Lark v Nolan
[2006] TASSC 12
•10 March 2006
[2006] TASSC 12
CITATION: Lark v Nolan [2006] TASSC 12
PARTIES: LARK, Lynnette Therese
STEWART, Margaret Mary
BAKER, Rosemary Louise
v
NOLAN, Robin in his capacity as
Shack Sites Commissioner
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M148/2004
DELIVERED ON: 10 March 2006
DELIVERED AT: Hobart
HEARING DATE: 22, 23 February 2006
JUDGMENT OF: Underwood CJ
CATCHWORDS:
Administrative Law – Judicial review – Grounds of review – Error relating to facts – No evidence ground – How construed.
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied.
Curragh Qld Mining Ltd v Daniel (1992) 34 FCR 212, followed.
Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, referred to.
Judicial Review Act 2000 (Tas), ss17(1)(f) and (h), 21(a) and (b).
Aust Dig Administrative Law [1031]
Administrative Law – Judicial review – Grounds of review – Error of law – Improper exercise of power – How construed – Wednesbury unreasonableness.
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied.
Azzopardi v Tasman UEB Industries Ltd (1984) 4 NSWLR 139, followed.
Judicial Review Act 2000 (Tas), ss17(1)(e), 20(g).
Aust Dig Administrative Law [1030]
REPRESENTATION:
Counsel:
Applicants: P W Tree SC
Amicus Curiae P Turner
Solicitors:
Applicants: Baker Tierney & Wilson
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 12
Number of paragraphs: 105
Serial No 12/2006
File No M148/2004
LYNNETTE THERESE LARK, MARGARET MARY STEWART,
ROSEMARY LOUISE BAKER v ROBIN NOLAN IN HIS CAPACITY
AS SHACK SITES COMMISSIONER
REASONS FOR JUDGMENT UNDERWOOD CJ
10 March 2006
Introduction
The applicants have a shack at Cockle Creek in the far south of Tasmania. It is built on Crown land. They have occupied it since the late 1980s by virtue of a licence issued annually pursuant to the Crown Lands Act 1976. The shack is just inside the boundary of the South-West National Park and just outside an area covered by the Tasmanian Wilderness World Heritage Area Management Plan 1999. The land on which the shack is built straddles the start of the South Coast Public Walking Track. The rear of the building abuts one side of the track and its pit toilet is on the other side.
In 1997, Parliament enacted the Crown Lands (Shack Sites) Act ("the Act"). The long title of the Act is, "An Act to provide for determinations to be made in relation to the long-term status and tenure of shack sites on Crown Land and for related purposes".
The applicants' shack is on a "shack site" as defined by the Act, s3. Section 4 requires the Secretary of the Department of Primary Industry, Water and Environment to make an assessment of each shack site and make one of the following determinations:
"(a) that the existing lease or licence for the shack site should be replaced with a long-term lease;
(b)that the shack on the shack site should be removed and the land revert to the use of the Crown;
(c)that the shack site should be sold to the existing lessee or licensee."
The Act, s5, obliged the Minister to formulate certain criteria, called "conversion criteria", to guide the formulation of the Secretary's determination, and s6 fetters the power conferred by s4 in the following terms:
"(1) In carrying out an assessment and making a determination under section 4, the Secretary ¾
(a)must have regard to the conversion criteria; and
(b)must consult with the lessee or licensee of the shack site; and
(c)must, if the shack site is on dedicated Crown land, consult with the Portfolio Minister; and
(d)must consult with the responsible council; and
(e)must consult with the Aboriginal community of Tasmania through the Office of Aboriginal Affairs; and
(f)may consult with such of the following as the Secretary considers appropriate in the circumstances:
(i) the Recorder of Titles;
(ii) the Surveyor-General;
(iii) the Director of National Parks and Wildlife; and
(g)may have regard to ¾
(i) the State Coastal Policy or any other policy that the Secretary considers relevant in the circumstances; and
(ii) any enactments, planning schemes or other matters that the Secretary considers relevant in the circumstances.
(2) The Secretary must not make a determination under section 4(1)(a) or (c) in respect of a shack site unless the Secretary is satisfied that –
(a)waste water from the site can be effectively treated or disposed of; and
(b)the granting of a long-term lease for the shack site, or its sale, will not eliminate or restrict reasonable public access to, and use of, coastal foreshore or lake or river frontage."
The Act, s5(4), provides that if the conversion criteria issued by the Minister have the same content as the model conversion criteria set out in the Act, Sch2A, the conversion criteria issued by the Minister are taken to have been validly formulated. The Minister did formulate conversion criteria. They are identical to the conversion criteria set out in the Act, Sch2A. Relevant to the facts of the present case those criteria provide:
"1 Removal
"(1) Other than in exceptional circumstances, a shack should be removed if ¾
(a)the removal of the shack is necessary for due protection of an Aboriginal site, or a relic as defined under the Aboriginal Relics Act 1975; or
(b)…
(2) Other than in exceptional circumstances, a shack should be removed where the continued occupation of the shack, either alone or together with other shacks, would, or would be likely to, give rise to significant ¾
(a)land management costs or land management difficulties for the Crown or any public authority; or
(b)environmental degradation.
(3) Other than in exceptional circumstances, a shack should be removed where the continued occupation of the shack, either alone or together with other shacks, would, or would be likely to, significantly ¾
(a)impair the ability of natural or physical resources on or near the site to meet the reasonably foreseeable needs of future generations; or
(b)…
(c)…
(d)…
(e)…
(f)…"
Because the shack site is located in a National Park, the Act, s16(1) applies. It provides that where a shack site is located in a National Park the period of a lease cannot be greater than 30 years. Conversion Criterion 2(1)(a) provides that absent exceptional circumstances, a shack site in a National Park is not to be sold, so the Secretary could only determine either that the shack should be removed, or that the existing licence should be replaced by a long-term lease not exceeding 30 years.
The Secretary of the Department exercised the powers conferred upon him by the Act, s4, with respect to the applicants' shack and on 19 April 2002, served written notice on the applicants, as he was required to do by the Act, s4(3), that he determined in accordance with the Act, s4(1)(b), that the applicants' shack be removed and the land revert to the use of the Crown.
The appellate process
The Act, s8, provides for the appointment of a Shack Sites Commissioner ("the Commissioner"). Section 9(1) provides that the Commissioner's function is to hear and determine appeals under the Act, Pt4. Section 11 conferred upon the applicants a right to appeal to the Commissioner against the Secretary's determination within 28 days of service of notice of the determination upon them. A notice of appeal was instituted in timely manner. The Act, s12(2) and Sch2, provides that an appeal is to be made on "a form provided or approved by the Commissioner". The applicants completed the approved notice of appeal. It provided a space for setting out specified grounds of appeal. The applicants set out nine grounds of appeal. The Act, s12(2) and Sch2, set out certain provisions under the heading "Hearing of Appeal". Although the Act does not expressly say so, it is clear from those provisions that Parliament intended the appeal to the Commissioner to be a hearing de novo. Neither Mr Tree SC, counsel for the applicant, nor Mr Turner, amicus curiae, contended to the contrary. It therefore seems inappropriate that the approved form makes provision for grounds of appeal because the Commissioner's obligation is to carry out his own assessment of each shack site and make his own determination as directed by s4(1).
There was a hearing. The Commissioner received written and oral evidence. The Commissioner visited the shack site. On 24 June 2002 the Commissioner determined that the Secretary's determination was correct, and published written reasons for his decision.
Judicial review
On 16 July 2004, the applicants filed an application for a review of the Commissioner's decision in accordance with the provisions of the Judicial Review Act 2000 ("the Review Act") , s17. Pursuant to the Supreme Court Rules 2000, r777G, the respondent filed a notice of submission and did not seek to be heard upon the application for judicial review. Mr Turner of counsel, sought, and was given, leave to appear as amicus curiae. It is appropriate that I record my appreciation to both counsel for the valuable assistance they gave me by their comprehensive and helpful submissions.
The structure of the Commissioner's reasons for the determination
The Commissioner's reasons comprise 57 paragraphs over 10 pages. At par2 he stated that the reasons for the Secretary's determination were "waste water cannot be effectively treated on site without significantly impacting on an Aboriginal site TASI 9056, and the lease of this shack site will restrict public access to, and use of, the river frontage."
That conclusion appears to have been taken from a document prepared by a Mr Scott Marston described in the document as "Manager, Shack Sites Project", for the Secretary. This document sets out seriatum the provisions of the Act, s6, and after each paragraph and subsection, sets out what was done to comply with the statutory direction provided by each paragraph and subsection. For example, the document provides, "6(1)(d) must consult with the responsible Council". Underneath that statement, the document notes that the "Huon Valley Council has been consulted and supports the removal of this shack due to waste water and Aboriginal cultural heritage issues (see Tab 2)".
The document also records that the Aboriginal community supports the removal of the shack, as does the general manager of the Parks and Wildlife Service. The document concludes with a statement about disposal of waste water and access to the river frontage that the Commissioner quoted in his reasons for determination.
At par3 of his reasons, the Commissioner summarised what he called the "amended reasons of appeal" in the following terms:
"That the removal of the shack is not necessary for the due protection of an Aboriginal site, or a relic as defined pursuant to the Aboriginal Relics Act 1975.
That the continued occupation of the shack will not, or is not likely to, give rise to any, or any significant land management costs or land management difficulties for the Crown or any public authority.
That the continued occupation of the shack will not, or is not likely to, give rise to any, or any significant environmental degradation.
That the continued occupation of the shack will not, or is not likely to, give rise to any, or any significant impairment of the ability of natural or physical resources on or near the site to meet the reasonably foreseeable needs of future generations."
There was no complaint that this summary did not fairly encapsulate the amended grounds of appeal.
As will be seen, the effective treatment or disposal of water from the shack site was inextricably linked to the criterion concerning the protection of an Aboriginal site or relic. The Commissioner's reasons for his determination set out the various proposals for the disposal of waste water that the applicants advanced on the hearing before him, the last of which (Option 3) did not involve any ground excavation for pipes or pumps that might consequentially disturb an Aboriginal site or relic.
After setting out these proposals, the Commissioner cited Conversion Criterion 1(2), discussed the evidence relevant to this criterion, expressed a view about the effect of that evidence, and then said, at par27, "I find that exceptional circumstances have not been established to satisfy Conversion Criterion 1(2)" and said that that ground of appeal was not upheld. For convenience I will refer to this conclusion as "the finding re land management and environmental degradation".
He then followed the same procedure and reached the same conclusion with respect to Criterion 1(1)(a). I will refer to this as "the finding re Aboriginal relics". Next he set out the provisions of the Act, s6(2)(b) – access to the foreshore – disagreed with the Secretary's opinion and concluded, "this ground of appeal is upheld."
The Commissioner then set out the provisions of the Act, s6(2)(a) - waste water disposal – and after discussing the evidence, concluded that that provision was not satisfied and determined that the ground of appeal was not upheld, "the finding re waste water disposal". He followed the same process with respect to the last of the relevant conversion criteria, Criterion 1(3)(a) and said that that ground of appeal also was not upheld. I shall refer to this as "the finding re impact on natural resources".
Finally, paragraph 56 of the Commissioner's reasons, headed "Conclusion", made some general observations about the shack site and the applicants' proposal to overcome various problems, and concluded, at par57, that the Secretary's determination was correct.
The application for a review
I shall refer to the grounds for judicial review in the same order as they appear in the final edition of the application. As a result of several amendments, the numbering has become unnecessarily complicated so I shall renumber them as follows.
Grounds (1) and (2) together allege an error of law in that the Commissioner did not conduct a hearing de novo but only determined the grounds of appeal. With respect to these grounds, the applicants relied upon the Review Act, s17(2)(f).
Grounds (3), (4), (5) and (6) each attack the findings made by the Commissioner with respect to:
"Land management and environmental degradation" - ground (3);
"Aboriginal relics" - ground (4);
"Waste water disposal" – ground (5); and
"Impact on natural resources" – ground (6).
With respect to each of those grounds, the applicants asserted that:
· there was no evidence or other material to justify the finding (the Review Act, s17(2)(h) and (f)); and
· the finding was an improper exercise of power conferred by the Act (the Review Act, s17(2)(e));
· additionally, with respect to ground (4), it was alleged that error of law attended the finding re Aboriginal relics by holding that the applicants had failed to discharge an onus of proof (the Review Act, s17(2)(f)), and with respect to ground (6), it was alleged that the Commissioner erred in law in failing to determine whether Conversion Criterion 1(3)(a) had been met or, if he did so determine, failed to give sufficient reasons for so doing (the Review Act, s17(2)(f)).
Ground (7) asserted that there was no evidence or other material to justify the making of the decision that the shack should be removed (the Review Act, s17(2)(h)). This ground is really a compendious assertion of the matters raised by grounds (3) to (6) inclusive and does not call for separate consideration.
Ground (8) asserted that the applicants had been denied procedural fairness because the Commissioner made some factual assumptions about what was required to be done to provide the shack with adequate fire protection when there was no evidence or legislative requirement to justify these assumptions. The ground complained that the applicants were not given any opportunity to answer the assumptions that had been made.
The Review Act
The scope of the inquiry on this application is governed by the provisions of the Review Act and it is necessary to examine the relevant law concerning some of these provisions before proceeding further.
The Review Act, s17(1), gives this Court jurisdiction to review "a decision". Section 4 explains that this is a reference to a decision of an "administrative character". Thus, the jurisdiction of this Court is confined to a review of the Commissioner's decision that the shack site should be removed and the land revert to the use of the Crown.
The Review Act, s17(2), confines the Court's jurisdiction to a review upon the bases set out in pars(a) to (i). None of these paragraphs authorise a review by this Court on the ground of merit. The applicants rely upon the following paragraphs in the Review Act, s17(2):
"(e)that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;
(f)that the decision involved an error of law (whether or not the error appears on the record of the decision);
(g)…;
(h)that there was no evidence or other material to justify the making of the decision."
The Review Act, s17(2)(h), must be read in conjunction with s21 which relevantly provides as follows:
"The ground mentioned in section 17(2)(h) … is taken not to be made out ¾
(a) unless ¾
(i)the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established; and
(ii)there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or
(b) unless ¾
(i)the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and
(ii)the fact did not or does not exist."
It will be noted that the two paragraphs that make up s21(a) are joined by a conjunction so, in accordance with par(a), before the applicants can pray in aid the Review Act, s17(2)(h), they must show that the Commissioner was required by law to determine that the shack should be removed only if a "particular matter" had been established. Sections 17(2)(h) and 21 are identical (except in one minor and irrelevant respect) to the Administrative Decisions (Judicial Review) Act 1977 (Cth), s5(1)(h) and (3). In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357 - 358, Mason CJ described the "particular fact" in the equivalent of the Review Act, s21(a), as "a fact critical to the making of the decision". In Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222, the Court confirmed the view expressed by Mason CJ in Bond that "particular fact" referred to in the equivalent to the Review Act, s21(a) was a reference to a fact that was critical to making the administrative decision. In their judgment, Gaudron and McHugh JJ said at 240:
" … when regard is had to the requirement that the decision be "based ... on ... a particular fact", the paragraph, in our view, is to be understood as referring to a finding of fact without which the decision in question either could not or would not have been reached. In this sense, it is, in our view, appropriate to speak of a 'fact critical to the making of the decision'."
Kirby J expressed approval of the reasoning of Black CJ in Curragh Qld Mining Ltd v Daniel (1992) 34 FCR 212 at 220 – 221 and said at 259:
"* The decision-maker must have 'based' the decision in the existence of the particular fact rendering it, as it is sometimes described, 'critical' in the circumstances; and
* The applicant must be able to show that the fact did not exist, that is, that there was no evidence or other material concerning the fact before the decision-maker 'to justify the making of the decision'."
Although the Act, s6(1) required the Secretary of the Department to do the things prescribed by pars(a) to (e) inclusive of that subsection, the exercise of the discretion conferred upon him or her, and subsequently upon the Commissioner in the case of an appeal, by the Act, s4, is not fettered except by the provisions of s6(2). Relevantly, that subsection required the Commissioner to make the determination that he did make if he was not satisfied that waste water from the shack site could be effectively treated or disposed of. However, that fetter on the exercise of the discretion conferred by the Act, s4, does not mean that the Commissioner can only determine a shack should be removed if he is not satisfied that waste water can be effectively treated or disposed of. Although absence of satisfaction that waste water may be effectively disposed of means that the Commissioner must determine that the shack be removed, that absence of satisfaction is not a "particular fact" within the meaning of the Review Act, s21(a)(i), because the Commissioner may make that determination as a result of many other matters such as, the shack's state of repair, its visual appearance, its location, its failure to satisfy conversion criteria, and so on, even if he is satisfied that waste water can be effectively disposed of. It cannot be said that the law required the Commissioner to not be satisfied that the waste water could be disposed of effectively before he could make the determination that he did.
I turn to the Review Act, s21(b). Mr Tree submitted that the applicants were entitled to rely upon this statutory provision. Paragraph (b) is quite different from par(a). It does not speak of any requirement imposed by the law, but relevantly refers to a decision based upon the existence of a particular fact. Mr Tree's argument was that the Commissioner's decision was based upon the fact that waste water could not be effectively disposed of and that fact did not exist. Assuming, but not deciding, that the decision was based upon that fact, the Act, s6(2), speaks of the Secretary not being satisfied that waste water can be effectively disposed of. The "particular fact" referred to in the Review Act, s21(b)(i) is the state of the Secretary's or Commissioner's mind, not the inability to effectively treat or dispose of waste water itself. There was no doubt at all that that was the state of the Commissioner's mind and consequently that the "particular fact" referred to in s21(b)(ii) did exist. Mr Tree's contention that he should not have been of that state of mind, or that such a state of mind was unreasonable, even if correct, does not meet the provisions of the Review Act, s21(b).
Accordingly, I conclude as a matter of law that the applicants are not entitled to a review of the Commissioner's decision that the shack should be removed upon the ground that there was no evidence or other material to justify the making of that decision within the meaning of the Review Act, s17(2)(h). This conclusion gives rise to a related matter, viz, is the decision reviewable upon the basis that there was an error of law (the Review Act, s17(2)(f)) in that there was no evidence to sustain certain findings of fact? In Australian Broadcasting Tribunal v Bond (supra) Mason CJ, with whose reasons on this point Brennan and Deane JJ expressed agreement, set out at 355 some authorities for the proposition that whether there is any evidence of a particular fact is a question of law. He went on to say that the same proposition applied to whether a particular inference could be drawn from facts found or agreed, and said:
"This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150, at pp 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473, at pp 481, 483. 88.
But it is said that '(t)here is no error of law simply in making a wrong finding of fact': Waterford v The Commonwealth (1987) 163 CLR 54, per Brennan J at p 77. Similarly, Menzies J observed in Reg v The District Court; Ex parte White (1966) 116 CLR 644, at p 654:
'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law.'
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."
Placing emphasis upon the proposition that whether there is any evidence of a particular fact is a question of law, Glass JA said in Azzopardi v Tasman UEB Industries Ltd (1984) 4 NSWLR 139 at 155:
"To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654". [emphasis added]
In Australian Broadcasting Tribunal v Bond (supra) Mason CJ considered that the equivalent of the Review Act, ss17(2)(h) and 21, did not affect the existing law that no evidence at all of a particular fact remained an error of law. It seems to me that this is still the law, despite the differences of opinion that have been raised with respect to the relationship between the equivalent of the Review Act, ss17(2)(h) and 21 and the Review Act, s17(2)(f), in Minister for Immigration and Multicultural Affairs v Rajamanikkam (supra) and Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. These differences are discussed at some length in Aronson, Dyer and Groves, Judicial Review of Administrative Action 3 edn at 241 – 245. However, there is no need for me to explore this any further. There was plenty of evidence of the facts found by the Commissioner even if it might be said, as was urged on behalf of the applicants, that some of those findings were contrary to the weight of the evidence or even perverse. Consequently, I conclude that the submission that certain findings of fact constituted an error of law by virtue of the Review Act, s17(2)(f), in that there was no evidence of those facts, fails.
On the application for judicial review, Mr Tree examined the evidence given to the Commissioner and made submissions with respect to the findings of fact identified in grounds (3) to (6) inclusive. The submissions were all to the effect that the findings were wrong and/or contrary to the evidence, and/or there was no evidence to support them.
Although there have been some recent suggestions that Australian administrative law is changing its stance with respect to challenging fact-finding by tribunals, I understand the law in this respect to be that expressed by Mason CJ in Australian Broadcasting Tribunal v Bond (supra) at 355 and which I have cited above at par35. In the Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (supra), there was discussion about review on the ground of illogicality, or irrationality and lacking basis in findings or inferences of fact supported on logical grounds, but it was no more than discussion. With respect to that discussion, Gleeson CJ said at 61, that:
"… to describe reasoning as illogical or unreasonable or irrational , may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence."
Mr Tree did not contend that the law was other than was expounded in Bond's case. Grounds (3) to (6) inclusive all rely upon the Review Act, s17(2)(e), viz, that the making of the decision was an improper exercise of the power conferred by the Act, s4(1). The Review Act, s20, provides that a reference to an improper exercise of power is taken to include one or more of the matters set out in pars(a) to (i). The application for review identifies pars(a), (b) and (g) of s20 as material to this case. Those paragraphs refer to:
"(a)taking an irrelevant consideration into account in the exercise of a power; and
(b)failing to take a relevant consideration into account in the exercise of a power; and
…
(g)an exercise of a power that is so unreasonable that no reasonable person could so exercise the power."
The assertion made in each of the grounds (3) to (6) is that there was an improper exercise of power with respect, not to the impugned decision, but to each of the four findings of fact found by the Commissioner. The grounds do not elucidate the nature of the arguments that might support such claimed errors. Each ground merely asserts that the identified finding of fact was an improper exercise of power and then sets out verbatim the provisions of the Review Act, s20(a), (b) and (g).
On behalf of the applicants, no irrelevant consideration was identified as having been taken into account in the exercise of the power, nor was any consideration identified as relevant, but not taken into account in the exercise of the power. Mr Tree introduced his submissions in support of the grounds of review by saying, "In substance, the appeal will rise or fall on whether there was evidence to sustain the findings". In the course of argument, this proposition boiled down to whether the determination, or "exercise of power", was "so unreasonable, that no reasonable person could [have] so exercise[d] the power".
This statutory ground of review owes its origins, of course, to the seminal authority of Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223. Wednesbury unreasonableness has been discussed in many cases and it would be tedious to refer to or quote from them. However, it is perhaps worthwhile setting out the following relevant statement of principle that underpins the law and is taken from the judgment of Brennan J (as he then was) in Attorney-General for New South Wales v Quinn (1990) 170 CLR 1 at 37:
"If it be right to say that the court's jurisdiction in judicial review goes no further than declaring and enforcing the law prescribing the limits and governing the exercise of power, the next question immediately arises: what is the law? And that question, of course, must be answered by the court itself. In giving its answer, the court needs to remember that the judicature is but one of the three co-ordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual. The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered. Moreover, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious.
Some advocates of judicial intervention would encourage the courts to expand the scope and purpose of judicial review, especially to provide some check on the Executive Government which nowadays exercises enormous powers beyond the capacity of the Parliament to supervise effectively. Such advocacy is misplaced. If the courts were to assume a jurisdiction to review administrative acts or decisions which are 'unfair' in the opinion of the court - not the product of procedural unfairness, but unfair on the merits - the courts would be assuming a jurisdiction to do the very thing which is to be done by the repository of an administrative power, namely, choosing among the courses of action upon which reasonable minds might differ: see Secretary of State for Education and Science v Tameside Metropolitan BC [1977] AC 1014, at p 1064, and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, at pp 414-415. The absence of adequate machinery, such as an Administrative Appeals Tribunal, to review the merits of administrative acts and decisions may be lamented in the jurisdictions where the legislature has failed to provide it, but the default cannot be made good by expanding the function of the courts."
With respect to the last sentence of that paragraph, it must be remembered that in the present case the legislature did provide machinery for the review of the Secretary's determination by conferring a right of appeal to the Commissioner.
With respect to judicial review of discretionary administrative decisions, Gibbs J (as he then was) said in Buck v Bavone (1976) 135 CLR 110 at 118 – 119:
"Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts." [emphasis added]
Finally, by way of recent example, the New South Wales Court of Appeal held in Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86 at par99 with respect to a planning decision:
"The only question is whether it was open to the Manager Development Services, acting reasonably, to come to the conclusion that the impact upon views was not such as to require refusal of the application."
In this case the only issue raised by the grounds that are common to grounds (3) to (6) is whether the Commissioner's determination that the shack should be removed and the land reverted to the use of the Crown was such an unreasonable exercise of power that no reasonable person would have so determined.
Was the decision an unreasonable exercise of power?
The written reports before the Commissioner showed that the shack site had been identified as an Aboriginal Heritage site. Ten auger pits were dug, both in proximity to the shack and in the area on the east side of the walking track. Two pits dug adjacent to the shack were found to contain Aboriginal stone artefacts. A third artefact was found on the surface of the walking track to the east of the shack's water tank. These finds led to a recommendation by the Office of Aboriginal Affairs that the applicants' shack be removed. It appears that any disturbance of the ground in the vicinity of the shack would risk disturbing Aboriginal artefacts.
As mentioned at the beginning of these reasons for judgment, the toilet facility for the shack consisted of a pit or "long drop" on the opposite side of the walking track. Any digging to provide a better toilet facility would risk disturbing Aboriginal artefacts. Hence the disposition of waste water (the Act, s6(2)(a)), and Conversion Criterion 1(1)(a) became inextricably intertwined.
The applicants propounded three options to solve this problem. They are correctly summarised by the Commissioner in his reasons for determination at par10:
"The solutions put forward by the Appellants to justify a long term lease were as follows:
waste water:
flushing WC with septic tank and disposal bed; or
long drop toilet; or
internal composting toilet; andall grey water to a waste water disposal bed."
The applicants also had to deal with the view expressed by the National Parks and Wildlife Service that the shack created an inappropriate aesthetic intrusion into the National Park at the start of a significant walking track. The applicants propounded alternative solutions to deal with this problem, which the Commissioner also correctly stated at par10 of his reasons:
"walking track:
relocate the track away from the shack site; or
construction of a raised boardwalk and tea tree screen over the existing track to bridge the waste water delivery pipe from the shack to the disposal bed; and
to conceal Aboriginal relics."
It is necessary to expand on the applicants' proposal for provision of an internal composting toilet and all grey water to a waste disposal bed. This became known as Option 3. The proposal was to demolish the existing internal bathroom and replace it with a new bathroom to be attached to the end of the shack where the water tank presently stands, the tank being moved out sufficiently to accommodate the proposed bathroom. Option 3 contemplated that the proposed bathroom be built on "sleepers" that would rest on the surface of the ground so that foundations would not have to be dug into the ground. Consequently, the floor level of the proposed bathroom would be higher than the floor level of the existing shack. The idea was that the proposed bathroom would contain an internal composting toilet and the grey water from it, the sink and the shower, would be piped to an evapotranspiration/absorption bed on the other side of the walking track. The applicants thought that there would be sufficient fall for the pipe to carry the water to the bed. However, if the fall was not sufficient, Option 3 contemplated the installation of a pump to pump the water there. In order to avoid an excavation, except close to the absorption bed where it did not matter, Option 3 contemplated the construction of about 21 metres of boardwalk along the track next to the house. The proposal was to lay the waste pipe under the boardwalk, but above the ground. Further, if a pump was necessary, it could be installed under the proposed bathroom, but again, above the surface of the ground.
Mr Tree submitted that Option 3 solved the problem of any possible disturbance to Aboriginal artefacts and the problem concerning disposition of waste water. This may well be true. The evidence from Ms Tatnell, manager of the South East Tasmanian Aboriginal Corporation, was that the construction of the boardwalk would protect any artefacts that may be in the ground below it. She concluded by saying that "SETAC don't have a problem with the shack staying". Mr Judson, an Environmental Health Officer with the Huon Valley Council, spoke of the risk of failure of the system contemplated by Option 3, but conceded that that risk was low. He gave what might be called guarded approval to the location of a pump if that was necessary and said that he could not discount the possibility of ground water at surface level where it was proposed the absorption bed would lie. However, all this does not mean that the impugned determination was an unreasonable one within the meaning of that expression as enacted in the Review Act, ss17(2)(e) and 20(g).
To deal with any adverse aesthetic impact the shack might have on "visitor experience", the applicants adopted a proposal put forward by a consultant of growing a tea-tree screen to hide the shack from public view. There was evidence that trees could be planted without digging holes in the ground.
The Commissioner clearly understood all the evidence that he had heard about these matters for he correctly stated, at pars13 and 14 of his reasons for determination:
"In summary Mr Baker outlined the final preferences of the shack owners. These were as follows:
A waterless toilet in an extension of the shack to the northern end as shown in option 3.
Gravity feed of waste water to an absorption bed(s) to the east of the shack or if required to a pump chamber followed by absorption beds.Construction of a raised boardwalk with or without a screen fence.
On the evidence the above preferences are also the available solutions if the appeal was to be resolved in favour of the Appellants. The other options for waste water disposal and track protection as proposed by the Appellants are of a nature that do not warrant detailed consideration in this decision. The proposed solutions and the reasons for appeal are examined next."
The Commissioner then set out Criterion 1(2) and after discussing the evidence made "the finding re land management and environmental degradation". Mr Tree made submissions with respect to this finding as follows:
(1)He referred me to some written submissions which purported to outline the evidence given by Mr Garner, who is the Senior Ranger, Parks and Wildlife Service, Southern District.
(2)He referred me to the transcript where Mr Garner gave evidence about:
· the proposed construction and maintenance of 21 metres of boardwalk outside the shack;
· clearing vegetation for fire control.
(3)He dealt with a suggestion that vegetation would have to be cleared to make way for the waste disposal bed.
(4)He submitted the foregoing comprised all the materials relied upon by the Commissioner to make the "finding re impact on land management and environmental degradation" and that the finding was not one that a Commissioner, acting reasonably, could have made.
I reject those submissions.
Neither the written submissions, nor the oral submissions, made any reference to two reports written by Mr Garner, one dated 2 August 2002 and the other, undated, but described as "proof of evidence". Both reports were tendered in evidence before the Commissioner. In both documents reference is made to the increasing number of visitors to Cockle Creek. The August report states that "retention of the shack is likely to impact on the flexibility/options for PWS in developing this day use area". This point was drawn to Mr Garner's attention in cross-examination and he was asked if it had relevance to the applicants' shack or to only a nearby shack. Mr Garner agreed that the point was not relevant to the applicants' shack at the present time, but he could not say that that state of affairs would continue in perpetuity and added:
"… as you may agree the area is limited physically and with the proposed changes if this development goes ahead at Planter's Beach and with increases of numbers [sic] to the site there may be management changes desired in the future in terms of camping arrangements, car parking, beach access and associated infrastructure, picnic tables, toilets and whatever."
Given that the Commissioner's discretion conferred by the Act, s4(1), is not confined to the matters set out in the Act, s6, this evidence alone would make the impugned determination unassailable upon judicial review based upon the Review Act, ss17(2)(e) and 20(g).
The August report and the proof of evidence both refer to the waste disposal proposal, noting that a failure could cause offensive odours and pollution. Mr Garner was cross-examined about this matter. He said that leakage could harm vegetation and could create a health hazard. He conceded that demand on the waste disposal system would be low, but pointed out that the Parks and Wildlife Service would be responsible for ensuring that leakage did not occur and if it did, for ensuring that the shack lessees fixed the problem. This piece of evidence is referred to, albeit incompletely, in the applicants' summary of evidence, but was not addressed by Mr Tree in his oral submissions.
The August report states under reference to Criterion 3(a), which overlaps with Criterion 1(2) to some extent:
"We are encouraging a wider spectrum of visitors to the area with increased access to enjoy the natural environment and scenery. These shacks occupy premium locations that conflict with this use of the area by these visitors."
The reference to "shacks" is a reference to the applicants' shack and a relatively nearby shack.
In cross-examination, Mr Garner explained that the Parks and Wildlife Service take visitor surveys and in the south west those visitors "would like to see and enjoy the most natural experience possible". He said that "we" are often asked who owns these shacks and they are put in the position of having to justify them. However he conceded in cross-examination that "there hasn't been many specific criticisms of [the applicants'] shack in particular". The next paragraph of the report states:
"Whilst salt water is available for fire fighting from the sea, traction can be a problem for vehicles heavily laden as well as the concerns over access damage to dunes, middens and coastal vegetation. The provision of 10,000 litre water tanks at each shack site would be a visual and physical intrusion."
With respect to the 10,000 litre water tanks, Mr Garner agreed that its visual impact could be reduced in various ways, but made it clear that he would defer to the requirements of the Fire Service.
The Secretary of the Department engaged Messrs Sinclair, Knight and Merz to prepare a report for him. The Commissioner obviously had regard to this report because he raised a part of it with Mr Garner. The relevant part of the report said:
"If conditions of the lease require 20m clearance of vegetation around shack and a further 15m of modified understorey vegetation to meet fire safety requirements this site together with 19375016 [the applicant's shack site] would require almost all of the surrounding vegetation to be cleared. This is not consistent with the objectives of the reserve that the shacks occur within. Issuing of a lease and ensuing management/use may impact negatively on diversity and/or habitat if fire management requirements are a condition of the lease. However, vegetation community affected is a low priority for conservation (E obliqua shrubby wet forest community). Some potential (but not optimal) flora (Thelymitra holmesii) and fauna habitat will be affected (Grey goshawk).
Mitigation strategy: Lease conditions pertaining to fire management requirements for this shack should not involve clearance of native vegetation to 20m. If this is not possible for safety reasons then the lease should not be issued."
With respect to that part of the report, Mr Garner told the Commissioner:
"We would certainly not be happy about that at all. It certainly, it certainly, a lot of it you could see from the photograph, there's lots of tall forest there and it would have an effect on the understorey, because once the understorey is removed that would change the dynamics of the understorey altogether and certainly and it would certainly change the water table and eucalpyts' cycles."
It is unnecessary to detail any more of Mr Garner's evidence for present purposes. I turn now to examine the Commissioner's nine paragraphs of reasons for making "the finding re impact on land management and environmental degradation".
Paragraph 16. The Commissioner referred to the applicants' claim that they would accept responsibility for keeping the boardwalk safe for use and in good repair over the life of a long term lease.
Paragraph 17. The Commissioner summarised the evidence of Mr Garner concerning a mooted possibility of re-routing the track away from the shack site. He correctly stated that the evidence was to the effect that all kinds of investigations and costings would have to be undertaken to determine the cost and feasibility of re-routing the track.
Paragraph 18. The Commissioner dismissed re-routing the track as a viable option because there were too many unknown factors.
Paragraph 19. The Commissioner correctly summarised the evidence given by Mr Linardi, an architect called by the applicants, about the construction of the boardwalk.
Paragraphs 20 and 21. The Commissioner correctly listed some "issues that add to the management difficulties" as described by Mr Garner.
Paragraph 22. The Commissioner noted, again correctly, that although the applicants sought to accept responsibility for the maintenance of the boardwalk, he doubted the appropriateness or the ability of the Parks and Wildlife Service to divest itself entirely of responsibility for this part of "an important walking track". He was clearly correct to do so.
Paragraph 23. The Commissioner repeated the advice with respect to fire clearance set out in the consultant's report and stated that Mr Lark (the husband of the first applicant) was prepared to keep this clearance but preferred to live with the threat of fire.
Paragraph 24. The Commissioner stated that living with the threat may be satisfactory with respect to a fire that starts away from the shack, but provided no protection to the flora from a fire that starts within the shack. The Commissioner noted that there was no evidence that the standard clearance distances would be varied for the applicants' shack.
Paragraph 25. The Commissioner concluded:
"It would appear inevitable that some clearing of fire hazard would be necessary and this would be adverse to the environment of the track and such clearance will change the dynamics of the understorey vegetation. In addition such clearing would not accord with the management objectives in the Management Plan. It is also inevitable that this issue would add to the land management costs and difficulties and lead to environmental degradation."
No complaint could be made about any of the statements made in pars 16 to 25. In paragraph 26, the Commissioner made "the finding re land management and environmental degradation" in these terms:
"I find that the proposal for a raised boardwalk, the clearing of vegetation for waste water disposal and fire protection supports the evidence principally for Mr Garner that the shack site is likely to give rise to significant land management costs or land management difficulties and environmental degradation."
There is obviously something corrupt about par26. The Commissioner's meaning becomes clear if a comma is inserted after the word "evidence", the word "from" is substituted for the word "for" and a comma is added after "Mr Garner", so that the paragraph begins, "I find that the proposal for a raised boardwalk, the clearing of vegetation for waste water disposal and fire protection supports the evidence, principally from Mr Garner, that the shack site is likely to give rise …". It may be argued, as did Mr Tree, that that finding should not have been made, but there is no doubt that there was evidence to support it. Further, it must not be overlooked that upon this ground of review, the issue is whether the ultimate determination of the Commissioner was an exercise of power so unreasonable that no reasonable person would have so exercised that power. That finding alone would support the determination.
With respect to the finding re Aboriginal relics, the Commissioner correctly recited Ms Tatnell's evidence to which I have referred, and her statement that she had no objection to the shack remaining in the light of Option 3, including the boardwalk and excluding any excavation. The Commissioner also correctly referred to evidence given by Mr Jones, an archaeologist, and Mr Pedder, the Manager of the Aboriginal Heritage Office. The Commissioner correctly summed up the position at par35 of his reasons for determination when he said:
"The Appellants did not contest the existence of Aboriginal relics, the issue instead is the impact from required works should the site be made available for a long term lease. The minimum permit requirement appears to be a permit to deface or to conceal. The evidence appears to favour concealment as a means of preserving the site. Within scope [sic] of the works proposed by the Appellants, issues of Aboriginal heritage can be accommodated to the satisfaction of the Aboriginal community and the Aboriginal Relics Act 1975. However more invasive works that involve excavation other than minimal and supervised ground clearing and shallow excavation would not be acceptable. Difficulties could therefore arise should an in-ground pump chamber and/or septic tank and absorption trenches be required."
Mr Tree submitted that the Commissioner was right when he stated that the work proposed by the applicants would accommodate issues of Aboriginal heritage and he was right when he said more invasive works would not be acceptable. It follows then that the last sentence is also correct, but Mr Tree submitted that the uncontroverted evidence was that Option 3 would not involve any excavation at all and accordingly submitted that the finding expressed in the following paragraph was not one that was open on the evidence, viz:
"36 The ability to provide infrastructure without requiring deep excavation and to avoid in-ground disposal of waste water has not been demonstrated. The ability to complete works without adversely impacting on Aboriginal heritage has not been demonstrated. The consequences of having to abandon works as a result of revealing relics also have to be given weight."
As appears from his reasons, par51, set out later, the Commissioner's likely view of the evidence was that it was not certain that the fall created by Option 3 would be sufficient to take the waste water to the absorption bed and if that was the case a pump would be required. Such a view was in accordance with the evidence. If the fall was insufficient, a pump would be needed. As I have said earlier, Mr Judson's approval of a pump under the floor of the proposed bathroom was guarded. He said that his preference would be to locate the pump in a pit at least three metres from the building. In cross-examination he accepted that this was not an Australian Standard but a discretionary requirement. It is likely that the Commissioner was left in some doubt whether a pump could be installed under the proposed bathroom floor. There followed some discussion about alternatively digging a small pump pit on the other side of the track and running wires from it to the shack to provide electricity to run the pump. Any excavation might reveal an Aboriginal relic and, according to the evidence, that might result in all further work being stopped.
I reject Mr Tree's submission with respect to the finding re Aboriginal relics. There was evidence that Option 3 may not be able to proceed and consequently, waste water disposal would require some ground excavation. The evidence of Mr Judson was such that it was open to the Commissioner to make the finding that he did in the part of par36.
After making that finding, the Commissioner revisited the waste water disposal issue and made this finding, at par51:
"The Appellants' waste water solution requires falls to the disposal bed without an in-ground pump chamber. The ability to achieve the necessary falls has not been demonstrated and the alternative of an in-ground pump chamber has implications in terms of excavation and Aboriginal relics. The disposal bed relies on evapotranspiration in a high rainfall wet environment, the feasibility of which has not been demonstrated."
In his evidence-in-chief Mr Judson said that if the absorption bed was located in a wet area with ground water present, "You'd have to wonder whether it was actually suitable for any disposal". The Commissioner said that he had visited the site and saw a lot of ground water. I acknowledge Mr Tree's criticism of this material in that the Commissioner was not able to say exactly where in relation to the proposed absorption bed he saw the wet area, but what he saw on his visit did constitute evidence upon which the Commissioner could base the finding that he made at par51 of his reasons.
Significantly, upon a consideration of this ground, the Commissioner concluded his reasons with par56, the first sentence of which stated:
"The Appellants demonstrated at the hearing that each requirement could potentially be resolved by a particular response."
Mr Tree submitted that this was a correct statement of the totality of the evidence as he urged it should be viewed. I would place considerable emphasis on the word "potentially" for there were some grey areas concerning Option 3 and fire clearance which were adverted to in the earlier findings made by the Commissioner. The Commissioner went on, in par56, to state:
"This approach avoids the cumulative impact of the proposed works in the National Park. The shack site straddles one of the main walking tracks in Tasmania with the shack on one side of the track and the current toilet and waste water disposal on the other side. The proposals for an internal composting toilet still requires the disposal of waste water on the other side of the track. The proposed 21.5m long raised boardwalk, screen fence, large water storage tank and vegetation clearance required for fire protection is contrary to the objectives of the Management Plan and concepts of enhancing the visitor experience. In addition the attempts by the Appellants to offer to carry the costs including ongoing maintenance, assumes that the Crown can divest of its responsibilities and duty of care."
Those were views he was entitled to express. They were all drawn from the evidence and probably the visit the Commissioner made to the shack site. They were relevant to the exercise of the discretion conferred upon him by the Act, s4(1). They justify the determination that was made. It has not been demonstrated that the impugned exercise of power to determine that the shack should be removed and the land use revert to the Crown was so unreasonable that no reasonable person would have determined. The grounds of appeal that are common to grounds (3) to (6) inclusive, are not made out.
Was there a hearing de novo ?
The provisions of the Act, s12(2) and Sch2, cl 2, govern the hearing of an appeal before the Commissioner. Relevant to this ground of appeal, those provisions are:
"(4) In hearing the appeal, the Commissioner ¾
(a)must proceed with as little formality and with as much expedition as a proper consideration of the appeal permits; and
(b)is not bound by the rules of evidence; and
(c)may inform himself or herself on any relevant matter in such manner as he or she thinks fit.
…
(6) Subject to this Schedule –¾
(a)
(b)the Commissioner may determine his or her own procedure for the purposes of determining and hearing appeals under this Act."
There is no doubt that the Commissioner was obliged to hear and determine the issue raised by the Act, s4(1) de novo. He said as much during the course of Mr Jones' cross-examination about some evidence that had been put before the Secretary. It was for the Commissioner to determine the appropriate procedure before him. His only statutory obligation was to comply with the provisions of the Act, s6(1)(a) to (e) and (2). There was ample evidence that he complied with those provisions. In some instances compliance was by way of reading written material and in some instances, by way of oral evidence and argument. Mr Tree did not submit that in this respect the Commissioner failed to comply with his statutory obligations.
The oral hearing was structured around the grounds of appeal but the applicants cannot complain about that. The husband of the third applicant, Mr Baker, is a legal practitioner. He had carriage of the case before the Secretary, appears to have prepared the notice of appeal, and submitted to the Commissioner, I infer before the hearing commenced, a comprehensive document entitled "Appellants' Outline of Evidence and Submissions". That document contained submissions which were made under the following headings:
"· Issue 1 ¾ Waste Water Disposal.
· Issue 2 ¾ Land Management Costs and Difficulties for the Crown.
· Issue 3 ¾ Protection of Aboriginal Relics.
· Issue 4 ¾ Avoidance of Impairment of Public Access.
· Issue 5 ¾ Aesthetic Requirements."
At the hearing it appeared to be accepted that the applicants should begin. One of the applicants was the first witness. At the end of all the evidence that the applicants wished to adduce, witnesses were called by counsel who appeared for the Attorney-General.
I am clearly of the view that the hearing was a hearing de novo in the sense that the Commissioner considered all the material afresh, unfettered by the views of the Secretary. There is nothing to suggest in his reasons for determination that he only reviewed the determination made by the Secretary. The hearing was in accordance with the requirements of the Act, s12(2), Sch2, and in compliance with the statutory prescription set out in the Act, s6(1)(a) to (e) and (2). Mr Tree did not submit to the contrary. His submission on this ground was based upon the structure of the reasons for the impugned determination. It is true that those reasons primarily address the grounds of appeal, as summarised by the Commissioner, but in doing so those grounds addressed relevant conversion criteria and the issue of waste water disposal. The reasons took into account the views of the Huon Valley Council, the Office of Aboriginal Affairs and the portfolio Minister. In short, the appeal was a hearing de novo in compliance with the relevant provisions of the Act.
No assertion made that the way the hearing was conducted disadvantaged the applicants or denied the applicants an opportunity to adduce relevant material or argument. Nor was it asserted that the Commissioner failed to take into account relevant material. Accordingly, even had this ground been made out, I would not have exercised any of the powers contained in the Review Act, s27(1), on that account. With respect to this, I venture to repeat what I said in Adelaide Bay Seafoods Pty Ltd v Shott (Chief Magistrate) [2005] TASSC 30, at pars29 – 30:
"The power to make the order that the applicant seeks is enacted by the Review Act, s27(1) in discretionary terms, as being an order that the Court "may make". Prima facie, such permissive statutory expression "operates according to [its] ordinary natural meaning", per Ward v Williams (1955) 92 CLR 496 at 505; see also Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 138.
Although the Commonwealth equivalent to the Review Act, s27, the Administrative Decisions (Judicial Review) Act 1977, s16, carries the additional permissive words "in its discretion" after the word "may", the reasoning of the Full Court of the Federal Court in Lamb v Moss (1983) 49 ALR 533 at 546 - 549 is apposite to the Review Act, s27(1). This reasoning supports the proposition that the grant of relief conferred by the Review Act, s27(1), is discretionary. See also Visy Board Pty Ltd v Attorney-General (Commonwealth) (1983) 51 ALR 705 at 712."
I turn to the remaining three grounds.
Did the Commissioner apply an onus of proof with respect to the finding re Aboriginal relics?
On behalf of the applicants it was submitted that an inference could be drawn from the words used by the Commissioner in par36 (set out earlier) of his reasons for determination that he considered that the applicants carried an onus of showing that the continued occupation of the shack would not disturb an Aboriginal site or relic. Mr Jones' evidence was to the effect that digging in the area of the proposed disposal bed would not require a permit unless an artefact was discovered in the course of such digging. Officers would monitor an excavation and if an artefact was unearthed, work would stop and not proceed until a permit had been granted. There was no evidence that it was likely that digging on the side of the track opposite the shack would unearth an artefact. The submission in support of this ground arises out of the Commissioner's use of the expression "has not been demonstrated".
The Commissioner was entitled to conclude that the applicants had not demonstrated the matters specified in his reasons for determination, par36. To so state does not carry an implication that he was proceeding on the basis that the applicants carried any onus of proof. There was evidence that Aboriginal relics had been found in the general area. Digging may well reveal others and if it did, work would have to stop and could not recommence until a permit had been granted. Even if the finding was wrong, that alone does not vitiate the impugned decision on the basis of the Review Act, ss17(2)(e) and 20(g).
The finding re impact on natural resources
Each of the criteria was fashioned in such a way that the opening words were "Other than in exceptional circumstances the shack should be removed where …" [and there follows a description of likely future events]. This no doubt explains why in most instances the Commissioner made his findings with respect to a criterion and followed it with the statement, "I find that exceptional circumstances have not been established …". However, with respect to "the finding re impact on natural resources", the Commissioner said, at par55:
"I find that exceptional circumstances have not been established to satisfy Conversion Criterion 1.(3)(a). This ground of appeal is not upheld."
In support of this ground of appeal, it was submitted that the Commissioner failed to determine that Criterion 1(3)(a) had been met, or if he did so find, failed to give sufficient reasons for so doing. I do not uphold this submission.
In par54 of the reasons for determination, the Commissioner said:
"Mr Garner referred to this criterion as relevant to ensuring that management decisions are not impaired by the shack. The South Coast Track is one of the 'great short walks' on which there was high levels of user feedback. Mr Garner referred to the visitor experience and contended that the proposed works including large water tank and screen increases overall impact. Also relevant to this criterion is the growth in visitor numbers to the area and the prospect for further visitation."
I have referred to some of Mr Garner's evidence which supports par54. As mentioned earlier in these reasons, this criterion overlaps with Criterion 1(2) which was dealt with earlier in the reasons for determination. The only reasonable inference from par54 and the structure of the reasons for determination generally, is that the Commissioner was of the opinion that continued occupation of the shack, either alone or together with other shacks, would, or would be likely, to impair the ability of natural or physical resources on or near the site to meet the reasonably foreseeable needs of future generations and that there were no exceptional circumstances in this respect that would warrant a determination that a long term lease should be granted. The reasons for reaching that conclusion are sufficiently apparent from pars54 and 56 and some of the earlier paragraphs of the reasons to which I have referred. This ground is not made out.
Were the applicants denied procedural fairness?
The first part of this ground asserts that the Commissioner assumed that in order for the shack to remain, the applicants would be required to create a 20 metre clearance of vegetation around the shack and a further 15 metres of modified understorey vegetation, giving a total area of intrusion on the vegetation out to 35 metres. The ground asserts that there was no evidence or legislative requirement for this and that the applicants were not afforded the opportunity of answering such an assumption.
Evidence about fire clearance appears in the report of Sinclair, Knight and Merz and is set out at par62 of these reasons for judgment. In his cross-examination, Mr Lark, one of the applicants, said that the applicants were happy to live with the existing threat of fire, but if the clearance described in the report was a requirement that could be met without upsetting any of the vegetation issues, then he would undertake further clearing of material. Mr Garner was cross-examined about this as well. In addition, the Commissioner had visited the site and seen the considerable clearance of vegetation around the adjoining shack. The Commissioner did not assert any more than "… basic fire safety standards" required the fire clearance described in the consultant's report (see par23). Such an assertion was consistent with the evidence. The applicants had notice of this evidence before the hearing commenced, as the consultant's report was prepared for the Secretary. There was no denial of natural justice with respect to this matter.
The ground also complains that the Commissioner assumed that in order for the shack site to remain, the applicants would be required to install a 10,000 litre water tank for fire fighting purposes when there was no evidence of such a requirement, no such legislative requirement, and the applicants were not afforded the opportunity of answering this part of the case against them.
I am unable to see a reference to a 10,000 litre water tank for fire fighting purposes in the report of Sinclair, Knight and Merz. I am unable to find a legislative requirement for such a tank. The Commissioner did not find that there was a legislative requirement. He found at par24, "Mr Lark accepted a requirement for 10,000 litre water storage in addition to the domestic water storage requirements." Such a finding should not have come as a surprise to the applicants. The issue was first raised by Mr Baker in the applicants' "Appellants' Outline of Evidence and Submissions" that was given to the Commissioner. The outline proceeded upon the assumption that a 10,000 litre storage tank was a requirement for it listed three options that the applicants could adopt to avoid the installation of an additional 10,000 litre fire fighting tank, and thus minimise the adverse aesthetic impact on the area. This issue was again raised by the evidence-in-chief of Mr Lark, conducted by Mr Baker. Mr Baker asked, "Another issue that has been raised I think it was by Sinclair, Knight Merz is, is the necessity of installing a 10,000 litre fire fighting tank". Mr Lark said, "That's right yes". He was then asked if it was a matter that the shack owners had considered and said, "Yes, when that issue was raised we considered it …". Mr Baker then asked Mr Lark if he was aware that the owners of the adjoining shack had been given a lease with a condition that a 10,000 litre fire fighting tank be installed. Mr Lark said he was aware of that. (I suspect that this is why the applicants thought that such a tank would be a requirement). Mr Lark added that he had spoken to the owners of that shack and they had indicated that they would be happy to share the cost of erecting such a tank with the applicants so it could serve both shacks for fire fighting purposes. There was also cross-examination of Mr Garner about this issue. I find that the material before the Commissioner justified the finding that he made about the 10,000 litre water tank, that the applicants proceeded upon the basis that such a tank would be required and there was no breach of natural justice with respect to this matter.
The Secretary's determination
During the course of argument, I raised with counsel the possibility that the Secretary had not exercised the power conferred on him by the Act, s4(1), at all and that his power had been exercised by Mr Marston in circumstances that I have set out in par12 of these reasons for judgment. However, since the conclusion of the hearing of the application I have read the material carefully and withdraw the suggestion that I put to counsel. Although the documents make it clear that Mr Marston investigated the matter for the Secretary, there is a letter dated 19 April 2002, addressed to the applicants and signed by the Secretary. The letter advised (inter alia) that "the assessment process has now been finalised" and the Secretary had received copies of the "final assessment reports relating to your shack site and other information included in an information package prepared by the Department's Shack Sites Project." The letter continues "… in accordance with section 4(1)(c) of the Crown Lands (Shack Sites) Act 1997 I have determined that your shack on the shack site … be removed."
The letter clearly shows that the Secretary exercised the discretion conferred on him by the Act, s4(1). The letter also clearly shows that in the exercise of that discretion, the Secretary relied upon reports and information supplied to him by others, probably employed in the Secretary's Department. There can be no objection to the Secretary doing that. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 66 and Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 at 426 – 427 where Mason P said in part, "Proof that assistance from a consultant such as PKF Utility was engaged will not in itself establish abdication of function or denial of procedural fairness."
Although I raised this matter, and although Mr Turner kindly agreed to make some written submissions about it, I do not think it became a ground of appeal. However, as I had raised it with counsel, I thought that I should deal with it.
The application for judicial review is dismissed.
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