Landon-Lane v Minister for Economic Development and Tourism and Premier of Tasmania
[2009] TASSC 50
•17 July 2009
[2009] TASSC 50
CITATION:Landon-Lane v Minister for Economic Development and Tourism and Premier of Tasmania [2009] TASSC 50
PARTIES: LANDON-LANE, Lucy
ENVIRONMENT TASMANIA INC
v
THE HONOURABLE PAULA WREIDT, MINISTER FOR ECONOMIC DEVELOPMENT AND TOURISM
ENVIRONMENT PROTECTION AUTHORITY BOARD, THE
EVANS, Kim, SECRETARY, DEPARTMENT OF PRIMARY INDUSTRIES AND WATERLANDON-LANE, Lucy
ENVIRONMENT TASMANIA INC
WHISH-WILSON, Peter
v
THE HONOURABLE DAVID BARTLETT, PREMIER OF TASMANIA,
MINISTER FOR PLANNING AND WORKPLACE RELATIONS AND MINISTER performing the functions of the MINISTER FOR ECONOMIC DEVELOPMENT AND TOURISM
ENVIRONMENT PROTECTION AUTHORITY BOARD, THE
EVANS, Kim, SECRETARY, DEPARTMENT OF PRIMARY INDUSTRIES AND WATER
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 643/2008
716/2008
DELIVERED ON: 17 July 2009
DELIVERED AT: Hobart
HEARING DATE: 1 April 2009
JUDGMENT OF: Evans J
CATCHWORDS:
Statutes – Acts of parliament – Interpretation – Rules of construction – Mistake – Whether a typographical error had been made.
Aus Dig Statutes [31]
Administrative Law – Judicial review – Power of courts under judicial review legislation – Generally – Order for reasons for a decision – Discretion as to relief.
Judicial Review Act2000 (Tas), ss35(2) and 37(2).
Aus Dig Administrative Law [1080]
Administrative Law – Judicial review – Privative clauses.
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602, R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, referred to.
Aus Dig Administrative Law [1079]
REPRESENTATION:
Counsel:
Applicants: D S Mortimer SC and K L Walker
Respondent: Notices of submission filed
Attorney-General: P Turner
Attorney-General:
Solicitors:
Applicants: FitzGerald & Browne
Respondent: Director of Public Prosecutions
Attorney-General: Director of Public Prosecutions
Judgment Number: [2009] TASSC 50
Number of paragraphs: 28
Serial No 50/2009
File Nos 643/2008716/2008
LUCY LANDON-LANE, ENVIRONMENT TASMANIA INC v THE HONOURABLE PAULA WREIDT, MINISTER FOR ECONOMIC DEVELOPMENT AND TOURISM, THE ENVIRONMENT PROTECTION AUTHORITY BOARD, KIM EVANS, SECRETARY, DEPARTMENT OF PRIMARY INDUSTRIES AND WATER
LUCY LANDON-LANE, ENVIRONMENT TASMANIA INC, PETER WHISH-WILSON, STEPHANIE TAYLOR v THE HONOURABLE DAVID BARTLETT, PREMIER OF TASMANIA, MINISTER FOR PLANNING AND WORKPLACE RELATIONS AND MINISTER PERFORMING THE FUNCTIONS OF THE MINISTER FOR ECONOMIC DEVELOPMENT AND TOURISM, THE ENVIRONMENT PROTECTION AUTHORITY BOARD, KIM EVANS, SECRETARY, DEPARTMENT OF PRIMARY INDUSTRIES & WATER
REASONS FOR JUDGMENT EVANS J
17 July 2009
By two originating applications, the respective applicants seek orders pursuant to the Judicial Review Act 2000 in relation to various decisions made under the Pulp Mill Assessment Act 2007 referable to the development and operation of a pulp mill in Northern Tasmania that is the subject of that Act ("the project"). In these reasons a reference to the applicants or the respondents is a collective reference to the applicants or the respondents to both originating applications.
The Pulp Mill Assessment Act is, as explained in its preamble, an Act to provide for the assessment of the project. Pursuant to that Act, s4(1) – (3) the Minister responsible for administering the Act is required to appoint a consultant to undertake an assessment of the project, taking into account specified guidelines and matters, and the consultant is to report to the Minister on whether the project should proceed or not. Section s4(4) comes into play upon the consultant's report being in favour of the project proceeding. It provides:
"4 — (4) If the consultant reports to the Minister that the project should proceed, the consultant is, in his or her report, to —
(a) state whether or not the project complies with the guidelines; and
(b) provide reasons as to why the project should proceed; and
(c) recommend matters to be considered in the conditions that should apply to the project."
As to the conditions that should apply to the project and the approval of the project, the Act, ss3, 6 and 7, relevantly provide:
"3 Interpretation
(1) In this Act, unless the contrary intention appears —
'relevant person' means a person or body, including a State Service Agency, that, in the opinion of the Minister, would, if this Act had not been enacted, be responsible for issuing or regulating a permit, licence or approval for, or regulating an action relating to, the project.
6 Assessment by relevant persons
(1) The Minister must request relevant persons to make a recommendation as to the conditions, if any, that should apply to the project.
(2) On receipt of a request, a relevant person must undertake an assessment of the conditions, if any, that should apply to the project.
(3) In undertaking an assessment, a relevant person must take account of the report of the consultant referred to in section 4(3).
(4) A relevant person must make a recommendation, as to the conditions that should apply to the project, to the Minister by such date as the Minister determines.
(5) ...
(6) ...
(7) If a relevant person recommends conditions that should apply to the project, the relevant person must specify —
(a)those conditions; and
(b)the Act, if any, pursuant to which, and the permit, licence or other approval in which, each condition would normally be imposed; and
(c)the person, body or State Service Agency responsible for the enforcement of each condition.
(8) The Minister is to prepare a permit, to be called the 'Pulp Mill Permit', containing the substance of the conditions recommended by a relevant person under subsection (4) and other matters specified under subsection (7).
(9) The Minister must cause the report of the consultant and the Pulp Mill Permit to be laid before each House of Parliament by no later than 31 August 2007.
(10) The Minister may table in each House of Parliament any other report that in the Minister's opinion is relevant to the project at the same time as the Minister causes the report and Pulp Mill Permit to be tabled under subsection (9).
7 Approval of project
(1) The project is approved if —
(a)the consultant reports to the Minister under section 4(3) that the project should proceed; and
(b)each House of Parliament, by resolution, accepts the Pulp Mill Permit.
(2) Each House of Parliament, by resolution, is to accept or reject the Pulp Mill Permit within 5 sitting-days from the day on which it is laid before the House."
Consistent with counsel for the applicants' submissions, I accept that all of the applicants' requests for reasons for decisions relate to decisions made pursuant to the Act, s6. The requests themselves identify the decisions to which they relate with varying degrees of certainty. An illustration of one of the more specific requests that was made is that contained in a letter dated 3 July 2008 written on behalf of Lucy Landon-Lane to the Minister for Economic Development and Tourism. The relevant portion of that letter is:
"I refer to the decisions made by the Minister pursuant to s 6(8) of the Pulp Mill Assessment Act 2007 to prepare the pulp mill permit containing the substance of the conditions recommended by relevant persons under s 6(4) and the other matters specified under s 6(7) of that Act.
Pursuant to the Judicial Review Act, s 29, I request that you provide a statement of reasons for the decisions referred to above."
An issue that goes to the core of the originating applications is whether the applicants are barred from obtaining the relief they seek under the Judicial Review Act by the Pulp Mill Assessment Act, s11(1)(b). That section is as follows:
"11 Limitation of rights of appeal
(1) Subject to subsection (3) and notwithstanding the provisions of any other Act —
(a)a person is not entitled to appeal to a body or other person, court or tribunal; or
(b)no order or review may be made under the Judicial Review Act 2000; or
(c) no declaratory judgment may be given; or
(d) no other action or proceeding may be brought —
in respect of any action, decision, process, matter or thing arising out of or relating to any assessment or approval of the project under this Act.
(2) For the purposes of subsection (1), 'any action, decision, process, matter or thing arising out of or relating to any assessment or approval of the project under this Act' includes any action, decision, process, matter or thing arising out of or relating to a condition of the Pulp Mill Permit requiring that the person proposing the project apply for such other permits, licences or other approvals as may be necessary for the project.
(3) Subsection (1) does not apply to any action, decision, process, matter or thing which has involved or has been affected by criminal conduct.
(4) No review under subsection (3) operates to delay the issue of the Pulp Mill Permit or any action authorised by that permit."
A number of issues have been raised that are incidental to the core issue referred to. They include:
· whether the decisions that are the subject of the requests are decisions to which the Judicial Review Act applies;
· whether the applicants have the standing to apply for the orders they seek, that is, whether they are aggrieved persons referable to the decisions, for the purposes of the Judicial Review Act; and
· establishing which respondent is liable to an order for the provision of reasons in relation to each particular decision.
As I have formed a concluded view on the core issue and a related issue that resolves the applicants' applications, I will not further delay their resolution by dealing with each incidental issue. I will assume an outcome in relation to the incidental issues that favours the applicants.
The Judicial Review Act, s35, is the statutory basis on which the applicants rely to found their entitlement to orders for the provision of reasons for the decisions in question. That section is as follows:
"35 Application for order to comply
(1) If —
(a)a person (the 'requester') makes a request under section 29 to a person (the 'decision maker') for a written statement relating to a decision; and
(b)the decision maker does not comply with the request, or apply to the Court under section 36 relating to the request, within 28 days after receiving the request —
the requester may apply to the Court for an order under this section.
(2) If the Court considers that the requester was entitled to make the request, the Court may order the decision maker to give the statement within a specified period."
Pursuant to the Judicial Review Act, s29, only persons entitled to make an application to the Court under s17 referable to a decision may request the reasons for a decision. I put to one side an argument that by reason of the Pulp Mill Assessment Act, s11(1)(b), neither the applicants nor anyone else were entitled to make an application to the Court under s17 referable to any of the decisions, and accordingly the applicants were not entitled to request reasons for the decisions. Accepting that the requests were properly made and refused, the Court may make the orders sought by the applicants. There is however no question that the decisions that are the subject of the requests are covered by the Pulp Mill Assessment Act, s11(1), insofar as they arise out of or relate to the assessment or approval of the project. The issue for my determination is whether the orders sought by the applicants referable to the decisions are barred by that Act, s11(1)(b), as in each instance what is being sought is an "order … under the Judicial Review Act".
Does the Pulp Mill Assessment Act, s11(1)(b), contain a typographical error?
The applicants acknowledge that in each instance they are seeking an order under the Judicial Review Act, however, they contend that they are not barred from doing so by s11(1)(b), as par(b) contains a typographical error, that being that the words "order or review" were intended to read "order of review". If this is so, the orders sought by the applicants would not be covered by the term "order of review", but would be orders of a different character, that is, orders that the decision-makers provide written statements relating to decisions. So, on the construction of par(b) advanced by the applicants, that paragraph would not prohibit them from obtaining the orders they seek.
In order to address this contention, it is necessary to establish what it is that "may be made under the Judicial Review Act". Without question an "order of review" may be applied for under that Act, and where an entitlement to an order of review is established, particular orders may be made. Part 4 of that Act, titled "Orders of review", deals with the circumstances in which an application for an order for review may be pursued and the orders that may be obtained upon the successful outcome of such an application. That Part is comprised of ss17 – 27. In summary, the effect of ss17 - 19 is that a person aggrieved by:
· a decision to which the Act applies, s17;
· conduct for the purposes of making such a decision, s18; or
· the failure to make such a decision, s19;
may apply to the Court "for an order of review relating to" that decision, conduct or failure. On such an application, the Court may make orders as provided for in s27, which relevantly provides:
"27 Powers of Court relating to applications for order of review
(1) On an application for an order of review relating to a decision, the Court may make all or any of the following orders:
(a)an order quashing or setting aside the decision, or a part of the decision …,
(b)an order referring the matter to which the decision relates to the person who made the decision for further consideration …;
(c)an order declaring the rights of the parties relating to any matter to which the decision relates;
(d)an order directing any of the parties to do, or to refrain from doing, anything that the Court considers necessary to do justice between the parties.
(2) On an application for an order of review relating to conduct that has been, is being, or is proposed to be, engaged in for the purpose of the making of a decision, the Court may make either or both of the following orders:
(a)an order declaring the rights of the parties relating to any matter to which the conduct relates;
(b)an order directing any of the parties to do, or to refrain from doing, anything that the Court considers necessary to do justice between the parties.
(3) On an application for an order of review relating to a failure to make a decision, or relating to a failure to make a decision within the period within which the decision was required to be made, the Court may make all or any of the following orders:
(a)an order directing the making of the decision or the doing of anything necessary to enable the making of a decision;
(b)an order declaring the rights of the parties relating to the making of the decision;
(c)an order directing any of the parties to do, or to refrain from doing, anything that the Court considers necessary to do justice between the parties.
(4) …".
So, under the Judicial Review Act the term "order of review" covers the range of orders that may be made following the successful outcome of an application for an order of review; a process that involves the review of a reviewable matter. As to these terms, s3 provides that:
"In this Act, unless the contrary intention appears –
…
'order of review' means an order on an application made —
(a)under section 17 relating to a decision; or
(b)under section 18 relating to conduct engaged in for the purpose of making a decision; or
(c)under section 19 relating to a failure to make a decision;
…
'reviewable matter' means —
(a)a decision; or
(b)conduct, including conduct engaged in for the purpose of making a decision; or
(c)a failure to make a decision or to perform a duty according to law;"
The primary process provided for by the Judicial Review Act is the review of reviewable matters (its preamble provides that it is an Act that relates "to the review … of certain administrative decisions") and upon the successful outcome of such a review the orders that may be made are encompassed by the term "order of review". Those orders are not however the only orders that may be made under the Judicial Review Act. Part 5 of that Act, titled "Reasons for Decision", is comprised of ss28 – 37. In brief summary, that Part relevantly provides:
· that the Part applies to a decision to which the Act applies, s28;
· that a person aggrieved by a decision for the purposes of s17 may request a decision-maker to provide a written statement relating to the decision, s29;
· that a decision-maker must comply with a request to provide a statement within 28 days, s30;
· that the statement must contain the reasons for the decision, s31;
· that the Court may order the decision-maker to provide the statement, s35;
· that where the statement provided does not contain adequate particulars of the reasons for decision, the Court may order the decision-maker to provide further and better particulars of the decision or a further statement, s37.
So, ancillary to providing for the review of a decision, the Judicial Review Act enables persons aggrieved by a decision to obtain orders obliging the decision-maker to furnish reasons for the decision. After all, it is only when reasons for a decision have been provided that a decision can properly be reviewed in the light of some of the grounds detailed in that Act, s17(2). Where reasons have not been given, an order that they be provided is the logical precursor to an application for the review of the decision. Orders as to the provision of reasons for a decision are however separate and distinct from the range of orders encompassed by the term "order of review" that may be obtained upon the successful outcome of a review. Further orders that may be obtained under Judicial Review Act relate to incidental matters such as:
· orders for the early or summary dismissal or stay of an application for review, ss11, 12, 13, 14 and 38;
· orders suspending the operation of a decision and staying proceedings under a decision, s26(2); and
· orders as to the discovery and production of documents and the giving of evidence, s34(5).
In the context of the issue I am considering, the existence of a power to make an order suspending the operation of a decision or staying proceedings under a decision has some relevance. On my reading of the Pulp Mill Assessment Act one of its objectives is to ensure that orders of this nature may not be obtained referable to decisions and the like made pursuant to that Act.
I return to the words used in the Pulp Mill Assessment Act, s11(1)(b), or as the applicants contend, the words that were intended to be used in par(b). The word "order" covers the full range of orders that may be made under the Judicial Review Act. The word "review" describes the process undertaken when an aggrieved person applies for an "order of review" and that term covers the range of orders that may be made under s27, upon the successful outcome of a review. In this light it can be seen that the Pulp Mill Assessment Act, s11(1)(b), as enacted, does not use terms that are foreign to the Judicial Review Act, although the same could be said if it contained a printing error and was to be construed on the basis that the words "order or review" were meant to be "order of review".
If it was obvious that the Pulp Mill Assessment Act, s11(1)(b), contains a simple mistake in the form of a printing or drafting error, I would have no hesitation in rectifying the error and reading it as corrected. As to this, see the authorities referred to in Pearce D and Geddes R, "Statutory Interpretation in Australia", 6th ed, LexisNexis, Butterworths, Australia, 2006, par2.24. Such an approach to the correction of errors in statutes reflects the so-called golden rule that in construing statutes: "The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further". Grey v Pearson (1857) 6 HLC 61, Lord Wensleydale at 106, Australian Boot Trade Employees' Federation v Whybrow & Co (1910) 11 CLR 311 at 341- 342, and Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 371.
In this case, I am unable to discern any obvious mistake in the printing or drafting of the Pulp Mill Assessment Act, s11(1)(b), or any absurdity, repugnance or inconsistency between that paragraph and the rest of that Act. Section 11 is what is commonly referred to as an ouster or privative provision. Its clearly expressed objective is to bar any court or the like from scrutinising any action, decision, process, matter or thing arising out of or relating to any assessment or approval of the project, save where criminal conduct is involved. Whilst the bar does not extend to criminal conduct, s11(4), provides that a review of such conduct shall not operate to delay the issue of the permit for the project or any action authorised by the permit. This is consistent with an incidental objective that can be discerned from the Act, which is to ensure that proceedings in court and the like do not delay the progress of the project. Provisions that demonstrate an intent that the assessment and approval of the project should not be delayed are:
· s7(2) which provides that each House of Parliament is to accept or reject the permit within five sitting days from the day on which it is laid before that House of Parliament;
· s8(1)(b) which provides that if the project is approved, notwithstanding any other Act, the project may proceed on the conditions specified in the permit;
· s9(1) which provides:
"9 Provisions of Acts, planning schemes, &c, not to apply to project
(1) The provisions of any Act, planning scheme, special planning order or interim order —
(a)requiring the approval, consent or permission of any person in connection with any use or development in relation to the project; or
(b)empowering any body to grant or refuse its consent to any such use or development; or
(c)prohibiting any such use or development; or
(d)permitting any such use or development only upon specified terms or conditions; or
(e)regulating or permitting the regulation of any such use or development —
do not apply to the project."
· s13 which repealed the State Policies and Projects (Project of State Significance) Order 2004. That repeal meant that the project was no longer required to be assessed by the Resource Planning and Development Commission pursuant to the State Policies and Projects Act 1993. As the project was no longer subject to that Act, its progress could not be delayed or challenged by means of the provisions of that Act.
Consistent with the objective of barring proceedings referable to the project, the Pulp Mill Assessment Act, s11(1)(a), (b) and (c), identify the sort of proceedings that might be taken to challenge the project, and s11(1)(d) is drawn so as to provide a safety net. It extends the bar to any "other action or proceeding", that is, any proceeding not covered by the preceding paragraphs. It is also consistent with that objective for par(b) to be drawn to cover any order that might be made under the Judicial Review Act, and any review that might be conducted under that Act. That par(b) proscribes the outcome of a proceeding, an order, and the process by which an order may be obtained, a review, is not out of place in s11(1). Paragraphs (a) and (d) proscribe a process, an appeal, action or proceeding, and par(c) proscribes an outcome, a declaratory judgment.
Another matter which suggests that s11(1)(b) is not the result of a drafting error, but was intentionally drafted as it is so as to cover both an order and a review, arises from a comparison between that section and the State Policies and Projects Act, s28(1). I have not had the benefit of counsels' submissions on this comparison as it was not adverted to in the course of the hearing. Notwithstanding this deficiency, the comparison is of some assistance. When the Pulp Mill Assessment Act was enacted, the State Policies and Projects Act, s28(1), was (and remains) as follows:
"28 Limitation on rights of appeal and other rights
(1) Subject to section 27 and notwithstanding the provisions of any other Act —
(a)a person is not entitled to appeal to a body or other person, court or tribunal; or
(b)no other action or proceeding may be brought; or
(c)no order of review may be made under the Judicial Review Act 2000; or
(d)no declaratory judgment may be given —
in respect of any matter or thing arising out of or relating to the conditions specified in an order made under section 26(6), 26(8), 26A or 26B."
Bearing in mind that the project was subject to the provisions of the State Policies and Projects Act prior to the enactment of the Pulp Mill Assessment Act, and other similarities between matters dealt with by both Acts, it is likely that the State Policies and Projects Act, s28(1), is the genesis for the drafting of the Pulp Mill Assessment Act, s11(1). There are however significant similarities and differences between these subsections. They are:
· The opening of s11(1) "Subject to … and notwithstanding the provisions of any other Act" mirrors that of s28(1).
· Paragraph (a) of s11(1) mirrors par(a) of s28(1).
· The order of pars(b), (c) and (d) in s11(1), differs from the order of the same paragraphs in s28(1).
· Save that par(b) in s11(1) refers to "order or review" and par(c) in s28(1) refers to an "order of review", these paragraphs are the same.
· Paragraph (c) in s11(1) mirrors par(d) in s28(1).
· Paragraph (d) in s11(1) mirrors par(b) in s28(1).
· The closing of each subsection is similar insofar as they apply: "in respect of any [action, decision, process — in s11(1) alone] matter or thing arising out of or relating to", the subject of the provision.
This comparison assists because it brings into focus the changes made in s11(1). The key changes involve the content and position of s28(1)(c). Had that paragraph been replicated in s11(1) as par(c) with "order of review" changed to "order or review", there would have been reason to suggest that a drafting error had been made. This is because that paragraph as altered covers both an outcome, an order, and a process, a review. A review being a process, it would have been incongruous for that paragraph as altered to be below what was s28(1)(b), a paragraph expressed to cover all other processes, that is, "no other action or proceeding may be brought". The changes made to the order of the paragraphs from s28(1) as they appear in s11(1), have the result that par(c) from s28(1) as altered, is s11(1)(b), which is before what was par(b) in s28(1), it now being s11(1)(d). These changes overcome the incongruity and this suggests that they were intentional and were not the result of a drafting error. I reject the contention that par11(1)(b) contains a drafting error.
The construction of privative clauses
A basic rule that applies to construing privative clauses like the Pulp Mill Assessment Act, s11(1), is that it is presumed that Parliament does not intend to cut down the jurisdiction of the courts, save to the extent that the legislation in question expressly so states or necessarily implies. Accordingly, privative clauses are strictly construed, Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476, Gaudron, McHugh, Gummow, Kirby and Hayne JJ, par72. See also Fish v Solution 6 Holdings (2006) 225 CLR 180, par33, Hockey v Yelland (1984) 157 CLR 124 at 130 and 142 and Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 at 160. However, as explained in Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602, by Gaudron and Gummow JJ, at 633 - 634:
"The operation of a State privative clause is purely a matter of its proper meaning ascertained in its legislative context. However, privative clauses, whether in State or Commonwealth legislation, are construed "by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied". Thus, a clause which merely provides that a decision is to be final and conclusive is construed as not excluding certiorari for error of law on the face of the record. So, too, a clause which provides only that a decision may not be called into question in a court of law is construed as not excluding review on the ground that the decision involved jurisdictional error, at least in the sense that it involved a refusal to exercise jurisdiction or that it exceeded the jurisdiction of the decision-maker. However and provided the intention is clear, a privative clause in a valid State enactment may preclude review for errors of any kind."
Counsel for the applicants went so far as to submit that privative clauses are never read to mean what they say, that is, they are never construed literally and they are always read down so as to avoid ousting a jurisdictional error unless they do so in the clearest terms. The cases relied on in support of this submission are Darling Casino Limited v New South Wales Casino Control Authority (supra) and Plaintiff S517/2002 v Commonwealth of Australia (supra). These decisions, like other authorities dealing with the scope of a privative clause when confronted by a jurisdictional error, hark back to the decision of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. The principle derived from that decision, "the Hickman principle" recognises the need to reconcile the prima facie inconsistency between one statutory provision which seems to limit the repository's power, and another provision, the privative clause, which contemplates that the repository's power shall operate free from any restriction, Deputy Federal Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168, Brennan J at 193 – 195. In Darling Casino Limited, Gaudron and Gummow JJ, agreed with by Brennan CJ, Dawson and Toohey JJ, said at 631:
"It is to be remembered that the Hickman principle is a rule of construction. This does not appear fully to have been appreciated in the Court of Appeal in the present case. Accordingly, the question in this case is not one of the meaning and effect of the Hickman principle …. Rather, it is one of the meaning and effect of the statutory provisions in question. If there is an inconsistency, the Hickman principle requires that it be 'resolved by reading the ... provisions together and giving effect to each' R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 at 418. However, there are anterior questions: the extent to which the relevant statutory provisions, when properly construed, give rise to an inconsistency to be resolved in that way; and whether the decision in question is one that falls within the area of that inconsistency."
In Plaintiff S157/2002, Gleeson CJ explained, in pars17, 21 and 27, that where the essential problem is the inconsistency between a provision in a statute conferring a limited power or authority and a provision which appears to mean that excess of power or authority may not be prohibited, this calls for a process of statutory construction and attempted reconciliation where the outcome will necessarily be influenced by the particular statutory context and all relevant principles of statutory construction. In that case it was held that the privative clause in question did not extend to the jurisdictional error there identified. At pars54, 74 and 75, Gaudron, McHugh, Gummow, Kirby and Hayne JJ expressed the view that it was clear that Parliament did not intend the privative clause to have that effect as it was confined to decisions "made, proposed to be made, or required to be made … under this Act", and the phrase "under this Act", could not be construed as referring to decisions purportedly made under the Act or decisions of a kind that might be made under the Act. See also Gleeson CJ at par41 and Darling Casino Limited v New South Wales Casino Control Authority (supra) at 635.
The above authorities do not support counsels' submission that privative clauses are never read to mean what they say, that is they are never construed literally, and I reject that submission. Whilst it is correct to say that privative clauses are read down so as to avoid ousting a jurisdictional error unless they do so in the clearest terms, I am unable to see how this assists the applicants. Nothing put before me in relation to the construction of the Pulp Mill Assessment Act, s11(1)(b), has raised an issue of jurisdictional error.
I am unable find any basis or reason for construing the Pulp Mill Assessment Act, s11(1)(b), other than in accordance with that which it says, which for relevant purposes is that "no order … may be made under the Judicial Review Act 2000 … in respect of any action, decision, process, matter or thing arising out of or in relation to any assessment or approval of the project under this Act." As the applicants' applications seek orders under the Judicial Review Act, in respect of decisions relating to the assessment or approval of the project, they are barred and should be dismissed.
Outcome had the Pulp Mill Assessment Act, s11(1)(b), been construed as the applicants submit
If, as contended by the applicants, the words "order or review" in the Pulp Mill Assessment Act, s11(1)(b), should be read as "order of review", the orders they seek, that is, orders for reasons for the decisions, would not be expressly barred. On this basis those orders could be made. However, the making of orders for the delivery of reasons for a decision is subsidiary to, and a precursor to, an application for the review of a decision pursuant to the Judicial Review Act. The effect of s29 is that only a person who is entitled to make an application to the Court under s17 for an order of review relating to a decision may request the provision of written reasons for that decision. In saying that an order for the delivery of reasons for a decision is subsidiary to and a precursor to an application for its review, I am not overlooking the authorities cited on behalf of the applicants referable to the importance of reasons for a decision, they being, Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88, Dornan v Riordan (1990) 95 ALR 451 at 457 – 458, Re Croser; Ex parte Rutherford (2001) 25 WAR 170, par9, Comcare Australia v Lees (1997) 151 ALR 647 at 656, and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212, par105. However, each of these authorities relates to a decision made under an enactment that included a statutory obligation to provide reasons for the decision. The only provision in the Pulp Mill Assessment Act that refers to reasons is s4(4) which provides that if the consultant reports to the Minister that the project should proceed, the consultant is, in his or her report, to provide reasons as to why the project should proceed. That report is not the subject of any of the applicants' requests for reasons for a decision.
The effect of the Judicial Review Act, ss35(2) and 37(2), is that in the circumstances there dealt with the Court "may order the decision-maker to give" reasons for a decision, an additional statement containing further and better particulars relating to specified matters, or a further statement referable to the decision. The use of the word "may" in these provisions makes it clear that the power to make such orders is discretionary. It would not serve the purposes of the Judicial Review Act to order the provision of reasons referable to a decision where the decision itself could not be the subject of review under that Act. From this stand point, an order for the provision of reasons referable to such a decision would be futile and impose an unwarranted burden on the decision-maker. That being so, in the event that s11(1)(b) of the Pulp Mill Planning Assessment Act was to be construed as the applicants contend, I would, in any event, refuse their applications.
The applications are dismissed.
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