Check v Administration of Norfolk Island
[2005] NFSC 1
•10 MAY 2005
SUPREME COURT OF NORFOLK ISLAND
Check v Administration of Norfolk Island [2005] NFSC 1
STATUTES – validity of the Emergency provision of Crushed Rock and Aggregates Bill 2005 (NI) enacted by the Legislative Assembly of the Territory of Norfolk Island – validity of certain administrative actions made in reliance of the legislation - whether the legislation is ultra vires as it exceeds the express powers granted under Schedule 2 of the Norfolk Island Act 1979 (Cth) – whether the legislation is rendered ultra vires for reason of ouster and prevention of judicial review – whether the legislation is contrary to Australia’s international obligations – whether the legislation is invalid for reasons of denial of justice to those affected – whether the legislation is null and void for a failure to treat all applicants as equally as is reasonably possible – all claims failed – application dismissed.
Statutes
Administrative Review Tribunal Act 1996 (NI) s 14(1)
Emergency Provision of Crushed Rock and Aggregates Bill 2005 (NI) ss 3, 4, 5, 6, 8
Norfolk Island Act 1979 (Cth) ss 5(1), 7, 13, 4(1), 5(2), 5(3), 19, 21, 4(2); Sch 2
Planning Act 2002 (NI)
Quarrying and related Public Works Act 2004 (NI) ss 4(1), 4(4)
Cases
Australian National Airways Pty Ltd & Guinea Airways Ltd v The Commonwealth (1945) 71 CLR 29 Followed
Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 Followed
Burton v Honan (1952) 86 CLR 169 Followed
Cunliffe v Commonwealth (1994) 182 CLR 272 Followed
Leask v Commonwealth of Australia (1996) 70 ALJR 995 Followed
Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 Followed
Murphyores Inc Pty Ltd v Commonwealth (1967) 136 CLR 1 Followed
O’Sullivan v Noarlunga Meat Limited (1954) 92 CLR 565 Applied
Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476 Followed
Re Maritime Union of Australia; Ex Parte CSL Pacific Shipping Inc (2003) 214 CLR 397 Followed
Other Authorities
Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221 (entered into force 3 September 1953) Art 14
BRIAN JOHN CHECK, SHERYL RAE CHECK, RAYMOND DAVID GRUBE,
KIM VANESSA PARTRIDGE, DAVID KENDALL PITCHER, MICHELLE JAN SAAL PITCHER and ROBERT TERRY RYAN v THE ADMINISTRATION OF NORFOLK ISLANDSC1 OF 2005
KIEFEL J
SYDNEY
10 MAY 2005
IN THE SUPREME COURT
OF NORFOLK ISLAND
SC1 OF 2005
BETWEEN:
BRIAN JOHN CHECK
FIRST PLAINTIFFSHERYL RAE CHECK
SECOND PLAINTIFFRAYMOND DAVID GRUBE
THIRD PLAINTIFFKIM VANESSA PARTRIDGE
FOURTH PLAINTIFFDAVID KENDALL PITCHER
FIFTH PLAINTIFFMICHELLE JAN SAAL PITCHER
SIXTH PLAINTIFFROBERT TERRY RYAN
SEVENTH PLAINTIFFAND:
THE ADMINISTRATION OF NORFOLK ISLAND
RESPONDENTJUDGE:
KIEFEL J
DATE OF ORDER:
10 MAY 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed with costs.
IN THE SUPREME COURT
OF NORFOLK ISLAND
SC1 OF 2005
BETWEEN:
BRIAN JOHN CHECK
FIRST PLAINTIFFSHERYL RAE CHECK
SECOND PLAINTIFFRAYMOND DAVID GRUBE
THIRD PLAINTIFFKIM VANESSA PARTRIDGE
FOURTH PLAINTIFFDAVID KENDALL PITCHER
FIFTH PLAINTIFFMICHELLE JAN SAAL PITCHER
SIXTH PLAINTIFFROBERT TERRY RYAN
SEVENTH PLAINTIFFAND:
THE ADMINISTRATION OF NORFOLK ISLAND
RESPONDENT
JUDGE:
KIEFEL J
DATE:
10 MAY 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Plaintiffs live in close proximity to Portion 49b2, Stockyard Road, Norfolk Island. In October 1999 an application to erect and enclose a crushing plant on that land was conditionally approved by the executive member of the Legislative Assembly. Some persons, including all but one of the Plaintiffs, sought administrative review of that decision. The Plaintiffs say that they are adversely affected by excessive levels of dust and noise from rock-crushing operations on the land in question. The result of those proceedings was a variation of the decision. A further approval was given in September 2002 and a further application for review was brought in the Administrative Review Tribunal by some of the Plaintiffs. Those proceedings are not finalised, although the Plaintiffs say that the decision to approve was subjected to further conditions.
On 10 November 2004 the Quarrying and Related Public Works Bill 2004 (NI) was presented as an urgent Bill and passed in that sitting, together with further resolutions. On 19 November 2004 notice of the Deputy Administrator’s assent to the Act was gazetted. On the same day, the Norfolk Island Minister for the Environment granted approvals under the Act authorising the removal of rock and stone from the land in question and the crushing and sorting at another place as directed by a supervisor.
Five of the Plaintiffs to these proceedings challenged the validity of the legislation. Wilcox J held that the Plaintiffs had standing to bring the proceedings. I do not understand the defendant here to submit to the contrary. His Honour held that the Act was null and void and the approvals granted under it of no effect. The defendant has appealed from that decision.
On 12 January 2005 the Legislative Assembly passed the Emergency Provision of Crushed Rock and Aggregates Bill 2005 (NI) (‘the Emergency Act’). On 13 January 2005 the Administrator assented to the Act, which assent was notified in the Norfolk Island Government Gazette of the same day. On 14 January 2005 two approvals were given under the Act. One related to Portion 49b2 and expired on 17 March 2005.
THE EARLIER ACT AND THE DECISION OF WILCOX J
Section 4(1) of the Act with which his Honour was concerned provided:
‘4.(1) Subject to this section, the executive member may, upon application, grant approval for a person to sort, crush, or otherwise treat extractive material, or manufacture products therefrom at a place, being a place that is not situated in a Residential, Business, Mixed Use, Light Industry, or Conservation Zone.’
Section 4(4) provided that an approval under the section permits the loading and carriage of extractive material from one place to another in order to treat the extractive material at the approved place and may include approval to take the treated material from the approved place to another place.
Schedule 2 of the Norfolk Island Act 1979 (Cth) (‘the NI Act’) lists possible subject matters of legislation. It was accepted in argument before his Honour that of those matters ‘quarrying’ and ‘public works’ were relevant for consideration. His Honour held that even reading ‘quarrying’ in a wide and generous way, it could not ‘… cover legalising the treatment of the extracted material at another site, remote from the quarry itself. Treatment at such a site is a separate activity. What was incidental at the quarry site is now the sole or dominant activity’ (at [36]).
So far as concerned public works, his Honour observed (at [38]) that the Legislative Assembly may have contemplated that some of the materials to be treated pursuant to the s 4(1) authorisation would be used in public roads or for other public works. His Honour went on:
‘However, that circumstance does not mean the Act can be characterised as legislation in relation to public works. The legislation does not authorise the carrying out of, or provide funds for, any particular public works, or public works in general. It simply authorises an industrial process that might result in the production of materials suitable for public works.’
In his Honour’s view the legislation could not be described as a law relating to either of those matters listed in Schedule 2 of the NI Act. The Deputy Administrator was not in a position to so conclude and had no power to assent to the Act. The assent was invalid and the Act null and void.
THE EMERGENCY ACT
The preamble to the Emergency Act reads as follows:
‘HAVING REGARD to the lack of crushed rock and aggregates available for the use of the Administration and the residents of Norfolk Island, and
AFTER FULL AND DUE CONSIDERATION of the issues, the Legislative Assembly having determined that it is in the public interest for crushed rock and aggregates to be made available as a matter of public safety and public health for and in connection with the maintenance and repair of roads and footpaths and the safe construction of building foundations, buildings and septic tanks and the like, and
BEING AWARE OF THE POWERS AND DUTIES of the Legislative Assembly to legislate for the peace, order and good government of Norfolk Island, and
BEARING IN MIND the matters listed in the second schedule to the Norfolk Island Act 1979 (Commonwealth), and
IN RELIANCE UPON all of the powers in the said second schedule and all other provisions of the Norfolk Island Act 1979 thereby empowering, now -’Section 4 of the Emergency Act is in these terms:
‘Grant or approval to move and treat extractive material
4. (1)Subject to this section, the executive member may upon application, give approval for a person to wash, sort, crush, or otherwise treat extractive material -
(a)at the place where such extractive material is then situated; or
(b)at some other place, being a place that is not situated in a Residential, Business, Mixed Use, Light Industry, or Conservation Zone.
(2)The executive member must not give an approval under subsection (1) unless the Legislative Assembly has approved his or her so doing.
(3)An approval given under this section may only be given if -
(a)the executive member and the Legislative Assembly are of the opinion that it is in the public interest that such approval should be given;
(b)the approval is given for work to be done over a period not exceeding a total of 7 working days;
(c)the approval expires upon completion of 7 working days or 60 days after the grant of approval whichever first occurs;
(d)work is prohibited before the hours of 7:30 am and after 5:00 pm on any day;
(e) when more than one person has sought approval under subsection (1), each applicant is treated as equally as is reasonably possible in the circumstances, or as may be agreed between the applicants and the executive member, to the intent that no one of them is given greater preference than any other.
(4) An approval given under this section permits the loading and carriage of extractive material from one place to an approved place in order to treat the extractive material at the approved place and may include approval to load and take treated material from the approved place to another place.
(5) The executive member may impose such further or other conditions upon an approval given under subsection (1) as he or she, or the Legislative Assembly, considers appropriate or necessary in the public interest.
(6)In subsection (3) -
(a)‘working day’ consists of any two half working days between 7:30 am and noon or between noon and 5:00 pm; and
(b)‘work’ includes the movement or start-up of machinery required preparatory to performance of the work for which approval is given under subsection (1) whether or not any such work is in fact done.
Note:(1) if for example approval was given for 7 days work, the 7 day period might be made up of 2 whole days followed by 2 separate half days then 2 whole days followed by another 2 separate half days thereby totalling 6 working days. The 7th working day if to be utilised must be done before the 60th day. There would then have been 7 working days completed and the permit expires but if the work is not completed 60 days after approval the permit still expires.
(2)A half day is worked if any work is done during a half day.
(7) If the Legislative Assembly has resolved to approve a proposal by the executive member to grant an approval under subsection (1) and that resolution is made before this Act receives assent that resolution is as effective as if it had been given thereafter.’
The ‘Executive Member’ is a person appointed by the Administrator on the advice of the Legislative Assembly: see s 13 of the NI Act.
Section 3 of the Emergency Act contains the following definitions:
‘“Extractive Industry” means the washing, sorting, crushing or other treatment of, extractive materials in order to produce crushed rock and aggregates that may be used for such purposes as road construction and repair and production of concrete whether on the land from which such materials are or have been quarried or extracted or on adjacent land or on land to which such materials have, with approval, been removed for such purposes;
“extractive material” includes rock and other material that has been quarried or otherwise extracted from land;
“public works” includes the purposes of the Administration and the public of Norfolk Island for the provision of road making, road repairs, building works and repairs, sewage disposal works and other purposes that require the availability and use of crushed rock and aggregates.’
Section 5 contains a limitation on approval. Section 6 deals with the effect of an approval to move and treat extractive material:
‘6. (1) If an approval is granted under section 4, no person may object thereto or make any claim against the Administration on any basis or for any reason whatever.
(2) No person has any right to make any claim against the Administration in respect of any work done pursuant to a Permit granted in accordance with the Quarrying and Related Public Works Act 2004 whether or not that permit was validly granted or the Act was validly passed by the Assembly.’
The Act is to expire on 30 June 2005: see s 8 of the Emergency Act.
THE EXPLANATORY MEMORANDUM
The Explanatory memorandum to the Emergency Act is in these terms:
‘This Bill is introduced to replace the Quarrying and related Public Works Act 2004.
This Bill as described in the Preamble is intended to provide a degree of flexibility to deal with a serious situation concerning the non-availability of necessary materials for the construction of roads and of concrete works.
The Bill empowers the executive member to invite applications to treat materials that have been quarried or otherwise extracted and which are held in stockpiles. If the member is persuaded that the materials so held are required in the public interest and if the Assembly agrees, the member may be given approval to issue a permit to treat the material where it is situated or to move it to another place for treatment.
The Bill will allow the crushing of rock required for public works and purposes that are in the public interest. A permit cannot be given for operation on more than 7 days: the permit must expire within 60 days; if the material is to be moved, the places to which it can be moved are restricted; work can only be done between the hours of 7:30 am and 5:00 pm; and if more than one person seeks permission to crush (or otherwise deal with the material) the persons must be treated as equally as possible. A day when work is done is described as a ‘working day’ and is divided into two part days - any work done during a part day will count as the whole of that part. The 7 days permit therefore consists of 14 part days.
The executive member may issue more than one permit and in that event, if there is or has been an existing permit for the same area, it must not be possible for more than 7 days work to be done on that area in any consecutive 21 days.
Once granted the permit may allow material to be moved from one place to another and may include such other conditions as the executive member agrees or the Assembly requires.
The Act provides that the Assembly can give approval to a proposal from the executive member before the Act receives assent and thereupon after assent that approval is as effective as if it had been given subsequently.
If a permit is granted under this Act it cannot be objected to, and no action lies against the Administration arising out of it. No compensation can be claimed in respect of any activity carried on in reliance of the Quarrying and related Public Works Act 2004.
As the permit requirements are stringent and must be adhered to, a severe penalty provision is provided to ensure compliance with the conditions.
Additionally, to emphasise the emergency nature of the Bill, the Act will eventually expire on 30 June this year.
7 January 2005’
THE NORFOLK ISLAND ACT
Section 5(1) of the NI Act provides that there shall be an Administrator of the Territory, who shall administer the government of the Territory as a Territory under the authority of the Commonwealth. Section 7 deals with the exercise of the Administrator’s powers. Section 7(1) relevantly provides:
‘7 Exercise of Administrator’s powers etc.
(1)The Administrator shall exercise all powers and perform all functions that belong to his or her office, or that are conferred on him or her by or under law in force in the Territory, in accordance with the tenor of his or her Commission and:
(a) in relation to a matter that, in his or her opinion, is a matter specified in Schedule 2-in accordance with such advice, if any, as is given to him or her by the Executive Council;
(b) in relation to a matter that, in his or her opinion, is a matter specified in Schedule 3-in accordance with the advice of the Executive Council;
(c) where it is provided by this Act that he or she is to act on the advice of the Executive Council or the Legislative Assembly-in accordance with that advice;
(d) in forming an opinion as provided by this Act-at his or her own discretion; and
(e) in all other cases-in accordance with such instructions, if any, as are given to him or her by the Minister.
(2) Notwithstanding paragraph (1)(b), where the Executive Council advises the Administrator to take, or to refrain from taking, any specified action in relation to a matter to which that paragraph applies and that advice is inconsistent with instructions given to the Administrator by the Minister in accordance with subsection (3), the Administrator shall not take that action, or shall not refrain from taking that action, as the case may be.
(3) For the purposes of subsection (2), the Minister may give the Administrator instructions in respect of advice tendered to the Administrator for the purposes of paragraph (1)(b), and may give the Administrator instructions in respect of the referral to the Minister of any such advice.’
The Administration, or government of the Territory (see s 4(1)), is a body politic with perpetual succession capable of suing and being sued and doing that which a body corporate may do: s 5(2) and (3). Section 19 deals with the legislative power of the Legislative Assembly. Section 19(1) provides:
‘Division 2-Legislative power of Legislative Assembly
19. Legislative power of Legislative Assembly
(1) Subject to this Act, the Legislative Assembly has power, with the assent of the Administrator or the Governor-General, as the case may be, to make laws for the peace, order and good government of the Territory.
(2) The power of the Legislative Assembly in relation to the making of laws does not extend to the making of laws:
(a) authorizing the acquisition of property otherwise than on just terms; or
(b) authorizing the raising or maintaining of any naval, military or air force; or
(c) authorizing the coining of money; or
(d) which permit or have the effect of permitting (whether subject to conditions or not) the form of intentional killing of another called euthanasia (which includes mercy killing) or the assisting of a person to terminate his or her life.
(2A) The Legislative Assembly does have power to make laws with respect to:
(a)the withdrawal or withholding of medical or surgical measures for prolonging the life of a patient but not so as to permit the intentional killing of the patient; and
(b)medical treatment in the provision of palliative care to a dying patient, but not so as to permit the intentional killing of the patient; and
(c) the appointment of an agent by a patient who is authorised to make decisions about the withdrawal or withholding of treatment; and
(d)the repealing of legal sanctions against attempted suicide.
(3) Item 1 in Schedule 2 shall not be taken to limit the power of the Legislative Assembly in relation to the making of laws providing for the raising of revenues for purposes other than purposes of matters specified in that Schedule.’
Section 21 provides with respect to the presentation of the proposed laws to the Administrator:
‘21. Presentation of proposed laws
(1) Every proposed law passed by the Legislative Assembly shall be presented to the Administrator for assent.
(2)Upon the presentation of a proposed law to the Administrator for assent, the Administrator shall, subject to this section, declare:
(a)in the case of a proposed law which, in the opinion of the Administrator, makes provision only for or in relation to matters specified in Schedule 2 or 3 or both:
(i) that he or she assents to the proposed law; or
(ii)that he or she withholds assent to the proposed law; or
(b)in any other case, that he or she reserves the proposed law for the Governor-General’s pleasure.
(3) The Administrator may return the proposed law to the Legislative Assembly with amendments that he or she recommends.
(4) The Legislative Assembly shall consider the amendments recommended by the Administrator and the proposed law, with or without amendments, may be again presented to the Administrator for assent, and sub-section (2) applies accordingly.
(5) In the case of a proposed law which, in the opinion of the Administrator, makes provision only for or in relation to matters specified in Schedule 2, the Administrator shall not act under paragraph (2)(a) or sub-section (3) except in accordance with the advice of the Executive Council.
(6) In the case of a proposed law which, in the opinion of the Administrator, makes provision only for or in relation to matters specified in Schedule 3 or matters specified in Schedules 2 and 3, the Administrator shall not act under paragraph (2)(a) or sub-section (3) except in accordance with the instructions of the Minister.’
Schedule 2 lists matters which may be the subject of legislation, as earlier mentioned. In addition to quarrying and public works they include the following, as referred to in the Defendant’s submissions:
‘4. Roads, footpaths and bridges.
8. Drainage and sewerage.
20. Building control….
67. Public Health….
70.Civil legal proceedings by and against the Administration of the Territory.
74.Matters incidental to or consequential on the execution of executive authority.
78.Public utilities.
79.Housing.
81.Industry (including forestry and timber, pastoral, agricultural, building and manufacturing).
82. Mining and minerals … within all the land of the Territory above the low-water mark.’
Section 4(2) provides that the specification of a matter in Schedule 2 shall not be taken to limit the generality of any matter specified in any other item in that schedule.
THE APPROVALS UNDER THE EMERGENCY ACT
The approvals given on 14 January 2005 by the Minister for the Environment authorised the grantee:
‘…to remove from a place of stockpile (the site) such rock and stone as may be directed by the person named in the schedule (the supervisor) and then at the place referred to in the schedule (the works area), crush and sort (the work), such rock and stone as may be directed by the supervisor and taking material produced there by and load, and unload, the same and move it from one place to another and to deliver the same to such places the supervisor may approve or such person or persons who, by agreement with the grantee, may take delivery thereof at the works area.’
The ‘works area’ refers to the land proximate to the Plaintiffs’ portion 49b(2). The ‘work’ is described as ‘wash, sort, crush or otherwise treat extractive material’.
THE APPLICATION
The application seeks the following declarations on the following grounds:
‘1. The provisions of the said Act are not consistent with and are ultra vires the express powers granted under Schedule 2 of the Norfolk Island Act 1979 (Clth) and a declaration that the said legislation and any approval granted thereunder is therefore invalid, null and void and of no force and effect.
2. The failure to provide for persons such as the Plaintiffs, who live in close proximity to one of the places at which works pursuant to the said Act are intended to take place, to make any objections to the Executive Member and/or the Legislative Assembly either before or after an application has been made or such application granted to carry out works under the said Act at the place renders the said Act as ultra vires, invalid and contrary to the rule of law by reason of the ouster and prevention of appropriate judicial challenge to and review of Executive and Administrative decisions and a declaration that the said legislation and any approval granted thereunder is therefore invalid, null and void and of no force and effect.
3. The said ouster and prevention as regards taking of any civil actions against the Administration are ultra vires, unlawful and invalid as contrary to and conflicting with the fundamental human rights and civil and political rights of the Plaintiffs guaranteed under Conventions entered into by the Commonwealth of Australia and a declaration accordingly.
4. The failure in the said Act to provide for information and submissions to be placed by the Plaintiffs before the Executive Member and/or the Legislative Assembly when consideration is being given by the said Executive Member and/or the Legislative Assembly as to whether it is in the public interest to grant approval to do works under the said Act in the said place is contrary to natural justice and results in any such decision being ultra vires, invalid and of no force and effect and a declaration that the said legislation and any approval granted thereunder is therefore invalid, null and void and of no force and effect.
5. The rights of the Plaintiffs to continue, pursue and advance their application for the review of the Executive Member’s approval of the application to crush rock by Island Industries Pty Limited on portion 49b2 Stockyard Road currently before the Administrative Review Tribunal and on any appeal therefrom to the Supreme Court are so prejudiced, affected and nullified by any approval to do works under the said Act granted to the said Company in respect of the said Portion that the said Act any approval granted thereunder should be declared to be ultra vires, null and void and of no force and effect.
6 The filing of a notice of appeal on 10 January 2005 against a Declaration of this Honourable Court, that legislation identical in scope, purpose and intent to the said Act was null and void and of no force and effect and the failure to withdraw or discontinue the said appeal before the said Act was passed into law on 12 January 2005 and assented to on 13 January 2005 prevents and prohibits the said Act from being so passed into law or so assented to and the said Act should be declared to be null and void and of no force and effect.
7. As the only acceptable applicants for approval to do work or to transport materials for treatment under the provisions of the said Act have not and cannot be treated as equally as is reasonably possible in the circumstances in the granting of any such approval by the Executive Member the grant of any such approval is and was beyond power and ultra vires the requirements of the said Act and any such approvals granted before the date of the filing of this application should be declared to be null and void and of no force and effect.’
· CLAIM 1
The Plaintiffs point out that the Emergency Act is substantially similar to the Act considered by Wilcox J. Differences include the preamble forming part of the Emergency Act; a definition of ‘public works’ is now provided; and there is provided an expiry date for the Act. The Plaintiffs’ case relies upon the approach taken by Wilcox J to the connexion between the matters listed in Schedule 2 and the legislation.
The relevant test of the validity of a law made under a head of power is the sufficiency of the connexion between the head of power and the subject matter of the law: Leask v Commonwealth of Australia (1996) 70 ALJR 995 at 1107 per Dawson J. It is necessary to determine the character of the law, having regard to its terms and its practical and its legal operation: Cunliffe v Commonwealth (1994) 182 CLR 272 at 319 (‘Cunliffe’); Re Maritime Union of Australia; Ex Parte CSL Pacific Shipping Inc (2003) 214 CLR 397 at 413 [35] (‘CSL Pacific Shipping’). If a connexion exists between the law and the relevant head of power, the law will be ‘with respect to’ the head of power unless the connexion is so insubstantial, tenuous or distant that it cannot sensibly be so described: CSL Pacific Shipping at [35], referring to Melbourne Corporation v The Commonwealth (1947) 74 CLR 31. With regard to the Commonwealth Constitution, a broad reading is given to the powers enumerated, for the reason that powers are expressed in general propositions wide enough to be capable of flexible application to changing circumstances: Australian National Airways Pty Ltd & Guinea Airways Ltd v The Commonwealth (1945) 71 CLR 29 at 81 and see Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 334 (‘Bank Nationalisation Case’). I respectfully agree with Wilcox J that the same approach should be taken with respect to the matters listed in Schedule 2.
The object of the Emergency Act is not different from the previous Act. It is, as the explanatory memorandum confirms, to make available treated extractive materials for works including roads, footpaths and buildings. There is no suggestion that the material are to provided for private, as distinct from public, purposes. The Act provides for a right to be given to a person to treat materials at locations remote from where they are quarried and to move the materials about. One may infer that absent this authority a person might not lawfully do so. It is not however contended that the Emergency Act is invalid for inconsistency with some other Act dealing with the same subject matter.
I respectfully agree with his Honour that the Emergency Act could not be said to be sufficiently connected to quarrying. It is something which occurs when that process is complete and is not part of it or incidental to quarrying. Regrettably, I am unable to share his Honour’s view that the Act, in providing for treated extractive materials, is not connected to public works and certain other heads of power.
In this connexion I consider the definition of ‘public works’ in the Emergency Act as irrelevant to the question of what is encompassed in that term in Schedule 2. The motive of the Legislative Assembly, said to be to act in the public interest, is also irrelevant to the question of sufficiency of connexion: Murphyores Inc Pty Ltd v Commonwealth (1967) 136 CLR 1 at 19, 20.
It does not however seem to me to be necessary that the law in question actually provide for particular public works or public works in general for there to be a connexion with that subject matter. The power, or subject matter of public works in Schedule 2, includes that which is necessary for the reasonable fulfilment of the power: Burton v Honan (1952) 86 CLR 169 at 177. In connexion with such a power the connexion may be more clearly revealed by looking to the purpose of the law: Cunliffe at 319, referring to the Bank Nationalization case at 354. O’Sullivan v Noarlunga Meat Limited (1954) 92 CLR 565 furnishes an example of what a head of power may encompass. There the regulations in question sought to control conditions in slaughter-houses insofar as they concerned meat for export. The Commonwealth did not have specific power with respect to such premises. It was however held that its power with respect to trade and commerce included a power to make provision for the condition of meat to be exported. The power would encompass all matters which may affect the export trade (at 598). Applying that approach to the present case, the subject matters of public works and roads, and footpaths and bridges would include the provision of material for that purpose. There is therefore a sufficient connexion with subject matter in Schedule 2 and the Emergency Act is not invalid for lack of it.
The Plaintiffs also sought to advance another contention. Although said to be related to claim 1, it is clearly a separate ground. It is to this effect. The Emergency Act is rather like town planning legislation. The Planning Act 2002 (NI) was reserved for the assent of the Governor-General, which was given. Similarly the Planning (Amendment) Bill 2004 was also reserved by the Administrator. Logically, the submission proceeds, this should have been done in the present case. The proposed ground is not one based upon law. It cannot be said the Administrator was legally obliged to reserve the Emergency Act. Leave will not be given to amend the application to add the ground. It has no prospects of success.
· CLAIM 2
This claim contains reference to a number of topics and is unparticularised. Regrettably written submissions do not elucidate any legal argument. The submissions focussed upon the fact that persons who might be affected by approved works are unable to object before approval is given by the executive member. Reference is made to the secrecy attending the process. In submissions in reply some reference is made to the ouster of the jurisdiction of the Supreme Court and of the Administrative Appeals Tribunal. It is generally submitted that this is contrary to the rule of law, involves a rejection of principles of judicial review and is discriminatory. In each case it is said that what results is the invalidity of the entire Act. It is not said how that follows and it is difficult to see how that could be the result. It is to be noted that item 70 of Schedule 2 of the NI Act ‘Civil legal proceedings by and against the Administration of the Territory’ provides a head of power. The submissions may be seen as attacks on specific provisions in the Emergency Act relating, on the one hand, to the process of approval and, on the other, to the prohibition of claims against the Administration consequent upon an approval being given. I shall deal with the claim in that way.
No authority was cited for the proposition that an approval to carry out works provided for in a statute must be subject to a process of public objection. Clearly that cannot be the case. Insofar as the submissions also maintained that the decision under s 4(1) of the Emergency Act should be subject to review, it may be accepted that the decision is one of an administrative nature. No provision in the Emergency Act or any other Act to which reference was made gives a right to a review by the Tribunal, as appears necessary: see s 14(1) of the Administrative Review Tribunal Act 1996 (NI). However, that would not prevent this Court exercising its common law jurisdiction to review and it may be observed that s 6 of the Emergency Act is not expressed to prevent review of the decision itself. It is concerned with what follows upon the grant of the approval.
The second limb of the Plaintiffs’ attack is upon s 6. I do not understand the Plaintiffs to contend that claims for compensation against the Administration cannot be excluded by legislation. Their concern is with what is perceived as the ouster of the Court’s jurisdiction to review a decision to approve works and to give injunctive or other relief.
There is a presumption that a parliament does not intend to cut down the jurisdiction of the Courts save to the extent that the statute in question expressly states or necessarily implies. Provisions purporting to do so ‘privative clauses’ are strictly construed: Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476 at 505 [72] (‘Plaintiff S157’). In any event such a clause would not be read so as to deny relief, by way of injunction, against fraud or other improper purpose or for jurisdictional error: Plaintiff S157 at 508 [82]-[83].
The first step in considering the operation of a privative clause is to construe it. It seems to me that with respect to s 6, the Plaintiffs have assumed a purported wider operation then it provides for.
Subsection (2) of section 6 may be put to one side for present purposes. It applies, as the explanatory memorandum suggests to claims for compensation arising from the works themselves.
With respect to subsection (1), it may first be observed that it does not purport to prevent prerogative relief. And, strictly construed, it does not prevent review of the decision to approve nor of the processes leading to it. The reference to a claim against the Administration in the subsection is related to compensation. It does not in its terms exclude review. Nor in any view is the exclusion of an objection to an approval to be read as excluding review, strictly construed. Objection comprehends a different process. If the Legislative Assembly had intended to exclude review it has not been clearly expressed, as is required. The assumption therefore is that it did not so intend.
In my view, s 6 does not oust the Court’s jurisdiction to review a grant of approval. The Plaintiffs do not however seek review. I add that even if it were held to have that operation that would provide no basis for the grant of a declaration that the Act was invalid. This claim fails.
· CLAIM 3
The laws of the Commonwealth of Australia form part of the laws of Norfolk Island. The Plaintiffs accept that the Commonwealth has not passed any legislation adopting an international convention which would have the effect of guaranteeing their right to bring a civil action against the Administration. It is nevertheless submitted that international conventions can be taken into account where they accord with general legal principles applying in Australia. The principle relied upon by the Plaintiffs is said to be one which prohibits discrimination. The discrimination effected by the Emergency Act here is that the amenity of persons in close proximity to Portion 49b2 will be adversely affected.
It is a principle of statutory construction that:
‘… where legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a Court should favour a construction which accords with Australia’s obligations.’ (Plaintiff S157 at 492 [29] per Gleeson CJ).
These circumstances do not arise in the present case. I take the Plaintiffs to refer to Article 14 ‘Prohibition of Discrimination’ of the Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221 (entered into force 3 September 1953). It is in terms which would not appear to apply to the Plaintiffs case:
‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’
I am not aware of any general prohibition of discrimination in law-making, absent bad faith. In any event the fact that persons may be affected by works approved under legislation does not mean that the Act itself discriminates between persons.
· CLAIM 4
The Plaintiffs submit that there is no mechanism provided for in the Emergency Act which allows for a ‘balancing’ process, one fully informed, as to the question whether works are ‘in the public interest’. A decision without all such information is a denial of natural justice to those who may be affected by it.
Although it is not entirely clear, I take the Plaintiffs to refer to the opinion to be formed by the Legislative Assembly and the executive member, under s 4(3)(a) of the Emergency Act, that an approval in a particular case is in the public interest. The statement in the Preamble that the availability of crushed rock is in the public interest is in a different category. It is clearly an opinion which the Legislative Assembly could form in connexion with the need for legislation and is not subject to review.
The requirement that the Assembly and the executive member must be of the opinion that it is in the public interest that particular works be approved recognises that some private interests are likely to be affected. For this to be sanctioned, the higher interest must be present. The fact that persons may be affected by noise and other factors associated with the approved works is borne out by other provisions in s 4 dealing with the period of the works and the limitation upon the hours of operation.
The other important aspect of the Emergency Act which would be relevant in the context of denial of natural justice is the expressly stated need for urgent action over the short life of the Act. This and the factors mentioned above might result in an implied exclusion of natural justice.
It is however unnecessary to express a concluded view on this question because the Plaintiffs’ case is not one based upon a review of the executive member’s decision under s 4. The Plaintiffs claim is for a declaration of invalidity of the legislation. It is not for judicial review of the decision with appropriate orders following. Even if the particular decision or decisions to approve were invalid this would provide no base for a declaration that the Act itself was invalid.
· CLAIM 5
The Plaintiffs here submit that the Emergency Act renders nugatory what may be a successful outcome for the Plaintiffs in the Administrative Review Tribunal. How this is said to render the Emergency Act invalid is not gone into, except by reference to the rule of law and discriminatory practices. It is not suggested that the Act deprives the Plaintiffs of an accrued right or interest. And it may be observed that the Tribunal is concerned with earlier approvals, which are unaffected by this Act.
· CLAIM 6
The submission is that it is not appropriate legislative practice to ‘approbate and reprobate’ by passing further legislation in similar terms to that already the subject of an appeal. There is no substance in the submission.
· CLAIM 7
Although reference was made in submissions to different conditions being imposed upon one permit holder and not upon the other, there is no evidence of these facts. A determination that one was not treated ‘as equally as is reasonably possible in the circumstances’ as the statute requires, needs evidence of those circumstances. The fact of a difference in conditions would not suffice. In any event, assuming there to be a breach of s 4(3)(e), this would not result in all approvals prior to the date of this filing of this application being declared void, as the Plaintiffs’ claim.
CONCLUSION
Each of the claims fail. The application will be dismissed with costs.
The effect of the Norfolk Island (Supreme Court Sittings) Regulations (SR No 150, 1979) made under the NI Act, in their current form, is to require judgment to be pronounced in the State of New South Wales or Victoria or the Australian Capital Territory. Queensland is not mentioned. I shall therefore publish this judgment when I am in Sydney in the near future. In the interim I propose to make the reasons available to the parties.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate:
Dated: 10 May 2005
Counsel for the Plaintiffs: Mr A Cook QC Solicitor for the Plaintiffs: Mr W Richards Counsel for the Respondent: Mr G Rhead Solicitor for the Respondent: The Administration of Norfolk Island The matter proceeded on the basis of written submissions Date of Judgment: 10 May 2005
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