Australian Speleological Federation Inc v Minister for Environment and Natural Resources, State Heritage Authority and Southern Quarries Pty Ltd No. SCGRG 94/399 Judgment No. 4643 Number of Pages 29
[1994] SASC 4643
•30 June 1994
COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN J
CWDS
Administrative law - judicial review on grounds of ultra vires or defective exercise of powers - judicial review - Heritage Act 1993 - application for a declaration that a direction of the Minister that the Sellick's Hill Quarry be removed from the Register kept pursuant to the Heritage Act 1993 and for certiorari - plaintiff contends that the Minister had not afforded procedural fairness to the plaintiff - statutory interpretation. Heritage Act (1993) ss 5, 13, 16, 17, 18, 30 and 30a. Kioa v West (1985) 159 CLR 550 at 619, applied.
HRNG ADELAIDE, 30-31 May 1994 #DATE 30:6:1994
Counsel for plaintiff: Mr B R M Hayes QC with
Mr J F Costello
Solicitors for plaintiff: Norman Waterhouse
Counsel for respondents
except Southern Quarries Mr A R F Hall
Solicitors for respondents
except Southern Quarries: Crown Solicitor
Counsel for respondent
Southern Quarries Mr T A Gray QC with
Mr J N Mcelhinney
Solicitors for respondent
Southern Quarries: Ward and Partners
ORDER
Summons dismissed.
JUDGE1 BOLLEN J Leave was granted to the plaintiff pursuant to Rule 98 of the Supreme Court Rules to serve a summons for judicial review on the defendants. The State Heritage Authority appeared by counsel to say that it would abide the result. It wished to offer no argument. The other defendants appeared by counsel and vigorously opposed the granting of any order or relief to the plaintiff.
2. The nature of the plaintiff and its members was proved by the affidavit of Allan George Jevons, President of the South Australian Speleological Council (SASC).
3. Mr Jevons deposed:-
"1. I am the President of the South Australian
Speleological Council ('SASC'). SASC is the South
Australian division of the plaintiff constituted
pursuant to clauses 62-65 of the Constitution of the
plaintiff. Now produced to me and marked 'AGJ1' is a
copy of the Constitution of the plaintiff. The
plaintiff is incorporated in the Australian Capital
Territory.
2. Now produced to me and marked 'AGJ2' is a copy of
the Charter of SASC.
3. The Executive of the Plaintiff carried a resolution,
a copy of which is now produced to me and marked 'AGJ3'.
I am authorised by the Senior Vice President to swear
this affidavit on behalf of the plaintiff.
4. The plaintiff is Australia's national speleological
body. It is a federation of speleological societies.
The individual speleological societies are 'Corporate
Members' of the plaintiff (see clauses 9-11 of the
Constitution of the plaintiff). All of their members
are 'Individual Members' of the Plaintiff. The Cave
Exploration Group of South Australia Inc ('CEGSA') is a
corporate member of the plaintiff."
4. I need not recite from the documents produced by Mr Jevons with his affidavit. The plaintiff and its members - corporate or individual - has and have an interest in the existence and preservation of caves. Nobody questioned the standing of the plaintiff to bring these proceedings.
5. By its Summons dated 22nd March 1994 the plaintiff now seeks the following orders for the reasons mentioned:-
"2. A declaration that the Minister's purported
direction on the 18th day of March 1994 to the second
defendant to remove the Sellicks Hill Quarry Cave
(5A-20) (hereinafter called 'the cave') from the Register
kept pursuant to the Heritage Act 1993 (hereinafter
respectively called 'the Register' and 'the Act') was
invalid void and of no effect for the following
reasons:-
(i) the Minister made that purported direction to the
Authority before it had considered written and oral
representations pursuant to Section 18 of the Act;
(ii) the Minister took into account irrelevant
considerations and denied the plaintiff procedural
fairness in that he did not give the plaintiff an
opportunity to be heard prior to giving his purported
direction to the Authority;
(iii) the Minister failed to properly consult with the
Authority in relation to the cave pursuant to Sections
5(d) and 18(5) of the Act;
3. An order in the nature of certiorari quashing the
purported direction of the Minister to the Authority to
remove the cave from the Register.
4. A declaration that the Authority's action in
purporting to remove the cave from the Register on 18
March 1994 was ultra vires and of no legal effect for
the reason that the Authority failed to comply with the
provisions of Section 18 of the Act and in particular
subsections (1), (2), (3), (4), (6)(a) which provisions
are conditions precedent to the removal of the
provisional entry.
5. An order in the nature of certiorari quashing the
decision of the Authority to remove the cave from the
Register.
6. An order in the nature of mandamus requiring the
Authority to provisionally enter the cave in the
Register.
7. An order in the nature of mandamus requiring the
Authority to comply with the requirements of Sections 17
and 18 of the Act in relation to the provisional entry
of the cave in the Register.
8. An order in the nature of mandamus requiring the
Authority to make application to the Environment,
Resources and Development Court as required by Section
30(3) of the Act.
9. An order in the nature of prohibition prohibiting
the third defendant by itself, its servants and agents,
from conducting any drilling, blasting, excavation or
other mining operations:
(a) within a radius of 30 metres of any of the known
chambers or passages of the cave, or any part thereof;
and
(b) anywhere north of the present location of the mobile
crushing plant at the quarry at Sellicks Hill. This
prohibition does not extend to the use of any haul road
as a road, and the crushing, processing and disposal of
rock already removed from the quarry.
10. An order suspending the operation of the Order of
the Authority on 18 March 1994 removing the provisional
entry on the Register.
11. An order directing the defendants to discover and
produce for inspection all documents forming part of or
being incidental to the deliberations and any decision
concerning the provisional entry of the caves in the
Register and the direction of the Minister to the
Authority to remove the caves from the Register pursuant
to Section 18(5) of the Act within 14 days of the
granting of leave herein.
12. An order that the plaintiff have its costs of and
incidental to these proceedings."
6. The third defendant has conducted mining for stone in a quarry known as "Sellicks Hill Quarry" for many years. That is near the cave which is the subject of these proceedings. Mr Jevons says in paragraph 5 of his affidavit:-
"5. In early September 1991 members of CEGSA were
approached by Professor David Stapledon on behalf of the
third defendant, Southern Quarries Pty Ltd, to explore
and provide expert advice on a cave which was
intersected during mining operations in a quarry
operated by the third defendant at Sellicks Hill and
known as 'Sellicks Hill Quarry'".
7. After that much happened. But much had happened in the way of mining for many years before 1991. In 1972 the third defendant applied to the District Council of Willunga for consent to establish a quarry to extract blue stone from the relevant land. The application went to the then appellate planning authority. There was a full hearing and a thoroughly expressed determination was published. Mr Gray QC, for the third defendant, correctly said:-
"In a long determination the planning authority came to
grant approval, subject to conditions and in their
consideration of the relevant aspects of the proposed
operation, and Your Honour will see it's quite an
exhaustive treatment, they did come to identify a
particular public interest in regard to this quarrying
operation, and it was of such a nature as to justify
long term permission for 75 years."
8. The extent of the operations of the third defendant in mining there can be gathered, for our purposes, from the determination of the Board. It said:-
"At the conclusion of all operations, which might take
up to 75 years, the quarry would be about 2600 feet in
length, 500 to 700 feet across, and as deep as 350 feet.
Some 1,290,000 tons of overburden and waste would have
been taken, as well as some 4,940,000 tons of medium
quality crushed rock products and 10,980,000 tons of
high quality crushed rock products. The cut faces would
not be visible from outside the quarry area."
9. Consent was granted subject to conditions. Amongst other things the Board ordered that all operations should cease not later than later than 75 years from the date of the determination. That date was 19th October 1973. Operations went on for 20 years or so. The relevant portions of the land were by declaration later deemed to be a private mine under the Mines Act. Then came the investigation of the cave after the third defendant had approached the plaintiff. Now orders are sought against not only the Minister but against the third defendant. If some of the orders sought are granted the third defendant having something in the nature of a right or licence there to continue with mining for 75 years from October 1973 may be stopped, unable to mine any more. If that is the effect of "heritage legislation" passed since 1973 so be it. But as Mr Gray suggested the past must be remembered and given any weight that is possible in law to give to that past.
10. The matter is one of statutory interpretation. Experts have examined the cave and submitted reports. I have heard of them, of what they did and of what they think. It is quite right that I should have been apprised of the facts against which interpretation must be made. But it is the words of the statute which count in the end. Of course, on a summons for judicial review of the order of a Minister the Court is not to judge the order itself, to say whether it is appropriate or not, to substitute its opinion for that of the Minister. The Court is to consider the process by which the Minister has travelled to the making of his order. The Court is to consider the procedure followed by the Minister. And all that against or in the light of the statute (and any regulations) by which Parliament has directly or indirectly said how the Minister should proceed. For it is as required by Parliament or as deemed desirable by Parliament that the Minister must proceed.
11. There are, of course, fundamental principles which the law has established as principles to be followed unless the statute or statutes show or shows that Parliament did not intend them to be observed, followed or applied. Put very roughly, the common law says that some things should be observed but the common law must give way if the statute does not require those things to be done.
12. Mr Hayes QC, for the plaintiff, opened the case in his first few words thus:-
"This is an application for judicial review by the
plaintiff, seeking orders in the nature of a certiorari
that a direction, given by the Minister on 18 March 1994
to the State Heritage Authority, directing the authority
to remove the Sellicks Hill quarry cave from the
register under the Heritage Act, was an invalid
direction and of no effect and that the Authority's
action in removing the cave from the list, in purported
compliance with that direction, was also ultra vires and
of no effect because of non compliance with the Act."
13. Mr Hayes said also:-
"CEGSA, in September of 1991, was asked by Professor
David Stapleton, on behalf of Southern Quarries, to
explore and to provide some advice on the cave which
intersected mining operations in the Sellicks Hill
quarry, operated by Southern Quarries.
The cave was then entered and explored by members of
CEGSA, who advised Southern Quarries that further visits
would be necessary to carry out a systematic survey.
Southern Quarries then enabled them to do that, but
required CEGSA to enter into a non-disclosure agreement
before they permitted further access. CEGSA entered in
that agreement, according to the affidavits filed,
following verbal assurances by officers of Southern
Quarries Pty Ltd that the cave would be safe from
quarrying.
Between September and November of 1991, some 53 hours
were spent by CEGSA exploring and manning the cave.
Southern Quarries then closed access by burying the
access hole to the caves.
On 10 December of 1993, the quarries blasted a dome at
one end of the portion of the cave known as 'the big
room'.
CEGSA made representations to the Government about its
concerns and the Government appointed Mr Grimes to
conduct an independent review of the Sellicks Hill
quarry cave and to prepare a report to the South
Australian Department of Environment and Natural
Resources.
It appears that a company called Terrock Pty Ltd
prepared an independent review or report, a companion
report to Mr Grimes's report, which was done as part of
a sub-contract from James Ascrew and Associates for the
Department of Mines and Energy.
So it was this is a report prepared by both, dealing
with different aspects; one with safety and one with
structural aspects.
That review took place in January of 1994. The reports
were provided to the government in February of 1994.
These reports, if I could take Your Honour to Mr Jevon's
affidavit - Exhibit P1 - and, in particular, Exhibits 5
and 6 to that affidavit; that should be a report by Mr
Grimes, Exhibit 5. Exhibit 6 is a report by James
Ascrew and Associates which is accompanied by a letter
dated 15 February."
14. Mr Grimes is a geomorphologist. The terms of reference did not cover economic considerations of the effect of cave preservation on quarry operations. Indeed, the terms did not cover "heritage considerations". The terms of reference were:-
"1. Provide advice to the Government of South Australia
as to the likely condition of the cave systems prior to
the blasting on 10th December 1993.
2. Provide advice to the Government of South Australia
as to the likely condition of the cave system following
the blasting of 10th December 1993.
15. In the summary to his report, Mr Grimes described the caves thus:-
"The cave is considered to have had considerable
significance. It was the largest and most complex cave
in the region, with geomorphological and mineralogical
features of scientific interest, definite recreational
significance, and good potential for development as a
show cave. Significant damage has occurred: 35% of the
southern end has been quarried away, and the dome at the
northern end of the Big Room has been collapsed, but the
better decorated areas are probably still intact and the
cave probably has retained much of its prior
significance. The system appears to have been
reasonably stable at the time of first entry and mapping
by the cavers. Stability since the blast is uncertain,
and only a site check can establish the true state.
However, it seems that most of the cave beyond 20m of
the blast area should be stable. There were clearly two
different standards of safety presented for
consideration. One for individual cavers prepared to
accept full responsibility for their own safety, and
another for the quarry company and its officers who have
a legal responsibility for the safety of employees and
the public. The safety (ie stability) of the cave since
the blast is uncertain due to lack of real data. But
experience elsewhere suggests that it should be safe for
cavers and engineers to inspect the area underground.
The legal aspects of indemnity agreements and insurance
will have to be investigated before this happens. There
was common agreement that a tourist facility will not
operate within an operating mine. The review was
hampered by the lack of any real data as to the present
state of the cave. We were presented instead with
either theoretical arguments, or case histories from
other areas. We have made the best interpretation we
can, but recommend a study program to try and collect
some genuine data and allow a final decision based on
that data."
16. The independent report or review of Terrock Pty Ltd was done by Mr Adrian Moore, an engineer competent to provide such a report.
17. The report of Mr Grimes (who worked with Mr Moore to a large extent) contains a summary of recommendations. From then the things in which he was interested and which he considered can be gleaned although a reading of the report in full is helpful. The recommendations are:-
"The following recommendations are made as a practical
way of providing an answer to the terms of reference
that cannot be conclusively answered by considerations
of submissions. It is realised that unless the parties
involved enter into a spirit of co-operation and
goodwill and genuinely seek a resolution of their
differences, then these recommendations are useless.
Access Access to the cave is needed in order to
evaluate its present stability, the degree of damage,
and to collect additional information that will allow a
better informed decision as to its significance and
future management.
Moratorium A voluntary moratorium should be placed on
blasting within 15m of the mapped extent of the cave.
This need not prevent usage of the haul road.
This moratorium should continue until the underground
investigations are completed, the new data reviewed and
a decision is made concerning the long term future of
the cave; but should not exceed six months. If needs
be, Section 30a of the Heritage Act could be invoked.
The extent of the known cave system could be indicated
on the ground by some means compatible with mining
activities.
Study Program See details above. The objective is
initially to assess the damage by actual inspection
(camera or underground) rather than by theoretical
interpretations, and then to collect date that will
assist in assessing the significance of the cave. The
study program will have to be in progressive steps, with
several decision points and modifications made to it as
information is collected. Assessment of the
intermediate results and decisions concerning the
continuing nature of the study should be made by a
committee of representatives of both of the involved
government departments, the quarry, and the cavers.
Funding will have to be negotiated between the two
government departments concerned. The company will
require some compensation for partial disruption of
operations during the period of the moratorium. The
Mines Department would seem to be best suited for the
on-site coordination of the study - especially in the
initial drilling and excavation stages, while the
Department of Environment should handle the overall
management of the program. A committee comprising
representatives from all interested parties (government,
quarry and cavers) must be involved at each of the
intermediate interpretation and decision stages.
Timing Given that quarry operations may be hampered for
as long as the moratorium is in effect, the study
program should be initiated as soon as possible and
speed must be its essence, provided that this does not
restrict the orderly collection of data and its
assessment.
Government Regulations. Government regulations or
procedures must be improved so that in future any
proposals to do significant damage to potential natural
heritage features such as caves should require
consultation with the Department of Environment and
Natural Resources, as well as the department(s) normally
responsible for the type of operation involved. Newly
discovered features, such as caves, should be considered
significant until proven otherwise. However, some sort
of minimum size clause might be advisable, and a
workable reporting system is needed along with a system
for inspecting and assessing newly discovered features
that will not be too onerous on the operators. Cave
exploration elsewhere If the decision is for the cave
5A-20 to be destroyed because of the economic
consequences for the quarry, then the government should
assess the risk of a cave exploration program elsewhere.
The likely exploration costs would have to be balanced
against the likely chances of finding caves of tourist
potential, and the likely long-term value of such
caves."
18. The report of Mr Moore deals as Mr Hayes says with "a more specialised area". But at page 3 it tells us:-
"Messrs A J Moore and K G Grimes attended a meeting.
Held at Fullarton Park Community Centre, Fullarton Road,
Fullarton, on Thursday 27th January, 1994 and Friday
28th January, 1994. Presentations were received from
and on behalf of the following organisations:
- Department of Environment and Natural Resources (DENR)
- Department of Mines and Energy (DME)
- Cave Exploration Group of South Australia (CEGSA -
The Cavers)
- Southern Quarries Pty Ltd (the Company)"
19. It will be seen the CEGSA had the opportunity to speak at that meeting.
20. The two reports (Grimes and Moore) were presented to the Government some time after 15th February 1994.
21. On 25th January 1994 the plaintiff made a written submission to the State Heritage Authority (referred to as the State Heritage Branch in the letter of which I speak) seeking to have the cave put on the heritage list and to have a "Stop Order" issued. Mr Jevons wrote the letter to the authority which accompanied the submission. The letter is:-
"Dear Sir RE: SELLICKS HILL QUARRY CAVE (5A20)
The Council resolved at its meeting on Thursday 20th
January to make the submission for the listing of the
above cave. The evidence presented by our member
organisation, Cave Exploration Group (SA) Inc., was
considered with due knowledge of the existing caves of
South Australia. The decision to make this submission
was carried unanimously.
We request your expediency in considering a Stop Order
and Provisional Listing of the cave. You are probably
aware of the imminent threat on the cave of continued
quarrying operations by Southern Quarries Pty Ltd. The
information we have received indicates that the quarry
'had no plans' to work in the area of the cave until
20th January. This has now expired. We commend this
submission for your consideration."
22. But on the 11th March 1994 the Minister for Mines and Energy and the Minister for Environment and Natural Resources (the first defendant here) issued a Joint Statement (a press release). It is:-
"11 March 1994 SELLICKS HILL QUARRY The State Government
today decided that it would not stop the Sellicks Hill
Quarry from continuing to operate. In reaching its
decision the Government took into account the reports of
two independent assessors concerning the calibre,
stability and safety of the caves for either tourists or
mine operators, the opinions and reports of other
interested groups including cavers, as well as
additional information provided to it on economic,
tourist and environment issues. The Government
recognised that the caves contained some impressive
features but did not regard them as being exceptional.
In all of the circumstances, the Government did not
consider that the abandonment or limiting of quarrying
operations in the area could be justified. The
Government acknowledged the genuineness of the positions
adopted by the caving interests and the mining company.
The Government stated it wanted to ensure lessons were
learned from this experience so that similar
circumstances could be avoided in the future. As a
result the Department of Environment and Natural
Resources and the Department of Mines and Energy are
developing a process to ensure that when significant
caves are discovered they will be fully evaluated by
both Departments before a decision on their future is
made.
The Government stated that it would also give
consideration to the need for legislation to cover this
type of situation. The Government has been advised that
there may be other caves of significance within South
Australia and in particular within the Fleurieu
Peninsula - that were not located in existing quarries.
The Government invites submissions for its consideration
from the cavers on where caves may be located and what
surveys would be necessary to locate them with a view to
their development for the benefit of the community.
Detailed consultation took place between the Minister
for Mines and Energy, the Hon. Dale Baker, and the
Minister for the Environment and Natural Resources, the
Hon. David Wotton, the Departments of Mines and Energy
and Environment and Natural Resources - with input from
the Department of Tourism, prior to the final decision
being made. In arriving at a decision the Government
took relevant economic, tourism and environmental issues
into account, including:
- the caves could only be opened up for tourism once all
quarrying activity on the site had ceased
- the compensation payable to the mining company if the
Government were to require the mine to close immediately
which was up to $40m
- if the immediate cave vicinity were to be quarantined
for future use it could not be opened up for tourism
until the mine was closed
- estimates on the compensation payable to the mining
company if the Government were to require the
quarantining of the immediate cave vicinity - which
ranged from $8m - $14m
- the remaining life of the quarry, estimated to be 30
years (which would prevent any use of the caves for any
purpose during that period, unless the whole of the mine
were to be closed)
- the tourist income potential of the caves, estimated
to be up to several hundred thousand dollars annually -
depending on visitor numbers, compared with the value of
quarrying activities of around $5m per year. As well,
the cost of opening the caves for tourist development,
estimated to be at least $0.5m on current
values
- the extent of damage caused to the caves both
prior to, and after the implosion. The caves were
located 40-80 metres below the original surface of the
ground and they were only discovered during the course
of quarrying activities, which by their nature could
have caused damage and made them unsafe
- the likelihood of finding fossils of large animals,
which was not considered to be high
- any microfossils in the caves claybeds could be
examined while mining operations continue."
23. That seemed to foreclose the matter. But the State heritage Authority had the question of action about the cave on its agenda for a meeting to be held on 17th March 1994 at 9.30 am.
24. On 16th March 1994 the solicitors for the plaintiff wrote to the presiding member of the Heritage Authority. They asked for a stop-work order whilst "the Authority considers whether or not the cave should be protected under the Act". It asked that the plaintiff be heard. At its meeting the Authority issued a "stop order" and provisionally listed the cave on the Heritage List. It acted under s30 of the Heritage Act. On the same day the solicitors for the plaintiff wrote to the first defendant. That letter is:-
"Dear Minister
Provisional Listing of Sellicks Hill Quarry Cave (5A-20)
Under the Heritage Act, 1993
We act for the South Australian Speleological Council on
referral from the Environmental Law Community Advisory
Service. Our client applied to the Heritage Authority
for provisional listing of the above cave and a stop
order in respect of mining around it. A short time ago,
the Heritage Authority unanimously resolved both to
provisionally list the cave and make a stop order
against Southern Quarries Pty Limited. Our client is
conscious of your powers under Section 18(5) of the
Heritage Act. Our client is also now aware of the
matters referred to in the Government's Statement
concerning this cave on Friday last. Our client
disagrees with many things in the statement. It wishes
to have the opportunity to address those matters and
particularly the issues relating to economics and
compensation, before you consider exercising any power
under Section 18(5)."
25. The letter was sent by fax. It will be seen that the plaintiff through its solicitors asked for an opportunity to address the first defendant on matters with which it disagreed ("and particularly the issues relating to economics and compensation"). It was never made clear to me during the hearing why the plaintiff should be interested in economics and compensation. It had no proprietary or other interest in the land or cave carrying profit or loss to it. But it clearly did want to address the first defendant.
26. The first defendant did not reply. On 18th March 1990 he decided to overturn the order of authority. He issued a press release. It is:-
"18 March 1994
SELLICKS HILL QUARRY TO CONTINUE
The State Government today overturned a State Heritage
Authority order to temporarily stop quarrying around
caves at Sellicks Hill. The Order was inconsistent with
the State Government decision of 11 March that no action
would be taken to stop Southern Quarries from continuing
to operate. 'The State Government's decision was made
on behalf of all the people in this State and took
account of extensive evidence presented over three
months. It was certainly not a rushed decision and
included an assessment which took into account
environmental, including heritage, tourism and economic
considerations,' the Minister said. 'I recognise that
the caving group will not be happy with this decision
but despite knowing about the caves for over two years -
not once did they publicise them outside their own
members. Instead they arranged an exclusive agreement
with Southern Quarries for access to the caves.
'They did not notify my Department until after the
implosion on 9 December 1993. If they had - it would
have given my Department a chance to explore and assess
the caves prior to the implosion last year. 'In fact,
it was not until January of this year that the cavers
sought to have the caves heritage listed - over two
years after they became aware of the existence of the
caves. 'This whole business is a lesson that in future
when caves are discovered in South Australia - the find
should be documented at an early enough stage to invoke
protection - if warranted. 'I am looking to the future
and intend to make sure that neither I nor this
Government is ever put in this position again. As
Environment Minister I will ensure that a code of
practice covering this sort of situation is put into
place between Mines and Energy and Environment and natural
Resources."
27. So the stop order has gone. The provisional listing has gone. And this was consistent with the decision of the Government made on the 11th March 1994. The order of the first defendant was expressed thus:-
" HERITAGE ACT 1993 (Section 18(5))
I, DAVID CHARLES WOTTON, the Minister for the
Environment and Natural Resources, the Minister to whom
the administration of the Heritage Act 1993 is
committed, being of the opinion that the confirmation of
the provisional entry in the State Heritage Register of
the place described in that entry as 'Cave-Sellicks Hill
Quarry Cave, Main South Road, Sellicks Beach, 5174, Item
Number: 04294' would be contrary to the public interest,
and after consultation with the State Heritage Authority
DIRECT that entry of that place be removed from the
Register. DATED the 18th day of March, 1994"
28. I think it well to record the Minutes of the meeting of the first defendant and the State Heritage Authority. The document which I think to be Minutes is:-
"MEETING WITH STATE HERITAGE AUTHORITY IN THE OFFICE OF
THE MINISTER FOR THE ENVIRONMENT and NATURAL RESOURCES
FRIDAY 18 MARCH 1994 1.00pm Present: Hon. David Wotton
MP; Mr J. Scanlon, Chief of Staff; Mr C. Harris,
Director - Community Education and Policy DENR; Mr D.
Conlan, Manager - State Heritage DENR; Mr A. Hall,
Crown Solicitor's Office; Ms S. Marsden, Ms A. Holt,
Ms M Marsland, Ms P. Menses and Mr B. Close, members -
State Heritage Authority.
Minister pointed out that he would chair first part of
meeting having invited members of the State Heritage
Authority to meet with him as set out in the Heritage
Act. Thanked members of committee for coming on such
short notice. The Minister stated that he was aware of
the action that had been taken by the Authority with
regard to the Sellicks Hill Cave. The Minister referred
to Section 18(5) of the Heritage Act and proceeded to
quote from it. The meeting had been called by him to
enable consultation to occur pursuant to that section.
The Minister said that he noted that the caves were
regarded by the Authority as having potential heritage
value under Section 17. However no reference had been
made by the Authority to geological significance. The
Minister asked the Authority why the caves were entered
on the register, and what factors were taken into
account by the Authority with particular reference to
Section 16, in coming to the decision made by it. These
were the two matters which he would particularly like to
be advised on. It was appropriate that he had provided
the opportunity for the Authority to have their say and
to provide answers to the two questions asked by him and
any other matters they felt should be taken into
account. Susan Marsden stated that there was now
sufficient evidence presented to support the view that
further evaluation of the caves should be made. A large
amount of material had been presented at the meeting of
the Authority held on 17th March 1994. The Authority
had been advised by the cavers. This included the
independent assessors reports. A series of points had
highlighted the potential significance of the caves
subject to further evaluation.
The authority would like the opportunity to further
investigate the caves and it was felt that further time
should be provided for further investigation. Ms
Marsden stated that she would also like to offer the
opportunity to both the Government and the mining
company to work out a compromise to save part of the
cave. Bill Close stated that the Authority would like
to see the crystals taken out and saved, prior to
demolition. They did not have this information before.
After reading the independent reports their minds on
this matter had been changed completely. The caves
should be further assessed. Thus far there had only
been one exploration. The only people who had been into
the cave were the cavers - a further look should be
taken before losing it completely. Philippa Menses
pointed out that the caves are under immediate threat.
Further assessment should be made of the significance of
them. The Minister invited further comment. None were
offered. The Minister then stated that under Section
18(5) of the Act, he as Minister had the opportunity to
consider the public interest as well as the heritage
value of the caves which went beyond the criteria the
Authority is required to consider and the expertise of
the Authority. He had considered the heritage value of
the caves and had also considered broader environmental
issues. Economic issues and tourism issues had also
been considered and discussed with Parliamentary
colleagues. He had spent a considerable amount of time
having discussions with the Hon Dale Baker. Two
independent reports had been commissioned and made
available to the public. He had also received reports
from a number of interested parties and had met with and
consulted with a number of people including colleagues
from Premier and Cabinet, and officers of the
Departments of Mines and Energy, his own Department and
Tourism. Consultation had been sought with Andrew Hall
from the Crown Solicitor's. Lengthy discussions had
also been held with the owners. He had visited the
quarry site and have viewed the whole video tape
provided by the cavers, and had at least two meetings
with the Speleological Society. A decision had been
made by Government last week that the Quarry company
should be allowed to continue and that decision was only
made after a lot of consultation. Press released were
issued immediately after that decision had been made.
The Minister then stated that pursuant to Section 18 of
the Heritage Act he could make a direction. He directed
that the entry be removed from the Register. The
Minister further stated that he did not do this without
giving it considerable thought. Having made the
direction he was handed an official notification form by
Andrew Hall which he signed and handed to Susan Marsden.
He requested the Authority to give recognition to the
decision. The Minister then vacated the Chair, and
requested that a formal meeting of the Authority be
convened to ensure that this direction be carried out.
29. I think it well also to set out the affidavit of the first defendant sworn on the 13th March 1994. It is:-
"I DAVID CHARLES WOTTON of the Old Treasury Building 144
King William Street Adelaide 5000 in the State of South
Australia Minister of the Government of that State MAKE
OATH AND SAY as follows:
1. I am the Minister for the Environment and Natural
Resources of the Government of the State of South
Australia, and at all material times have been the
Minister responsible for the administration of the
Heritage Act 1993.
2. On Friday 18 March 1994, I met and consulted with a
quorum of members of the State Heritage Authority
constituted under the Heritage Act 1993 about that
Authority's decision of 17 March 1994 that a cave at the
Sellicks Hill Quarry be provisionally entered in the
State Heritage Register under that Act. In the course
of my meeting with the members of the Authority, they
informed me of what they stated to be the substance of
the matters put to them at their meeting of 17 March
1994 on behalf of the applicant for the entry of the
cave on the Register, and of the other matters taken
into account by the Authority in forming its opinion
that the cave should be protected while an assessment of
its heritage value is carried out.
3. After consulting with the Authority and being of the
opinion that the confirmation of the provisional entry
of the cave in the Register would be contrary to the
public interest, I directed that the entry be removed
from the Register. A copy of that direction, marked
'DCW 1', is now produced and shown to me.
4. I refer to the exhibit 'AGJ7' to the affidavit of
Alan George Jevons sworn in this action on 22 March
1994, which was a Joint Statement made by the Minister
for Mines and Energy and me on behalf of the South
Australian Government. The reports which are
exhibits 'AGJ5' and AGJ6' to that affidavit did not
constitute the 'review' referred to in the affidavit,
but only concerned those aspects of the review specified
in the terms of reference set out in the reports, which
were considered to relate to matters within the authors'
expertise. In the course of the review the Government
sought and took into consideration the advice of
relevant Government Departments and agencies, the third
defendant and other relevant persons and bodies in
relation to economic, compensation, tourism and
environmental issues. I had at least two meetings with
members of speleological groups, and have viewed a video
tape of the cave provided to me by them. I also visited
the site and inspected the quarry.
5. In forming my opinion that the entry of the cave in
the Register would be contrary to the public interest,
and making my decision to direct that the cave be
removed from the Register, I had regard to the matters
put to me by the Authority, as well as the matters
summarised in the Joint Statement, other than the
matters set out in the final two paragraphs of the first
page of that Statement in respect of future action
proposed to be taken by the Government. Although one of
the issues mentioned in the Statement as having been
taken into account was the compensation payable to the
'mining company', I was aware that no rights of
compensation were conferred by the Heritage Act 1993 by
reason of the provisional entry of any place on the
State Heritage Register, the confirmation of such an
entry or the exercise by the Authority or the Court of
any other power under that Act. Nevertheless, I
considered that it would be likely that the operator of
the quarry would pursue a strong case that the
Government should pay it compensation on a ex gratia
basis in view of the substantial extent of the estimated
financial losses it would incur if it were to cease its
operations at the quarry or to conduct those operations
in such a way as would not affect the cave.
6. After giving the direction referred to in paragraph
3 of this affidavit, I issued the media release, a copy
of which is exhibit 'AGJ14' to Mr Jevons' affidavit.
The comments about the 'caving group' and the 'cavers'
in that media release referred to in paragraphs 24 and
25 of that affidavit were directed to the steps I was
proposing should take place in any future case of a
similar kind, which are mentioned in the final paragraph
of the media release. I did not consider any of the
matters referred to in those comments as being
relevant to my decision to direct the cave to be removed
from the Register, and had no regard to them in making
that decision.
7. In the afternoon of 18 March 1994, I also held a
press conference, which lasted for some 15 to 20
minutes. In the course of that conference I made a
remark to the effect of that attributed to me in the
article a copy of which is exhibit 'AGJ16' to Mr Jevons'
affidavit and quoted in paragraph 26 of that affidavit.
Again, I did not consider that this remark to relate to
a matter relevant to my decision to direct the cave to
be removed from the Register, and had no regard to any
such matter in making that decision. I did, in fact,
receive advice from the Authority in relation to the
potential heritage value of the cave, and took that
advice into account in making my decision.
8. I know the facts deposed to in this affidavit of my
own knowledge."
30. From these Minutes and from that affidavit we can see why the first defendant made his order, why he overturned the decision of the Authority and the matters which he took into consideration.
31. I now turn to the Heritage Act 1993. It came into force on the 15th of January 1994. Section 4 establishes the State Heritage Authority. Section 5 sets out the functions of the Authority. Section 13 establishes the State Heritage Register. Section 16 sets out the criteria for registration. Section 17 establishes the "registration process". Section 18 is the vital section for our purpose. It comes under the sub-heading "Submissions and Confirmation or Removal of Entry". Section 18 is:-
"(1) If the Authority gives notice that it has
provisionally entered a place in the Register, any
person may, within three months after notice is given of
the provisional entry of the place in the Register, make
written representations to the Authority on whether the
entry should be confirmed.
(2) If a person who makes written representations under
this section seeks to appear personally before the
Authority to make oral representations, the Authority
must, unless the submission is frivolous, allow that
person a reasonable opportunity to do so.
(3) The Authority must consider all written and oral
representations made under this section.
(4) If, after considering the representations (if any)
made under this section, the Authority is of the opinion
that the entry of the place in the Register should be
confirmed, the Authority may, subject to any direction
by the Minister under subsection (5), confirm the entry.
(5) If the Minister is of the opinion that the
confirmation of a provisional entry in the Register
would be contrary to the public interest, the Minister
may, after consultation with the Authority, direct that
the entry be removed from the Register.
(6) If -
(a) the Authority, after considering the representations
(if any) made under this section, is of the opinion that
the provisional entry of the place in the Register
should not be confirmed; or
(b) the Minister directs the removal of the provisional
entry of a place from the Register, the Authority must
remove the provisional entry of the place from the
Register.
(7) Notice of the confirmation or removal of the
provisional entry of a place in the Register must be
given -
(a) by written notice to the owners of land constituting
the place; and
(b) by advertisement published in a newspaper
circulating throughout the State; and
(c) by written notice to the Minister; and
(d) if the place is within the area of a council -
by written notice to the council.
(8) Written notice to the owners of land constituting
the place of a decision to confirm an entry of the place
must explain to what extent (if any) development of the
place is controlled under the Development Plan relating
to the area in which the place is situated.
(9) The Authority must take all reasonable steps to make
a decision about whether a provisional entry should or
should not be confirmed within 12 months after the date
on which the entry was made and if the Authority fails
to make a decision within that period or such longer
period as is allowed by the Minister in particular case,
the provisional entry must be removed from the
Register."
32. The first defendant has acted under section 18(5) he has consulted with the Authority. I reject the suggestion made before me that the Minister did not properly consult. I think the Minister's affidavit reveals an adequate consultation. If the order of the first defendant stands the State Heritage Authority must remove the provisional entry.
33. On reading the Minutes and his affidavit it is certainly not readily apparent that the first defendant has been in error in any way. But let me quote from the address of Mr Hayes. He said:-
"... The decision in this case one might say is
essentially a political decision. But, notwithstanding
that it is a political decision or it is a policy
decision, it is the process by which he arrives at
making that decision which gives rise to procedural
fairness, and the nature of the decision doesn't matter.
What does matter is the nature of the power that he
exercises in that decision making process."
34. "Procedural fairness" is the foundation of the case advanced for the plaintiff. Mr Hayes complains in essence that the plaintiff was given no opportunity to address the Minister, to be heard and was, therefore, denied procedural fairness. I asked during the debate why the statute did not say that the Minister should hear (anyone).
35. Mr Hayes said in response:-
"HIS HONOUR: Why doesn't the Statute say that directly?
MR HAYES: We say, on an ordinary reading of the Statute,
one would contemplate that that is the course of it.
Once again, let's just go through it. There's a very
detailed procedure for listing, advertising, creating
the rights and the authority making a decision after
hearing -
HIS HONOUR: All sorts things the authority can do and
then subject to the Minister and the Minister has the
power to direct that the entry is removed.
MR HAYES: But the Minister forms his opinion about it
being contrary to the public interest to confirm it, and
then may direct the authority to remove it.
HIS HONOUR: I remember your point about that.
MR HAYES: Your Honour says why doesn't the Statute say
it? The Statute doesn't in express terms say 'And the
Minister must before he gives such a direction have
regard to the representations, if any', but that, of
itself, does not preclude or reduce the procedural
fairness requirement at common law. Authority for that
I think, and I will take your Honour to it in more
detail, appears in Peko Wallsend, where that is one of
the features which must not be inferred, because there
is no specific right, the common law right is taken away
and the common law right must be judged on that
statement or in the spirit of that statement in Annets v
McCann. If the action of a public official is to defeat
or prejudice the right - if we accept that there is a
right there - then this action acts to defeat that right
and he must, in our submission, give us an opportunity
to address it. He hasn't done that but, more
importantly, what the Minister has done in this case is
to, say 'I have taken into account', or, let me put it
this way, what he has said is that this cave - there was
obviously a lot of public disquiet about it, or
expression in the press or whatever, representation was
made by the cavers to the Minister. He said, 'Hold
everything. I will set up this review.' In the course
of that review the cavers, who are obviously the most
important people here, who are the only ones who have
been there and charted it and mapped it and surveyed it,
he said to the cavers or the review said to the cavers
'We want to hear your input into it. But your input has
got to be limited by the terms of reference obviously.'
The terms of reference exclude economic and compensation
matters, so the cavers don't make any submissions. They
exclude the heritage factors so the cavers don't make
any recognised step. Those are not matters which the
reports have taken into account. The Minister then gets
the report from his independent inquirers with limited
terms of reference, expressly excluding compensation and
economic matters. The matter is then put on the
provisional list. The cavers know that now they have
got an opportunity to address the heritage issue, and
they have got a right to do so under the act. The
Minster steps in, takes away that right, and, in
addition to that, says, 'And I have taken into account
matters such as the economic and compensation matters',
upon which the cavers have never had an opportunity to
address him, ever. And, more particularly, they have
been expressly, as it were, discouraged from that course
through the review process, by it not being within the
terms of reference of that review. What the Minister is
now saying is that, 'Notwithstanding that review that I
set up, I have taken into account these other matters,
compensation matters and economic matters which I am
going to act on. I haven't heard from you, nor are you
going to be heard', notwithstanding that the cavers
asked for an opportunity to be heard before he made that
direction and that wasn't responded to."
36. Mr Hayes added that the decision reached by the Minister without a hearing of all concerned was an uninformed decision.
37. The Statute does not tell the Minister that he must hear any person, people or class of people interested in the matter before him. Mr Hayes says that the common law tells the Minister that he must so do. But I think all agreed that the common law tells him that only if the relevant Statute or Statutes does not deny or negate the obligation "to hear".
38. I was referred to several authorities touching the question of "Right to be Heard" in circumstances like those obtaining here. I think that they establish (for our purposes) so that the Minister should give any party interested at a hearing unless the relevant Statute denies or negates that right. I think that well expressed as I may say so by Brennan J in Kioa and Others v West (1985) 159 CLR 550 at 619:-
"The presumption that the principles of natural justice
condition the exercise of a statutory power may apply to
any statutory power which is apt to affect any interest
possessed by an individual whether or not the interest
amounts to a legal right or is a proprietary or
financial interest or relates to reputation. It is not
the kind of individual interest but the manner in which
it is apt to be affected that is important in
determining whether the presumption is attracted. If a
power is apt to affect the interests of an individual in
a way that is substantially different from the way in
which it is apt to affect the interests of the public at
large, the repository of the power will ordinarily be
bound or entitled to have regard to the interests of the
individual before he exercises the power. No doubt the
matters to which the repository is bound or is entitled
to have regard depend on the terms of the particular
statute and, if there be no positive indications in its
text, the subject-matter, scope and purpose of the
statute must be looked at to determine whether the
repository is bound or is entitled to have regard to
individual interests: Water Conservation and Irrigation
Commission (N.S.W.) v. Browning (1947) 74 CLR 492 at
p 505. When the repository is bound or is entitled to
have regard to the interests of an individual, it may be
presumed that observance of the principles of natural
justice conditions the exercise of the power, for the
legislature can be presumed to intend that an individual
whose interests are to be regarded should be heard
before the power is exercised. Therefore the
presumption applies to any statutory power the exercise
of which is apt to affect the interests of an individual
alone or apt to affect his interests in a manner which
is substantially different from the manner in which its
exercise is apt to affect the interest of the public.
Of course, the presumption may be displaced by the text
of the statute, the nature of the power and the
administrative framework created by the statute within
which the power is to be exercised."
39. I cite this passage in the reasons of Brennan J as an example of the idea of an hearing unless the Statute denies it. Other similar passages occur in the reasons of the Justices of the High Court in other cases.
40. Mr Hall, for the Minister, submitted:-
"In the outline we point out there are good reasons for
not construing the Minister's power as being under any
implied restraints from the procedures under s.17 and
18. Firstly, because of the very different matters
which the Heritage Authority must take into account and
those which the Minister may take into account under
s.16. No matter what the heritage value of the place,
it can be conceived that there might be overwhelming
considerations in the public interest, while the
provisional entry should not remain and should not be
confirmed.
The second reason that we say there may be compelling
reasons why, in the public interest, the provisional
entry of a place on the register be removed for reasons
other than those which would be relevant to any decision
by the Authority, without there being a delay of up to
12 months. To take an extreme example, in this
particular case, the Heritage Authority might make a
provisional listing of this cave. It may then make a
stop order, which, based on heritage value would stop
this quarry from operating virtually altogether. The
court might, having regard to the ERD Court and a stop
order, could come to a decision - on the stop order
grounds there could be a delay of up to 12 months before
land could be sterilized from any prospect of further
development for up to 12 months, while this goes on. We
say those considerations overwhelm the counter
consideration that, if things go on for a bit longer,
there might be some further evidence of heritage value
that might emerge somewhere between 12 months, or up to
12 months between the provisional listing takes place
and the decision of your Honour's confirmation. The
second point, our longest point or ground taken, is the
one of the relevant consideration and procedural
fairness. I understand my friend, with perhaps one
reservation in relation to matters of compensation, says
that the matter of relevant consideration is not whether
or not there is an argument that the matters that the
Minister took into account were of themselves relevant
to the public interest. In effect, he is saying that he
was under a duty of procedural fairness not to take
those matters into account without giving the
opportunity to the plaintiff, or cavers, as they are
sometimes referred to - the plaintiff seems to
comprehend a number of different bodies - who make
representations on those matters. That submission gives
rise to the issue of whether or not these plaintiffs had
a right to such procedural fairness, disengaged from any
statutory right they had to make submissions or
representations to the authority under s.17 and s.18 of
the Act. Certainly the Act itself does not provide for
the officer to consult or to hear from anyone, apart
from the authority, before exercising power under
s.18(5). We would say that this is an indication that
Parliament was contemplating in the statutory scheme,
which provides fairly minutely for rights of
representation and appeals, that Parliament itself does
not envisage a statutory right other than the authority
to consult or make representations to the Minister. We
say it goes further, and would exclude any applied right
from the construction of the legislation than the
obligation to do so. Of course, a duty of procedural
fairness very often is implied where Statutes do not
provide for representations or rights to make a
submission, but it is apt to be excluded where the
Statue itself provides its own code, so to speak, for
representations and appeals. The case of Brettingham-Moore
v Warden Councillors and Electors of Municipality
of St Leonards, 1969 121 CLR 509 - I do not propose to
take you Honour to it directly - is an example of that
fairly elaborate procedure for alteration of local
government boundaries, which contemplated an involvement
by others at a stage after a body had made its
recommendations. the High Court held that rights of
appeal or rights to be heard outside that statutory
context were excluded. Another one which I think
appears on the list of authorities is Twist v Randwick
Municipal Council 1976, 136 CLR 106. Again, that is a
case in which an owner of a building which was subject
to a demolition order was not given a right to be heard
before the council made the order. Rights to be heard
in relation to orders for demolition of property by
local authorities are virtually largely the genesis of
the idea of natural justice, and the old 19th century
case of Coopers v Longworth Board of Works was one of
the cases cited for the proposition that, before a body
can make a decision affecting someone's legal
proprietary rights, there is an implied right to be
heard, notwithstanding that the existence of the general
power of appeal in that particular case, which the
plaintiff failed to exercise in time, precluded the
right to be heard before the council made the decision.
We say there is no express or implied right on the
construction of the Act for anyone, other than the State
Heritage Authority itself, to have any input into the
Minister's decision. It is said, then, that this right
arises from the concept of legitimate expectation. That
concept was clearly developed by the courts because it
came to be recognised that individuals, whether they be
bodies corporate or natural persons, could well have
interests which arise from things other than proprietary
rights or any other legally enforceable right which may
well be very fairly affected by a decision made by an
administrator. As the various analogies, largely with
the concept in the High Court point out, the locus
classicus of that situation is where someone is carrying
on the business of activity under a licence which,
generally, is either granted for a limited term and
renewed from year to year, say, but clearly people set
up long term businesses on the understanding those
licences will continue and be continued to be renewed in
the normal course of things, notwithstanding, in terms
of the Act, that the discretion to grant the licence or
to renew it may be entirely a matter of discretion. A
well known example of that is FAI v Winnecke, where it
relates to the decision by the Government of the State
of Victoria not to renew FAI's licence to carry out the
particular insurance business, on the basis of advice
given to the executive council or the minister which
reflected adversely on that company's ability to fund
future claims, which the company was not given an
opportunity to comment on. The other form of interest
in which that legitimate expectation arises, of course,
are persons or companies interests in its own personal
reputation. It is mentioned in McCann, the case cited
by my friend, as an example of that, and, of course, the
immigration case. An illegal immigrant may have no
legal right not to be deported, but, clearly, that has a
question of whether or not a person who is deported from
this country and, therefore, taken away from a job they
may have secured, to be sent away to a place where they
have lost their connections and which may not be
particularly pleasant to go to, and is clearly a matter
that is central to a person's liberty. That has been
held to give rise to legitimate expectation. So it is
not all interests or rights which give rise to such an
expectation. Although the category has not closed, we
say that a general political or policy right or interest
which is not peculiar to the particular plaintiff or
individual must not give rise to legitimate expectation.
This is quite different from the point that my friend
was trying to make, that it was a political decision and
not reviewable. Clearly that is not so. Any statutory
decision is conceivably reviewable for illegality or
irrationality by anyone who has locus standii, and we
submit that a distinction should be drawn between the
kind of interests, in inverted commas, which gives a
party locus standii to challenge a decision by judicial
review and an interest that gives rise to legitimate
expectation, and, therefore, a right to be heard."
41. He referred to cases from which he claimed support. I have read them but will not refer to them. Mr Hall concluded:-
"In this case, the plaintiff suggests on a construction
of s.18(5) that consultation should have been in the
light of whatever investigations and so forth and
representations might be made to the Authority. We say
there are a number of countervailing arguments against
that construction but subject to that we say that the
Authority was given ample opportunity to put its views
to the Minister. It did so. Conveyed in essence what
the plaintiff had put to it. The plaintiff obviously
referred at length, or largely rested on the conclusions
of the Grimes report and the matters put to the Minister
also by the Authority largely depended on the
conclusions of the Grimes report which the Minister
already knew about, so, in the circumstances, we say
that the consultation was adequate and in the event, I
suppose in the sense, is reviewable might be argued by
someone to whom the duty to consult is not owed, it's a
condition precedent to the exercise of the statutory
power. It's a bit like one person complaining that a
statutory decision is invalid because someone, other
than itself, was not accorded natural justice, which is
a somewhat curious concept. In any event, the primary
submission is the duty to consult was discharged. If
your Honour please, those are my submissions."
42. I agree with these submissions. The plaintiff got much of what it wished the Minister to know before him. Much was before the Minister but he had not heard the representatives of the plaintiff out of their own mouth. And they had not been heard as I remember on economic issues and compensation.
43. Mr Gray QC submitted that, among other issues, the first defendant was not required under the Heritage Act to hear the plaintiff. Mr Gray made an attack on the happenings at the hearing by the Authority. There, the defendant had no opportunity to be heard. That was unfortunate, perhaps worse, but I need not deal with that issue in order to reach my decision.
44. So far as a point which Mr Hayes made about the failure properly to consult with the Authority Mr Gray drew attention to the minutes of the meeting between Minister and Authority. Mr Gray said (speaking of the minutes):-
"... in our respectful submission, the whole document
does bear close study. Your Honour would note those
present. The Minister had gone to the trouble and care
not only to have a number of members of the State
Heritage Authority present, but also the Crown Law
Office present, as well as his own staff and also Mr
Conlon, the Manager, State Heritage Organisation. The
Minister chaired the first part of the meeting. He
invited the State Heritage Authority to meet with him.
He stated he was aware of certain of the background and
then in the third paragraph the last sentence: 'The
Minister asked the Authority why the caves were entered
on the register... should be taken into account'. This
is the process Mr Hayes described to your Honour as not
being a valid consultation. This isn't a case where the
Minister said I have got a closed mind on the matter you
can go and address the wall. This is a case where the
Minister is, having formed an opinion, as he must, as a
pre condition to 18(5) and then has an obligation to
consult, and this is a consulting in full faith and he
identifies, one would have thought, the two most
pertinent questions. What factors were taken into
account with particular reference to s.16 in coming to a
decision made? Why were the caves on the register?
Anything else that's relevant not covered by those two
questions, please let me know. Then there is a note
from Susan Marsden of the State Heritage Authority and
Mr Bill Close and Phillipa Menzies, in which they all
put forward the answers to the Minister's question.
Then having done that the minister then invited further
comment. None were offered and then the Minister then
expressed his view, then stated: 'Under s.18(5) of the
Act he had the opportunity to consider... heritage
value'. I won't read that again. Can I say this one
aspect Mr Hall didn't deal with, Mr Hayes made some play
on. He suggested there had been some inappropriate
regard to economic matters, your Honour would recall.
We say that as a matter of considering public policy in
regard to this political issue that it was utterly
appropriate for the Minister to have regard to economic
factors in the public interest and Mr Wotton, in his
affidavit, details exactly how he did that, and, in
particular, he wasn't concerned with the question of
strict legal compensation, he was more concerned with
the matter of the ex gratia position, the moral type
claims the quarry operation would have, particularly
bearing in mind the planning approval and the
declaration of it being a private mine and 75 years to
go. Mr Hayes submission about some inappropriate regard
to economic factors, which he didn't condense to
particularity, is a nothing in this case. Then the
Minister goes on to make his decision and then the
Authority then acts appropriately as your Honour has in
the documents"
45. Mr Gray then turned to the construction of the Statute. He referred to passages in the reasons of Mason J (as he then was) in Kioa v West (supra) at p.584:-
"The law has now developed to a point where it may be
accepted that there is a common law duty to act fairly,
in the sense of according procedural fairness, in the
making of administrative decisions which affect rights,
interest and legitimate expectations, subject only to the
clear manifestation of a contrary statutory intention.
It seems that as early as 1911 Lord Loreburn L.C.
understood that this was the law when he spoke of the
obligation to 'fairly listen to both sides' being 'a
duty lying upon every one who decides anything': Board
of Education v Rice (1911) AC 179, at p.182. But the
duty does not attach to every decision of an
administrative character. Many such decisions do not
affect the rights, interests and expectations of the
individual citizen in a direct and immediate way. Thus
a decision to impose a rate or a decision to impose a
general charge for services rendered to ratepayers, each
of which indirectly affects the rights, interests or
expectations of citizens generally does not attract this
duty to act fairly. This is because the act or decision
which attracts the duty is an act or decision: '...
which directly affects the person (or corporation)
individually and not simply as a member of the public or
a class of the public. An executive or administrative
decision of the latter kind is truly a "policy" or
"political" decision and is not subject to judicial
review.' (Salemi (No.2) (1977) 137 CLR at p.452, per
Jacobs J)
Where the decision in question is one for which
provision is made by statute, the application and
content of the doctrine of natural justice or the duty
to act fairly depends to a large extent on the
construction of the statute."
46. That is to say, as I have suggested, if the statute negates and denies the idea of procedural fairness, or rather that there was any room for procedural fairness then there is no requirement to hear a person interested.
47. Mr Gray said further:-
"Our short point is that there is no right interest or
legitimate expectation as known to the law in the
Society. But secondly, that the statutes as far as the
Minister is concerned, did evince an intention that the
society and others of the public would not have a right
to be heard except through the consultation process with
the Authority."
48. By the word Society Mr Gray meant the plaintiff. He referred again to the passage from the judgment of Mason J which I have cited but particularly the last paragraph of the passage which I have cited.
49. Mr Gray went on to say this:-
"The first submission we make is that we are talking
here about a discretion and a power reposed in the
Minister for the Crown and not an executive officer
subordinate to the Minister. We say that's an
indication of the seriousness of the matter.
HIS HONOUR Power of veto really.
MR GRAY: Yes, power of overriding, to use that
expression from the Authority's notes. That's the first
point. The second point is and the point Mr Hall made,
I won't go over to much, is that the Minister's terms of
reference could not be wider, what's in the public
interest? That's to be contrasted with the narrower
terms of reference of the Authority in s.16 which don't
include public interest. So, plainly the Minister is
about a different task than the Authority. A more
extensive task, perhaps. The third point is that
whenever the Authority is doing something, there are
certain words added into this statute which are missing
when the Minister comes to do something. Can I just
point that out to your Honour. If your Honour looks at
18(4), your Honour will see the words: 'If after
considering the representations if any made under this
section.' If your Honour drops down to 18(6)(a) at the
foot of the same page: 'After considering the
representations made under this section is of the
opinion.' If your Honour goes to s.23(3): 'After
considering the representations if any made.' So
whenever the Authority is acting one has the legislation
making it very plain that it has to consider
representations. If you Honour then goes back to 18(3):
'The Authority must consider all written and oral
representations'. again the Authority. If your Honour
goes back to 18(2): 'The Authority must, unless the
application is frivolous, allow that person to make oral
representations.' The structure of the Authority's task
is very much a matter of hearing out people fully, an
obligation. The Minister, by contrast in (5): 'If the
Minister is of the opinion that the confrontation of a
provisional entry in the register is contrary to the
public interest.' Those words are not there in 18(4),
18(6)(a), they are missing. That's deliberate, because
the Minister's task is not one constrained by any
condition in that regard. A consequence of that
submission is to look, we say, critically at 18(6). In
a sense this is the pivotal subsection. What 18(6) does
is to provide two routes through which a provisional
entry is removed. The fist route, is by the Authority,
after considering the representations, if any, made
under this section is of an opinion, that's one route.
The other alternative route, and you Honour will know it
is an 'or' it is strictly an alternative route, is that
the Minister directs it."
50. I think that these points are sound and decisive. I acknowledge that Mr Gray made some other points but I think them rather peripheral. He did have a final submission in regard to procedure. It was that the public interest could often call for a decision to be made on very short notice.
51. In the end then on the construction or interpretation of the statute read in the light of the relevant authorities I agree with the submissions of Mr Hall and of Mr Gray. A reading of the statute and of s.18 in particular leads me to think that the Minister was not required to hear the plaintiff. If that be a denial of procedural fairness then I say that that was what Parliament contemplated in passing s.18(5). The Minister was given the power of veto. He may act to direct removal of an entry from the Register. His right is not quite absolute. It is limited. How? By the direction to him that he consult with the Authority. Nothing more. No other reservation or qualification. Of course he must have formed the opinion first that the confirmation of the provisional entry on the Register would be contrary to public interest. If has formed that opinion he may not immediately act. He must first consult with the Authority. But he has the final say. He must consult. He is not bound to defer to the Authority. Parliament says that the Minister has the power which gives him the only limitation being that something is contrary to public interest. But Parliament says "Hold for the moment. The Authority knows about these things. The Minister must consult with it". The Parliament was thinking of some, albeit modest, limitation on the power of the Minister to act. Consult the Authority is all that it directs. Had Parliament wanted the Minister to hear anybody or any organisation it would in my opinion have said so. In the scheme of this legislation its failure to do so must mean that it did not intend it. I refer again to Mr Gray's contrasting of what Parliament says about the Authority's power as opposed to what it does not say by way of limitation to the Minister. The Authority is bound to hear oral representation (s.18(2)). Parliament reasonably enough assumed, I think, that any views which the Authority heard from persons interested will be conveyed by the Authority to the Minister when consultation occurred.
52. The Minister may veto. He may take his decision (after consultation) based on public interest without giving anyone a hearing. I think the Minister consulted in a genuine way. Mr Gray correctly so submitted. The Minister took into account matters which it was open to him to take into account and which led him to think that confirmation of the provisional authority would be contrary to the public interest. I do not know that I should comment further but I will say that the minutes and the affidavit of the first defendant confirm that matters affecting public interest were undoubtedly taken into account.
53. I dismiss the summons or more accurately state that I refuse to make any order or grant any relief under it.
0
3
0