Friends of Hinchinbrook Society Inc v The Minister for the Environment
[1997] FCA 789
•6 AUGUST 1997
FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE LAW ) - judicial review of consents under ss 9 and 10 of the ENVIRONMENTAL LAW ) World Heritage Properties Conservation Act 1983 - meaning of s 13(1) - meaning of “presentation” in the Convention for the Protection of the World Cultural and Natural Heritage - effect of “have regard only to” in s 13(1) - nature of the Minister’s discretion - whether, in acting on the basis that measures would be taken by the State government, the Minister improperly delegated his discretion - whether the Minister had power to impose conditions on his consent, and if so, whether in the circumstances he erred in law by giving his consent unconditionally, assuming he did not have power to impose conditions - discussion of appropriate costs order where body set up to advocate an environmental cause brings proceedings that fail.
WORDS AND PHRASES - “presentation”, “shall have regard only to”
World Heritage Properties Conservation Act 1983, ss 3, 3A, 6, 9, 10, 13, Sched
Convention for the Protection of the World Cultural and Natural Heritage, articles 1, 2, 4, 5, 24, 26, 27, 30
The Commonwealth of Australia v The State of Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1
Conditions of Admission of a State to Membership in the United Nations [1948] ICJR 56
Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136
Puhlhofer v Hillingdon London Borough Council [1986] AC 484
Richardson v The Forestry Commission (1988) 164 CLR 261
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607
Conway v Repatriation Commission (1988) 16 ALD 770
Cavell v Repatriation Commission (1988) 9 AAR 534
BTR Plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246
Richmond River Council v Oshlack (1996) 39 NSWLR 622
Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127
Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365
Parramatta City Council v Hayle (1982) 47 LGRA 319 (NSWCA)
Jungar Holdings v Eurobodalla Shire Council (1989) 70 LGRA 79
King v Great Lakes Shire Council (1986) 58 LGRA 366
Pioneer Concrete (Queensland) Pty Ltd v Brisbane City Council (1980) 145 CLR 485
Re Duncan [1892] 1 QB 879
The Country Roads Board v Neale Ads Proprietary Ltd (1930) 43 CLR 126
Foley v Padley (1983) 154 CLR 349
Rockdale Municipal Council v Balazsi (1988) 66 LGRA 194
Qantas Airways Limited v Cameron [1996] ATPR 41-530
FRIENDS OF HINCHINBROOK SOCIETY INC v THE MINISTER FOR THE ENVIRONMENT & ORS
NG 164 of 1997
Northrop, Burchett and Hill JJ
Sydney
6 August 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 164 of 1997 ) GENERAL DIVISION )
BETWEEN:
FRIENDS OF HINCHINBROOK SOCIETY INC
AppellantAND:
AND:
AND:
THE MINISTER FOR THE ENVIRONMENT
First RespondentCARDWELL PROPERTIES PTY LTD
Second RespondentTHE STATE OF QUEENSLAND
Third Respondent
JUDGES: NORTHROP, BURCHETT and HILL JJ PLACE: SYDNEY DATED: 6 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The question of the appropriate orders as to costs in the application and the appeal be deferred for further consideration following the delivery of judgment by the High Court of Australia in Oshlack v Richmond River Council, it being directed that each party file and serve on each other party submissions as to costs within six weeks of the delivery of the High Court judgment, and any reply within a further one week; and that there be liberty to apply on 7 days notice;
The appeal be otherwise dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION No NG 164 of 1997
On appeal from the Federal Court of Australia constituted by a single Judge
B E T W E E N :
FRIENDS OF HINCHINBROOK SOCIETY INC Appellant
AND:
MINISTER FOR ENVIRONMENT,
CARDWELL PROPERTIES PTY LTD
and
THE STATE OF QUEENSLAND Respondents
COURT: NORTHROP, BURCHETT, HILL JJ
PLACE: SYDNEY
DATE: 6 AUGUST 1997
REASONS FOR JUDGMENT
NORTHROP J
Friends of Hinchinbrook Society Inc (“the appellant”) is a corporation. By way of application to this Court, the appellant sought a review of decisions of the respondent, the Minister for
Environment (“the Minister”), made on 22 August 1996 being consents in writing under sections 9 and 10 of the World Heritage Properties Conservation Act 1983 (“the World Heritage Act”). The consents were given to enable the respondent Cardwell Properties Pty Ltd (“Cardwell Properties”) to carry out certain proposed works namely:
the dredging of a marina channel
the removal of fallen mangroves
the coppicing (cutting or pruning) of mangroves.
The object of the appellant was to prevent or delay the proposed works. On 14 February 1997 the Court, constituted by Sackville J. dismissed the application and on 24 March 1997 ordered that the appellant pay the costs of the Minister and Cardwell Properties. The State of Queensland, pursuant to its own motion, had been added as a respondent to the application by order made on 1 November 1996 but on condition it would not make a claim for costs against any party to the proceeding then before the Court. The appellant has appealed against the two orders made on 14 February 1997 and 24 March 1997 respectively.
Although the legal issue raised by the appeal is within a small compass, the legislative provisions and facts giving rise to those issues are complex. This is illustrated by the fact that the reasons for judgment of the trial Judge, excluding the reasons related to costs, occupy 103 pages. The legal issue can be stated shortly. Subsection 9(1) of the World Heritage Act provides:-
“9. (1) Where an act is prescribed for the purposes of this subsection in relation to particular property to which this section applies, it is unlawful, except with the consent in writing of the Minister, for a person to do that act, or to do that act by a servant or agent, in relation to that property.”
A comparable piece of legislation is contained in section 10 of the World Heritage Act, but for reasons to be given later, need not be pursued in detail in these reasons.
Subsection 9(1) of the World Heritage Act, by implication, confers a power on the Minister to give a consent in writing to do an act of the kind referred to in subsection 9(1). The consent, when given, makes lawful (subject to any other appropriate legislative provision of the Commonwealth or a State) what otherwise would be unlawful. Subsection 13(1) specifies matters which the Minister shall have regard in determining whether or not to give a consent. To that extent subsection 13(1) imposes a fetter or restriction on the exercise of the power conferred on the Minister by subsection 9(1). Sub-section 13(1) provides:-
“13. (1) In determining whether or not to give a consent pursuant to section 9 in relation to any property to which that section applies, the Minister shall have regard only to the protection, conservation and presentation, within the meaning of the Convention, of the property.”
There is no similar fetter on the exercise of the implied power conferred on the Minister by subsections 10(2), (3) and (4) of the World Heritage Act.
The Convention referred to is the Convention for the Protection of the World Cultural and Natural Heritage that was adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization on 16 November 1972 (“the Convention”). The English text of the Convention is set out in the Schedule to the World Heritage Act.
One of the legal issues raised by the appeal is whether the consents in writing given by the Minister on 22 August 1996 under subsection 9(1) of the World Heritage Act is valid. In other words, did the Minister make any error of law in the exercise of the discretion conferred on him by subsection 9(1) of the World Heritage Act.
The other issue is whether the consents in writing given by the Minister on 22 August 1996 under subsections 10(2), (3) and (4) are valid.
The Appellant brought the application under the provisions of the Administrative Decisions (Judicial Review) Act 1977, the World Heritage Act and section 39B of the Judiciary Act 1903, the appellant seeking an injunction against the Minister. It is accepted that the appellant had standing to bring the proceeding, being a person aggrieved by the decision of the Minister within the Judicial Review Act and an interested person under section 14 of the World Heritage Act.
The consents in writing were given by the Minister on 22 August 1996. In conformity with subsection 13(4) of the World Heritage Act, on 28 August 1996 notice of the consents in writing was published in the Gazette. On 8 October 1996 the Minister published his statement of reasons for giving the consents. These reasons formed the basis for the attack made by the appellant in support of the review of the decision by the Minister.
Conservation of the natural heritage within Australia raises strong emotional issues. The facts giving rise to this appeal, affecting as they do, part of the natural heritage of Australia, have aroused strong emotional feelings. The Court, however, is required to construe the law and apply that law to the facts found. In proceedings like the present where an interested party is seeking a review of a decision made by the Minister in his capacity of an administrative decision-maker, it is important to understand the role of the Court. The Court does not exercise the discretion or power conferred by the law upon the administrative decision-maker. The Court must determine whether the administrative decision-maker has exercised the discretion or power according to law. In other words, the Court must determine whether the administrative decision-maker has made any error in law in making the decision under review. Where the administrative decision-maker has given reasons for making the decision, the Court is required to consider those reasons and determine whether they disclose any error of law. In considering those reasons, care must be taken by the Court to avoid the temptation to substitute its views on what should have been done for the views of the administrative decision-maker. The legal position has been stated clearly by the High Court. In this regard it is useful to set out what Sackville J said in his reasons for judgment in the present case:-
“It is appropriate to bear in mind the comments of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The joint judgment (Brennan CJ, Toohey, McHugh and Gummow JJ), referred with approval (at 272) to the observation of the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287, that the
“reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
Their Honours continued (at 272):
“These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin ((1990) 170 CLR 1, at 35-36):
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent
that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
See also at 291-292, per Kirby J.”
For many years Cardwell Properties, or its predecessor company, had been planning to develop and operate a tourist resort on land at Oyster Point, Port Hinchinbrook, a short distance south of Cardwell on the north coast of Queensland. For that purpose Cardwell Properties had been negotiating with the State of Queensland and the Council of the Shire of Cardwell, the local government authority, to obtain all the permits and approvals necessary for it to establish and conduct that development. The Commonwealth was not a party to those negotiations. On 29 September 1994, the parties to the negotiations entered into a deed governing the development of the area the subject of the project sought by Cardwell Properties. The development included the construction of a marina on the land together with the construction of an access channel to enable craft access to and from Hinchinbrook Channel, a stretch of water between the mainland of Queensland to the west and Hinchinbrook Island to the east. Oyster Point protrudes into Hinchinbrook Channel.
Before turning to the relevant legislative provisions and the relevant facts, it is helpful to set out the framework behind the giving of the consents in writing by the Minister on 22 August 1996. This framework is taken from the “Background Facts” of the reasons for decision by the Minister dated 8 October 1996:-
“STATEMENT OF REASONS
Statement of Reasons for my decisions under s.9(1),s.10(2),s.10(3) and s.10(4) of the World Heritage Properties Conservation Act 1983, that consent be given for Cardwell Properties Pty Ltd to implement a revised Beach and Foreshore Management Plan and to dredge a marina access channel at Oyster Point, Queensland.
Background Facts
1.Cardwell Properties Pty Ltd (“Cardwell”) proposes to construct and operate a tourist resort at Oyster Point near Cardwell, Queensland. Oyster Point is located on the Queensland coast, adjacent to Hinchinbrook Channel and opposite Hinchinbrook Island.
2.Hinchinbrook Channel and Hinchinbrook Island are part of the Great Barrier Reef World Heritage area listed under the Convention for the Protection of the World Cultural and Natural Heritage (“the Convention”).
3.On 15 November 1994, certain areas of the Hinchinbrook Channel were declared under s.6(3) of the World Heritage Properties Conservation Act 1983 (“the Act”) to be property to which s.9 of the Act applies. Those areas were also declared under s.7 of the Act to be property to which s.10 of the Act applies. (The areas of the Channel the subject of the declarations are identified in the relevant Proclamations. In this statement the areas are referred to collectively as “the proclaimed area”).
4.On 18 November 1994, regulations were made under s.21(1)(a) of the Act prescribing for the purposes of s.9(1) of the Act certain acts in relation to parts of the proclaimed area (“the regulations”).
5.The site of the proposed resort is adjacent to the proclaimed area.
6.On 21 October 1980, the Cardwell Range-Herbert River Gorge Area was placed on the Register of the National Estate pursuant to the Australian Heritage Commission Act 1975 (“The AHC Act”). On 26 April 1988, the Wet Tropical Forests of North Queensland were placed on the Interim List of the Register of the National Estate. On 14 May 1991, the Great Barrier Reef region was placed on the Register of the National Estate.
7.Hinchinbrook Island falls within each of these listed National Estate areas, as do parts of Hinchinbrook Channel.
8.On 15 September 1995, former Minister Faulkner granted certain consents under s.9 and s.10 of the Act entitling Cardwell to carry out certain acts associated with the implementation of a Beach and Foreshore Management Plan at Oyster Point.
9.On 12 April 1996 Cardwell requested my consent under s.9 and s.10 of the Act to dredge a marina access channel and to implement a new Beach and Foreshore Management Plan (BFMP) at Oyster Point.
10.Attached to Cardwell’s application for consents was a report prepared by Sinclair Knight Merz Pty Ltd dated April 1996, entitled “Port Hinchinbrook - Environmental Risk Assessment with reference to activities requiring Ministerial Consent” (“the SKM report”).
11.At my request, The Great Barrier Reef Marine Park Authority (“GBRMPA”) commissioned six independent scientists to review the SKM report. A summary and synthesis of these scientific reviews was prepared by Dr Russell Reichelt, Director of the Australian Institute of Marine Science (“AIMS”).
12.At my request, a copy of the Cardwell application and supporting documentation was sent to each of 26 known stakeholders in the proposed development, with a request that any submissions be forwarded to GBRMPA.
13.On 9 July 1996 I decided to defer making a decision on the consent application until -
(a) I was satisfied that adequate arrangements were in place, by way of:
(i)a deed between the Commonwealth and Cardwell relating to environmental protection, including:
·stabilisation of the foreshore;
·monitoring continuing erosion;
·best practice dredging; and
·acid sulphate soils; and
(ii)an agreement with Queensland on the process, principles and timetable for the development of a regional plan and management arrangements for the Hinchinbrook region; and
(b)I had received advice from the Australian Heritage Commission on matters arising under the AHC Act.
14.On 10 July 1996 and again on 14 August 1996, I wrote to Mr. Brian Littleproud, the Queensland Minister for the Environment. In accordance with s.13(3) of the Act, I advised him that I was inclined to give the consents sought and invited him to make representations in relation to this proposed course.
15.On or about 30 July 1996 Cardwell submitted a further version of the BFMP. Between 30 July and 20 August 1996, discussions were conducted between Cardwell and officers of the Department of Environment, Sport and Territories, as a result of which further amendments to the BFMP were agreed upon.
16.The BFMP as so amended (“the revised BFMP”) was the subject of my decisions. (The revised BFMP is Schedule 3 to the Deed of Variation dated 20 August 1996).
17.In the revised BFMP Cardwell proposed two actions which required my consent under the Act, namely:
(a)removal of fallen mangroves in zones X, Y and Z as defined in my consents in Attachment 1; and
(b)coppicing of mangroves to a height of not less than 4 m in zones X and Z.
(These two proposed actions and the proposed dredging are collectively referred to as “the proposed actions”).
18.The proposed actions required my consent -
(a)under s.9(1) of the Act, because they constituted or involved Cardwell doing, in relation to those parts of the proclaimed area defined by the regulations as the relevant property, acts prescribed by the regulations;
(b)under s.10(2) of the Act, to the extent that they constituted or involved Cardwell (being a trading corporation) doing on the proclaimed area acts prohibited by s.10(2)(d) and (h);
(c)under s.10(3) of the Act, because they constituted or involved Cardwell (being a trading corporation) doing acts (not being acts the doing of which was unlawful by virtue of sub-section 10(2)) which might damage or destroy the proclaimed area; and
(d)under s.10(4) of the Act, because the acts referred to in (b) and (c) above were to be done by Cardwell (being a trading corporation) for the purposes of its trading activities.
19.On 20 August 1996 I executed on behalf of the Commonwealth a Deed of Variation (“the Deed of Variation”), varying a Deed dated 29 September 1994 and made between the State of Queensland, Cardwell and the Shire of Cardwell (“The Deed”) and adding the Commonwealth as a party to the Deed.
20.On 20 August 1996 I executed on behalf of the Commonwealth a Memorandum of Understanding with the State of Queensland (“the MOU”), establishing processes for the preparation and implementation of a Caldwell (sic)/Hinchinbrook Regional Coastal Management Plan (“the proposed regional plan”) and identifying the environmental and other values and the various activities which needed to be addressed in the proposed regional plan.
21.On 22 August 1996, I decided to give my consent to each of the proposed actions. Copies of my consents are provided at Attachment 1.”
The consent in writing is contained in a lengthy document and need not be set out in full. It is headed:-
“Commonwealth of Australia
World Heritage Properties Conservation Act 1983
Consent
I, ROBERT HILL, Minister for the Environment, make this instrument under subsections 9(1) and 10(2), (3) and (4) of the World Heritage Properties Conservation Act 1983.
Dated 22 August 1996.
(signed)Minister for the Environment”
Part 1 is headed “Preliminary” and contains one paragraph headed “Interpretation” (Paragraph 1). Paragraph 1 contains a number of definitions of words and phrases used in the Consent. The word “Act” refers to the World Heritage Act.
Part 2 is headed “Revocation of Previous Consents” and contains one paragraph headed “Revocation” (Paragraph 2).
Part 3 is headed “Dredging of Marina Access Channel” and contains 4 paragraphs. These paragraphs 3, 4, 5 and 6, contain consents under subsections 9(1), 10(2), (3) and (4) of the World Heritage Act. Paragraph 3 is headed “Consent - subsection 9(1) of the Act”. The paragraph provides:-
“3. Under subsection 9(1) of the Act, I consent to Cardwell, or its servants or agents, dredging, in the marina channel area, the marina access channel shown on the plan entitled “Canal and access channel”, a copy of which is attached to this instrument.”
Paragraphs 4, 5 and 6 contain consents under subsections 10(2), (3) and (4) of the World Heritage Act with respect to works relating to the marina access channel and the works described in paragraph 3.
Part 4 is headed “Beach and Foreshore Management” and contains 4 paragraphs. These paragraphs 7, 8, 9 and 10, contain consents under subsections 9(1), 10(2), 10(3) and 10(4) of the World Heritage Act with respect to acts to be done by Cardwell under the Beach and Foreshore Management Plan. Paragraph 7 is set out:-
“7. Under subsection 9(1) of the Act, I consent to the carrying out of the following acts by Cardwell or its servants or agents:
(a)the removal of fallen mangroves from:
(i) zone X seaward; and
(ii) zone X landward; and
(iii) zone Y seaward; and
(iv) zone Y landward; and
(v) zone Z seaward; and
(vi) zone Z landward;
(b) the coppicing of mangroves in:
(i) zone X seaward; and
(ii) zone X landward; and
(iii) zone Z seaward; and
(iv) zone Z landward;
to a height of not less than 4 metres above the average seabed level at the seaward boundary of zone X.”
The zones referred to in this paragraph are identified in the Consent. Paragraphs 8, 9 and 10 give consents to acts relating to the same matters as described in paragraph 7.
Section 9 of the World Heritage Act is based on the power contained in Placitum 52 (XXIX) of the Constitution (“the External Affairs Power”) while section 10 is based on the power contained in Placitum 52(XX) (“the Corporations Power”). The sections impose similar restrictions. At the hearing of the appeal, having regard to the fetter imposed by subsection 13(1), the parties agreed that if the appellants failed insofar as the appeal related to the validity of the consents given under section 9, the appeal, of necessity, would fail insofar as it related to the validity of the consents given under section 10. Accordingly, detailed submissions were directed to the validity of the section 9 consents only. At this stage, I will consider the validity of those consents.
The Convention contains a preamble comprising a number of paragraphs. Some are set out:-
“Noting that the cultural heritage and the natural heritage are increasingly threatened with destruction not only by the traditional causes of decay, but also by changing social and economic conditions which aggravate the situation with even more formidable phenomena of damage or destruction.”
“Considering that deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world,”
“Considering that the existing international conventions, recommendations and resolutions concerning cultural and natural property demonstrate the importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong,”
“Considering that parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole,”
The Convention then contains 8 Parts comprising 38 Articles. Part 1 is headed “Definitions of the Cultural and Natural Heritage”. It comprises 3 Articles.
Article 1 sets out what is to be considered as “cultural heritage”. Essentially cultural heritage comprises works of man or the combined works of nature and of man of particular kinds.
Article 2 defines what is to be considered as “natural heritage”. Article 2 is set out in full:-
“Article 2
For the purposes of this Convention, the following shall be considered as “natural heritage”;
natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view;
geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation;
natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.”
Article 3 contains provisions relating to the identification of properties. Article 3 is set out in full:-
“Article 3
It is for each State Party to this Convention to identify and delineate the different properties situated on its territory mentioned in Articles 1 and 2 above.”
Part II is headed “National Protection and International Protection of the Cultural and Natural Heritage”. It comprises 4 Articles. Article 4 and Article 5 are set out in full:-
“Article 4
Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial artistic, scientific and technical, which it may be able to obtain.
Article 5
To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavour, in so far as possible, and as appropriate for each country:
(a)to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes;
(b)to set up within its territories, where such services do not exist, one or more services for the protection, conservation and presentation of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions;
(c)to develop scientific and technical studies and research and to work out such operating methods as will make the State capable of counteracting the dangers that threaten its cultural or natural heritage;
(d)to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage; and
(e)to foster the establishment or development of national or regional centres for training in the protection conservation and presentation of the cultural and natural heritage and to encourage scientific research in their field.”
It is not necessary to refer to any of the other Articles. It is sufficient to say that the Convention provisions apply to the “cultural heritage” and the “natural heritage” as all part of a national heritage. The two comprise different aspects of a national heritage, each of which must be identified, protected, conserved, presented and transmitted to future generations according to methods adopted by the relevant State Party. Here, Australia is the relevant State Party. It is to be noted that Article 6 uses the word “properties” to describe the works of cultural heritage and the natural features, formations and sites of natural heritage mentioned in Articles 1 and 2 respectively.
Australia has given effect to its obligations as a State Party to the Convention by enacting the World Heritage Act. It is interesting to note the short title of that Act includes the word “Properties” namely the World Heritage Properties Conservation Act 1983. The long title to the Act refers to two only of the five aspects of the national heritage referred to in Article 4. The long title is “An Act relating to the protection and conservation of certain property, and for related purposes”. Article 4 states that each State Party (including Australia) to the Convention recognizes its duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage” as defined in Article 1 and Article 2. The absence of the word “presentation” in the long title to the World Heritage Act, although not referred to in argument before the Court, appears to echo a submission made by counsel for the appellant.
Subsection 3(1) of the World Heritage Act contains definitions. For present purposes the words “cultural heritage” and “natural heritage” have the same meaning as in the Convention. Under subsection 3(4) a reference to damage to or the destruction of, property or a site shall be read as including a reference to damage to, or the destruction of, any part or feature of that property or site.
Section 3A of the World Heritage Act enables Australia to identify property as natural heritage. The words “identified property” are used in this regard. As explained in paragraphs 2 and 3 of the reasons of the Minister set out earlier in these reasons, since November 1994 the relevant areas of the Hinchinbrook Channel have been declared property to which sections 9 and 10 of the World Heritage Act apply. As explained in paragraph 4 of the reasons, on 18 November 1994, regulations were made under paragraph 21(1)(a) of the World Heritage Act prescribing for the purposes of subsection 9(1) certain acts in relation to parts of the property to which section 9 applies being the property identified and described in the regulations as “the relevant property”.
The relevant regulation is Regulation 3F. That regulation is set out in full:-
“3F. (1) In this regulation:
'native plant' means:
(a)a plant that is indigenous to Australia; and
(b)a plant of a kind introduced into Australia, directly or indirectly, by Aboriginals before the year 1788;
'plant' means any member, alive or dead, of the plant kingdom or the fungus kingdom, and includes a seed and a part of a plant;
'relevant property' means property described in Schedule 2D.
“ (2) For the purposes of subsection 9(1) of the Act, each of the following acts is prescribed in relation to the relevant property:
(a)performing excavating or other earth-moving works, including dredging;
(b)killing, removing or damaging a native plant;
(c)disturbing soil (including marine sediment) in such a way as to damage a native plant;
(d)constructing, establishing, maintaining or continuing to construct, establish or maintain:
(i) a breakwater; or
(ii) a revetment; or
(iii) any other substantial structure;
(e) carrying out work preparatory to an act referred to in paragraph (d);
(f)carrying out work associated with an act referred to in paragraph (d);
(g)introducing fluid into a body of water adjacent to or in the relevant property;
(h)permitting, authorising, directing or ordering, or purporting to permit, authorise, direct or order, the doing of an act of a kind referred to in paragraph (a), (b), (c), (d), (e), (f) or (g);
unless the act is so performed that no damage will occur to the relevant property or part of the relevant property, and whether the act is performed alone or in connection with another act.”
It is to be observed that on its proper construction, the acts or any of them described in Regulation 3F(2) become an act or acts prescribed for the purposes of subsection 9(1) if the act or acts cause damage to the relevant property. In the present case, it is accepted that the acts sought to be done by Cardwell Properties will cause damage to the relevant property. Accordingly, those acts are acts prescribed for the purposes of subsection 9(1) and “it is unlawful, except with the consent in writing of the Minister” for Cardwell Properties to do these acts. Under subsection 13(1), in determining whether to give consent under subsection 9(1) “the Minister shall have regard only to the protection, conservation and presentation, within the meaning of the Convention, of the property”.
It must be remembered that the need for consent arises because, of necessity, damage will occur to the relevant property or part of the relevant property. It follows, therefore, that the fact that damage will occur to the relevant property or part of the relevant property is not an absolute bar preventing the Minister from giving his consent. The Minister is required to have regard to the specified matters and to no other matter.
The statement of reasons of the Minister continued:-
“DECISIONS UNDER S.9(1)
Findings of fact
22.I made findings as to each of the matters of fact set out in paragraphs 1-20 of this statement.
23.In relation to the proposed dredging of the marina access channel, I made findings as set out in paragraphs 24-27 and 34-38 below.
24.I found that carrying out this activity could potentially have both immediate and cumulative, continuing and consequential impacts on the proclaimed area. I found that-
(a)the seagrasses at Oyster Point represent one of the World Heritage values of the region and are an important food source for dugong and sea turtles;
(b)immediate impacts could be caused during the construction phase, in that there is a risk that dredging may cause increased turbidity which can damage seagrasses;
(c)maintenance dredging of the channel will be necessary and there is similarly a risk that this may damage seagrass; and
(d)spoil will be collected from the dredging which will be stored on the land in dredge spoil ponds.
(NOTE: when in this statement the phrase “World Heritage values” is used, I mean to include natural features which are of outstanding universal value from the aesthetic or scientific point of view and natural sites of outstanding universal value from the point of view of science, conservation or natural beauty).
25.I found that the views of the independent scientists, as summarised by Dr Reichelt, were that the dredging of a marina access channel could go ahead without significant impact on the immediate environment around Oyster Point (that is, within a few hundred metres), provided best practice engineering approaches were used. I found that dredging operations could be managed to minimise impacts by use of techniques that control dispersal of sediment.
26.I found that these potential impacts were covered in the Deed as varied by the Deed of Variation, as follows:
(a)all waters flowing from the land as a result of construction activities (which includes maintenance dredging) must, so far as turbidity is concerned, be of a quality at least equal to that of the receiving waters and, so far as pH is concerned, be within a pH range of 6 to 9 (Cl 7.1 of the Deed, as amended);
(b)Cardwell cannot commence dredging until the Commonwealth approves the Turbidity Control Plan (TCP) (Cl 7.3 of the Deed, as amended);
(c)all plans, including the TCP, are required to be prepared and implemented in accordance with best engineering practice (Clause 4.4 of the Deed as amended);
(d)the TCP will deal with a number of key issues affecting water quality in Hinchinbrook Channel, namely marina de watering, operation of spoil ponds, stabilisation of the development site, management of stormwater and the management of acid sulphate soils (Cl 7.1 of the Deed as amended); and
(e)the Commonwealth has various powers to ensure compliance, including certain powers of entry (clause 26 of the Deed as amended) and certain powers to remedy any default by Cardwell at the expense of Cardwell (clauses 7.8 and 24 as amended).
27.I found that the other parties to the Deed as varied had been advised that the Commonwealth would not approve the TCP unless it provides for measures to be taken so that best practice engineering methods are followed in connection with the dredging of the marina access channel. In particular, I expected and intended that the TCP would not be approved unless these measures were adequate to ensure that:
(a)an insignificant plume, comparable with background turbidity, is achieved;
(b)a silt shroud will be fitted over the dredge cutter; and
(c)silt curtains will be used.
28.In relation to the actions under the revised BFMP for which consent had been sought (“the BFMP actions”), I made the findings set out in paragraphs 29-38.
29.I found that there was a risk that the BFMP actions could result in increased foreshore erosion and this could increase turbidity. Accordingly, I found that the BFMP actions could potentially cause immediate and cumulative and continuing impacts on the seagrass in the proclaimed area.
30.I found that the dugongs rely on seagrass beds for their food. Accordingly, I found that any adverse effect on these beds might adversely affect the dugong population.
31.I found that the views of the independent scientists, as summarised by Dr Reichelt were that the BFMP actions could go ahead without significant impact on the immediate environment around Oyster Point (that is, within a few hundred metres), provided best practice engineering approaches were used.
32.I found that adequate protective measures would be in place under the revised BFMP and the Deed as varied to address the risk of any impacts associated with the BFMP actions, I found that:-
(a)Cardwell must implement the revised BMFP (Deed clause 17.4):
(b)new mangrove plantings will occur in Zone X and Zone Y. (Clause 17.4 and the revised BFMP);
(c)mangroves existing in Zone Z must be allowed to grow for a period of four years after Cardwell commences the Works. These mangroves may then be cleared to seabed level only if the Commonwealth, the State and Cardwell agree that Cardwell’s strategies have been successful in preventing erosion of the foreshore. (Clause 17.4 and para I of revised BFMP);
(d)currently surviving mature mangroves in Area B-C may not be cleared. (Para M of revised BFMP);
(e)if the Commonwealth or the State, at any time within four years from the date that Cardwell commences works, is able to demonstrate that implementation of the Company’s strategy has failed to prevent erosion of the foreshore which, in the reasonable opinion of the Commonwealth or the State, is likely to adversely affect world heritage values, then the State or Commonwealth may require further stabilisation works to be undertaken by Cardwell (at Cardwell’s expense). (Clause (7.4);
(f)Cardwell must develop an adequate monitoring methodology, based on principles developed by AIMS and must implement this. This will involve the provision of annual reports to the Commonwealth and the State for four years. Additional monitoring must occur after extreme events such as cyclones. In addition, the Commonwealth may undertake additional surveys if it believes this is necessary;
(g)a portion of the bond lodged under clause 13.1 of the Deed as amended secures the performance of Cardwell’s obligations under clause 17.4; and
(h)the Deed as amended also provides the Commonwealth with certain powers of entry onto the land and power to remedy defaults by Cardwell at its expense (clause 26.1).
33.I also found that Cardwell had given an assurance that coppicing of relevant mangroves would not occur until after dredging of the marina access channel had been completed.
34.I found that the dredging of the marina access channel would lead to increased boating in the proclaimed area. I found that giving consents to the BFMP actions would facilitate the construction and operation of the resort and would thereby also lead to increased boating in the proclaimed area. I noted that concerns had been expressed that increased boating would increase the risk of boats striking dugongs and causing death or injury.
35.I found that -
(a)the potential impact referred to in paragraph 34 could be adequately addressed by the development and implementation of the proposed regional plan;
(b)the proposed regional plan would provide for further studies to be undertaken into the status of dugong populations and for management arrangements to be put in place to protect, conserve and present this World Heritage value; and
(c)it was likely that the proposed regional plan would be in force before the resort was operational.
36.Recognising that giving consents to the proposed actions would facilitate the construction and operation of the resort, I found that to do so could potentially have other cumulative, continuing and consequential impacts on the proclaimed area, resulting from increased numbers of people being in the immediate vicinity of, or in, the proclaimed area. I found that there was an increased risk of pollution in the proclaimed area resulting from the operation of the resort and increased numbers of people being in the immediate vicinity of, or in, the proclaimed area. I found that these potential impacts had been adequately addressed in the Deed and the Deed of Variation and would be addressed in the proposed regional plan.
37.To the extent that aesthetic features constitute a World Heritage value of the proclaimed area, and to the extent that the establishment of the resort itself might impact on such aesthetic features, I found that such impact would be insignificant, having regard to:-
(a)the already degraded condition of the resort site;
(b)the previous extensive clearing of mangroves; and
(c)the restrictions imposed by the Deed on the height of the resort buildings.
I noted that concerns had been raised about the need for landscaping of the resort site. I expected that this aspect would be adequately handled by the Queensland Government.
38.Having regard to the protective arrangements which have been put in place and those that I expected would be put in place, I found that the risk of damage to World Heritage values in the proclaimed area resulting from the proposed actions was so low as in all the circumstances to be insignificant.
Reasons for Decisions
39.In determining whether to give consents under s9(1) of the Act, I had regard only to the protection, conservation and preservation (sic) (within the meaning of the Convention) of the proclaimed area.
40.I considered the potential immediate and direct impacts of the proposed actions on the proclaimed area. I also gave consideration to potential cumulative, continuing and consequential impacts on the proclaimed area, recognising that granting consents would facilitate the construction and operation of the resort.
41.On the basis of the findings in paragraphs 24-38 I concluded that any such potential impacts would be limited and ameliorated by the protective measures provided for in the revised BFMP and in the Deed as varied, and to be provided for in the proposed regional plan, to such an extent that it would be consistent with the protection, conservation and presentation (within the meaning of the Convention) of the proclaimed area to give the consents sought.”
In his reasons, the Minister then dealt with the decisions under section 10 of the World Heritage Act but at present it is not necessary to refer to them.
Since writing these parts of the judgment I have seen a draft of the reasons for judgment prepared by Hill J. I am in complete agreement with the opinions expressed by his Honour under the headings “WHETHER THE MINISTER APPLIED THE WRONG TEST”, “DID THE MINISTER ABDICATE HIS DECISION-MAKING POWER ?” and “WAS THERE A POWER TO IMPOSE CONDITIONS ?” There is nothing useful I could add to those reasons. I agree with the orders proposed by his Honour including the order for costs.
I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment of the Honourable Justice R M Northrop.
Associate:
Date: 6 August 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 164 of 1997 ) GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: FRIENDS OF HINCHINBROOK SOCIETY INC
AppellantAND:
AND:
AND:
THE MINISTER FOR THE ENVIRONMENT
First RespondentCARDWELL PROPERTIES PTY LTD
Second RespondentTHE STATE OF QUEENSLAND
Third Respondent
JUDGES: NORTHROP, BURCHETT and HILL JJ PLACE: SYDNEY DATED: 6 AUGUST 1997
REASONS FOR JUDGMENT
BURCHETT J
This appeal largely concerns dugongs, a rare herbivorous sea mammal of the order Sirenia with ancient links to the human psyche. Those links may be traced to the female dugong’s habit of holding her newborn to her breast in human fashion, using her flippers as arms, which is thought to have inspired our legends of sirens and mermaids. But the issues before the Court have less to do with the dugong’s influence on poetry and folklore than with the impact of people upon the dugong’s shrinking habitat. The question raised by way of application for judicial review is whether the Minister for the Environment of the Commonwealth of Australia erred in law when he gave consents under ss 9 and 10 of the World Heritage Properties Conservation Act 1983 (“the Act”) that will permit a tourist resort development to proceed at Oyster Point, half a kilometre from the town of Cardwell on the shore of the Hinchinbrook Channel, having first satisfied himself that arrangements were in place to protect the Channel’s dugongs.
Hinchinbrook Channel is on the landward edge of the Great Barrier Reef world heritage area, between Hinchinbrook Island and the coast of Queensland. It contains beds of seagrass, essential food for dugongs, which are also known as sea cows. Mangroves, too, grow here extensively in the intertidal zone, and both the seagrass and the mangroves were the subject of concerns of the Minister. What he consented to was the dredging of a marina access channel extending into Hinchinbrook Channel, the removal of some fallen mangroves, and the coppicing (ie pruning) of mangroves in particular areas to a height not less than four metres above the seabed. Of these operations, the dredging, in particular, required steps to be taken to obviate the risk of indirect damage to seagrass beds through water turbidity effects. Apart from the possible depletion of their available food stocks through loss of seagrass, dugongs could be affected by increased boat traffic in the Hinchinbrook Channel, involving the danger of injury by collision. That too was a concern.
Before the subject consents were granted, the Minister dealt with these problems by setting in place arrangements designed to ensure that seagrass beds would not be damaged, and that dugongs would not be exposed to impacts with speeding boats. A deed, made on 29 September 1994 between the third respondent (the State of Queensland), the second respondent (Cardwell Properties Pty Ltd - the developer, called “the company”) and Cardwell Shire Council to provide for the development of the resort, was varied by a further deed, to which the Commonwealth was added as a party, made on 22 August 1996. The deed of variation recited a purpose “to ensure the protection, presentation and conservation of the world heritage values” involved, and contained specific covenants directed to that end, including a covenant that any of the proposed activities “must be consistent with the conservation, protection and presentation of world heritage property”. The company was subjected to requirements to “adopt current best engineering practice”, and that it “must not commence dredging operations until ... the Commonwealth Representative (ie the Secretary of the Department of the Environment, Sport and Territories, or his nominee) ... approve[s] the Turbidity Control Plan”, a detailed specification and plan for the safety (so far as environmental effects are concerned) of dredging and of maintenance dredging. Boat speeds were also the subject of specific provision in the deed.
The deed of variation conferred certain powers and imposed certain obligations on the State of Queensland. That fact was the subject of complaint by the appellant (a corporation formed to promote particular environmental objectives in the Hinchinbrook region - see s 13(5)(b) of the Act), which contended that the legal responsibility lay on the Commonwealth to ensure the observance of all requirements that related to the consents given by the Minister. But the deed of variation did not stand alone. On 20 August 1996, the responsible ministers of the Commonwealth and the State had executed a formal document, which was called a Memorandum of Understanding. They executed it respectively on behalf of the Commonwealth and the State. The memorandum recited a purpose “to ensure that ... the proposed development at Oyster Point by Cardwell Properties Pty Ltd is carried out in accordance with interim arrangements and final regional management plans which ensure natural and cultural values are adequately protected”. It set out that the -
“main broad objectives of the interim arrangements and the final plan for the Hinchinbrook region will be to:
·
protect and conserve natural and cultural values, particularly world heritage values;
...
· provide for ongoing community involvement in the management of the region’s coast through participation in planned development and review;
· provide for monitoring and reporting arrangements on effectiveness in meeting the plans’ objectives; and
· identify responsibilities and resource requirements for the plans’ implementation.”
It specified “[v]alues which need to be addressed with particular attention in the arrangements and plan” as including:
“• World Heritage, National Estate and other high conservation values including rare, threatened and endangered species;
· critical and/or sensitive habitats, such as seagrass and mangroves;
· Aboriginal sites and use values;
· scenic values;
· water quality; and
· biodiversity.”
Under the terms set out in the memorandum, a joint Commonwealth and State Management Committee was to be inaugurated, one of the functions of which was to prepare the “final management plan for the Hinchinbrook region”. The Commonwealth was to have the responsibility of advising the Management Committee “on the world heritage and national estate values which should be protected under the interim arrangements and final plan”. It was declared:
“Both the Commonwealth and the State, within their respective legislative and contractual powers, will use their best endeavours to ensure that the establishment of any resort or any other commercial development in the Hinchinbrook region is carried out in accordance with the interim arrangements and the final plan and any legislation relating to the protection of natural and cultural values for which the Commonwealth and the State are respectively responsible.”
Once the deed of variation and the agreement with the State of Queensland were in place, the Minister granted on 22 August 1996 the consents under ss 9 and 10 of the Act that are the subject of the appeal. The appellant requested reasons for these decisions, which were supplied on 8 October 1996. These reasons addressed separately the issues arising under s 9 of the Act and those arising under s 10. As will become apparent, it was s 9 which presented the more obvious difficulty, and the argument on the appeal concentrated upon this aspect of the matter. Accordingly, I shall examine the part of the reasons which related to the consents under s 9. The Minister discussed in detail the hazards which the development might present. He found there were “potential impacts” on seagrasses, but that “these potential impacts were covered in the Deed as varied by the Deed of Variation”, as to which he specified a number of provisions dealing with turbidity and other problems. He concluded that “the dredging of a marina access channel could go ahead without significant impact on the immediate environment ..., provided best practice engineering approaches were used.” The Minister also noted “that increased boating would increase the risk of boats striking dugongs and causing death or injury”. But he found that “the potential impact [of increased boating] could be adequately addressed by the development and implementation of the proposed regional plan”. He recognized that the consents he was considering giving “would facilitate the construction and operation of the resort”, which “could potentially have other cumulative, continuing and consequential impacts on the proclaimed area”. But he found “that these potential impacts had been adequately addressed in the Deed and the Deed of Variation and would be addressed in the proposed regional plan”. The Minister expressed his ultimate finding of fact as follows:
“Having regard to the protective arrangements which have been put in place and those that I expected would be put in place, I found that the risk of damage to World Heritage values in the proclaimed area resulting from the proposed actions was so low as in all the circumstances to be insignificant.”
Turning from this factual conclusion to the question whether the consents should be granted, the Minister stated his reasons for granting them in three numbered paragraphs, as follows:
"39.
In determining whether to give consents under s9(1) of the Act, I had regard only to the protection, conservation and preservation [sic - scilicet presentation] (within the meaning of the Convention) of the proclaimed area. [That the amendment I have inserted is appropriate is confirmed both by the reference to the “meaning of the Convention” and by the later formulation, which uses the correct word, in para. 41.]
39.
I considered the potential immediate and direct impacts of the proposed actions on the proclaimed area. I also gave consideration to potential cumulative, continuing and consequential impacts on the proclaimed area, recognising that granting consents would facilitate the construction and operation of the resort.
40.On the basis of the findings in paragraphs 24-38 [the Minister referred to his earlier findings, including those I have mentioned] I concluded that any such potential impacts would be limited and ameliorated by the protective measures provided for in the revised BFMP [a Beach and Foreshore Management Plan reproduced as a schedule to the deed of variation, which the Company covenanted it ‘must implement’] and in the Deed as varied, and to be provided for in the proposed regional plan, to such an extent that it would be consistent with the protection, conservation and presentation (within the meaning of the Convention) of the proclaimed area to give the consents sought.”
It is now necessary to go to those provisions of the World Heritage Properties Conservation Act 1983 and of the Convention for the Protection of the World Cultural and Natural Heritage (in the Act called the “Convention”), the English language text of which, as noted in s 3, is scheduled to the Act, that are particularly relevant to the question of the validity of the consents given by the Minister. The Act provides (by s 6) for the making of a proclamation (a relevant proclamation has been made) in relation to identified property “declar[ing] that property to be property to which section 9 applies”. The expression “identified property” refers to property, including property listed in the “World Heritage List”, that is comprehended by s 3A. Section 9(1) provides:
“Where an act is prescribed for the purposes of this subsection [section 21 empowers the making of regulations ‘prescribing matters required or permitted by this Act to be prescribed’, and the acts to which the consents related were so prescribed] in relation to particular property to which this section applies, it is unlawful, except with the consent in writing of the Minister, for a person to do that act, or to do that act by a servant or agent, in relation to that property.”
Section 13(1) then provides:
“In determining whether or not to give a consent pursuant to section 9 in relation to any property to which that section applies, the Minister shall have regard only to the protection, conservation and presentation, within the meaning of the Convention, of the property.”
Section 13(1), which is central to the issues in this appeal, makes it necessary to consider the terms of the Convention in order to ascertain the meaning of the words “the protection, conservation and presentation ... of the property”.
The Convention was adopted on 16 November 1972 by a general conference of the United Nations Educational, Scientific and Cultural Organization at Paris. The Convention recites (inter alia) the threats to “the cultural heritage and the natural heritage” from “the traditional causes of decay” and in addition from “changing social and economic conditions”; that “the Constitution of the Organization provides that it will maintain, increase and diffuse knowledge, by assuring the conservation and protection of the world’s heritage, and recommending to the nations concerned the necessary international conventions”; and that “parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole”. Article 1 then defines the “cultural heritage”, and article 2 the “natural heritage”. In each case, “outstanding universal value” is required by the definition. Article 2 defines “natural heritage” as:
“...natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view;
geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation;
natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.”
It will be observed that the aesthetic and scientific points of view, as well as conservation, are of importance for the purposes of this very anthropocentric definition; and that such a definition naturally follows from the emphasis on “knowledge”, “outstanding interest”, and the “heritage of mankind” contained in the recitals, difficult though some of its criteria may be to apply: cf. Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 131-132. Article 4 then provides:
“Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.”
Article 4 plainly expresses a primary obligation imposed by the Convention. In the statement of that obligation, the words “protection, conservation and presentation”, which have such an important role in s 13 of the Act, are used, not alone, but together with a duty of identification of the cultural and natural heritage and transmission of it to future generations. When seeking in the Convention a meaning for the key words, which are not there expressly defined, one should look at the whole context of the Convention. Article 5, for instance, casts light on the matter by providing for the implementation of this duty of “protection, conservation and presentation”. It declares:
“To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavour, in so far as possible, and as appropriate for each country:
(a)
to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes;
(b)
to set up within its territories, where such services do not exist, one or more services for the protection, conservation and presentation of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions;
(c)
to develop scientific and technical studies and research and to work out such operating methods as will make the State capable of counteracting the dangers that threaten its cultural or natural heritage;
(d)
to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage; and
(e)to foster the establishment or development of national or regional centres for training in the protection, conservation and presentation of the cultural and natural heritage and to encourage scientific research in this field.”
It will be observed that throughout this detailed statement of the measures to be taken there is a repetition, not only of protective measures, but also of measures for the presentation of the heritage, and that the Convention aims to give the cultural and natural heritage “a function in the life of the community”. It seems to me that Article 5 is a significant context for Article 4, showing clearly that the “presentation” of the natural and cultural heritage of which that Article speaks involves making their heritage available, first, to the people of the community concerned, and then to the people of the world, for their appreciation, study and enjoyment. It is not unimportant that the same word “presentation” is used for the natural heritage as is used for the cultural heritage. No one would doubt that the people of the world should have full access to their cultural heritage, or that the Convention aimed to provide it.
Succeeding articles deal with the setting up of an intergovernmental committee called the World Heritage Committee, one of the functions of which was to establish the World Heritage List; and provide for international assistance to countries lacking adequate resources for the protection of the world cultural and natural heritage within their borders. By Article 24 it is contemplated that international assistance will relate to “the protection, conservation, presentation and rehabilitation of the natural and cultural heritage”; by Article 26 an obligation is imposed on an assisted state “to continue to protect, conserve and present the property so safeguarded”; and by Article 27 it is provided that “[t]he States Parties to this Convention shall endeavour by all appropriate means, and in particular by educational and information programmes, to strengthen appreciation and respect by their peoples of the cultural and natural heritage defined in Articles 1 and 2 of the Convention”.
Important though the scope of the Convention is, for present purposes the most important thing is to ascertain from the context which it provides the meaning of the expression “the protection, conservation and presentation, within the meaning of the Convention, of the property”. From this point of view, the other provisions to which I have referred confirm the understanding of “presentation” conveyed by Article 5. Such a meaning is what one would expect of a Convention adopted by the United Nations Educational Scientific and Cultural Organization. The Convention is concerned that natural and cultural wonders should be seen and known, as well as protected and conserved.
But counsel for the appellant corporation referred to a dictum of Brennan J in The Commonwealth of Australia v The State of Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 224 where, after referring (at 223) with apparent approval to the view of the International Court of Justice in Conditions of Admission of a State to Membership in the United Nations [1948] ICJR 56 at 63 that “there is no occasion to resort to preparatory work if the text of a convention is sufficiently clear in itself”, his Honour said of Article 4 of the Convention for the Protection of the World Cultural and Natural Heritage:
“The duty of ‘presentation’ is not easily understood.”
He then referred to the travaux préparatoires, and to a drafting comment on the use in the French text of the idiomatic expression “la mise en valeur”, which in that text is the equivalent of “presentation” in the English. The drafting secretariat, Brennan J notes, made the observation:
“[W]hen applied to monuments, groups of buildings and sites, [the French expression] is taken to mean conserving and arranging them to bring out their potentialities to best advantage”.
His Honour then concludes:
“It seems that ‘presentation’ is the term adopted in the final text to convey that meaning, not only with respect to the cultural heritage but also with respect to the natural heritage.”
There is no suggestion that any of the other members of the High Court commented on this point. Any dictum of his Honour’s, it goes without saying, must be given great weight; but, with respect, his Honour’s justification for looking at the travaux préparatoires is questionable, and, if they are to be looked at, the suggested conclusion does not follow. As to the first point, Brennan J (perhaps because the whole matter was of peripheral relevance only to the issues before him) did not examine the context discussed above, in the light of which the meaning of “presentation” does not seem at all obscure. As to the second point, “monuments, groups of buildings and sites” of the outstanding kind with which the Convention is concerned are very generally (though not of course inevitably) quite accessible, and their presentation is likely to be merely a matter of taking the steps referred to by the drafting secretariat. It is much more to be expected, in the case of the natural heritage, that its presentation will involve the sort of provision to which the Minister gave attention in the present case. There is no reason to think that those who drafted the Convention ignored the differences between the subject matters with which they were dealing, or that they intended to confine so broad a word as “presentation” in its natural application to one subject matter, by reason of the narrower scope generally sufficient for its operation in relation to another subject matter. To do so by reference solely to observations about the relationship between the French and English language texts (observations which on their face were not intended to expound the meaning of the French expression as applied to natural sites or areas) also raises the difficulty that Article 30 provides:
“This Convention is drawn up in Arabic, English, French, Russian and Spanish, the five texts being equally authoritative.”
I have engaged in this analysis because of counsel’s reliance on the dictum which has been quoted. But Brennan J went on (at 224) to give “presentation” a wider meaning than that which the dictum, taken alone, would appear to suggest. His Honour said:
“The duty of ‘presentation’ may thus require the provision of lighting or access or other amenities so that the outstanding universal value of the property can be perceived; nevertheless, conservation of the property is an element of its presentation and is not to be sacrificed by presentation. The duty thus requires the protection and conservation of the features which give the property its outstanding universal value. It is the ‘object and purpose’ of the Convention to ensure that those features are protected and conserved.”
This is to accept the implications of the use in the context of the word “presentation”, the core relevant meaning of which is “[t]he action of presenting something to sight or view” (The New Shorter Oxford English Dictionary (1993)).
Another major question is posed by the terms of s 13(1). What is the effect of a requirement that “[i]n determining whether or not to give a consent ... the Minister shall have regard only to the protection, conservation and presentation ... of the property”? An instant’s reflection shows that these words just cannot be applied mechanically. The Minister must consider the application made to him and ascertain what it involves before he can have regard to the protection, conservation and presentation of the property in relation to it. In the joint judgment of Burchett, Branson and Tamberlin JJ in Minister for Immigration and Ethnic Affairs v Baker (1997) 45 ALD 136, it was stated (at 142):
“An obligation, in a statute, to have regard to specified matters when making an administrative decision may have the effect of requiring the administrator ‘to take [the specified matters] into account and to give weight to them as a fundamental element in making his determination’, but not to make it by reference to them exclusively: The Queen v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 623.”
But here the Minister is commanded to have regard only to the specified matters. That makes them both fundamental and exclusive. Although the Minister must look at the application in its circumstantial context, when he comes to make his decision (“[i]n determining whether or not to give a consent”), he must have regard only to the protection conservation and presentation of the property. While he gets the meaning conveyed by those words from the Convention, it is what they convey, and that alone, to which he must have regard in making his determination. As they should all be regarded as fundamental considerations, I do not think the Minister would be justified, as a matter of law, in failing to give weight, as a fundamental factor, to any one of them. This seems to me to mean, inevitably, that the section is inconsistent with some extreme points of view. It cannot generally be said, for instance, that because the presentation of a piece of cultural or natural heritage necessarily involves a risk of sabotage that such objects should not be presented. So to say would be in conflict with the Convention, and more importantly, for present purposes, with the language of s 13(1). It is equally obvious that a presentation which destroys the thing presented will be inconsistent, not only with its protection and conservation, but also with any continuance of its presentation. To the extent that presentation has an impact on preservation or that protection may require limits on presentation, questions of “judgment and discretion” arise involving “a broad spectrum” of possible views, the decision on which has been committed by Parliament to the Minister: cf Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518.
The Minister’s reasons expressly assert that “[i]n determining whether to give consents under s 9(1) of the Act, [he] had regard only to the protection, conservation and preservation [scilicet presentation] (within the meaning of the Convention) of the proclaimed area”. Many authorities make it plain that such an assertion is not unexaminable. But, in this case, it followed the negotiation and execution of the deed of variation and the memorandum of understanding, each of which evinces a concern to secure compliance with the Convention. In the context of the reasons themselves, the statement follows an elaborate examination of the relevant threats to the proclaimed property, and of the impact of the deed and memorandum, culminating in an express finding “that the risk of damage to World Heritage values in the proclaimed area resulting from the proposed actions was so low as in all the circumstances to be insignificant”. So far as presentation was concerned, it went without saying, of course, that the granting of the consents would facilitate the presentation of the relevant area. In these circumstances, I can see no reason to set aside the Minister’s assertion, and no basis for the appellant’s contention that the Minister failed, despite that assertion, to heed the real effect of the language of s 13(1).
It was suggested the Minister had inappropriately taken as determinative what Mason J said in The Tasmanian Dam Case (supra) at 143 - that he had made mere consistency with the “protection, conservation and presentation ... of the property” the test. I need not consider whether the later judgment of Mason CJ and Brennan J in Richardson v The Forestry Commission (1988) 164 CLR 261 at 293 logically requires the acceptance of the proposition that the passing of such a test would entitle an applicant for consent to a favourable decision. For, as I read the Minister’s reasons, it cannot properly be asserted that he exercised his discretion on that basis. In para 41, he reached a relevant conclusion which formed part of those reasons. This conclusion - that giving of the consents would be consistent with the protection, conservation and presentation of the property - meant that it was open to him to give the consents. It may or may not, as a matter of law, have required him to do so in the circumstances. But nothing in his careful and detailed reasons suggests he considered himself to be other than free to exercise a judgment upon the statutory question, subject only to the constraint expressed in s 13(1). It would not be consistent with the principles stated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 to assume that the Minister reasoned upon a restricted basis which he did not state.
The appellant submitted that the Minister erred in relying upon the performance by others of protective measures which had not been identified with precision, including measures under Queensland legislation which permitted social and economic values to be taken into account. But this argument seems to me to raise issues of fact and judgment, which it was for the Minister to decide. He in no sense delegated any discretion of his own under the Act. What he did was to satisfy himself, in all the circumstances, including in those circumstances the covenants given in the deed of variation, the intergovernmental undertakings embodied in the memorandum of understanding, and the framework of both Commonwealth and Queensland statutory obligations and Queensland regional planning within which the various covenants and undertakings had to operate, that he was able to reach the conclusions he stated in his reasons. To form a judgment that certain things would be done by the Queensland authorities or by the company was not to delegate any part of his own responsibility. On the contrary, it was to take one step in the course of exercising his responsibility.
Section 13(3) of the Act required the Minister, before giving a consent pursuant to s 9 or s 10, to inform the appropriate Minister of the State that he proposed to do so, and to give that Minister “a reasonable opportunity to make representations in relation to the proposed giving of the consent”. Plainly, the Act envisages co-operation between the Commonwealth and the States in these matters. It could hardly be otherwise, having regard to the impact of the Act upon land the title to which is regulated by State laws, and upon activities carried out under State laws. Both the Commonwealth and the State of Queensland are intimately concerned with the proposed development near Cardwell. As I observed in a judgment with which Woodward J expressed agreement in Arnold (on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607 at 626:
“It has been said that ‘the federal system itself ... depends for its viability on constructive relations among governments’: Prof Roscoe Martin in Where Governments Meet: Emerging Patterns of Intergovernmental Relations (1967), Institute of Governmental Studies, University of California, Berkeley, p 4.”
If the Minister took the view that the purposes of the Act could best be served by the taking of co-operative action in conjunction with the Queensland Minister, there was no error of law in his doing so.
It was then submitted, for the appellant, that the Minister proceeded erroneously on the assumption that the power to grant consent under ss 9 and 10 did not include the power to grant consent upon conditions. On this aspect of the appeal, it is sufficient to say that I agree with Hill J, for the reasons given in his draft judgment which I have read, that there was indeed no power to impose conditions.
However, on the assumption that the Minister did have power to impose conditions, I do not think it would follow, in the circumstances of this case, that the appeal should be allowed. By the time the Minister came to consider whether he should give his consent, the elaborate arrangements to which I have referred, including the deed and the memorandum of understanding, had been put in place. Their purpose was to ensure that the concerns of the Minister in relation to the Convention were set at rest. The Minister in fact expressed himself as satisfied that the relevant risks were “insignificant”. In that situation, and after all that had happened, it would have been altogether unreasonable of the Minister to have struck out on a new course of dealing with the matter, by the imposition of conditions the imposition of which he had in effect found to be unnecessary. Adopting the language of the joint judgment of the Full Court in Minister for Immigration and Ethnic Affairs v Baker (supra, at 139), the alleged error “could not have been significant to the [Minister’s] decision”. See the cases cited in Baker - Conway v Repatriation Commission (1988) 16 ALD 770; Cavell v Repatriation Commission (1988) 9 AAR 534 at 539; BTR Plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 at 254.
58.On the basis of the findings in paragraphs 24-38 I concluded that any such potential impacts on the proclaimed area would be limited by the protective measures provided for in the revised BFMP and in the Deed as varied, and to be provided for in the proposed regional plan, to such an extent that it would be consistent with the protection, conservation and presentation (within the meaning of the Convention) of the proclaimed area to give the consents sought.
59.In relation to the adjacent areas and the surrounding region, I concluded, on the basis of the findings in paragraphs 43-52 that any potential adverse impacts would be limited and ameliorated to such an extent by the proposed management arrangements that granting the relevant consents would -
(a)be consistent with the protection; conservation and presentation of World Heritage values; and
(b)ensure an adequate level of protection for National Estate values and other environmental values.”
WHETHER THE MINISTER APPLIED THE WRONG TEST
The short submission for the Society is that in arriving at the conclusion he did under s 9, the Minister considered whether the acts in question were consistent with “protection, conservation and presentation” but that this was the wrong test for the Minister to apply. Underlying the submission is the view that consent under s 9 could only be given if the acts in question had some positive benefit especially to the protection and conservation of the natural heritage. In so far as the Society’s submission gives any weight to the word “presentation” as it appears in s 9, “presentation” should, so the submission would have it, be taken to be subordinate to “protection” and “conservation”.
The language used by the Minister was derived from comments made by Mason J in the Tasmanian Dams case, Commonwealth v The State of Tasmania (1983) 158 CLR 1 where his Honour was considering, in the context of the constitutional validity of the World Heritage Act, whether the regime of control for which ss 9 and 13(1) provide, was appropriate and adapted to the protection, conservation and presentation of the property to which the prohibitions in s 9(1) relate. His Honour said (at 143):
“In this respect s 13(1) is important. The reference to ‘property’ at the end of the sub-section is a reference to the particular property which constitutes part of the world heritage, as the mention of the Convention makes plain. Consequently, in deciding whether consent is to be given, the Minister shall have regard only to the protection, conservation and presentation of that property. This may mean that the Minister is bound to refuse a consent when (a) the applicant fails to satisfy the Minister that a proposed activity or development is consistent with the ‘protection, conservation and presentation’ of the property; or (b) the Minister’s mind is evenly balanced on that issue.” (Emphasis added)
The context in which his Honour was speaking makes it clear that he was not seeking to set out a test for the application of s 13. Indeed, the language which his Honour uses, suggestive of onus, would, with respect, seem not wholly appropriate to an administrative decision. A decision-maker is concerned not with the question whether the person affected by the decision has satisfied some onus, but must determine from all material before him or her what is the right or preferable decision.
His Honour concluded his discussion of the constitutional argument by saying that s 13(1) should be regarded as an expression of Parliament’s judgment as to what was an appropriate measure for the purposes of the Convention. His Honour commented (also at 143):
“The discretion which it confers on the Minister gives emphasis to the protection, conservation and presentation of the property. As such, it is the essential element in a regime of control which is reasonable and falls well within the area of judgment left to Australia by Art 5(d) of the Convention.”
His Honour’s comments, if seen as a test for the application of s 13(1) to the discretion in s 9(1), find no support, or lack of support, from the other judgments in the case. This is not surprising since the matter litigated went not to the construction of particular sections of the World Heritage Act but to the source of constitutional power in enacting it.
In the same case Brennan J considered the meaning of the word “presentation” as it appears in Article 4 of the Convention. After noting that an examination of the travaux preparatoires left the meaning of the word obscure, his Honour said (at 224):
“Article 4 of the Convention states that each State Party recognizes that there is a duty belonging primarily to a State on whose territory property being cultural or natural heritage is situated to ensure its ‘identification, protection, conservation, presentation and transmission to future generations’. The duty of ‘presentation’ is not easily understood. The travaux show that the term was inserted in the English text of the Convention in place of the terms ‘development’ or ‘active development’ after objection to the use of the latter term was taken by the United Kingdom in a draft of the proposed Convention with respect to the cultural heritage. The corresponding French text remained unaltered, the Convention following the draft in use of the term ‘mise en valeur’. That term, the drafting secretariat observed, ‘when applied to monuments, groups of buildings and sites, is taken to mean conserving and arranging them to bring out their potentialities to best advantage’. It seems that ‘presentation’ is the term adopted in the final text to convey that meaning, not only with respect to the cultural heritage but also with respect to the natural heritage. The duty of ‘presentation’ may thus require the provision of lighting or access or other amenities so that the outstanding universal value of the property can be perceived; nevertheless, conservation of the property is an element of its presentation and not to be sacrificed by presentation. The duty thus requires the protection and conservation of the features which give the property its outstanding universal value. It is the ‘object and purpose’ of the Convention to ensure that those features are protected and conserved.”
This passage from the judgment of Brennan J likewise finds no echo in other judgments. It is, however, heavily relied upon by the Society in support of its submissions.
The Convention, it is true, is for the protection of heritage, natural or cultural. But the Convention does not envisage that natural or cultural heritage is to be locked away from sight and made inaccessible to the public in all circumstances, or indeed in most circumstances. The Convention makes it clear that the values which it espouses are values which contemplate obligations on contracting States to render items of cultural or natural heritage accessible, but subject, of course, also to the obligations to protect and conserve. None of the objects of “presentation”, “protection” or “conservation” is subordinate to the other. What is required in a particular case will be a balancing of the obligations of “protection” and “conservation”, as well as “presentation”, each given equal weight.
Emphasis was made, also in the course of argument, to comments made on s 18(1) of the Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 by Mason CJ and Brennan J in Richardson v The Forestry Commission (1988) 164 CLR 261. The legislation in that case required the Minister to have regard only to Australia’s obligations under the Convention. Mason CJ and Brennan J said (at 293) of s 18(1) that it:
“should be understood as disentitling the plaintiff to refuse consent except when refusal is necessary for the protection of the heritage or otherwise for the satisfaction of Australia’s obligation under the Convention.”
The learned primary judge suggested that there were two possible tests in applying s 13(1) to an application for consent made under s 9(1) of the World Heritage Act. The first, stemming from the comments of Mason J in the Tasmanian Dams case was said to be the “stringent test” in that the Minister was permitted only to grant consent if positively satisfied that the proposed activity was consistent with the “protection, conservation and presentation” of the relevant property. The second test, said to be the less stringent test, arose from the comments in Richardson’s case from which it was said to follow that the Minister was bound to grant consents to the acts otherwise prohibited unless he or she determined that refusal was necessary to achieve the “protection, conservation and presentation” of the relevant properties.
His Honour did not choose between the two tests because it was conceded on behalf of the Society, a concession now withdrawn, that the Minister’s approach applied the most stringent test and thus was not subject to challenge.
There is always a difficulty when a statute provides that a decision-maker shall “have regard to” a particular matter or series of matters. While it is clear that what is meant is that the decision-maker must apply his mind to the matter or matters stipulated, and “take them into account and give weight to them”: cf R v Hunt; Ex parte Lean Investments Pty Ltd (1979) 25 ALR 497 at 504 per Mason J, it leaves it open what weight or influence each of the particular matters is to have in the decision to be made: cf Windeyer J in Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365 at 384. Sometimes the statute will, as was the case in Giris, direct regard be had to an indeterminate category of such other matters as the decision-maker may regard as relevant. Here, however, the legislation has restricted the decision-maker so that regard may be had only to “protection, conservation and presentation” as those words are used in the Convention: (s 13(1) of the World Heritage Act. It requires little thought, however, to reach the conclusion that the limitation of matters to which regard may be had may not mean wholly what it says. For example, regard must, of necessity, be had to the very application for consent which is before the Minister under s 9. What must therefore be intended is that the Minister in considering that application shall take into account only matters affecting “protection, conservation and presentation” and not other matters such as, for example, the effects on employment or other matters of an economic or social nature. There will normally, perhaps inevitably, be a tension between “presentation” on the one hand and “protection” and “conservation” on the other. Often the very act of making accessible an item of cultural heritage or a feature of natural heritage will cause some risk to the conservation and protection of that very heritage. Put in terms of Article 5 of the Convention, steps which are taken to give cultural or natural heritage a function in the life of the community may themselves add greater pressure to an item of cultural or natural heritage which is fragile. So, for example, it will be almost inevitable that access to an area of natural heritage would lead to disturbing the soil or damage to native plants. The very form which reg 3F takes, of defining the prohibited acts by reference to damage, makes the point.
So, while the Minister is directed to have regard only to the three matters of protection, conservation and presentation, each of which is independent of and none of which is subservient to the other, the task for the Minister will be to weigh the damage on the one hand which presentation may bring with it, against the need to protect and conserve the world heritage value on the other. If, as in the present case, the Minister concludes that the risk of damage to world heritage values is insignificant, then there is only one conclusion to which he could come, as he here did, namely to give his consent.
Hence, while the test of “consistency” expressed by the Minister in his statement of reasons may be criticised if put forward as a general test, the actual conclusion reached by the Minister can not. He weighed up the damage and concluded that so far as it affected world heritage values it was insignificant. It is not suggested it was not open to him so to do. Accordingly, there is no error shown in the approach taken by the Minister in arriving at his consent under s 9(1), applying s 13, of the World Heritage Act. In particular, he had regard to the protection, conservation and presentation of the proclaimed area but to no other matter.
DID THE MINISTER ABDICATE HIS DECISION-MAKING POWERS ?
The centrepiece of the Society’s argument on this matter is that the Minister, in reaching the conclusions he did under ss 9 and 10, relied upon protective measures which had not been identified with precision let alone implemented, and thus delegated his responsibility for those matters to third parties not bound to apply the criteria set out in s 13.
In coming to his conclusion the Minister relied upon arrangements that had been put into place inter alia in the Memorandum of Understanding. That Memorandum required that regard be had to draft terms of reference for the Cardwell/Hinchinbrook Regional Coastal Management Plan. The draft terms of reference required that values which needed to be addressed in the plan included social and economic values. So, it is said, that the Memorandum of Understanding and the terms of reference thus contemplated the exercise in the future of State discretionary powers under Queensland legislation on a range of issues relevant to the protection of world heritage property and values but according to criteria specifically excluded from consideration under s 13, namely social and economic values. Matters to be regulated included, as noted earlier, the regulation of boating activity so as to protect the dugong colony in the vicinity of the site.
There can be no quarrel with the basic proposition that a decision-maker cannot fetter the future exercise of statutory powers nor, in the absence of statutory provision to the contrary, can a decision-maker delegate to others powers conferred upon him or her.
Before the learned primary judge, the Society placed considerable emphasis upon Parramatta City Council v Hayle (1982) 47 LGRA 319 (NSWCA) where it had been held that a council had failed to take into account matters it was obliged to consider on a development application. The learned primary judge held, and I agree, that Hayle’s case was completely different from the present. In granting consent the council imposed conditions which the Court of Appeal found to be vacuous. For example, instead of a comprehensive stipulation for the construction of pedestrian access ways, the council required the applicant to discuss with the city engineer a means of providing improved pedestrian access.
In the present case the decision-maker relied upon the Memorandum of Understanding as an existing fact at the time he made the decision. The case is not one where the decision-maker delegated to some other person the right to make a decision in the future. The fact that other non-s 13 matters might be taken into account as part of the terms of reference, would not thus operate to invalidate the decision.
On behalf of the Society a number of cases in the area of local government were pressed upon us. They show that it is impermissible to leave issues to be determined later if the decision-maker has an obligation to determine the issue at the time of making the relevant decision. But they do not show that it is impermissible for a decision-maker to take into account agreements on matters relating to the subject matter of his decision as existing in coming to the conclusion that damage to world heritage values would be insignificant: cf Jungar Holdings v Eurobodalla Shire Council (1989) 70 LGRA 79 at 89; King v Great Lakes Shire Council (1986) 58 LGRA 366 at 384-5 and also Pioneer Concrete (Queensland) Pty Ltd v Brisbane City Council (1980) 145 CLR 485.
WAS THERE A POWER TO IMPOSE CONDITIONS ?
In this branch of the case the Society submitted that the ministerial advice had proceeded upon the basis that the Minister had no power to impose conditions. That would seem to be the case. However it is then said that there was such a power and that the underlying premise was incorrect. The consequence was said to be that in imposing conditions the Minister could take advantage of the statutory regime to be found in s 14 of the World Heritage Act, pursuant to which on application of the Attorney-General or any interested person, injunctions could be made restraining a person from doing acts unlawful pursuant to ss 9, 10 and 11. So, it was submitted, by erroneously concluding that there was no power to impose conditions, the Minister had precluded himself from imposing a condition capable of being enforced by mechanisms contained in the Act rather than relying upon agreements which were either unenforceable or not enforceable under the statutory provisions.
It is unnecessary to determine whether s 14(1) might permit injunctive relief to be granted for the breach of a condition imposed to a consent under ss 9 or 10. The section is not so expressed.
At the heart of the submission is the question whether the Act contemplates the grant of consent subject to a condition. There may be said to be a general rule that a statutory power will be construed as impliedly authorising everything which can fairly be regarded as incidental to or consequential upon the power itself: Re Duncan [1892] 1 QB 879. From that general rule may be extracted the principle that a power to consent may be construed as authorising the grant of consent upon condition, provided that that can fairly be regarded as incidental to or consequential upon the power to consent. Another line of authority relied upon before the primary judge is to be found in cases such as The Country Road’s Board v Neil Ads Pty Ltd (1930) 43 CLR 126 at 134-5 per Knox CJ, Starke and Dixon JJ and Foley v Padley (1983) 154 CLR 349 at 358-9 per Gibbs CJ and at 380-83 per Dawson J. These cases establish that if power is given to make a by-law to prohibit an activity the power will, in the absence of a contrary indication, enable the making of by-law prohibiting the activity either absolutely or subject to a condition. Ultimately, the question will be one of construction, as is illustrated by Rockdale Municipal Council v Balazsi (1988) 66 LGRA 194, where no power to impose conditions was found in one part of an Act because in another part there was a specific grant of power to consent on conditions.
The learned trial judge held, and I agree, that as a matter of construction, neither s 9 nor s 10 confers power on the Minister to grant conditional consents. His Honour listed the following matters as relevant to that conclusion:
“· Neither s.9 nor s.10 expressly confers such a power on the Minister. Had such a power been intended, it would have been easy to include it in the legislation.
·The World Heritage Act provides no explicit mechanism for enforcement of any conditions attached to a consent. It is true, as Mr Tobias pointed out, that the Court has jurisdiction under s.14(1) to grant an injunction restraining a person from ‘doing an act that is unlawful by virtue of’ ss.9 or 10. But the act that is unlawful by virtue of s.9 is the prescribed act. The act that is unlawful by virtue of s.10 is any act specified in s.10(2)(d) - (m). The language used in s.14(1) is not apt to deal with an infringement of a condition attached to the grant of consent.
·The World Heritage Act addresses the scope of a consent given pursuant to s.9 or s.10, but does not suggest that a conditional consent can be given. Section 13(2) provides that a consent may relate to a particular act or acts, or a particular class or classes of acts. Had Parliament intended the Minister to have power to grant conditional consents, it might have been expected that s.13 would have addressed the issue.
·Other provisions in the World Heritage Act appear to be framed on the basis that the Minister’s power is either to give or refuse consent. Thus, the notice required by s.13(4) must state ‘that the consent has or has not been given’ and must ‘set out particulars of the act or acts to which the consent or the refusal to give the consent relates’. Had a power to impose conditions been intended, it is curious, to say the least, that the notice required by s.13(4) need not include particulars of any conditions attached to the consents. See also s.13(3).”
To these matters can be added the difficulty of determining the point of time at which a consent is given if that consent is conditional. Sub-section (4) of s 13 stipulates time limits from the “giving of the consent or the refusal to give the consent”, as the case may be, for publication of a notice in the Gazette and laying of a copy of the notice before Parliament. If there were a power to impose conditions then it would be expected that the subs (4) would also deal with that matter expressly.
These considerations lead me, as they led the learned primary judge, to the conclusion that as a matter of construction there was no power to impose conditions.
That being the case I do not have to consider the question whether in proceeding upon the mistaken premise that the Act gave no power to impose conditions, the Minister’s consent might be vitiated.
COSTS
The remaining outstanding question concerns the issue of costs. The State of Queensland seeks its costs of the appeal. Counsel for the Society submits that the order initially made by Branson J that the State of Queensland be responsible for its own costs should apply in the appeal.
I do not agree. In my view the Society has chosen to appeal. The State of Queensland was a proper party to the proceedings as a party to the Memorandum of Understanding. The Society chose to bring the appeal and to make the State of Queensland a party to the appeal. In these circumstances the Society should pay the costs.
There is, however, another aspect to the question of costs. At first instance the learned primary judge held that an order for costs should be made against the Society, notwithstanding that it had brought the proceedings in what it conceived to be the public interest. His Honour followed what was said by Lindgren and Lehane JJ in Qantas Airways Limited v Cameron [1996] ATPR 41-530 (at 42792-41793). That is:
“... it has been accepted that at least where the applicant is a body established to pursue or safeguard a particular public interest, and to do so by litigation if appropriate, it should not be exempted from the usual adverse cost order where it has failed in a proceeding brought by it for that purpose: Australian Conservation Foundation v Forestry Commission of Tasmania (1988) 81 ALR 166 (FCA/Burchett J) at 170-171; Botany Municipal Council v Department of Arts, Sport and Environment (1992) 34 FCR 412 (Gummow J) at 416-417.”
A similar view was taken by the New South Wales Court of Appeal in Richmond River Council v Oshlack (1969) 39 NSWLR 622 where it was likewise held that the fact that an unsuccessful plaintiff had acted in good faith in the public interest was not a grounds for depriving the successful defendant of its costs. An application has been granted by the High Court for Special Leave to Appeal in Oshlack. That appeal has not been heard. In my view it would be appropriate for this Court to await the outcome of the appeal in Oshlack before making an order.
I would accordingly dismiss the appeal and stand over the question of costs for further submission once the decision of the High Court in Oshlack has been published.
I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Hill
Associate:
Dated: 6 August 1997
Counsel for the Appellant:
J Basten QC, N J Williams and T Reilly Solicitor for the Appellant: Environmental Defender’s Office Counsel for the First Respondent: B W Walker SC and N E Abadee Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent Henry Davis York Counsel for the Third Respondent D Mullins Solicitor for the Third Respondent State Crown Solicitor Date of Hearing: 27 May 1997
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