Caltex Australia Petroleum Pty Ltd v Contaminated Sites Commitee - [2017] WASC 155

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CALTEX AUSTRALIA PETROLEUM PTY LTD -v- CONTAMINATED SITES COMMITEE [2017] WASC 155

CORAM: CHANEY J

HEARD: 12 JANUARY 2017

DELIVERED : 8 JUNE 2017

FILE NO/S: CIV 1961 of 2016

BETWEEN: CALTEX AUSTRALIA PETROLEUM PTY LTD
Applicant
AND
CONTAMINATED SITES COMMITEE
First Respondent
TIP TOP FRUIT AND VEGETABLE MARKET PTY LTD
Second Respondent
EVANGELOS LITIS NOMINEES PTY LTD
Third Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
First Intervener
MINISTER FOR ENVIRONMENT
Second Intervener

Catchwords:

Administrative law - Contaminated sites - Jurisdiction of Contaminated Sites Committee - Decision as to responsibility for remediation - Whether jurisdiction limited to sites classified contaminated remediation required - Proper construction of Contaminated Sites Act 2003 - Objects and purposes of Act

Legislation:

Contaminated Sites Act 2003 (WA), s 23, s 36, s 56
Interpretation Act 1984 (WA)

Result:

Application for prohibition granted

Category: A

Representation:

Counsel:

Applicant:     Mr D H Solomon
First Respondent           :     No appearance
Second Respondent      :     No appearance
Third Respondent          :     No appearance
First Intervener              :     Mr P D Spragg
Second Intervener          :     Mr P D Spragg

Solicitors:

Applicant:     Solomon Brothers
First Respondent           :     State Solicitor for Western Australia
Second Respondent      :     No appearance
Third Respondent          :     No appearance
First Intervener              :     State Solicitor for Western Australia
Second Intervener          :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378
Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Lacey v Attorney General for the State of Queensland [2011] HCA 10; (2011) 242 CLR 573
Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Van Heerden v Hawkins [2016] WASCA 42

CHANEY J: The applicant (Caltex) seeks a writ of prohibition against the Contaminated Sites Committee (CSC) preventing it from making a decision pursuant to s 36(2)(a) of the Contaminated Sites Act 2003 (WA) (CS Act) as to responsibility for the remediation of land commonly described as 31 Sanderson Road, Lesmurdie. Under the CS Act, the CSC is given power to make a decision as to responsibility for remediation of contaminated sites. A finding that a person is responsible for remediation has significant consequences under the CS Act. The CS Act also enables various classifications in relation to contamination to be given to land. The issue which falls for determination in these proceedings is whether the CSC's power to make a decision as to responsibility for remediation is confined only to sites which are classified as 'contaminated - remediation required', or whether it extends to making decisions as to responsibility for remediation in relation to land bearing other classifications.

The CS Act

The CS Act is described in its long title as 'an Act providing for the identification, recording, management and remediation of contaminated sites, to consequentially amend certain other Acts and for related purposes'. Section 8 identifies the object and principles of the act as follows:
The object of this Act is to protect human health, the environment and environmental values by providing for the identification, recording, management and remediation of contaminated sites in the State, having regard to the principles in the Table to this section ‑

1    The polluter pays principle

Those who generate pollution and waste should bear the cost of containment, avoidance or abatement.

2    The principle of full life cycle costs

The users of goods and services should pay prices based on the full life cycle costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any wastes.

3    The principle of waste minimisation

All reasonable and practicable measures should be taken to minimise the generation of waste and its discharge into the environment.

Section 9 provides that the provisions of the CS Act are complementary to and not in derogation of the provisions of any other law of the State. Section 9(4) provides that nothing in the CS Act affects any right a person has at law to prevent, control or abate contamination or to obtain damages.
Part 2 of the CS Act deals with the reporting of known or suspected contaminated sites, and classification of sites.
Section 13 of the CS Act is found in pt 2 div 2. It requires the Chief Executive Officer of the Department responsible for the CS Act to classify a site when required to do so under the CS Act, or to exercise a discretion to classify a site at any other time. Classification is to be made in accordance with classification set out in the first column of schedule 1 of the CS Act which corresponds, in the CEO's opinion, on reasonable grounds, to the criteria that applies to the site set out opposite the classification in the second column of the schedule. Schedule 1 to the CS Act reads as follows:

Classification Criterion

Report not substantiated
A report under section 11 or 12 provides no ground to indicate possible contamination of the site

Possibly contaminated‑investigation required There are grounds to indicate possible contamination of the site

Not contaminated‑unrestricted use After investigation, the site is found not to be contaminated

Contaminated‑restricted use
The site is contaminated but suitable for restricted use

Remediated for restricted use The site is contaminated but has been remediated so that it is suitable for restricted use

Contaminated‑remediation required The site is contaminated and remediation is required

Decontaminated The site has been remediated and is suitable for all uses

Division 3 of pt 2 deals with appeals against classification. Section 18(2) and s 18(3) provide:
(2)A person who is —
(a)an owner; or
(b)an occupier, who has been given notice under section 15(1)(b),
of a site classified as —
(c)possibly contaminated — investigation required;
(d)decontaminated; or
(e)not contaminated — unrestricted use ,
may appeal against the classification, or the inclusion in the site of land of which the person is an owner or occupier.
(3)A person who is —
(a)responsible for remediation;
(b)an owner; or
(c)an occupier, who has been given notice under section 15(1)(b),
of a site classified as —
(d)contaminated — remediation required;
(e)contaminated — restricted use; or
(f)remediated for restricted use,
may appeal against the classification, or the inclusion in the site of land of which the person is an owner, occupier or responsible for remediation.
Part 3 of the CS Act deals with remediation of contaminated sites.
Section 22 to s 32 are found within div 1 of pt 3. Section 22 provides that more than one person may be responsible for remediation of a site and that if more than one person is responsible for remediation of a site, each person is responsible for that remediation to the extent provided in accordance with pt 3.
Section 23 provides:
Sites classified as contaminated — remediation required are to be remediated
The only sites that are required to be remediated under this Act are sites classified as contaminated — remediation required.
Sections 25, 26 and 27 render certain persons responsible for remediation of a site. Section 25 renders a person who caused or contributed to the contamination of the site after the commencement of the CS Act as responsible for remediation. Section 26 renders responsible a person who changes use of the land to the extent that remediation is required because of that change. Section 27 renders landowners responsible for remediation in certain specified circumstances. Section 28 deals with responsibility where a body corporate is a person responsible but is insolvent or would become insolvent if it took action to remediate the site. Section 29 imposes responsibility for remediation on the State in certain circumstances.
Division 2 of pt 3 establishes the CSC.
Division 3 of pt 3 is concerned with decisions as to responsibility for remediation. By s 36, the CSC is required to make decisions as to who is responsible for remediation of a site and the extent to which a person is, or persons are, responsible for remediation.
Section 4 of the CS Act contains a definition of the words 'person responsible'. It reads:
Person responsible, in respect of a site classified as contaminated - remediation required, means a person responsible for remediation of the site in accordance with Part 3.
Section 36 provides:
Committee to make decisions as to responsibility for remediation
(1)The committee is to make decisions as to -
(a)who is responsible for remediation of a site;
(b)the extent to which a person is, or persons are, responsible for remediation of a site.
(2)The committee -
(a)is to make a decision as to responsibility for remediation if it is requested to do so by an interested person; and
(b)may make a decision as to responsibility for remediation on its own initiative.
(3)In this section -
interested person means a person who is prescribed as being an interested person for the purposes of this section.
It can be noted that s 36(1) refers to a person who 'is' responsible for remediation. The applicant places some reliance on the use of the present tense and the absence of any reference to a person who 'was' responsible.
Section 37, 38 and 39 deal with procedures required to be followed by the CSC.
Part 4 deals with investigation, clean‑up and hazard abatement notices. Section 42 empowers the CEO to give what the CS Act refers to as a clean‑up notice, a hazard abatement notice or an investigation notice to certain persons. Section 42 reads:
Person to whom a notice may be given
(1)The CEO may, in his or her discretion, give a notice to any of the following persons‑
(a)if given in relation to a site classified as contaminated ‑ remediation required, a person responsible for remediation of the site;
(b)a person who, in the opinion of the CEO, would be a person responsible for remediation of the site if the land to which the notice relates was land that comprised all, or part, of a site classified as contaminated ‑ remediation required;
(c)an owner or occupier of land that comprises all, or part, of the site to which the notice relates.
Section 43 requires that a notice served by the CEO be complied with and imposes a substantial penalty for a failure to comply with a notice within the time specified in it. The balance of pt 4 deals with the different types of notices that may be issued by the CEO.
Part 5 deals with provisions relating to remediation and notices. Section 53 gives the CEO powers to enter land for the purpose of effecting remediation. Section 54 deals with the position where a person who is responsible for remediation is refused access to the land to carry out remediation work. In those circumstances, the CSC may make a decision that the occupier or owner is to be the person responsible and the person who has been refused access is no longer the person responsible.
Division 2 of pt 5 deals with the recovery of costs and liability for losses, in some circumstances. Section 56 provides:
Person may recover cost in some circumstances
(1)Subject to subsection (3), a person who carries out any investigation or remediation in respect of a site may, to the extent that that person is not the person responsible for that remediation of the site, recover from the person responsible for that remediation, the reasonable cost incurred in taking reasonable action‑
(a)to carry out that investigation or remediation; and
(b)to comply with any notice under Part 4 binding on that person in respect of the site,
and interest at the prescribed rate, by action in a court of competent jurisdiction as a debt due.
(2)A written statement by the CEO, in respect of a particular site, stating that‑
(a)the action described in the statement was reasonable to investigate or remediate the site; or
(b) that costs specified in the statement were reasonable costs to incur in taking the action described in the statement or under the relevant notice under Part 4,
is to be taken to be proof of the statement in any proceedings under this Act, unless the contrary is shown.
(3)Subsection (1) applies in respect of a site for which the State is responsible for remediation only if‑
(a)the action was taken to comply with a notice under Part 4 in respect of the site; or
(b)the State is responsible for remediation of the site under section 29(1)(a) or (b).
(4)An action under this section may be commenced at any time within 6 years after the date on which the cause of action accrued and may not be commenced after that time.
Part 10 contains some general provisions, including s 98 which empowers the Governor to make regulations including regulations with respect to matters set out in sch 2 to the Act. Clause 4 of sch 2 provides that regulations can be made as to the procedure for applying to the CSC to make a decision as to responsibility for a mediation.
The Contaminated Sites Regulations 2006 (WA) (CS Regulations) were made pursuant to s 98 of the CS Act. Part 5 of the CS Regulations concerns decisions as to responsibility for remediation. Regulation 23 prescribes who is 'an interested person' for the purposes of s 36(3) with the consequence that a request by such a person to the CSC requires the CSC to make a decision as to responsibility for mediation. It is not in issue that the landowners are interested persons as defined in reg 23(a) of the CS Regulations.
Regulation 24 provides:
Request for decision as to responsibility for remediation
(1)A request to the committee to make a decision as to responsibility for remediation of a site under the Act section 36(2)(a) is to be made in writing in a form approved by the committee.
(2)A request referred to in subregulation (1) is to set out -
(a)the name and address of the applicant; and
(b)a description of the location and extent of the site sufficient to identify it; and
(c)a description of the applicant’s interest in the site; and
(d)reasons why the applicant is of the opinion that he or she -
(i)is, or may be; or
(ii)is not, or may not be,
responsible for remediation of the site; and
(e)any other information that the person believes may be relevant to responsibility for remediation of the site, or any part of the site, in the possession of, or available to, the applicant.
(3)A request referred to in subregulation (1) is to be accompanied by -
(a)a certified copy of, the certificate, or certificates, of title for all of the land that comprises all, or part, of the site; and
(b)any documents or other information relevant to the information the applicant has provided in the request.

The facts

The matter was argued on the basis of a statement of agreed facts and a bundle of agreed documents.
The property at 31 Sanderson Road, Lesmurdie, more particularly described as lot 1 on diagram 40336 comprised in certificate of title volume 1883 folio 582 (previously comprised in certificate of title volume 386 folio 108A) (the Site) was the subject of a lease dated 9 March 1971 between Caltex Oil (Australia) Pty Ltd as lessee, and the then registered proprietor. The term of the lease was 20 years. I note that the name of the lessee under that lease differs from the name of the applicant in these proceedings. Whether that discrepancy is simply a result of a change of name or is otherwise explained can be put to one side on the basis that the parties raise no issue as to that discrepancy, and the matter proceeded on the basis that the applicant enjoyed all relevant rights and liabilities in relation to the matters at issue. I will thus use the expression 'Caltex' as a reference to the applicant and to the lessee under the 1971 lease.
On or about 31 January 1992, Caltex and the then registered proprietors of the Site executed an extension of lease for a further term of five years from 9 March 1991. From about 9 March 1971 until 31 August 1995, Caltex operated a Caltex branded service station at the Site. From about 1 September 1995 until about 1999, Caltex supplied Caltex branded petroleum products to the then occupiers of the Site, Lator Pty Ltd and Superfast Investments Pty Ltd. After ceasing to supply petroleum products to those persons at the Site, Caltex was thereafter neither an occupier of the site nor a supplier of petroleum products to the Site.
On or about 16 October 2009, the Site was classified pursuant to s 13 of the CS Act as 'possibly contaminated - investigation required'. A letter advising of that classification was sent to the second and third respondents (landowners), the current registered proprietors of the land, on 16 October 2009. That letter advised that as there were grounds to indicate possible contamination of the Site and since relevant investigations had not been completed, further works were required to determine the contamination status of the site, and for that reason it was classified as possibly contaminated - investigation required. The letter advised that once investigations were completed, the Site may be reclassified. It advised that, if ground water was proposed to be abstracted, the Department of Environment and Conservation (DEC) recommended that analytical testing should be carried out to determine whether the ground water is suitable for its intended used.
On or about 19 November 2009, a memorial was registered on the certificate of title of the Site by DEC pursuant to s 58 of the CS Act.
On or about 4 March 2010, a letter was sent from DEC to the landowners concerning additional information provided to DEC by the landowners. The letter advised that the classification of the site remained possibly contaminated - investigation required but that the reasons for the classification had been updated. It attached a copy of a Basic Summary of Records (BSR) which suggested a restriction on use that:
Other than for analytical testing or remediation, ground water abstraction is not recommended at this Site because of the nature and extent of ground water contamination.
On 10 August 2011, the Western Australian Planning Commission (WAPC) granted subdivision approval for the Site to the landowners subject to two conditions. Those conditions were:
(1)Prior to commencement of subdivision works, an investigation for ground water contamination is to be carried out to the specifications of DEC and the satisfaction of WAPC.
(2)All remediation works required under condition 1 above, including validation for remediation, are to be completed to the specifications of DEC and the satisfaction of WAPC prior to the issuing of certification of titles.
On 3 October 2011, Jackson McDonald, on behalf of the landowners, wrote to the chairman of the CSC enclosing a letter dated 2 September 2011 that had been written to Caltex in relation to the Site, and enclosed a copy of that letter. The letter to Caltex outlined certain information relating to contamination of the Site, and sought a meeting between the landowners and representatives of Caltex to discuss various matters including the remediation of the Site. The letter otherwise set out the history of the land and the outcome of detailed site investigations. It concluded by suggesting that Caltex was responsible for the contamination and was liable for the costs of investigation and remediation.

On 20 October 2011, the chairman of the CSC responded to Jackson McDonald's letter of 3 October 2011. He advised that the CSC 'is unable to consider your matter or determine responsibility for mediation under part 3 of the (CS Act) until the Site has been classified contaminated - remediation required. The letter continued:
In the past, when appropriate based on the evidence of contamination for a site, the DEC has been willing to change the classification of a site to C‑RR when requested in writing by the owner, in order to enable the committee to determine responsibility for that site.
As a result of DEC receiving further technical reports in relation to the Site in late 2011, on or about 12 January 2012, the Site was reclassified by DEC as contaminated - remediation required.
On or about 12 January 2012, DEC withdrew the memorial on the certificate of title of the Site in relation to the original classification, and lodged a new memorial on the certificate of title recording the new classification as contaminated - remediation required.
In January 2012, DEC wrote to the landowners and Caltex in relation to ongoing monitoring and remediation of the Site.
On 9 October 2012, DEC received a letter from Jackson McDonald, advising that the landowners had engaged an environmental consultant to undertake further works at the Site.
On 17 October 2012, Jackson McDonald emailed Naomi Telford of the Department of Environment and Regulation (DER), the successor to DEC, in which they advised:
We propose to set out a (sic) our reasoning in full in due course in the course of requesting the contaminated sites committee to allocate responsibility for remediation.
In January 2013, a DER officer noted on the Department's file that 'owners advised DEC they may go to the committee but have not yet'.
In June 2013, DER made enquiries with the accredited auditor that had been engaged by the landowners to prepare a mandatory auditors report (MAR). An email from the auditor dated 19 June 2013 commented that the works at the Site were progressing very slowly because of 'a reluctance from the client to spend money whilst the committee is considering the Site'.
By letter dated 25 February 2014, the chairman of the CSC wrote to the landowners advising of the reclassification of the Site on 10 January 2012 as contaminated - remediation required. The letter advised that that classification 'provides the (CSC) with the power, on request, or on its own initiative to determine responsibility for the cost of investigations and remediation of the site'. The letter requested further detailed information 'to support your client's request for' the CSC to determine responsibility. It concluded by advising that if the requested information was not received by 30 April 2014, the CSC would assume that the landowners no longer wish to continue with the matter and the file would be closed.
On 8 April 2014, representatives from DER met on Site with the landowners and various consultants engaged by the landowners. No information was provided during that meeting which indicated that the landowners were actively seeking a determination as to responsibility for remediation of the Site.
DER did not receive any correspondence from the CSC between February 2014 and 14 August 2014 which would have notified DER that the CSC considered that the landowners' 2011 application was actively being considered by the CSC.
On 28 April 2014, a partner at Jackson McDonald phoned the office of the CSC and spoke to an administrative officer. The notes of the conversation taken contemporaneously by the officer stated that the partner 'advised they thought they were waiting for CSC for last two years - but CSC had been waiting on Jackson McDonald to provide initial info. (The partner) confirmed client does want to continue'.
By letter dated 30 April 2014, the chairman of the CSC wrote to the landowners referring to the letters of 20 October 2011 and 25 February 2014 and the telephone call of 28 April 2014, stating that:
I understand that your client wishes the committee to undertake a determination of responsibility for remediation pursuant to section 36(a) (sic 36(1)(a)) of the [CS Act] for [the Site].
The letter required the recipient to provide specified information 'to enable the committee to make a determination in relation to this matter, pursuant to regulation 25 of the Contaminated Sites Regulations 2006'. The letter requested that information be provided by 11 June 2014.
In May 2014, DER received several technical reports which had been prepared in relation to the Site, including the MAR, which recommended that the site be reclassified as 'remediated for restricted use'. The MAR was partly prepared in order to satisfy the first planning condition imposed by WAPC in relation to the subdivision approval.
On 4 June 2014, the landowners advised an administrative officer at the CSC that it had an additional report available and sought an additional extension until 15 August 2014. The chairman of the CSC approved the extension.
On 5 June 2014, the site auditor indicated to DER that an application to CSC was 'currently in preparation'. DER understood that the landowners were eager for DER to review the MAR and reclassify the Site in order to facilitate its redevelopment for residential use.
By letter dated 17 June 2014, DER advised the site auditor that DER agreed with the conclusion drawn in the MAR that the Site had been successfully remediated and is suitable for residential land use subject to a condition being imposed with respect to the extraction of ground water. Accordingly, on 25 June 2014, DER reclassified the Site as 'remediated for restricted use'. The notice of classification specified a restriction on the use of the Site as follows:
Due to the nature and extent of ground water contamination identified to date, the extraction of ground water for any purpose is not recommended.
At no time during the period during which the Site was classified as contaminated - remediation required, did the landowners submit an application that complied with regulation 24 of the Contaminated Sites Regulations 2006 (WA) (CS Regulations).
On or about 14 August 2014, the landowners provided to CSC a document entitled 'Submission to Contaminated Sites Committee Request to Determine Responsibility for Remediation Site: 31 Sanderson Road Lesmurdie'. The document stated that it was made 'in response to the letters from the (CSC) to the (landowners) dated 25 February 2014 and 30 April 2014 relating to the application to determine responsibility for remediation of the [Site]'.
The document concluded with a request for the CSC to make a determination of responsibility for remediation of the Site.
By letter dated 18 August 2014, the chairman of the CSC informed the landowners of the site's reclassification to 'remediated for restricted use' on 25 June 2014. The letter stated:
one potential implication of (the reclassification) is that the committee may no longer have jurisdiction to make a decision regarding responsibility for remediation, because there is no longer any requirement for remediation (s 23 CS Act).
The chairman advised that the CSC intended to consider its jurisdiction in an upcoming meeting, and invited submissions as to its jurisdiction from the landowners.
On 15 September 2014, the landowners provided submissions to CSC asserting that CSC had jurisdiction to make a decision regarding responsibility.
At a meeting on 17 September 2014, the CSC resolved that 'the committee agreed an oral application was lodged on 28 April 2014 and the classification changed after that date - however the change in classification does not remove the committee's jurisdiction once an application is lodged'. The reference to an oral application on 28 April 2014 appears to be a reference to the telephone conversation between the partner of Jackson McDonald and the CSC administrative officer referred to above at [43].
By letter dated 18 September 2014, the chairman of the CSC informed the landowners that it accepted the landowners request to determine the matter.
By letter dated 4 January 2016, the chairman of the CSC notified Caltex of the landowners application and the CSC's decision to proceed with deciding responsibility for remediation of the Site. The letter advised that the CSC would determine the allocation of responsibility based on the contamination present at the time that the site was classified contaminated - remediation required and when it entered the CSC jurisdiction.
Caltex challenged the CSC's view as to its jurisdiction by letter dated 15 February 2016. The CSC rejected Caltex's submission. In a letter to Caltex's solicitors dated 5 May 2016, the CSC advised that it had received a request on 14 August 2015 from the landowners to make a decision on remediation, and that, on receipt of such a request, s 36(2)(a) of the CS Act requires the CSC to make a decision. Although the letter referred to the request as being on 14 August 2015, the parties in these proceedings accepted that the CSC intended to refer to the landowners' submission of 14 August 2014. It would appear from the terms of the CSC's letter of 5 May 2016, that it was no longer adhering to the proposition expressed in its resolution on 17 September 2014 that its jurisdiction arose by reason of an oral application made on 28 April 2014.
On 9 June 2016, Caltex instituted these proceedings seeking a writ of prohibition to prevent the CSC from deciding responsibility for remediation of the Site.

Issue to be determined

The issue for determination in this matter is whether, as the applicant contends, on the proper construction of the CS Act, jurisdiction is only conferred on the CSC to make a decision as to responsibility for remediation of a site under s 36 of the CS Act if the site is, at the time the CSC makes the decision, classified pursuant to s 13 of the CS Act as contaminated - remediation required. The position of the interveners is that the CSC is not precluded from making a decision as to responsibility for remediation where a site is classified other than contaminated - remediation required.

Principles of statutory construction

There was no issue in the proceedings as to the principles applicable to statutory construction.
The task of construction must begin with a consideration of the text itself considered in its context, including the general purpose and policy of the provision: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan and Kiefell JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby and Hayne JJ).
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. In Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 [26], (French CJ and Hayne J) said:
A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra‑curially, correctly said:
Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case. (emphasis added)
And as the plurality said in Australian Education Union v Department of Education and Children's Services:
In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose. (footnote omitted)
See also: Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan and Heydon JJ).
The relevance for construction purposes of the long title of an act, and of expressly stated purposes or objects of a statute were explained by Buss JA in Van Heerden v Hawkins [2016] WASCA 42 as follows:
The purpose of a statute may, in a particular case, be defined from its long title. See Amatek Ltd v Googoorewon Pty Ltd [1993] HCA 16; (1993) 176 CLR 471, 477 (Mason CJ, Brennan, Dawson, Gaudron & McHugh JJ). The long title may properly be referred to in case of ambiguity for guidance on the intended scope of the Act. It may not be used to contradict any clear and unambiguous language in the statute. However, if there is any uncertainty it may be resorted to for the purpose of resolving the uncertainty. See Birch v Allen [1942] HCA 17; (1942) 65 CLR 621, 625‑626 (Latham CJ, Rich, Starke, McTiernan & Williams JJ agreeing); Clunies-Ross v Commonwealth [1984] HCA 65; (1984) 155 CLR 193, 199 (Gibbs CJ, Mason, Wilson, Brennan, Deane & Dawson JJ).
A section in a statute which specifically states the purposes or objects of the statute is relevant to the proper construction of the statute. See Tickner v Bropho(1993) 40 FCR 183, 191‑192 (Black CJ), 207‑209 (Lockhart J), 215–216 (French J); Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 [5] (Gleeson CJ). It is necessary to consider the method by which Parliament has implemented the specified purposes or objects. See Municipal Officers' Association of Australia v Lancaster (1981) 54 FLR 129, 152 (Evatt & Northrop JJ). The purposes or objects must be read and understood in the context of the statute as a whole. See IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1, 12 (Brennan CJ & McHugh J). [97] ‑ [98].
A legislative provision should be construed on the basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions within an enactment, it is necessary to adjust the meaning of the competing provisions to achieve the result which best gives effect to the purpose and language of the provisions while maintaining the unity of all the statutory provisions: Project Blue Sky [70].
The function of a definition is not to enact a substantive law, but to provide an aid in construing the statute. Where it is clear that a definition applies, the proper course is to read the words of the definition into the substantive enactment and then construe the substantive enactment in its context: Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [103] (McHugh J); Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186 [42] (McLure P) [150] (Buss JA).
The applicant placed considerable reliance on the principle of legality being the presumption explained in Project Blue Sky that:
in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights freedoms or immunities [78].
See also: Lacey v Attorney General for the State of Queensland [2011] HCA 10; (2011) 242 CLR 573 [43]. In Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) said at [15]:
The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality which, as Gleeson CJ observed in Electrolux Home Products Pty Ltd v Australian Workers' Union, "governs the relations between Parliament, the executive and the courts". His Honour said:
The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.
For the reasons which follow, I do not consider it is necessary to have regard to the principle of legality in order to construe the provisions of pt 3 of the CS Act.

Proper construction of pt 3 of the CS Act

In my view, the purpose and object of pt 3 of the CS Act is to provide a mechanism to bring about remediation of sites which require remediation. Contrary to the interveners' submissions, pt 3 is not directed to allocation of responsibility for sites which do not require remediation. The provisions of the CS Act which lead me to that conclusion are as follows.
The heading of pt 3, which forms part of the CS Act by virtue of s 32 of the Interpretation Act 1984 (WA), is 'Remediation of Contaminated Sites'. Division 1 is headed 'Person Responsible for Remediation'. Section 22(1) specifies that more than one person may be responsible for remediation of a site. Section 24 identifies who is responsible for remediation of a site, being the persons described in such of s 25, s 26 or s 27 as are applicable. The CSC is established by s 33, within pt 3. Section 36 empowers the CSC to make decisions as to 'who is responsible for a remediation of a site', and 'the extent to which a person is, or persons are, responsible for remediation of a site'.
What is common to all of those provisions is a reference to responsibility for remediation of a site. That is significant having regard to s 23 which provides that 'the only sites that are required to be remediated under this Act are sites classified as contaminated - remediation required'. That section makes clear that the statutory purpose of pt 3 is to achieve remediation of sites where remediation is required. That is consistent with the long title to the CS Act which describes the CS Act as providing for remediation of contaminated sites. It is consistent with the expressed object of the Act which also, consistent with the long title, is said to be, relevantly, remediation of contaminated sites.
The definition of 'person responsible' in s 4 also supports that construction, notwithstanding the curious drafting of that definition. The drafting is curious because it suggests that the expression 'person responsible' may be used in the Act in respect of sites other than those classified as contaminated - remediation required, but is defining the term only in respect of those occasions where the words are used in respect of the latter. The words 'person responsible' are used in the heading of pt 3 div 1, s 22(3), s 28(1), s 28(2), s 29(e), s 30(1), s 30(4), s 30(8), s 31(1), s 32(1)(c), s 42(1)(a) and (b), s 54(1)(c), s 56(1), s 57 and s 62(1)(c). In all of those sections, if the definition is inserted into the relevant provision, it reinforces the proposition that pt 3 is concerned only with questions of responsibility for remediation in respect of those sites classified contaminated - remediation required (consistently with s 23). Indeed, to the extent that the defined expression is found in pt 4 and pt 5 it supports a construction of those parts as being directed to the achievement of remediation where mediation is required. In my view, the words 'in respect of a site classified as contaminated - remediation required' where they appear in the definition of 'person responsible' are intended to provide consistency between the defined words and the provisions of s 23 of the CS Act.
Section 36 contains the only relevant power for the CSC to determine responsibility for remediation (the power in s 54 is not relevant to the circumstances of this case). It requires the CSC to make decisions as to who is responsible for remediation of a site. Section 36 must be read with s 23. The section is concerned with a present responsibility for remediation of a site classified as contaminated - remediation required, those being the only sites required to be remediated under the CS Act.

That general purpose is also supported by the provisions of pt 4. Section 42 enables the CEO to give a cleanup notice, hazard abatement notice or an investigation notice. The capacity to give a notice is limited to sites which are classified as contaminated - remediation required (in which case notice is to be given to the person responsible for remediation) or, to a person who would be the person responsible if the land was classified as contaminated - remediation required. The latter power is no doubt directed to the cleanup or abatement of hazards in situations requiring steps to be taken in a timely way, perhaps before the process of classification has been undertaken such as in emergency situations, and before any determination is made by the CSC as to responsibility.
The interveners rely on s 56 as indicating that the expression 'person responsible' is used in circumstances where the remediation has already been carried out. They submit that upon the remediation of a site classified as contaminated - remediation required, the site will ordinarily be reclassified as remediated for restricted use or decontaminated. They submit that s 56 requires that a person who is responsible for the remediation of a site will remain responsible for that remediation under the CS Act regardless of whether the remediation has been carried out by another person and the site has been reclassified. I do not accept that the provisions of s 56 lead to a different construction of the object and purpose of pt 3 of the CS Act from that expressly made clear by s 23. Section 56 is capable of operating in circumstances where, at a time when the site concerned is classified contaminated - remediation required, the CSC makes a determination as to who is the person responsible, or who are the persons responsible and the proportions of their liability, and the land is then remediated by another person. For example, an owner of land, not being the person responsible for contamination, may wish to proceed with remediation whilst the CSC deliberates on responsibility for it. All of that can occur whilst the site is classified contaminated - remediation required. Once the determination by the CSC as to who is or are the person or persons responsible is made, subsequent reclassification of the site would not impact on the rights and liabilities provided for in s 56.
A further provision relied upon by the interveners was s 18 of the CS Act dealing with appeals against classification. They observe that there is a distinction between who may appeal against classifications under s 18(2) as distinct from s 18(3), the latter conferring a right of appeal against classification on a person who is responsible for remediation. The interveners argue that the inclusion of sites classified as contaminated - restricted use and remediated for restricted use in s 18(3) rather than s 18(2) clearly indicates that the CS Act contemplates that sites that are so classified may have an associated person responsible for remediation. It can be noted that the reference at s 18(3) is to 'a person who is responsible for remediation' and not a 'person responsible', the latter being the defined term. Assuming, as the interveners do in their submissions, that the reference in s 18(3) is to a person responsible, the conferral of a right of appeal in relation to site classifications is not inconsistent with the construction of pt 3 which I have concluded is correct. The appeal which lies under s 18(3) is against a classification 'or the inclusion in the site of land of which the person is an owner, occupier or responsible for remediation.' The circumstances in which an appeal against a classification may be lodged may by many and varied. I do not consider that the inclusion of a right of appeal for a person who is responsible for remediation in relation to classification of land which may merely be part of the site the subject of the classification demands a different construction of the purpose and object of pt 3.
Nor do I accept the interveners' argument that a restriction on the jurisdiction of the CSC would be contrary to the object and purposes of the CS Act on the basis that it would potentially cause delay in remediation. The interveners argue that those responsible for, or interested in achieving, remediation would delay taking action until the CSC had made its decision, lest the site concerned might be reclassified before the CSC's decision is made and the right to contribution under s 56 would thereby be lost. Given the fact that reclassification is most likely only to occur on application by a landowner, or a person who has carried out the remediation, the timing of any reclassification is effectively in the hands of a party most likely to seek to avail themselves of the rights under s 56. There is no reason why there should be any delay in remediation being carried out while the land remains classified contaminated - remediation required and while the CSC is in the process of making its decision. In any event, where timely remediation is required, there are adequate powers conferred on the CEO to require the necessary works to be undertaken independently of the CSC's determination.
Caltex argued that the broad construction for which the interveners contended would have the effect of interfering with parties' fundamental right to have rights and liabilities as between them determined in a court according to the general system of law, and that the CS Act does not express an intention to have that effect in unambiguous and unmistakable language. Thus, Caltex argues, the principle of legality precludes an adoption of the interveners' construction of the CS Act and pt 3 in particular. Having reached my decision as to the proper construction of the CS Act on the basis of the text of the CS Act, it is not necessary to consider whether the principle of legality has any application in this case and I express no view on the matter.

Conclusion

For those reasons, I consider that the CSC was correct in the view it expressed in its letter to Jackson McDonald of 3 October 2011 that its capacity to determine responsibility for the site depended upon the land being classified as contaminated - remediation required, and was in error when it formed a different opinion expressed in its letter of 4 January 2016. It is common ground that no application complying with regulation 24 was made while the Site was classified contaminated - remediation required, and no decision was made by the CSC in that period. The CSC now has no jurisdiction to entertain an application to make a decision under s 36 of the CS Act nor to make a decision of its own initiative. The applicant is entitled to a writ of prohibition in the terms sought in the application.

Classification	Criterion
Report not substantiated	A report under section 11 or 12 provides no ground to indicate possible contamination of the site
Possibly contaminated‑investigation required	There are grounds to indicate possible contamination of the site
Not contaminated‑unrestricted use	After investigation, the site is found not to be contaminated
Contaminated‑restricted use	The site is contaminated but suitable for restricted use
Remediated for restricted use	The site is contaminated but has been remediated so that it is suitable for restricted use
Contaminated‑remediation required	The site is contaminated and remediation is required
Decontaminated	The site has been remediated and is suitable for all uses