreed that this appeal should be determined on the basis of written submissions alone, without the need for an oral hearing. 

the administrator’s decision of 13 September 2004

7                     In coming to his decision, the Administrator reasoned that, by joint operation of:

·                    section 13 of the Subdivision Act 1996 (NI) (repealed by the Subdivision Act 2002 (NI), which came into effect on 27 February 2004);

·                    section 7 of the Planning Act 1996 (NI) (repealed by the Planning Act 2002 (NI), which also came into effect on 27 February 2004); and

·                    section 26 of the Norfolk Island Plan (the Statutory Plan prepared under the Planning Act 1996),

a consent would lapse after 12 months if “substantial progress” had not been made in implementing the consent. 

the repealed statutory regime

8                     It is necessary to set out in some detail the provisions of the statutory regime under which Mr Jope had obtained in-principle approval in July 2001 for the proposed subdivision. 

The Subdivision Act 1996

9                     Section 6 of the Subdivision Act 1996 provided that no subdivision could be registered under the Land Titles Act 1996 (NI) unless final planning approval had been given to a proposal for that subdivision. 

10                  Section 8 distinguished between different types of planning application for in-principle planning approvals.  Relevantly, it provided that, for the purposes of Part IV of the Planning Act 1996, a planning application was a “Category 2” application.  It also provided that, in addition to the requirements set out in Div 1 of Pt IV of the Planning Act 1996, a Category 2 application could only be processed under s 25 of the Planning Act 1996 if the application was accompanied by a preliminary survey plan prepared by an authorised surveyor, and preliminary written consent to the proposal by all persons, other than the applicant, with an interest in the land. 

11                  Section 10 provided that the Administrator was responsible for approving or refusing to approve subdivision applications, and made it plain that all references to the executive member in Pt IV of the Planning Act 1996 were to be read as references to the Administrator. 

12                  Section 11 outlined the approvals process.  It provided that the Administrator could give in-principle planning approval to the proposal, subject to Pt IV of the Planning Act 1996.  Likewise, on an application for final approval of a subdivision, the Administrator could give such approval to the proposal, subject to Pt IV of the Planning Act 1996.  The Administrator could not give final planning approval to a subdivision proposal unless the proposal had previously been given in-principle planning approval and any necessary conditions of that in-principle planning approval had been fulfilled.

13                  Finally, s 13 of the Subdivision Act 1996 set out the conditions that the Administrator could impose under s 24 of the Planning Act 1996 on an in-principle planning approval of a subdivision proposal.  These included the period within which an application for final planning approval of the proposal was to be made, the timing of any works to be carried out in association with the subdivision proposal and the standards for the carrying out of any such works. 

The Planning Act 1996

14                  Part IV of the Planning Act 1996 distinguished, inter alia, between “Category 1” and “Category 2” applications. 

15                  Section 6 defined “development approval” as “a planning approval in principle of a proposal to undertake any number of related planning activities, as referred to in section 27”.  It relevantly defined “planning application” as “an application to conduct a planning activity in relation to land”, and “planning approval” as “an approval under Part IV to conduct a planning activity in relation to land”. 

16                  Section 17 relevantly defined a “Category 2 application” as “a planning application of a kind stated to be a Category 2 application by this Act”. 

17                  Section 27 relevantly provided that, for the purposes of the Planning Act 1996, a development approval was “a planning approval in principle of a proposal to undertake any number of related planning activities”.

18                  Section 25 relevantly provided:

“…

(6)       Upon reference of a Category 2 application under subsection (5), the executive member shall —

…

                        (b)        approve the application subject to conditions;

                        (c)        refuse to approve the application;

…”

19                  Section 35 provided (in part):

“The following decisions are reviewable decisions for the purposes of this Act:

            …

                        (c)        a decision of the executive member to approve a                  Category 2 application subject to conditions, under paragraph   25(6)(b);

                        (d)        a decision of the executive member to refuse a Category 2 application, under paragraph 25(6)(c).”

20                  Section 36 provided for review by the Tribunal of a “reviewable decision” within the meaning of s 35. 

The Norfolk Island Plan

21                  In addition to the provisions set out above, s 7 of the Planning Act 1996 provided that there should be a “Norfolk Island Plan”.  The overall aim of the Plan was to ensure that the planning process promoted the ecological sustainability of Norfolk Island.  The Plan was to promote the objects of the Planning Act 1996 by adopting certain conservation values for Norfolk Island generally and specified development areas. 

22                  Section 26 of the Norfolk Island Plan, prepared under the Planning Act 1996, provided that, unless otherwise specified, a consent would lapse after twelve months of the date of approval if “substantial progress” had not been made in implementing the consent.

the current statutory regime

23                  The current statutory regime is embodied in two Acts, the Planning Act 2002 (NI) and the Subdivision Act 2002 (NI).  For present purposes, it is the Planning Act 2002 that is most relevant.  The operative provisions of that Act commenced on 27 February 2004. 

24                  Section 6 of the Planning Act 2002 provides that a “development approval” is to be read as “an approval under Part 5 to conduct a development activity”.  Section 62(1) (which is to be found in Div 5 of Pt 5 of the Act) provides that s 62 applies where the land the subject of a development approval has not been used and developed in accordance with the approval by the prescribed date.  Section 62(2) provides that the development approval lapses on the prescribed date.  Section 62(3) provides that “prescribed date” in relation to a development approval means 18 months after the approval is given or a later date specified in the approval.

25                  Section 78 sets out the decisions that are reviewable decisions for the purposes of the Planning Act 2002.  These include decisions the executive member makes under the Act in relation to development applications and the giving of a compliance order by an authorised officer under section 81. 

26                  Section 81 relevantly provides:

“(1)     This section applies where, in the opinion of an authorised officer based on reasonable grounds, a person (the “offending person”) is carrying out, or has carried out a development activity without or otherwise than in accordance with a development approval for that activity.

(2)       An authorised officer may by written notice (a “compliance order”) to the person whom the authorised officer believes on reasonable grounds is the offending person order one or more of the following —

            (a)        the activity stop;

…”

27                  Section 79 provides that application may be made to the Tribunal for the review of a reviewable decision within the meaning of s 78.  That necessarily includes the giving of a compliance order by an authorised officer under s 81. 

28                  Section 92 provides that the executive member may, by instrument, delegate any of the powers of the executive member under the Planning Act 2002. 

29                  Importantly, s 102 provides:

“A planning approval or a development approval under the Planning Act 1996 and current immediately before the commencement of this section is, on and from the commencement, deemed to be a development approval.”

the appeal to this court

30                  The Administrator’s notice of appeal originally contained four grounds.  The first was that the Tribunal was not properly constituted when it determined Mr Jope’s application for review.  That ground was resolved in favour of Mr Jope by this Court in separate proceedings:  Administration of Norfolk Island v Walsh [2005] NFSC 6. 

31                  The remaining three grounds of appeal were as follows:

“2.       The Tribunal erred in law in finding that it had jurisdiction to review a decision of the Administrator to grant in-principle subdivision approval under section of the Subdivision Act 1996 (now repealed) [sic].

3.         The Tribunal erred in law by failing to give relevant reasons for its decision.

4.         The Tribunal erred in law by failing to reach a correct and preferable decision in accordance with the test required for merit review and thereby acted contrary to the evidence before it by finding that substantial progress had been achieved by the Respondent applicant during the period July 2001 to July 2002 or alternatively, during the period July 2001 to July 2003.”

32                  It will be convenient hereafter to refer to each of these grounds by reference to its original numbering in the notice of appeal. 

ground two

33                  The Tribunal found that it had jurisdiction to review the Administrator’s decision:

“… on the basis that although the Subdivision Act 1996 had been repealed the Administrator had acted pursuant to this Act on the 13^th September 2004 presumably on the basis of the savings provisions in the Interpretation Act 1979, and had so acted following advise [sic] given to him by the Planning and Environment Board and the Executive Member who had acted pursuant to the Subdivision Act 2002 and the Planning Act 2002 which legislation provides for appeal to the Tribunal.”

34                  The Administrator submitted that in reading the Tribunal’s reasons it was not possible to discern, with any degree of precision, which statutory regime the Tribunal thought applicable to the proceedings before it.  He did, however, concede that during the course of the hearing before the Tribunal, the Senior Member stated that the “new legislation” applied (whatever that may have meant). 

35                  Mr Jope submitted, however, that the Tribunal’s findings as to jurisdiction were to be gleaned not solely from its reasons for decision, but also from the transcript of proceedings.  During the course of the Tribunal hearing, the Senior Member said:

“Now, I have come to a view that the Administrative Review Tribunal in this instant case does have jurisdiction.  Now, I’d lean to that view by looking at the Planning Act 2002, section 78, that provides for a review.  So it is quite clear that the Planning Act provides that subdivision applications or any development approval – and I think development approvals fall under section 102 and 103 of the Planning Act, that subdivision approvals are really to be treated the same way as development applications.  That’s the way I read it.  That they’re governed by the Planning Act and if an application for a subdivision was made now, there would be a review provision to the Administrative Review Tribunal.”

36                  The Senior Member continued:

“And in effect I find the refusal to Mr Jope to essentially cancel his approval or find that it had lapsed and that he could not proceed, in essence I find that that was a decision of the Norfolk Island government starting from the Planning and Environment Board through to the then Norfolk Island Minister responsible for land and environment matters and the Administrator was acting in a, if I could put it, a nominal capacity.  And that leads me to the view that there should be a flow-on into the Subdivision Act 2002 and the Planning Act 2002 and I feel strengthened by sections 102 and 103 of the Planning Act.”

37                  In the final analysis, and for reasons that will become clearer when I turn to ground three, it matters little what the Tribunal thought about the basis for the exercise of its jurisdiction.  It either had jurisdiction to review the Administrator’s decision, or it did not. 

38                  For the reasons that follow, I think the Administrator’s decision was a “reviewable decision”, and that the Tribunal accordingly had power to review it.

39                  The Administrator submitted that the Tribunal, in reviewing his decision, approached the matter on an erroneous basis.  He submitted that the Tribunal had focused upon the advice or information provided to the Administrator, and not upon the decision that he had made.  That meant that the Tribunal had not carried out its statutory task, and further meant that it had exceeded its jurisdiction. 

40                  Mr Jope conceded that the Tribunal had indeed focused upon the advice or information provided to the Administrator, and not the decision.  However, he submitted that this did not mean that the Tribunal lacked power to conduct the review.  In essence, Mr Jope’s submission was that any flaw of this kind in the Tribunal’s reasoning amounted merely to error of law within jurisdiction, but did not constitute jurisdictional error. 

41                  The Administrator submitted that the Tribunal had no power to review his decision under either the 1996 statutory scheme, or the current scheme.  Mr Jope conceded that the Tribunal had no jurisdiction to review the Administrator’s decision by reference only to the 1996 scheme.  However, he contended that he had a right of review by virtue of the concurrent operation of the provisions of the Planning Act 2002 and the Administrative Review Tribunal Act 1979 (NI) (“the Review Act”). 

42                  It is clear that the Tribunal has no general powers of review.  It can only review decisions that are “reviewable” pursuant to statutes that expressly confer power upon it to do so. 

43                  In that regard, s 14 of the Review Act relevantly provides that an Act may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that Act.  Where an Act makes provision for such review, it must specify the person to whose decision the particular provision applies, and may specify conditions subject to which any application for review may be made.  Decisions made by those to whom powers have been delegated can also be reviewed.  There is an extended definition of what constitutes “making” a decision so that a failure by a person to do an act or thing within the period prescribed is deemed to constitute making a decision not to do the act or thing.  Finally, there is also a provision which extends power to review decisions made by persons who no longer hold or perform the duties of an office or appointment.

44                  The Administrator submitted that the Tribunal had no power to review his decision (that the in-principle planning approval had lapsed) in the absence of express power conferred by transitional provisions under the current statutory regime.  No such transitional provisions had been enacted. 

45                  In support of that submission, the Administrator noted that neither the Subdivision Act 2002, nor the Planning Act 2002 contained any provisions of the kind that had existed under the 1996 regime, particularly those in the Subdivision Act 1996 allowing for in-principle approval of a subdivision proposal to be obtained.  He submitted that, under the current regime, the Administrator no longer performs that particular function, which is now discharged by the Chief Executive Officer, or his delegate.  There being no transitional provisions enabling review of decisions made by the Administrator under the 1996 regime, as if they were decisions by the Chief Executive Officer under the current regime, there could be no power to undertake such review. 

46                  Mr Jope submitted that this difficulty was overcome by s 102 of the Planning Act 2002.  As previously indicated, that section provides that a planning approval or a development approval under the Planning Act 1996 and current immediately before the commencement of the Planning Act 2002, is on and from the commencement deemed to be a “development approval”.  Accordingly, any planing approval granted prior to 27 February 2004 was to be construed as though it was a “development approval” granted under the Planning Act 2002.  That in turn brought into play s 81 of the Planning Act 2002 and rendered the Administrator’s decision a “reviewable decision” within the meaning of s 78.  Mr Jope’s reasoning was that the Administrator’s letter dated 13 September 2004, notifying him that the in-principle approval previously granted had lapsed, amounted to a “compliance order” within the meaning of s 81(2).  Presumably, Mr Jope contends that the Administrator is relevantly an “authorised officer” under that section. 

47                  Mr Jope submitted that the next question was whether or not the “planning approval” the subject of review by the Tribunal was “current immediately before the commencement of” the Planning Act 2002.  He submitted that this was a question of fact, which the Tribunal had resolved in his favour when it concluded that he had achieved “substantial progress” within the prescribed period. 

CONCLUSION REGARDING POWER OF TRIBUNAL

48                  In order to determine whether the Tribunal had power to review the Administrator’s decision that the planning approval had lapsed, three matters must be considered.  First, whether the Act under which that decision was taken confers power upon the Tribunal to review that decision.  Second, whether what the Administrator did constituted a “decision” within the meaning of the Review Act.  And third, whether the decision was taken “under” the enactment conferring jurisdiction.

49                  In my view the Planning Act 2002 conferred power upon the Tribunal to review the Administrator’s decision.  Section 102 of that Act, which deems a “planning approval or a development approval” under the 1996 Act to be a “development approval” under the 2002 Act seems to me to incorporate, within the ambit of a development approval given under the later Act all the elements of a planning approval given under the earlier Act.  In effect the terms become interchangeable.  No other interpretation is possible without reading s 102 (in the context of the Planning Act 2002 as a whole), so restrictively as to make it virtually otiose. 

50                  There is no real issue in this case as to whether the Administrator’s decision that the earlier planning approval had lapsed amounted to a “decision” within the meaning of the Review Act.  In Riordan v Parole Board (ACT) (1981) 34 ALR 322 it was said that the word “decision” was a word of “aoristic meaning” (which the dictionary defines as “broad, indefinite or indeterminate”).  The Administrator did not contend otherwise.  Nor did he challenge that the decision was made under an enactment, namely the Planning Act 2002. 

51                  The real question, then, is whether the in-principle planning approval (the lapse of which was the subject of Mr Jope’s application for review) was “current immediately before the commencement of” the Planning Act 2002, within the meaning of s 102 of that Act. 

52                  That was a matter for the Tribunal to determine.  It found that Mr Jope had made “substantial progress” in relation to the subdivision, utilising s 26 of the Norfolk Island Plan prepared under the Planning Act 1996.  It is true that it made no express finding as to whether the approval was current immediately prior to 27 February 2004 when the Planning Act 2002 came into effect.  However, having regard to its finding that “substantial progress” had been made in implementing the consent, it may be inferred that the Tribunal was satisfied that the planning approval was current at the relevant time. 

53                  The Tribunal has both the power and the obligation to determine facts that go to an exercise of jurisdiction.  In Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, the High Court reversed the decision of the Full Court of the Federal Court in Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456.  In doing so, the High Court, in effect endorsed Black CJ’s reasoning where his Honour said (at 465):

“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.”

54                  In Cabal v Attorney-General (2001) 113 FCR 154 (affirmed on appeal by the Full Court of the Federal Court in Cabal v Attorney-General [2001] FCA 1234), I said (at 166-167):

“The so-called doctrine of “jurisdictional fact” (assuming that it is correct to so describe it) represents an exception to the principles of restraint which normally govern judicial review.  “Jurisdictional fact” enables such review whenever the Court determines for itself that a statutorily required fact does not exist.  Parliament can stipulate that any action which it authorises depends upon the existence of various preconditions.  The legislation may require the existence of those preconditions to be established in the mind of the person or body exercising the power, or in the mind of the reviewing court. Where the power depends upon factual requirements being demonstrated to the satisfaction of the person in whom it is reposed, it is that person’s determination of the facts which is decisive.  The validity of the exercise of the power is unaffected if the person, acting in good faith and otherwise according to law, considers the facts, and reaches an opinion about them, albeit one which a court would not share.  Where the power depends upon the existence of objective facts, the court on judicial review is given the final say as to whether the required facts exist.  This “doctrine” which is sometimes described as “jurisdictional fact” is regarded by some as one which ought to be kept within strict boundaries.  It is thought to involve an unwarranted intrusion on the part of the judiciary into matters which are properly the province of the executive.  Others, however, take the view that “jurisdictional fact” provides an important corrective, in favour of the rights of the individual, to arbitrary and capricious decision-making.”

55                  In Trajkovski v Telstra Corp Ltd (1998) 81 FCR 459 Tamberlin J said, in reference to the powers of the Administrative Appeals Tribunal (at 468):

“… there is a line of English authority to the effect that, if a certain state of facts has to exist before a tribunal has jurisdiction, it can inquire into the facts in order to decide whether it has jurisdiction but it cannot give itself jurisdiction by wrong decision upon those facts.  The Courts may, by means of proceeding by way of prerogative writ such as certiorari, for example, inquire into the correctness of that decision.  The AAT’s decision as to the existence of the state of facts is regarded as collateral because, although the exercise of jurisdiction depends on it, it is not the main question which the tribunal must determine.”

56                  In my view, Mr Jope’s contention that the Tribunal had power to review the Administrator’s decision regarding the lapse of the in-principle planning approval is correct.  If, as Mr Jope submitted, there was a planning approval current immediately before the commencement of the Planning Act 2002, all decisions relating to that approval, including any decision that it had lapsed, arguably culminating in a “compliance order”, were reviewable under the 2002 Act when combined with the Review Act. 

57                  It is unnecessary, in these circumstances, to consider whether the provisions of the Interpretation Act 1979 (NI), to which the Tribunal referred, and upon which it relied, provide further support for this conclusion. 

ground three

58                  The Tribunal’s reasons for setting aside the Administrator’s decision that the planning approval (deemed to be a development approval) had lapsed were brief in the extreme.  It focused upon whether “substantial progress” had been made in implementing the consent, in accordance with s 26 of the Norfolk Island Plan, which it regarded as the touchstone of whether the “consent” had lapsed.  The Tribunal stated:

“The central or main issue is whether the Applicant made “substantial progress….in implementing the consent” (Section 26, Norfolk Island Plan).  The Tribunal decided this issue on the balance of probabilities.  After consideration of all the evidence and the submissions the Tribunal found as a matter of fact that there had been substantial work and that the work and the effort directed to implementing the consent was such that the Tribunal was satisfied that Section 26 of the Norfolk Island Plan had been complied with and thus the approval given on 27^th July 2001 was still in force.”

59                  It is noteworthy that the Tribunal did not refer to s 62 of the Planning Act 2002 which sets out a new procedure for determining when a development approval lapses.  Section 62, to which I referred in para [23] of these reasons for judgment, does not replicate the “substantial progress” test contained in s 26 of the Norfolk Island Plan.  It focuses instead upon whether the land the subject of the development approval “has not been used and developed” in accordance with the approval by the prescribed date.  On one view, that is a less onerous requirement, to avoid lapse of the development approval, than the “substantial progress” required by s 26 of the Plan.  However, the Tribunal did not advert to, or seek to apply, the test laid down in s 62.  It should be noted that the Norfolk Island Plan 2002, which replaced the 1996 Plan, by s 87, provides that a development approval shall lapse in accordance with s 62 of the Planning Act 2002. 

60                  Section 31(3) of the Review Act provides that, after making a decision affirming or varying the decision under review, or setting aside that decision the Tribunal shall ensure that a copy of the decision, and of the written reasons for it, are provided to the parties. 

61                  Section 20D of the Interpretation Act 1979 provides:

“Where an enactment requires a tribunal, body or person making a decision to give written reasons for the decision, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.”

62                  This requirement is, for all intents and purposes, identical to s 25D of the Acts Interpretation Act 1901 (Cth).  For that reason, authorities considering the statutory obligation to give reasons under Commonwealth enactments are relevant when considering the scope of the Tribunal’s obligations under Norfolk Island legislation. 

63                  Critically (and it is conceded by Mr Jope that this is so), the Tribunal, though it found that “substantial work” in relation to the proposed subdivision had been done (and therefore, presumably, that “substantial progress” had been made in implementing the consent), failed to give any reasons for that latter finding.  Plainly, “substantial work” and “substantial progress” are not the same.  And if s 62 of the Planning Act 2002 posits the correct test, the Tribunal made no findings whatsoever in relation to whether the land had been used and developed in accordance with the development approval. 

64                  In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323the High Court considered the minimal requirements for a statement of reasons.  McHugh, Gummow and Hayne JJ (with whom Gleeson CJ and Callinan J substantially agreed) said (at 344-5):

“Two features of the asserted duty to make findings may be noticed. First, the duty is said to relate to the decision which the Tribunal is required to make rather than to the decision the Tribunal actually made.  It is, therefore, a duty whose content is to be measured against what the decision-maker was statutorily obliged to do in the particular case.  The inquiry focuses upon what should have been done, not on what was done.  The findings to which attention is directed are those that ought to have been made.  That might be thought to go so far as allowing or requiring inquiry about not only the process of proper decision-making, but also the correctness of what was decided.

Secondly, the facts about which findings must be made are said to be those which, on later judicial inquiry, are found to be objectively material, not those which the Tribunal considered to be material.  It follows that inquiring whether the duty has been performed would require examination of the whole of the Tribunal’s fact-finding process”.

65                  More recently, in Re Minister for Immigration and Multicultural Affairs; Ex parte Palme (2003) 216 CLR 212, the High Court considered the obligation on the Minister to give reasons for a decision to cancel a visa previously granted under the Migration Act 1958 (Cth).  In a joint judgment, Gleeson CJ, Gummow and Heydon JJ said (at 226):

“The visa cancellation decision may be reviewed in this Court for jurisdictional error.  Such error may be found from what is disclosed by reasons provided under s 501G(1)(e).  Failure to provide reasons may also be reviewed in this Court and compliance by the Minister with the statutory duty may be ordered.  The reasons then provided may furnish grounds for prohibition under s 75(v) in respect of the visa cancellation decision.  But what is not provided for is for a prosecutor, as in this case, to bypass that earlier step utilising mandamus, and to impeach the visa cancellation decision itself for want of discharge of the duty to provide reasons.  There is, as was pointed out in argument, a critical distinction between failure to comply with s 501G(1)(e) and using that failure to conclude that the visa cancellation decision is flawed by jurisdictional error.”

66                  McHugh J took a similar view.  His Honour said (at 227):

“The prosecutor contends that the Minister's failure to give reasons constitutes jurisdictional error with the result that the Minister had no jurisdiction or power to cancel the visa.  Jurisdiction is the authority to decide.  It is not easy to accept the notion that a decision is made without authority because subsequently the decision-maker fails to give reasons for the decision.  Nevertheless, it is always possible that a statutory scheme has made the giving of reasons a condition precedent to the validity of a decision.  If it has, a decision that does not give reasons will be made without authority.  Whether a scheme has that effect is determined by applying the principles stated by this Court in Project Blue Sky Inc v Australian Broadcasting Authority.  In Project Blue Sky, the majority Justices rejected the traditional distinction between “mandatory” and “directory” requirements, saying that “[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”.”  (Footnotes omitted)

67                  Recently, in Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229 Rares J had cause to consider the authorities that discuss the failure of decision-makers to give adequate reasons.  His Honour pointed out that in Palme the majority had considered that where a decision-maker does not give any reason for his or her decision, that courts are able to infer that he or she had no good reason (see Palme per Gleeson CJ, Gummow and Heydon JJ at 224).  However, that is not an inference that I would be prepared to draw here.

68                  Mr Jope accepted that the Tribunal’s published reasons were inadequate, in that they merely stated that it had been “assisted by the attendance of witnesses and the presentation of evidence”, and the “very well-prepared submissions and argument” put forward by both sides.  It noted that there was “some conflict as to certain details in the evidence”, and said that it had “had to look at the totality of the evidence and consider all the submissions in deciding the central issue” in the proceeding.  That was all that the Tribunal said about the evidence.  It made no specific findings, apart from saying that it was satisfied that there had been “substantial work … directed to implementing the consent”, and as previously indicated, reasoned from that finding to a conclusion that “Section 26 of the Norfolk Island Plan had been complied with”.  There are no findings by the Tribunal that could, in any way, indicate for example what evidence the Tribunal accepted, or why it had accepted that evidence in preference to any evidence to the contrary. 

69                  In Brackenreg v Comcare Australia (1995) 56 FCR 335 Sheppard J held that a statement of reasons, without reference to the evidence on which findings of fact were based, would constitute an error of law.  His Honour said (at 349-350):

“In the present case the findings of fact upon which the Tribunal relied appear clearly.  … But what it fails to do is to refer to the evidence upon which those findings were based. Although the obligations to state the findings of fact and the evidence upon which those findings were based are related to the obligation to give reasons, they are independent and separate obligations. Furthermore, there is a real purpose in requiring a tribunal to refer to the evidence upon which its findings of fact are based. This enables a court dealing with an appeal on a question of law from the Tribunal to determine, more confidently than might otherwise be the case, whether or not the findings of fact made by the Tribunal were based upon evidence before it and were thus findings which were open to it to make. If they were not, an error of law would be disclosed.”

70                  As noted, it was common ground between the parties that the Tribunal failed to give adequate reasons for its decision.  The question to be resolved is whether this Court should now remit the matter to the Tribunal or whether it should itself undertake the review that the Tribunal ought to have carried out. 

71                  There is no doubt that, pursuant to s 34(5)(b) of the Review Act this Court can order the matter to be remitted to the Tribunal to be heard and determined according to law.  However, the Administrator submitted that this Court was in as good a position as the Tribunal to determine the application for review, since it had sufficient evidence before it to undertake that task, and urged that it do so. 

72                  However, the Tribunal has had the benefit of seeing and hearing the witnesses.  This Court has not had that advantage.  The Court has had no opportunity to consider for itself what weight to attach to the various statements made to the Tribunal.  In addition, as a practical matter, the Court cannot proceed, in effect, to determine the matter by a hearing de novo. 

73                  In the circumstances, it is appropriate that the Tribunal be subject to a mandatory order by this Court to discharge its statutory duty to provide reasons for its decision.  The decision is not invalidated, in my view, simply by the Tribunal’s failure to discharge its statutory duty to give proper and adequate reasons for its decision. 

74                  Support for the course that I propose to adopt may be found in Repatriation Commission v O’Brien (1985) 155 CLR 422 where  Brennan J said (at 446):

“An obligation to give oral or written reasons for a decision is cast on the [Tribunal] … but the remedy for a failure to fulfil that obligation adequately is a mandatory order by the court to do so.”

75                  Accordingly, there will be an order that the matter be remitted to the Tribunal.  There will also be an order in the nature of mandamus requiring the Tribunal to provide reasons for its decision.  I will direct that the parties file written submissions as to costs within 14 days of the publication of these reasons for judgment.

Associate:

Dated:         27 September 2006