Blue Derby Wild Inc v Forest Practices Authority
[2022] TASSC 67
•9 December 2022
[2022] TASSC 67
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Blue Derby Wild Inc v Forest Practices Authority [2022] TASSC 67 |
| PARTIES: | BLUE DERBY WILD INC. |
| v | |
| FOREST PRACTICES AUTHORITY | |
| SUSTAINABLE TIMBER TASMANIA | |
| ATTORNEY-GENERAL | |
| FILE NO: | 901/2022 |
| DELIVERED ON: | 9 December 2022 |
| DELIVERED AT: | Launceston |
| HEARING DATE/S: | 9, 10, 11 and 12 May 2022, 19 May 2022 |
| JUDGMENT OF: | Pearce J |
| CATCHWORDS: |
Administrative – Law Judicial review – Grounds of review – Procedural fairness – Existence of obligation –
Generally.
Forest Practices Act 1985, s 18.
Kioa v West (1985) 159 CLR 550; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
applied.
Aust Dig Administrative Law [1046]
Statutes – Acts of parliament – Statutory powers and duties – Exercise delegation of power conferred by Act –
Validity of delegation.
Forest Practices Act 1985, s 43.
Aust Dig Statutes [1171]
REPRESENTATION:
Counsel:
Applicant: L De Ferrari SC, A Aleksov Second Respondent: B McTaggart SC Intervenor: P Turner SC
Solicitors:
Applicant: Bleyer Lawyers Pty Ltd Second Respondent: Abetz Curtis Lawyers Intervenor: Solicitor General
| Judgment Number: | [2022] TASSC 67 |
| Number of paragraphs: | 91 |
Serial No 67/2022 File No: 901/2022
BLUE WILD DERBY INC. v FOREST PRACTICES AUTHORITY and
SUSTAINABLE TIMBER TASMANIA and ATTORNEY-GENERAL
| REASONS FOR JUDGMENT | PEARCE J 9 DECEMBER 2022 |
1 In Tasmania the harvesting of timber and the clearing of trees is, by operation of the Forest Practices Act 1985 (the Act), unlawful unless authorised by a certified forest practices plan. Applications for certification of a forest practices plan are made to the first respondent, the Forest Practices Authority (the Authority). Until restrained by an interlocutory order made on 11 April 2022 the second respondent, Sustainable Timber Tasmania (STT) was undertaking timber harvesting on two coupes of land near Derby in accordance with, in each case, a forest practices plan certified by a delegate of the Authority. The applicant, Blue Derby Wild Inc, challenges the certification of the plans on the alternative bases that the persons who certified the plans were not validly delegated the power to do so, or that the decisions to certify were invalidated by apprehended bias.
2 The Authority submits to the jurisdiction of the Court and the Attorney–General of Tasmania intervened in the proceedings.
3 After the hearing of the application and after the decision was reserved, the applicant sought leave to re-open the proceedings to add a further ground. The applicant wishes to argue that the certifications are invalid because the applications were received only by the delegates and not validly made to the Authority.
4 For the following reasons the application to re-open should be refused and the originating application will be dismissed.
The parties and the forest operations
5 The Authority is the State instrumentality charged with administration of the Act. Sustainable Timber Tasmania is the name used by Forestry Tasmania, the Forestry corporation established under the Forestry Act 1920, and continued in existence by the Forest Management Act 2013 (the FM Act), s 6. It is subject to the Tasmanian Government Business Enterprises Act 1995.
6 The applicant is an association incorporated on 14 August 2020. Its objects include to promote the protection of forests and ecology of an area in the north east of Tasmania near the town of Derby.
7 The timber harvesting which is the subject of these proceedings was conducted by STT in reliance on two forest practices plans, one dated 18 January 2022 concerning an area of 42.8 ha called coupe CC119A and another dated 8 March 2022 concerning an area of 37 ha called coupe CC105A. The plan for coupe CC119A was certified on 18 January 2022 by Peter Johnstone. At the time he certified the plan, Mr Johnstone was the subject of an instrument of delegation from the Authority dated 1 January 2006. He was also an employee of STT. The plan for coupe CC105A was certified on 8 March 2022 by Jarrod Burn. At the time he certified the plan Mr Burn was the subject of an instrument of delegation from the Authority dated 20 December 2013. He was also an employee of STT.
8 STT began harvesting trees under both plans. Officers of the applicant, concerned about the harvesting activities, began to make enquiries about the certification of the plans and the instruments of delegation. On 31 March 2022, having been advised to do so in response to matters raised by representatives of the applicant, and to resolve doubts which may have existed about the validity of the
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original delegations, the Authority revoked the existing instruments of delegation and made new instruments of delegation for numerous persons including Mr Johnstone and Mr Burn. The new delegations to Mr Johnstone and Mr Burn are, in each case, dated 31 March 2022. On 6 April 2022 Mr Johnstone certified the plan for coupe CC119A again. On 6 April 2022 Mr Burn certified the plan for
coupe CC105A again.
9 These proceedings were commenced by the applicant on 8 April 2022.
| The legislation | |
| 10 | The Act, in its short title, is an Act to: |
| "ensure that all forest practices are conducted in accordance with the Forest Practices Code, to provide for the issue of that Code, to provide for the creation of private timber reserves, to provide for the issue of codes of conduct for forest practices officers, and to provide for incidental and consequential matters." | |
| 11 | The term "forest practices" is broadly defined in s 3, the interpretation provision, to mean: |
| "(a) the processes involved in establishing forests, growing or harvesting timber, clearing trees or clearing and converting threatened native vegetation communities; and | |
| (b) works (including the construction of roads and the development and operation of quarries) connected with establishing forests, growing or harvesting timber or clearing trees…" |
12 The Act regulates forest practices on both public and private land. It is part of a suite of legislation which implements the State's forest practices system. The objective of that system is stated in the Act, Schedule 7, which provides:
"The objective of the State's forest practices system is to achieve sustainable management of Crown and private forests with due care for the environment and taking into account social, economic and environmental outcomes while delivering, in a way that is as far as possible self-funding–
(a) an emphasis on self-regulation; and
(ab) . . . . . . . .
(b) planning before forest operations; and
(c) delegated and decentralized approvals for forest practices plans and other forest
practices matters; and
(d) a forest practices code which provides practical standards for forest management,
timber harvesting and other forest operations; and
(e) an emphasis on consultation and education; and
(ea) an emphasis on research, review and continuing improvement; and (eb) the conservation of threatened native vegetation communities; and (f) provision for the rehabilitation of land in cases where the forest practices code is
contravened; and
(g) an independent appeal process; and
(h) through the declaration of private timber reserves– a means by which private land
holders are able to ensure the security of their forest resources."3 No 67/2022
13 The suite of legislation includes the Act, the FM Act, the Private Forests Act 1994 and the Tasmanian Forests Agreement Act 2013. The Private Forests Act, s 4, establishes a body called Private Forests Tasmania. Section 30(5) of the Act provides that the Authority shall, after consulting with Private Forests Tasmania and considering public submissions on a draft Code, issue a Code called the Forest Practices Code on the conduct of forest practices.
14 The Authority is established by s 4AA of the Act. It has a Board of Directors comprising seven directors, six of whom are appointed by the Minister and who must each hold relevant knowledge and expertise in specified fields. The other member of the Board is the person who may from time to time hold the position of chief forest practices officer, who is a member of the State Service.
15 The role, objectives, functions and powers of the Authority are respectively stated in ss 4AB, 4B, 4C and 4D. The objectives of the Authority include to act in a manner that "best advances the objectives of the State's forest practices system": s 4B(2)(a). The Authority's functions include "to oversee standards for forest practices plans": s 4C(e).
16 The Act also establishes an entity called the Forest Practices Advisory Council which comprises appointees with specified knowledge, expertise and experience. The Council has the objectives and functions stated in s 37B and s 37C, including to advise the Authority on review of the Act and the Code.
17 As the Forestry corporation, STT undertakes forest operations in Tasmanian public forests, more correctly referred to as permanent timber production zone land as that term is defined in the FM Act. By operation of s 7 of that Act, STT is appointed the Forest Manager for permanent timber production zone land and has the functions and powers stated in s 8 and s 9. Its functions include to manage and control all permanent timber production zone land and to undertake forest operations on permanent timber production zone land for the purpose of selling forest products: s 8(a) and (b). The FM Act, s 15, provides that the Forest Manager must perform its functions in a manner that is consistent with the principles of forest management set out in the Forest Practices Code, as a contribution to the sustainable management of Tasmania's forests. By s 16, the Forest Manager must make available minimum quantities of logs from permanent timber production zone land to the veneer and sawmilling industries as well as certain timber, including special species timber, to other prescribed industries. The Minister may declare specified Crown land to be permanent timber production zone land but only after having obtained advice from STT that the land is required for the supply of forest products: FM Act, s 10(1) and (3). Any land purchased or acquired by STT becomes permanent timber production zone land: s 12.
18 Any person may prepare a forest practices plan: s 18(1)(a). Applications must contain the information specified in s 18(2) including specifications of the forest practices to be carried out on the land referred to in the plan in connection with the harvesting of timber or the clearing of trees: s 18(2)(a). It is also to include an estimate of the period during which the forest practices of the plan, or phases of the plan, are to be carried out: s 18(2)(c). If a plan involves clearance and conversion of a threatened native vegetation community further specifications are required: s 18(2)(bb). All specifications required by s 18(2) must be in accordance with the Forest Practices Code: s 18(3).
19 Applications for certification of a forest practices plan are made to the Authority: s 18(1)(b). Applications must be in writing and be accompanied by the required fee and the approval of the owner of the land on which the forest practices are to be conducted: s 18(4) and (4A). The Authority may request provision of further particulars of the plan: s 18(5). The Authority, when it receives an application for certification of a forest practices plan, may certify it, may refuse to certify it, or may amend the plan in such manner as it considers necessary and certify the plan so amended: s 19(1). The Authority's power to amend the plan includes the power to insert conditions and restrictions to be complied with in the harvesting and clearance of trees: s 19(1A). Certification or refusal of certification
4 No 67/2022
must, unless further particulars have been requested, occur within 28 days of the receipt of the
application: s 19(2).20 It is an offence under s 17(4) to carry out, or authorise the carrying out of, timber harvesting without a certified plan and it is an offence under s 21 to contravene a certified plan.
The first ground of challenge
21 The applicant seeks orders under the Judicial Review Act 2000, or alternatively in the nature of certiorari, quashing or setting aside all of the delegations to both Mr Johnstone and Mr Burn and each decision made by them to certify the forest practices plans pursuant to those delegations. Against STT the applicant seeks injunctive relief restraining any further forestry operations under the plans on the basis that the delegations to Mr Johnstone and Mr Burn, and the certifications purportedly made under the delegations were invalid.
22 Before turning to the relevant statutory delegation provisions, reference should be first made to the appointment of officers and forest practices officers under the Act. Section 38(1) provides that the Authority may appoint any person employed by STT (as the Forestry corporation), any person employed by a body corporate which has an involvement in forest practices in Tasmania, or any person whom it regards as being suitably qualified, to be an officer for the purposes of the Act.
23 The power in s 38(1) to appoint a person to be an officer under the Act is to be contrasted with the appointment of officers under s 38(2). Under s 27, a person who has harvested more than a specified volume of timber in the preceding 12 months is required to lodge a plan with the Authority containing details, for each of the forthcoming three years, of the locations of proposed harvesting, an estimate of the volume of timber to be harvested, transport routes to be used and reafforestation measures. By s 38(2) a body corporate which is required to lodge such a plan is entitled to have at least one suitably qualified person appointed by the Authority as an officer under the Act.
24 What authority is conveyed by appointment as an "officer" under the Act is difficult to understand. I can find no reference to what the functions and powers of an officer are. However the Authority, by warrant signed by the chairperson of the Board, may authorise a person appointed as an officer under s 38(1), and shall authorise a person appointed as an officer under s 38(2), to be a forest practices officer for the purposes of the Act. Forest practices officers have an important role in the forest practices system. The Forest Practices Code may authorize any matter or thing to be from time to time determined, applied, or regulated by a forest practices officer. The powers of a forest practices officer are stated in the Act and include to enter and remain on land, and require provision of documents and information, to ensure that the forest practices are being carried out in accordance with the certified forest practices plan relating to that land or to ensure that the provisions of the Act are being complied with: s 40(1) and (2). It is an offence to prevent or hinder the exercise by a forest practices officer of such power: s 40(3). Where a forest practices officer is of the opinion that a certified forest practices plan is not being complied, he or she may request compliance with the plan and action to repair or rehabilitate damage done by reason of non-compliance: s 41(1). If there is a failure to comply with the request, a forest practices officer may issue and serve a notice requiring cessation of work or compliance: s 41(2). It is an offence to fail to comply with such a notice: s 41(5).
25 The Authority's power to delegate functions or powers is contained in the Act, s 43. At the time the delegations were made to Mr Johnstone in 2006 and Mr Burn in 2013, s 43 was in these terms:
"43 Delegation by Authority
(1) Subject to subsection (2), the Authority may delegate any of its functions or powers
other than this power of delegation.5 No 67/2022
(2) The Authority shall, by instrument in writing, delegate to any person for the time being appointed as an officer under section 38 (2), the performance or exercise of the Authority's functions and powers under Division 1 of Part III, and shall not revoke wholly or in part the delegation while he or she holds that appointment.
(3) A delegation under subsection (2) may be unconditional or, if the instrument of
delegation so provides, conditional.(4) If the delegation under subsection (2) is conditional, the delegate is, in the performance and exercise of the delegated functions and powers, subject to the direction of the chief forest practices officer."
| 26 | In that form, subss (3) and (4) of s 43 applied only to delegations made under subs (2). In 2019, subss (3) and (4) of s 43 were amended to expand their application to delegations made under both subss (1) and (2). Section 43 was in those terms when the new delegations to Mr Johnstone and Mr Burn were |
made on 31 March 2022.
27 First to be noticed is the distinction between the terms of subs (1) and subs (2) of s 43. Subsection (1) provides a power, which may be exercised, to delegate any of the Authority's functions and powers under the Act. By contrast, s 43(2) operates to require the Authority to delegate to a person appointed as an officer under s 38(2), "the performance or exercise of the Authority's functions and powers under Division 1 of Part III". Those functions and powers include the Authority's power under s 19 to certify, with or without amendment, or refuse to certify a forest practices plan.
28 The provisions of the Acts Interpretation Act 1931 (the AI Act) are also relevant to the contentions about the validity of the delegations to Mr Johnstone and Mr Burn. The AI Act is to be applied in the interpretation and construction of the Act except in so far as any provision is inconsistent with or repugnant to the intent, object or express terms of the Act: AI Act, s 4(1).
| 29 | The AI Act, s 23AA, is entitled Delegation and relevantly provides: "23AA Delegation (1) … (2) A delegation – |
(a) may be general or limited; and
(b) must be in, or evidenced by, writing signed by the delegator or, if the delegator
is a body, by a person authorized by the body for that purpose; and
(c) may be revoked, wholly or partly, by the delegator.
(3) A delegated function or power may be exercised only in accordance with any
conditions to which the delegation is subject.
(4) A delegated function or power that is duly exercised by a delegate is to be taken to
have been exercised by the delegator.
(5) …
(5A) …
(6) A function or power that has been delegated may, notwithstanding the delegation,
be exercised by the delegator.
(7) …
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(8) In all courts and before all persons acting judicially, an instrument purporting to be executed by a delegate in the capacity as a delegate is to be received in evidence as if it were an instrument executed by the delegator and is to be taken to be an instrument executed by the delegator."
30 At all relevant times, both Mr Johnstone and Mr Burn were forest practices officers appointed under the Act and were employees of STT.
31 The delegations to Mr Johnstone in 2006 and to Mr Burn in 2013 were in identical form. For convenience I will refer to them as the old delegations. They were both entitled "Instrument of Delegation". Both were expressed to be made under s 43(1). The body of the document was expressed in these terms:
"Pursuant to the powers vested in the Forest Practices Authority by virtue of the Forest Practices Act 1985 the Authority hereby delegates to [name of delegate] all of its functions and powers under the following provisions of the Act:
section 19(1), (2) and (3)
section 22 section 23 section 24 but only in relation to Forest Practices Plans for forest roading, harvesting and
reforestation.
This delegation is subject to the condition that in the exercised of the aforementioned delegated powers [the delegate] shall at all times be subject to and shall obey any directions given by the Chief Forest Practices Officer."
32 The presumption of statutory interpretation reflected in the maxim delegatus non potest delegare that a statutory function is to be performed by none but the statutory repository of the function, yields to "any contrary indications found in the language, scope or object of the statute": Northern Land Council v Quall [2020] HCA 33, (2020) 271 CLR 394 per Kiefel CJ, Gageler and Keane JJ at [65], citing Willis, "Delegatus Non Potest Delegare" (1943) 21 Canadian Bar Review 257 at 259. The Authority has broadly expressed powers including to "do all other things that it is authorised to do under this or any other Act" and "to do all things necessary or convenient to be done in connection with the performance and exercise of its functions and powers": s 4D(g) and (h). However, s 43(1) is a clear source of a special power for the Authority to delegate any of its functions and powers other than the delegation power itself.
33 The old delegations were made to Mr Johnstone and Mr Burn under s 43(1). The applicant contends that the delegations are invalid because of the condition which purports to subject the delegate to the direction of another person. The contention must be rejected. The applicant relies on the passage in the joint reasons of Nettle and Edelman JJ in Northern Land Council v Quall at [83], citing Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, 2 NZLR 679 at 702 [61] that when power is delegated "a delegate exercises 'power as their own. They do not exercise the delegator's power through the delegator ... The delegate must exercise their own independent discretion in the exercise of their delegated power'". There is nothing in that passage, nor in any other authority to which I have been referred, which supports the proposition that imposition of a condition on a delegation such as that imposed on the old delegations, without more, invalidates the delegation. The issue in Chesterfields Preschools Ltd was whether the acts and knowledge of delegates could be imputed to the delegator to create a form of corporate liability. The AI Act, s 23AA, contemplates by subs (2)(a) that a delegation may be general or limited and by subs (3) that a delegated function or power may be subject to conditions. The applicant submits that s 23AA has no operation because of the AI
7 No 67/2022
Act, s 4, but there is nothing in s 23AA which is inconsistent with or repugnant to the intent, object or express terms of the Act so as to prevent imposition of a condition on a delegation under s 43(1).
34 When the old delegations were made, s 43(3) expressly provided for imposition of a condition on a delegation made under s 43(2) but not a delegation made under s 43(1). It is a principle of statutory construction that "when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power": Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678. However, in my view, it should not be implied from the terms of s 43, and the interrelationship between subss (1) and (2), that the absence of an express power to impose a condition on a delegation made under s 43(1) invalidates the delegation when such a condition is imposed. The purpose of s 43(2) is clear.
35 In any event, as Estcourt J pointed out in Tasmanian Conservation Trust Incorporated v Forest Practices Authority [2022] TASSC 29 at [76], the relevant inquiry is not the power to direct. Rather, the relevant inquiry is the consequence of use of the power to direct the outcome of the exercise of the delegate's power.
36 At the hearing of this application both Mr Johnstone and Mr Burn gave evidence. The evidence will be canvassed in more detail later in these reasons in a different context. However, this is not a case in which it has been demonstrated that the power to certify the forest practices plans was in fact the subject of any direction from another person, the chief forest practices officer in particular. It is thus to be distinguished from the circumstances considered by Estcourt J in Tasmanian Conservation Trust Incorporated v Forest Practices Authority (above)where it was established by evidence that the power of the delegate was exercised under the direction of another person.
37 It follows that the challenge to the validity of the decision to certify made under the old
delegations fails.
38 As was explained earlier in these reasons, apparently to resolve doubts which were perceived to exist about the validity of the first delegations, those delegations were revoked and new delegations were made on 31 March 2022. The form of the new delegations made to Mr Johnstone and to Mr Burn was somewhat different to the terms of the earlier delegations. Again, in the heading, both were expressed to be made under s 43(1). The delegations were both expressed in these terms:
"Pursuant to the powers vested in the Forest Practices Authority by virtue of the Forest Practices Act 1985 the Authority hereby delegates to [name of delegate], a forest practices officer, all of its functions and powers under the following provisions of the Act:
section 19 but excluding section 19(1AA)
section 22 section 23 section 24 Condition This delegation is subject to any direction of the Chief Forest Practices Officer given
under section 39 of the Act.
The powers and functions conferred by this delegation are restricted to establishment of forests, the harvesting of timber, the clearing of trees and the construction of a road in connection with these activities."
8 No 67/2022
39 It is convenient to first address the appellant's contention made in respect to the delegations made by the Authority to Mr Johnstone and Mr Burn on 31 March 2022 are insufficient because they are restricted by their terms to "establishment of forests, the harvesting of timber, the clearing of trees and the construction of a road in connection with these activities." The applicant submits that the forest practices plans which were certified under the delegations "contained details which traversed beyond" those matters, and included a section called "Conservation of Natural and Cultural Values." The
contention is without merit and must be rejected.
40 The restriction of powers and functions conferred by delegation to "establishment of forests, the harvesting of timber, the clearing of trees and the construction of a road in connection with these activities" derives from the activities specified in s 17(4) which must not be carried out unless in accordance with a certified forest practices plan. The activities referred to in the delegation are those stated in s 17(4)(a), (b), (ba) and (c). There are two activities specified in s 17(4) which fall outside the terms of the delegation, namely "the clearance and conversion of a threatened native vegetation community", s 17(4)(bb), and "the operation of a quarry" in connection with another specified activity, s 17(4)(d). The powers conferred by the delegations to Mr Johnstone and Mr Burn included some but not all of the activities specified in s 17(4). Whether exercise of the powers within the terms of the delegation required consideration of conservation of other natural and cultural values is not to the point.
41 As far as the evidence discloses in this case, every forest practices plan contains a section which deals with conservation of natural and cultural values. The matters raised in that part of the application for certification are some of the many matters which the Code requires to be considered when determining whether a plan for harvesting timber, clearing trees or construction of roads in connection with those activities should be certified. The application form refers to prescriptions to "manage flora, fauna, geomorphic, cultural heritage, landscape and soil and water values." Relevant matters may, as examples, include protection of flora from introduction of weeds or pathogens, protection of particular areas of valuable flora within the plan area, protection of flora in adjoining reserves, protection of native or threatened fauna, matters of cultural and indigenous heritage and creation of special zones to protect nearby or adjoining uses. Consideration of such matters falls within the terms of the delegation. Conversely, if the plan involved clearance or conversion of a threatened native vegetation community, whether because that fact was identified in the assessment of the conservation values affected by the forest practices proposed by the plan or otherwise, or operation of a quarry, the power to certify would have been outside the terms of the delegation. Here, the applicant does not contend that the forest practices plans certified by Mr Johnstone and Mr Burn involved clearance and conversion of a threatened native vegetation community or operation of a quarry.
42 The validity of the new delegations is also challenged by the applicant on the basis that they purport to impose a condition that in the exercise of the delegated powers the delegates are "subject to and shall obey any directions given by the chief forest practices officer." The applicant submits that the delegation is not a real delegation because it purports to subject the power of the delegate, who is said to be exercising the power of the Authority, to the direction of another person. The argument is even less meritorious when applied to the new delegations. It is material that on 7 October 2019, after the old delegations to Mr Johnstone and Mr Burn, but before the new delegations, s 39 of the Act was amended to expressly provide that the chief forest practices officer may give to a forest practices officer a direction that relates to a function, or power, delegated under the Act to the forest practices officer: s 39(3A). As to the power of the chief forest practices officer under s 39(3A) to give a direction to a forest practices officer, subss (3B) and (3C) provide:
"(3B) Without limiting the generality of subsection (3A), a direction under that subsection may require a forest practices officer to seek the approval of the chief forest practices officer before performing or exercising a function or power delegated to the forest practices officer under section 43 .
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(3C) If, in accordance with subsection (3B), a direction is given under subsection (3A) requiring a forest practices officer to seek the approval of the chief forest practices officer before performing or exercising a function or power delegated to the forest practices officer under section 43, the delegation under section 43 is to be taken to be subject to any directions of the chief forest practices officer and to be varied accordingly."
43 The applicant's challenge to the new delegations fails for the same reasons. Again, there is no evidence that the power to certify the forest practices plans exercised under the new delegations was in fact the subject of any direction from another person, the chief forest practices officer in particular. The applicant raises a further contention that, because the power under s 43 is to make a delegation "conditional", the imposition of a "condition" purporting to bring s 39 into play falls outside the power. The distinction sought to be drawn between the terms "conditional" and "condition" is a distinction without a difference. There is nothing in the form of the delegations which, in my view, invalidates the further certification of the plans on 6 April 2022. The challenge to that certification thereby fails.
The Forest Practices Amendment (Validation) Act 2022
44 Regardless of the correctness or otherwise of my conclusion about the validity of all of the delegations made to Mr Johnstone and Mr Burn under which the relevant forest practices plans were certified or re-certified, the validity of the delegations was conclusively determined by amending legislation. On 13 May 2022 the Forest Practices Amendment (Validation) Act 2022 commenced on being given Royal Assent. By s 7, it relevantly amends the Act by inserting s 49(2) in the following terms:
"(2) A delegation that, on a day (the relevant day), before the commencement day, was made, or purportedly made, by the Authority under section 43, is taken to be, and to always have been, validly made on the relevant day."
45 The applicant concedes that the provision has retrospective effect. With respect, the concession is properly made. The legislative expression of retrospective operation could not be in clearer terms.
46 However the applicant submits that the operation of the amending legislation does not extend to curing the defects which it asserts resulted in the invalidity. The applicant first points to other amendments made by the amending Act. The amending Act omits subss (3A), (3B) and (3C) from s 39, omits subs (4) from s 43 and inserts a new s 39A which concerns the power of the chief forest practices officer to give directions to forest practices officers in the exercise of functions or powers under the Act and delegated powers. In substance, the amendments allow for the chief forest practices officer to require a forest practice officer to seek advice and may give directions as to policy or other matters, but may not require the forest practices officer to make a particular decision in exercise of a delegated or non-delegated power. The amending Act does not convey any expression of intention that those amendments have retrospective operation.
47 As I understand the applicant's submissions, it is that by use of the words "purportedly made" in s 7, the legislature is to be taken as accepting that past delegations were no delegation at all. The submission should be rejected. The terms of s 7 are to be read in accordance with its clear and unambiguous terms. To the extent that it is necessary to resort to what the intention of the legislature was, that is equally clear. The provision contains a broad expression of an intention to remove any doubt about the validity of any delegation made under s 43 before the commencement day.
48 The applicant also submits that the legislature "did not provide, in any way, for an amending effect on the terms of s 43 of the Act as it stood in the past", from which it is to be concluded that "Parliament did not intend to cure the defect of lack of statutory power in the Principal Act, as it stood" to make either the old or new delegation. In my view, the contrary is true. The terms of s 7 in the amending legislation contain a very clear expression that the delegations were to be "taken to be, and
10 No 67/2022
to always have been, validly made." It expressly addresses and overcomes the challenges to validity of the delegations made by the applicant. It is obvious that this was the very scope and purpose of the amending Act. No question of a need to cure actual or perceived defects or deficiencies in the statutory power to delegate at the relevant time arises. In the face of such an unambiguous statutory statement of retrospectivity, there is no occasion to analyse the authorities relied on by the applicant concerning displacement of the presumption against retrospectivity or the extent of the retrospectivity.
The second ground of challenge: Bias
49 The applicant asserts that the decisions to certify and recertify the forest practices plans, whether made by Mr Johnstone or Mr Burn, were unlawful because they were affected by an apprehension of bias. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 the High Court stated at [6] that a judge will be disqualified if a fair minded lay observer might reasonably apprehend that the judge did not bring an impartial mind to the question to be decided. The principle has been applied not only to the judicial system but to many other kinds of decision making and decision makers: Isbester v Knox City Council [2015] HCA 2,; 255 CLR 135 at 22. The law was recently reviewed and applied in this State by Brett J in Gutwein v Ellis [2022] TASSC 17, citing Charisteas v Charisteas [2021] HCA 29, 393 ALR 389.
50 The applicant contends that the unlawfulness arises in this case because:
• the decisions were in breach of the implied condition of, or limitation on, the power to certify that it be exercised without apprehended bias; and • the Act should be construed as impliedly requiring delegates of the Authority to be impartial and without conflict of interest in making a decision to certify a forest practices plan.
51 In Isbester v Knox City Council at [20], Kiefel, Bell, Keane and Nettle JJ said:
"The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made."
52 The reasons in Isbester continued at [23] to state that the "hypothetical fair minded observer assessing possible bias is taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances in which it was made".
53 The applicant seeks relief in the nature of certiorari to quash the certifications and to quash or set aside the certifications under the Judicial Review Act, in terms of a breach of the rules of natural justice under s 17(2)(a) and improper exercise of power within the Judicial Review Act, s 17(2)(e).
54 The evidence establishes that Mr Johnstone had been employed by STT since 1998. In his affidavit he described his position as "Co-ordinator Harvesting and Sales". He did not depose when he was appointed a forest practices officer but stated that he had "held authority to certify forest practices plans since 2006", by which he was clearly referring to the delegation. He explained that STT maintains a schedule of coupes intended to be harvested during the following 18 months. Where harvesting of land is proposed, and no certified forest practices plan is in place, a delegate is allocated "in consultation between forest practices officers and other STT staff, to review and certify a forest practices plan for that coupe." Mr Johnstone's evidence was that, when acting as delegate of the Authority to consider an application for certification of a forest practices plan made by STT, he had challenged, required amendments to and refused to certify the contents of the plan on many occasions. He claimed to have done so without any repercussions on his employment and had never felt pressure to make decisions about certification in a particular way. As to coupe CC119A he said that in January 2022, he "saw this coupe on the schedule and decided that I would review and certify the forest practices plan for that
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coupe myself." Over several days he undertook a review of the contents to ensure that it complied with the Code and the Act. He carefully inspected the land and consulted with other officers including a "special values planner."
55 After Mr Johnstone certified the plan, harvesting commenced. He attended coupe CC119A in his capacity on six separate days during the course of the period between 19 January 2022 and 28 February 2022, at which time I infer that he observed the harvesting operations. When he became aware of the challenge to the validity of his delegation he was asked by a representative of the Authority, indirectly through another employee of STT, to recertify the plan in accordance with the new delegation. Mr Johnstone's evidence was that he reviewed the plan and, taking into account his knowledge of the area and what had occurred on the land, he satisfied himself that the plan was compliant and should again be certified.
56 When cross-examined by counsel for the applicant, Mr Johnstone agreed that before the forest practices plan was first certified he played an active part in its preparation. He did so in consultation with other members of the "harvesting team". The team included planners who were specifically responsible for assessing whether areas proposed for timber harvesting have special natural or cultural value, such as streamside reserves or flora and fauna habitat. The plan was submitted to a "peer review system" in which it was assessed and approved by the heads of department within STT responsible for planning, harvesting, roads and forest management. Forest practices plan application documents were prepared from STT internal systems. Mr Johnstone agreed that he had never been asked to certify a forest practices plan which had not been prepared by STT. His employment income came from STT and he was not paid by the Authority for his work as a delegate. Mr Johnstone explained that once a forest practices plan is certified for an area and harvesting commences, his work in supervising the harvesting involved "two hats": he acted as a forest practices officer "first and foremost", but also as an employee of STT. He looked at the harvesting operations from "both angles."
57 Mr Burn was employed by STT in 2015 and at the relevant time his position was Coordinator of Planning. His employment seniority and authority within STT was equivalent to that of Mr Johnstone. His evidence about that process for identification of land proposed to be logged, and preparation and certification of the forest practices plan for that area mirrored the evidence of Mr Johnstone. Mr Burn said that he took it upon himself to review and certify the plan for CC105A because it was complex, and he had been working with STT staff since 2020 to ensure its compliance. He had inspected the land on a number of occasions. When it came to considering his decision to certify the plan he spent several days reviewing the relevant materials and again walking the site. He recertified the plan for the same reasons concerning the validity of his first delegation. He reconsidered it in detail and, in light of what he already knew, determined that no changes were required.
58 Forest practices officers are subject to a Forest Practices Officer Manual issued by the Authority. Whilst a document with that title does not seem to have statutory force the Act provides for The Forest Practices Board to prepare a code of conduct for forest practices officers.
59 Included in Authority's manual are statements that:
"The role of the FPO is to assist the FPA in the implementation of the Act. The primary objective of the Act is the achievement of sustainable management of Tasmania's forests with due care for the environment. The achievement of this objective is required to be as far as possible self-funding and self-regulating. The appointment of FPO's from within the forest industry is part of a co-regulatory approach.
FPO's are expected to undertake their FPO duties at the same time as they are undertaking their normal duties for their employer or client.
The FPO has a separate responsibility under the Act to the FPA that may on occasions have the potential to conflict with the FPO's responsibilities to the employer or client.
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The FPO should ensure that their employer or client understands that FPO's have statutory responsibilities under the Act and that the effective functionin of the forest practices system requires that FPOs actions are consistent with the Act and and FPA directions. The FPO Code of Conduct gives guidance on how these issues are to be handled."
60 Both Mr Johnstone and Mr Burn deposed that in deciding whether to certify a forest practices plan they acted independently as delegates of the Authority. I was impressed by the evidence of both men and have no doubt that they well understand their obligations as forest practices officers and delegates of the Authority. However, the applicant does not assert that either Mr Johnstone or Mr Burn were actually biased when making the decisions to certify. The applicant submits, correctly in my view, that the evidence of Mr Johnstone and Mr Burn about their own impartiality carries no weight when considering the issue of apprehended bias. The test is one which requires no conclusion about matters which actually influenced the outcome of decisions and so no attempt should be made to inquire into the actual thought processes of Mr Johnstone or Mr Burn: Ebner v Official Trustee in Bankruptcy at [8]. That is not to say that some of the circumstances averted to by Mr Johnstone and Mr Burn about the regulatory scheme within which each decision to certify was made may not be relevant to what a fair minded lay observer, aware of all the relevant facts and circumstances, might apprehend. But even in that respect care should be taken to not give such matters undue weight.
61 As explained earlier in these reasons, STT as the Forestry corporation established by the Forestry Act 1920, is a statutory authority subject to the Government Business Enterprises Act 1995. Under that Act, s 7, the principal objectives of a Government Business Enterprise include to perform its functions and exercise its powers so as to be "a successful business by operating in accordance with sound commercial practice and as efficiently as possible", and "achieving a sustainable commercial rate of return that maximises value for the State in accordance with its corporate plan and having regard to the economic and social objectives of the State." I also referred earlier, in a different context, to the role of STT as Forest Manager under the FM Act. It manages and controls forest operations in Tasmanian public forests, permanent timber production zone land, for the purpose of selling forest products. It must do so in a manner that is consistent with the principles of forest management set out in the Forest Practices Code, as a contribution to the sustainable management of Tasmania's forests. It must also make available minimum quantities of logs from permanent timber production zone land to the veneer and sawmilling industries and certain timber, including special species timber, to other prescribed industries.
62 Both the Authority and its delegates, forest practices officers and STT have obligations under the statutory scheme to comply with the Act and the Forest Practices Code. Even so, there is potential for conflict between the commercial and business objectives of STT and the monitoring of compliance with the Act and the Code. That potential for conflict is a factor which may lead an observer to reasonably conclude that a forest practices officer who is on the one hand a delegate of the Authority but on the other an employee of STT may certify a forest practices plan in accordance with an application made by STT other than on an independent and impartial evaluation of the merits. The same may be said whether the delegate is an employee of STT or another entity which performs harvesting operations. There may exist an unconscious influence in decision-making arising from the conflicting duties to uphold strict compliance with the Act and the Code and a duty or obligation to the employer. The possibility of conflict is expressly recognised by the Authority itself in the passage in the Forest Practices Officer Manual to which I referred. Although the manual makes clear the obligation to give precedence to the duty to the Authority and to enforce the Act, in my view a fair minded lay observer might reasonably apprehend an unconscious tendency to facilitate rather than refuse or limit harvesting, because refusal or limitation might be contrary to the interests of an employer and contrary to the work done by the delegate in a different capacity to prepare the plan.
63 A good deal of time was devoted by the applicant to submissions about whether the applicant had standing to bring these proceedings. The applicant is a non-profit community association run by
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volunteers. It was established as an unincorporated association in about 2016 and was incorporated on 14 August 2020. It has no assets of substance. On incorporation the constitution provided for a chair, secretary, public officer and treasurer as elected officers who, with between two and four other members would constitute the executive. Membership of the association was "open to those with a demonstrated interest in the protection of native forests in north east Tasmania, and the creation of a North East Tasmania Gondwana National Park." The constitution also provided that new members "must be nominated by an association member and be approved by the Executive." The objects of the association included to "promote and advocate for the creation of a North East Tasmania Gondwana National Park", to "publicise and promote the protection of native forests and the preservation and enhancement of ecological diversity", to "work cooperatively with government, industry and the general community to achieve sustainable and integrated natural resource management outcomes" and to "undertake other activities that are consistent with best practice principles of sustainable natural resource management, forest protection and the creation of a North East Tasmania Gondwana National Park."
64 In pursuit of its objectives, prior to 2022, members and officers of the association carried out surveys of threatened species in and around Derby, corresponded with members of Parliament and government entities and enterprises including STT, conducted community activities and communications and maintained a social media presence. At the relevant time the public officer and treasurer of the applicant was Louise Morris. Her affidavit evidence was that she had been involved in the protection of forests since 1997 through various other organisations including the Wilderness Society Inc. She had been monitoring the areas which are the subject of these proceedings since early 2021. She deposed that by the time the proceedings were commenced, the logging in the area of 42.8 ha called coupe CC119A was completed and the logging in the area of 37 ha called coupe CC105A was well underway.
65 Ms Morris deposed that on about 31 March 2021 she sought and obtained legal advice to bring these proceedings when she became aware of potential "legal problems with the logging operation" and that "validating legislation was being considered by the government". The evidence establishes that those logging operations conducted by STT ceased as a result of the interlocutory order made on 11 April 2022.
66 It can be stated in the clearest terms without a need for further reasons that the applicant has no interest which would entitle it to standing concerning the decision of the Authority to appoint a person as a forest practices officer or delegate. The applicant does not submit to the contrary. What is in issue in these proceedings is the decision of a delegate of the Authority to certify the forest practices plans. However the issue of standing need not be wrestled with because the determinative issue in this case is not whether there exists any apprehended bias, or whether the applicant has standing to bring proceedings. The issue of standing does not fall to be determined unless the basis of the application for relief is established. The determinative issue is whether the absence of apprehended bias is a condition, either implied as a matter of statutory construction or by the common law, of the exercise of the power of a delegate to certify. I have concluded that such an implication is clearly excluded by the terms of the Act when construed having regard to their context and legislative purpose.
Natural Justice
67 As was stated by Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324, 81 FCR 71:
"The general law notion of natural justice comprises the 'impartial tribunal' requirement (the 'bias rule') and the 'fair hearing requirement' (the 'hearing rule'): see Aronson and Dyer, supra, at 387 ff."
68 In cases in which the decision maker is not a judge, consideration of the issue must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making.
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Here, we are not dealing with a judicial decision, but an administrative decision. It is not contended by the applicant that it had a right to be heard in relation to the decision to certify the forest practices plans, either the certification or the re-certification. The applicant had no such right. There is nothing in the legislation which recognises or suggests that a person in the applicant's position had any part to play in that decision or was a person to whom the rules of natural justice would apply. An application for certification of a plan must be in writing and accompanied by a memorandum signed by the owner of the subject land or, if the land is subject to a forestry right, the holder of that right approving the application: the Act, s 18(4). There is no requirement that an application for certification be advertised or notified. There is no provision giving any person a right to be heard in respect to the application. Where the Authority certifies a plan, refuses to certify a plan or certifies an amended plan, it must notify the applicant, the owner and the holder of any forestry right: s 19(3). There is no requirement that any other person be notified. The Act also provides for variations to a certified plan either at the application of the person who applied for certification or at the instigation of the Authority: s 23 and s 24. The Authority may also revoke a certified plan: s 24A.
69 The Act provides for an appeal to the Tasmanian Civil and Administrative Tribunal against a decision arising from an application to certify a forest practices plan or to vary or revoke a certified plan: s 25. Only a person who applied to the Authority for certification of a plan, and is aggrieved by the decision, has a right to appeal: s 25(1). It follows from these provisions that the applicant had no right to be heard in respect to a decision by the Authority or its delegate to certify a forest practices plan and no statutory right of appeal against the decision.
70 What the applicant contends for is that, independently of any expectation that it be consulted and given an opportunity to put a case to the Authority or its delegate about the exercise of the power to certify, there exists an overriding duty or obligation, owed to the public, and particularly to the applicant after its interest in the proposed harvesting activities and the plans was made known, that the decision to certify was made without bias. Usually, although not always, consideration of the question of apprehended bias arises in circumstances in which a person falls within a category of persons said to be entitled to natural justice in respect to a decision. As stated by Brennan J in Kioa v West (1985) 159 CLR 550 at 612:
"Two distinct but closely related questions can be perceived in the cases relating to the exercise of a statutory power: the first, or threshold, question is whether the exercise of the power is conditioned upon observance of the principles of natural justice; the second question, arising when the exercise of the power is so conditioned, is what the principles of natural justice require in the particular circumstances. It is seldom possible to say that the legislature intends to exclude observance of the principles of natural justice in the exercise of a statutory power which is apt to affect individual interests and the more difficult and more frequently addressed question is what the principles of natural justice require in the particular circumstances."
71 His Honour continued at 616:
"To determine whether the legislature's intention is to condition the exercise of a statutory power upon observance of the principles of natural justice - the threshold question - one must have regard to the text of a statute creating the power, the subject matter of the statute, the interests which exercise of the power is apt to affect and the administrative framework created by the statute within which the power is to be
exercised."
72 In circumstances such as the present, the distinction between a requirement to observe procedural fairness and the content of the duty is not always easy to identify. In considering this issue I have in mind the following passage from the reasons of Deane J in Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; 169 CLR 648 at 652-653:
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"Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to "the particular statutory framework" (see Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, at p 504), it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just. In that regard, it is important to bear in mind that the recognition of an obligation to observe procedural fairness does not call into play a body of rigid procedural rules which must be observed regardless of circumstances. Where the obligation exists, its precise content varies to reflect the common law's perception of what is necessary for procedural fairness in the circumstances of the particular case. In some cases where the requirements of procedural fairness are applicable, nothing less than a full and unbiased hearing of each affected individual's case will satisfy them. In other circumstances, something less may suffice. Thus, the circumstances of a particular case may be such that procedural fairness does not require that each person affected be accorded an effective opportunity of being personally heard before a decision is made but nonetheless requires that the decision-maker be, and appear to be, personally unbiased (see, e.g., Jackson, Natural Justice, 2nd ed (1979), p 100). Indeed, the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognized as applying generally to governmental executive decision-making (cf. Halsbury's Laws of England, 4th ed (1989), vol 1(1), par 85) and where the question whether the particular decision affects the rights, interests, status or legitimate expectations of a person in his or her individual capacity is relevant to the ascertainment of the practical content, if any, of those requirements in the circumstances of a particular case and of the standing of a particular individual to attack the validity of the particular decision in those circumstances."
73 In my view the interests of the applicant are not apt to be affected by the relevant decisions in a way which is substantially different from the way in which the decisions are apt to affect the interests of the public at large. I do not see that the Authority or its delegate was, in making the decision to certify, bound or entitled to have regard to the interest of the applicant or to extend procedural fairness to it in the making of the relevant decision. There is no legislative intent discernible that the delegate should be bound by the principles of natural justice in favour of the applicant. The applicant relied on the statements of principle concerning apprehension of bias in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76, but the decision considered in that case to be made by the Immigration Assessment Authority was of a nature which affected the individual interests of the appellant. The nature of the decision and statutory context was far removed and readily distinguishable from the circumstances of this case. The issue in CNY17 was not whether the statutory power was conditioned on the absence of apprehended bias. It was not in dispute that the bias rule applied to the Immigration Assessment Authority and the Minister and the Secretary of the relevant Commonwealth department. The issue in that case was, rather, whether the bias rule had been breached. Similarly, in Isbester v Knox City Council [2015] HCA 20; 255 CLR 135, it was accepted by the decision maker that it was required to comply with the rules of natural justice.
74 It might be said that, in the context of the decision to certify a plan, even if it is presumed that procedural fairness will apply, a fair minded observer, with knowledge of all of the relevant circumstances, would expect little more of the decision maker than the absence of personal interest, a willingness to give genuine and appropriate consideration to the application and that the matters required by law to be taken into account: compare the comments of Spigelman J in McGovern v Ku- ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 at [47] referred to in Isbester at [27].
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75 However, in my view, the exercise of the delegated power to certify a forest practices plan was not conditioned on observance of the principle of natural justice that the decision maker not be in a position of apprehended bias. The text and context of the legislation clearly exclude the implication that the exercise of power was so conditioned. Some repetition of my earlier references to the legislation is necessary. The Authority is part of the State Forest system. The objective of the system stated in Schedule 7 is to achieve sustainable management of Crown and private forests with due care for the environment and taking into account social, economic and environmental outcomes. However that objective is to be achieved "in a way that is as far as possible self-funding", "an emphasis on self- regulation" and through "delegated and decentralized approvals for forest practices plans and other forest practices matters." The emphasis on self-regulation and delegated and decentralised approvals recognises and assumes the possibility of the conflict which I have identified. Systems which emphasise self-regulation inherently involve recognition of competing and not always consistent considerations and the potential for balancing conflicting interests I have already described. The earlier quoted passage from the manual issued by the Authority itself for forest practices officers recognises the same conflict. The statutory recognition of that proposition is confirmed by other provisions of the Act.
76 The Act recognises that the Authority and the Forest Practices Advisory council must balance competing interests. Both are required, the Authority by s 4D and the Council by s 37CA, to have regard to the wood supply obligations of the Forestry corporation under s 16 of the Act. In the case of the Authority that is so "whilst not diminishing the ongoing application of the Forest Practices Code." By s 4E the Authority must at least once in each financial year "assess the degree to which the forest practices system is self-finding and self-regulating." At the same time it must assess the implementation and effectiveness of a representative sample of forest practices plans, the clear inference being that the forest practices plans being reviewed are those which are the subject of self-regulation. The Authority's responsibility under s 4G to monitor and enforce compliance with the Act and Code is undertaken not only through the chief forest practices officer but through investigations conducted by forest practices officers.
77 Leaving aside delegated functions and powers, forest practices officers may also perform duties while balancing competing interests. Officers under s 38 may be employed by the Forestry corporation, by a body corporate which has an involvement in forest practices or any suitably qualified person. Officers may hold office in conjunction with any other office or appointment held by that person. In my view, the scheme of the Act overwhelmingly suggests, and is based on, a system in which forest practices officers perform their duties in respect to forest practices conducted by an employer of that officer. Forest practices officers have a concomitant duty to ensure and enforce compliance with the Act and the Code. The scheme allows for enforcement of compliance through creation of offences and penalties and through ongoing assessment of the system of self-regulation by the Authority and the Board.
78 The implication also arises from s 43 in relation to delegations. A body corporate required by s 27(1) to lodge a three year plan with the Authority is entitled, under s 38(2), to have at least one suitably qualified person appointed as an officer under that section. By s 43(2), the Authority is required to delegate to that person its functions and powers concerning forest practices plans. Delegates and forest
practices officers are accountable to the Authority in the exercise of their functions.
79 These provisions, when viewed in the context and in light of the purpose of the Act and legislative scheme, lead overwhelmingly to the conclusion that it would be artificial and unnecessary for a person exercising the delegated power to certify a forest practices plan to avoid being in a position, or acting in a way, which creates the appearance of bias. The neutrality expected in a judicial or quasi- judicial decision is not required and the nature of the decision under consideration and its statutory context is far removed from such a circumstance. There is no statutory implication or condition on the exercise of the delegated power that the decision maker not be subject to an apprehension of bias. The
challenge to the certifications on this basis is not made out.
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The applicant's application to re-open and amend
80 In each case, the applicant for certification of the forest practices plan was STT, which owned the subject land. The applications and accompanying consents and acknowledgements were signed and submitted on behalf of STT by John McNamara, an operations manager. In the course of the evidence it emerged that, after an application had been prepared by other officers of STT, it was submitted to Mr McNamara for approval and signing, and then submitted internally to the delegate of the Authority, Mr Johnstone in one case and Mr Burn in the other.
81 The applicant wishes to amend the application to add a ground which contends that the certifications are invalid because no application for certification was made to the Authority in accordance with s 18 of the Act. The applicant wishes to argue that the making of an application in accordance with s 18 is a jurisdictional fact conditioning the exercise of the power to certify under s 19, and there was no such application because the application was submitted to the delegates, and not to the Authority, and the power to receive an application was not delegated to either Mr Johnstone or Mr Burn.
82 The Court has a discretionary power to allow a case to be re-opened: Tomaszewski v Hobart City Council (No 2) [2021] TASSC 15 at [8]. The principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290. In Tomaszewski Blow CJ applied the following passage from the decision of Kenny J in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24], as to four categories of cases where the power to re-open might be exercised:
"The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence ... (2) inadvertent error ... (3) mistaken apprehension of the facts ... and (4) mistaken apprehension of the law .... In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open". [Case references omitted.]
83 The power to grant leave should be exercised with caution and, where a case is closed and judgment is reserved, exceptional circumstances must be shown: Cappello & Anor v Scrivener & Anor (No 2) [2021] NSWSC 168 at [46] referring to Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141 at [185].
84 Counsel for the applicant contends that a factor in favour of the grant of leave is that the evidence upon which the application is based could not have been discoverable prior to the hearing, it having emerged from the evidence of Mr Johnstone and Mr Burn. Notwithstanding that submission, I have concluded that the interests of justice are best served by refusal of leave.
85 Some reference to the history of the application is necessary. An interlocutory injunction was granted halting the timber harvesting activities. A factor relevant to the making of that order was that unless granted, the subject matter of the proceedings was lost. However the order also affected the interests of STT as well as third parties. The order was made on the usual undertaking as to damages but also in the absence of any evidence that the applicant will be able to satisfy any such undertaking. Also relevant was the consideration that the issues were at that stage, easily identified, limited largely to argument about statutory construction and uncontentious facts, and that the proceeding could be determined promptly. Again, the relevant considerations included that, at that stage of the proceedings, the issues in dispute were narrowly defined and were confined to the arguments about the validity of the delegations. It was foreshadowed that no lengthy hearing, or evidence beyond largely agreed documents, would be required. Notwithstanding that indication, an application then followed to amend the application to include the challenge to certifications on the basis of apprehended bias. Although to permit the amendment would give rise to a need for additional evidence and add to the length and costs of the proceedings, on balancing the relevant discretionary factors, the amendment was substantially
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allowed. STT then applied for an order that the application be stayed until security for costs was provided. The evidence adduced on that application made clear that the applicant had few if any assets and no means of meeting an adverse order for costs. Allowing the application and staying the application until the security was provided would, effectively, have brought the proceedings to an end. On balancing the discretionary considerations relevant to that application it was refused. This application is now to be considered in that context.
86 In my view, there is a real risk that allowing the application to re-open and amend will add unreasonably and unnecessarily to the length and cost of the proceedings. The applicant submits that the issues raised by the proposed further amendment can be dealt with without further evidence. I am not persuaded that this is correct. In my view there is merit in the submission made by the Attorney that whether an application may be validly submitted to a delegate is not just a question of the breadth of the delegation, but gives rise to issues of authority and agency. STT and the Attorney had no opportunity at or prior to the hearing to consider the issue, adduce evidence and make submissions about the issues now sought to be raised. Decisions were made to adduce evidence when the issue was not one raised by the proceedings. The applicant now wishes to seize the opportunity to raise a challenge on the basis of evidence adduced in the course of the hearing when the issue was not then relevant.
87 Although not determinative, I accept the Attorney's submission that the amendment seeks to raise a new controversy when it is out of time at least under the Judicial Review Act.
88 Without the benefit of detailed submissions it is impossible to make a final determination about the merits of the argument the applicant now seeks to raise, but I do not regard its prospects of success as a factor which provides much support for the grant of leave. Taking into account the text and context of the Act, I see considerable merit in the contention made by the Attorney that the receipt of application made under s 18 is not a function which requires express delegation, but is rather a question of authority. Evidence about whether Mr Johnstone and Mr Burn were so authorised would be relevant.
89 All of the foregoing considerations are relevant not only to the application to re-open but also to the application to amend. In all of the circumstances, I have concluded that the just resolution of the application is that it should be refused for the sake of doing justice to the other parties: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [94].
Disposition and orders
90 The applicant's interlocutory application filed 24 May 2022 is refused.
91 None of the grounds of the amended originating application filed 4 May 2022 are made out. The interlocutory injunctive orders are discharged and the application is dismissed.
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