Australian Heritage Commission v Mount Isa Mines Ltd

[1996] HCATrans 185

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B41 of 1995

B e t w e e n -

THE AUSTRALIAN HERITAGE COMMISSION

Applicant

and

MOUNT ISA MINES LIMITED

Respondent

Application for special leave to appeal

DAWSON J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 20 JUNE 1996, AT 2.15 PM

Copyright in the High Court of Australia

MR D.J. McGILL, SC:   May it please the Court, I appear with my learned friend, MR J.A. LOGAN, for the applicant in this matter. (instructed by the Australian Government Solicitor)

MR W. SOFRONOFF, QC:   May it please the Court, I appear with my learned friend, MR P.D.T. APPLEGARTH, for the respondent. (instructed by Feez Ruthning)

DAWSON J:   Mr Sofronoff, we thought we might hear from you first.

MR SOFRONOFF:   Yes, your Honour.  Your Honours, our submission is that the decision from which the appeal is sought to be brought is not attended with sufficient doubt to warrant the grant of special leave, and we say that for these reasons.  Both sides agree that this involves a matter of construction.  The applicant conceded before Justice Drummond, as it had to, that whether a place is included within the National Estate does not depend upon any determination by the Commission that that is so, and that appears at the application book at pages 19 to 20.  Consequently, in our submission, if that is so, and in our respectful submission it is so having regard to the definition in section 4 of the National Estate, it cannot be the function of the Commission to determine whether something is included in the National Estate so as to place it within that category or not.  Much less does it give the Commission a right wrongly to determine that fact and give itself jurisdiction.

The Chief Justice, in approaching the task of construction, proceeded on the footing of what he apprehended to be the inconvenience that would flow if the respondent’s construction were accepted.  In our submission, that is the wrong starting point, although that might be a factor in the exercise.  The correct starting point, in our submission, is to look at the words of the statute, and if there is some ambiguity in those words, then one might have resort to other factors like that.  The process falls easily into two categories:  the first category is whether something is in the National Estate at all, sections 4 and 7(c); could I take your Honours to those sections.  Section 4(1) provides that:

the national estate consists of those places, being components of the natural environment.....that have aesthetic, historic, scientific or social significance or other special value -

and then proceeds in subsection (1A) to list further particulars of that.  Could I ask your Honours to note that the National Estate is defined as those places which have those qualities, not those places which are determined in the reasonable opinion of a decision-maker to have those qualities.  The function of the Commission then, in section 7, in relation to the National Estate is found in section 7(c), and it again speaks about the fact that something is or is not in the National Estate; it does not raise a question of determination, rendering something included in the National Estate.  Subparagraph (c) provides that it is a function of the Commission:

to identify places included in the national estate -

Could I ask your Honours to note that what it requires the Commission to do is to identify, that is, establish the identity of, places that are included, not that ought to be included because they have qualities and therefore ought to be afforded the protection of the Act, but places that are included in the National Estate.

DAWSON J:   But it can only do that by deciding what places are in the National Estate in the first place.

MR SOFRONOFF:   It can only do that, your Honour, by identifying.

DAWSON J:   Well that assumes that it is a matter of absolute truth and there is no decisional aspect to it.

MR SOFRONOFF:   Equally, your Honour, with other statutes raising other questions, matters of judgment arise.  In the Wyvill decision, the question of who falls within the definition of “Aborigine” within the latest patent involved a matter of judgment.  In the Hickman Case, that we refer to in our outline, the question what fell within the expression “industry”, when speaking about the coal mining industry, involved a matter of judgment that was not clear cut.

KIRBY J:   These are important arguments and may have considerable weight, but this is a very important piece of national legislation; this particular provision works the Act.  If the theory of the Act is right that has been found favour with the majority in the Full Federal Court, it will effectively mean that all cases will go for general review to the Federal Court, and that will have a very significant impact on the operation of the Act, not to say on the business of the Federal Court.  Now that may be required, but it is a very important question, it seems to me.  That is, I think, the reason that you have been given the first opportunity to speak to the Court.  Your view may ultimately carry the day, but it is an important statute and an important question, and there is a strong dissent from the Chief Justice, and it just seems to be one of those cases that might attract our interest.

MR SOFRONOFF:   Your Honour, it is an important statute and, as your Honour has, with respect, correctly identified, it is one of the key provisions in the statute.  Our submission is, it is clearly demonstrable that the structure of the Act is this:  not to give the Commission the power to determine that which should be included in the National Estate so that it has protection, but to choose from those places which are within the National Estate, as defined, which ought to be recorded in the Register and thus get protection.  So the decision-making power and the place at which the Commission exercises a balancing function, on the one hand, in aid of protection of the feature of significance and on the other ‑ ‑ ‑

DAWSON J:   It is an odd consequence when one looks at section 23, is it not?

MR SOFRONOFF:   I am sorry, your Honour, why did your Honour say that?

DAWSON J:   Because presumably the Commission can decide not to include a place because it is not in the National Estate; it makes a decision about it.  As well as even being within the National Estate, it should nevertheless not be entered in the Register.

MR SOFRONOFF:   That is our point, your Honour, that not all places in the National Estate are to be recorded.

DAWSON J:   And presumably places that are not in the National Estate should not be recorded too.

MR SOFRONOFF:   Yes.

DAWSON J:   And that is a matter for decision by the Commission.

MR SOFRONOFF:   It is a matter for the Commission to identify those places that, as a matter of fact, are within the National Estate.

KIRBY J:   But if your theory of the Act and the operation of the Act is right, then nothing will ever end up in the Commission, and that cannot have been the purpose of Parliament.

MR SOFRONOFF:   Well it does end up in the Commission, your Honour, because one would apprehend that in most cases the identification by the Commission that a place has the necessary qualities, that it is part of a National Estate as defined, would not be subject to serious challenge.

KIRBY J:   But there is a provision in the Act, is there not, for appeal on questions of law to the Federal Court, and that rather suggests that the intention of Parliament, the relationship between the Commission and the court, was one which limited the Federal Court to a very small domain.  On your theory of the Act, there is a general merits appeal to the Federal Court and it cannot be right.

MR SOFRONOFF:   It would be an appeal to consider whether the subject matter of the statute ‑ ‑ ‑

KIRBY J:   Well, that is the key to the working of the Act, and in every case of controversy, and these in their nature are very controversial and often a lot of capital turns on the determination.

DAWSON J:   Put it this way, deciding what is within the National Estate or part of the National Estate requires a value judgment, that is true, is it not?

MR SOFRONOFF:   Yes.

DAWSON J:   Who is to make a value judgment?

MR SOFRONOFF:   In the first instance, it falls to the Commission to determine for itself whether it identifies a place as having the necessary characteristics defined in section 4.

GUMMOW J:   That identification by the Commission may itself supply the jurisdictional pivot.

MR SOFRONOFF:   Yes.

GUMMOW J:   And it does not mean they have to right.

MR SOFRONOFF:   No, but if it is wrong, in our submission, it is not a place that is susceptible to being ‑ ‑ ‑

GUMMOW J:   They may be wrong, but it may still be within the jurisdictional pivot, that is the question.

DAWSON J:   That is true, and they could only be wrong by someone else making another value judgment.

MR SOFRONOFF:   Yes, a judge, in our submission.  Just as a judge in the Wyvill Case was called upon to determine whether the Commissioner, in that case, had jurisdiction to inquire into a particular death of a person who ‑ ‑ ‑

GUMMOW J:   No, I remember the letters patent in that case; they did not have a phrase like, where the Commissioner considers, page 23 ‑ ‑ ‑

MR SOFRONOFF:   No, and we point to this statute as having the clear language of decision making, when it speaks about the process of entry on the Register or removal from the Register, and the absence of any such indication when it speaks about the subject matter of that which is going to be either entered or not entered.

DAWSON J:   I find that difficult, because there is a clear element of decision making in deciding not to enter something on the Register because it is not part of the National Estate.

MR SOFRONOFF:   Your Honour, the process envisaged in section 7(c), in our submission, is not the process of determining whether something should be included, but merely a process of identifying, and if the process of identifying something as carrying or not carrying the necessary qualities involves a value judgment, as it does in this case because of the definition, it nonetheless requires an objective identification and not a subjective determination by a decision maker.

DAWSON J:   Where there is a value judgment there is a necessary amount of subjectivity about it, is there not, and what if I object on the basis that this should not be entered, because it is not part of the National Estate.

MR SOFRONOFF:   On our construction your objection would not arise in that fashion.  If you had a case that a place does not fall within the National Estate, then your claim would be that the Commission has acted without power in purporting to enter it in the Register.

DAWSON J:   Yes, I see.

GUMMOW J:   But in a way, Mr Sofronoff, section 7 is taken a bit too far, I think.  Section 7 lists the functions of the Commission.  It is like a memorandum of association setting up the power of a company.

MR SOFRONOFF:   Yes.

GUMMOW J:   The function is exercised by section 23 and it is the exercise of the function.....the facts of administrative review and section 23 speaks in terms of consideration by the Commission that something has a certain characteristic.  That brings us back to what Justice Dawson and I were debating with you a few minutes ago.

MR SOFRONOFF:   Yes.  We would put it in this fashion, that it is necessary, as a matter of objective fact, to demonstrate that the place that is going to exercise the discretion of the Commission to enter or not enter is, in fact, part of the National Estate.  If one fails at that threshold, then the question addressed in section 23, whether balancing the objections against the significance of the place, does not arise.  Those are our submissions, your Honours.

DAWSON J:   Thank you, Mr Sofronoff.  We need not trouble you, Mr McGill.  There will be a grant of special leave in this matter.

AT 2.28 PM THE MATTER WAS CONCLUDED