Mount Isa Mines Ltd v The Australian Heritage Commission

[1995] FCA 83

CATCHWORDS

AUSTRALIAN HERITAGE COMMISSION ACT - proposal by Australian Heritage Commission to enter place in Register of the National Estate - nature of duty imposed on Australian Heritage Commission by s 24A - jurisdiction of Australian Heritage Commission under s 23 to enter place in Register depends on the place objectively answering the criteria in s 4 - area of surface of earth identified by metes and bounds, without more, not a place.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Heritage Commission Act 1975 (Cth) - ss 3(1), 4, 7, 8, 12, 22, 23, 23A, 23B, 24, 24A, 26, 30, 31, 31A, 46, Parts II, III, IV, V, VA
Environment Protection (Impact of Proposals) Act 1974 (Cth) - s 5(1)
Environment Protection (Impact of Proposals) Administrative Procedures - paras 1.1, 1.2.1, 1.3, 2.1, 2.3, 3.1.2, 3.2.2, 6.3.1, 6.4, 7.1, 8.1, 8.3.1, 9.5

Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 Referred to
Attorney-General (Cth) v State of Queensland (1990) 94 ALR 515 Referred to
Australian Postal Corporation v Botany Municipal Council (1989) 69 LGRA 86 Considered
Caledonian Collieries Limited v The Australian Coal and Shale Employees' Federation [No. 1] (1930) 42 CLR 527 Followed
Lovell v Lovell (1950) 81 CLR 513 Referred to
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Referred to
R v Gray; Ex parte Marsh (1984) 157 CLR 351 Followed
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 Considered
R v Williams; Ex parte The Australian Building Construction Employees & Builders Labourers' Federation (1982) 153 CLR 402 Followed
Tasmanian Conservation Trust Inc. v Minister for Resources (Sackville J, unreported, 10 January, 1995) Considered
The Queen v The Judges of the Federal Court of Australia; Ex parte Western Australia National Football League (Incorporated) (1979) 143 CLR 190 Followed
The State of Queensland v Wyvill (1989) 90 ALR 611 Considered

Mount Isa Mines Limited
v The Australian Heritage Commission
QG 99 of 1994

Drummond J
Brisbane
1 March, 1995

IN THE FEDERAL COURT OF AUSTRALIA )    No. QG 99 of 1994
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN:  MOUNT ISA MINES LIMITED

(A.C.N. 009 661 447)

Applicant

AND:     THE AUSTRALIAN HERITAGE COMMISSION

Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:         Drummond J
DATE OF ORDER:              1 March, 1995
WHERE MADE:                 Brisbane

THE COURT ANSWERS THE PRELIMINARY QUESTIONS AS FOLLOWS:

1. QUESTION (d)

(i)There is insufficient evidence to answer question (d)(i).

(ii)The Australian Heritage Commission is obliged to consider issues other than the significance of the Sir Edward Pellew Group as part of the national estate, viz., the issues raised by each of the objections lodged in response to the public notice of intention to list the Group in the Register given by the Australian Heritage Commission.

1. QUESTION (e)

That a place which the Australian Heritage Commission intends to enter in the Register of the National Estate objectively answers the description in s. 4 of the Act is a fact upon which the jurisdiction of the Australian Heritage Commission to make a decision to so enter the place depends.

1. QUESTION (f)

An area of the surface of the earth identified by metes and bounds cannot, without more, be a place within the meaning of that term in the Act.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )    No. QG 99 of 1994
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN:  MOUNT ISA MINES LIMITED

(A.C.N. 009 661 447)

Applicant

AND:     THE AUSTRALIAN HERITAGE COMMISSION

Respondent

Coram:    Drummond J
Date:     1 March, 1995
Place:    Brisbane

REASONS FOR JUDGMENT

The applicant in the proceedings, Mount Isa Mines Limited ("MIM"), has applied to review the decision of the respondent, the Australian Heritage Commission ("the AHC") made on 30 June, 1994 to enter an area comprising the Sir Edward Pellew Group of islands, a nearby strip of mainland coast and the adjacent waters in the Gulf of Carpentaria in the Register of the National Estate under the Australian Heritage Commission Act 1975 (Cth) ("the Act").  The respondent applied, by notice of motion in the proceeding, for an order that certain questions be determined separately from any other question before the hearing of MIM's application to review.  On 10 October, 1994 Cooper J made orders for the determination of six questions as preliminary questions.  I was told at the outset of the hearing that the only questions
which remain of concern to the parties are those in the order numbered (d), (e) and (f), viz.:

(d)Did s. 24A of the Act give rise to any requirement obliging AHC to:

(i)have compared the significance of the Sir Edward Pellew Group as part of the national estate with other parts of the national estate; and

(ii)consider issues other than the significance of the Sir Edward Pellew Group as part of the national estate?

(e)Whether, on the true construction of the Act, an entry may be made by AHC, pursuant to s. 23 of the Act, in the Register of the National Estate of any place within the meaning of the Act which AHC considers should be so recorded, or whether only a particular place which, objectively, answers the description in s. 4 of that Act can be so recorded?

(f)Whether an area of the surface of the earth identified by metes and bounds is a place within the meaning of the Act?

THE LEGISLATION

The Act contains the following provisions:

"4.(1)For the purposes of this Act, the national estate consists of those places, being components of the natural environment of Australia or the cultural environment of Australia, that have aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community.

(1A)Without limiting the generality of subsection (1), a place that is a component of the natural or cultural environment of Australia is to be taken to be a place included in the national estate if it has significance or other special value for
future generations as well as for the present community because of any of the following:

(a)its importance in the course, or pattern, of Australia's natural or cultural history;

(b)its possession of uncommon, rare or endangered aspects of Australia's natural or cultural history;

(c)its potential to yield information that will contribute to an understanding of Australia's natural or cultural history;

(d)its importance in demonstrating the principal characteristics of:

(i)a class of Australia's natural or cultural places; or

(ii)a class of Australia's natural or cultural environments;

(e)its importance in exhibiting particular aesthetic characteristics valued by a community or cultural group;

(f)its importance in demonstrating a high degree of creative or technical achievement at a particular period;

(g)its strong or special association with a particular community or cultural group for social, cultural or spiritual reasons;

(h)its special association with the life or works of a person, or group of persons, of importance in Australia's natural or cultural history.

..."

Section 3(1) of the Act defines "place" as including:

"(a)a site, area or region;

(b)a building or other structure (which may include equipment, furniture, fittings and articles associated with or connected with such building or other structure); and

(c)a group of buildings or other structures (which may include equipment, furniture, fittings and articles associated with or connected with such group of buildings or other structures);

and, in relation to the conservation or improvement of a place, includes the immediate surroundings of the place;"

The AHC is established under Part II of the Act. Section 7 provides:

"7.The functions of the Commission are:

(a)on its own motion or on the request of the Minister, to give advice to the Minister, on matters relating to the national estate, including advice relating to:

(i)action to identify, conserve, improve and present the national estate; and

(ii)expenditure by the Commonwealth for the identification, conservation, improvement and presentation of the national estate; and

(iii)the grant of financial or other assistance by the Commonwealth for the identification, conservation, improvement or presentation of the national estate;

(b)to encourage public interest in, and understanding of, issues relevant to the national estate;

(c)to identify places included in the national estate and to prepare a register of those places in accordance with Part IV;

(d)to furnish advice and reports in accordance with Part V;

(da)subject to Part VA, to administer the National Estate Grants Program, being the program devised for the grant by the Commonwealth, in accordance with that Part, of financial assistance to the States and internal Territories and to approved bodies for expenditure on National Estate projects;

(e)to further training and education in fields related to the conservation, improvement and presentation of the national estate;

(f)to make arrangements for the administration and control of places
included in the national estate that are given or bequeathed to the Commission; and

(g)to organize and engage in research and investigation necessary for the performance of its other functions."

The Register of the National Estate is established under Part IV, which contains the following provisions:

"22.(1)The Commission shall keep a register, to be known as the Register of the National Estate, in which will be listed places included in the national estate.

(2)A place shall not be entered in the Register otherwise than in accordance with section 23 or subsection 25(2).

(3)The Commission shall enter a place in the Register by causing to be entered in the Register a description of the place sufficient to identify it and the date on which the entry is made.

..."

The procedure the AHC must follow before it can enter a place in the Register is set out in s. 23, which provides:

"23.(1)Subject to this section and to section 25, where the Commission considers that a place that is not in the Register should be recorded as part of the national estate it shall enter the place in the Register.

(2)The Commission shall not enter a place in the Register in accordance with subsection (1) unless:

(a)it has, by public notice:

(i)stated that it intends to enter the place in the Register;

(ii)given a description of the place sufficient to identify it;

(iii)notified persons of their right to make written objection to the entry of the place in the Register;

(iv)specified the date by which such objections are to be made, not being earlier than 3 months after the date of publication of the notice in the Gazette;

(v)stated that although such objections may be made on any ground, the Commission will, in dealing with any objection, give upmost consideration to the significance of the place as part of the national estate;

(vi)stated that the Commission will supply, on request:

(A)if the location of the place cannot otherwise be readily understood - a map of the place; and

(B)a statement regarding the significance of the place as part of the national estate; and

(vii)specified an address to which such objections or requests may be forwarded;

(b)the date specified in that notice has passed; and

(c)if a person has, not later than the date specified in that notice, made written objection to the Commission to the entry of the place in the Register, the Commission has given due consideration to that objection.

..."

Seven days before giving the public notice required by s. 23(2)(a), the AHC must give notice of its intention to enter a place in the Register to all owners of land situated at the place and to the relevant local authority (s. 23A); but unlike the position created by s. 23(2), a failure by the AHC to comply with this section will not invalidate the entry of a place in the Register: s. 23A(5). If, after the giving of public notice under s. 23(2)(a) "the Commission becomes of the opinion, whether by reason of its consideration of objections or otherwise, that the place, or a place forming part of the place, should not be recorded as part of the national estate", the Commission is required to give public notice of its decision not to enter the place in the Register and must reconsider that particular decision, giving "due consideration" to any objections to the non-listing of the place (s. 23(3)(b)). Once a place has been entered in the Register in accordance with s. 23(1), the AHC must give public notice of that having been done, together with notice that it will supply, on request, information identifying the location of the place, "a statement regarding the significance of the place as part of the national estate"; and a statement of the reasons for the AHC's decision to enter the place in the Register (s. 23(4)). A person may inspect the Register (or the Interim List for the Register of the National Estate established under s. 26) and may make a copy of, or take an extract from, an entry in the Register or that list: s. 27. The Commission has power under s. 24 to remove a place from the Register of the National Estate, but only after following a similar public notification procedure to that in s. 23(2).

Section 24A provides:

"When dealing with an objection to any of its decisions under section 23 or 24, the Commission must give upmost consideration to the significance,
as part of the national estate, of the place to which the decision relates."

The entry of a place in the Register is important for two reasons. Firstly, entry attracts to the place the protective provisions of Part V of the Act, including s. 30, which provides:

"(1)Each Minister shall give all such directions and do all such things as, consistently with any relevant laws, can be given or done by him for ensuring that the Department administered by him or any authority of the Commonwealth in respect of which he has ministerial responsibilities does not take any action that adversely affects, as part of the national estate, a place that is in the Register unless he is satisfied that there is no feasible and prudent alternative to the taking of that action and that all measures that can reasonably be taken to minimise the adverse effect will be taken and shall not himself take any such action unless he is so satisfied.

..."

The only places included in the national estate but which have not, however, been entered in the Register to which the protective provisions of Part V apply are places in respect of which the AHC has given public notice under s. 23(2) of its intention to so enter them: such places must then be entered in the Interim List for the Register of the National Estate (s. 26(2)). Section 31 deems those places, for the purposes of Part V, as having been entered in the Register. They remain in the Interim List until the finalisation of the process commenced by the giving of the
public notice, i.e., until the entry of the place in the Register or the making of a decision by the AHC not to enter the place in the Register: see s. 26(3).

Secondly, financial assistance from the Commonwealth pursuant to Part VA of the Act can be made available for the purposes of conserving, improving or presenting a place entered in the Register (or deemed by s. 31 to be so entered because it is in the Interim List). "Presentation" of the national estate is defined in s. 3(1) to include:

"(a)the exhibition or display of;

(b)the provision of access to; and

(c)the publication of information in relation to;

places included in the national estate".

Such assistance, termed in s. 31A "financial assistance under the grants program in respect of National Estate projects", is also available in relation to unlisted places, but only for the purpose of identifying those places: see the definition of "National Estate project" in s. 3(1).

Both parties accepted, correctly in my opinion, that the national estate, which consists of all those geographic localities and man-made structures that have particular significance or other value for the present and future Australian communities, exists independently of any action the AHC may take pursuant to s. 7 to identify places that are included in the national estate and independently of any
action by the AHC pursuant to s. 23 to list a place in the Register of the National Estate. That flows from s. 4 of the Act, which defines the national estate. The introductory words of s. 4(1), viz., "For the purposes of this Act", do not require any other view. It is confirmed by other relevant provisions. For example, s. 7(c) declares it to be a function of the Commission "to identify places included in the national estate and to prepare a register of those places in accordance with Part IV": it is no part of the Commission's functions to determine which places should be included in the national estate as distinct from determining which places in the national estate should be entered in the Register of the National Estate. Section 22(1), which obliges the Commission to keep the Register of the National Estate, describes it as the Register "in which will be listed places included in the national estate": the Register is not defined as the document listing those places which together comprise the national estate. Section 23 describes the Commission's role in entering places in the Register. "[W]here the Commission considers that a place that is not in the Register should be recorded as part of the national estate it shall enter the place in the Register": the Commission's role is to make a record of a decision it has made in relation to a pre-existing fact. The Register can be expanded by the entry of places and contracted by the removal of places. Where places are removed from the Register, there is nothing in the Act to suggest that such places cease to be part of the national estate: they only cease to attract the protective provisions of the Act and the benefit of the financial assistance that is available for their conservation, improvement or presentation.

I turn now to the contentions of the parties in relation to the three questions which I have to answer.

QUESTION (d)

MIM submitted that in order to give "upmost consideration to the significance, as part of the national estate, of the place to which the decision relates" as required by s. 24A, the AHC necessarily has to make a comparison of the place in question with other places in the national estate; it further submitted that the language of the section shows that considerations other than the significance of the place in question as part of the national estate have to be taken into account by the Commission in deciding whether to list the place or not. It was said that, at any particular time, there will be parts of the national estate which will not be entered in the Register and the purpose of the comparison which s. 24A requires the Commission to make between the place in question and other places in the national estate is to determine whether the place in question should be given special status by way of entry in the Register. When counsel for MIM was asked how the AHC should go about identifying the other places in the national estate with which the candidate for listing had to be compared, the response was that it was the Commission's function to attend to that and it had available to it technical assistance from assessors and consultants to assist it. It was also said that the subject matter and scope of the Act indicate that the purpose of entry in the Register is to attract protection and grants to particular places included in the national estate and that the decision referred to in s. 24A is to be made in that context which thus marks out the range of relevant factors to be considered; reference was made to Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 C.L.R. 24 at 39-40.

The AHC's submission was that there is no warrant for implying into s. 24A any further duty than the duty therein expressed, viz., the duty to give upmost consideration to the place's significance as part of a national estate in deciding whether to enter it in the Register. The AHC further submitted in effect that, since the duty to comply with s. 24A could only arise after it had already decided that the place had the significance required by s. 4 and so was part of the national estate, the Commission did not have to make any further evaluation of the degree of significance of the place in the sense of where it ranked in the hierarchy of places of importance to the national estate; all s. 24A required, so it was said, was that, in considering objections, the AHC had to treat the already identified significance of the place (i.e., its qualification for its inclusion in the national estate) as the foremost consideration in the balancing exercise in which it had to engage in deciding whether or not to enter the place in the Register.
It is, I think, clear, contrary to the AHC's submission, that "the significance, as part of the national estate, of the place" to which the Commission is required to give upmost consideration under s. 24A, involves an examination of certain characteristics of the place in question that are more extensive than those characteristics that comprise the enduring aesthetic or other significance the place has which makes it a part of the national estate.

Section 24A is addressed to the AHC when the Commission is dealing with, among other things, an objection to the place in question being entered in the Register, i.e., after the AHC has already formed the opinion referred to in s. 23(1) that the place should be recorded in the Register as part of the national estate. The Commission can only have formed that opinion if it has determined that the particular place has either aesthetic, historic, scientific or social significance for future generations as well as for the present community or the place has some other special value for future generations as well as for the present community. If the AHC's argument, which focused on a close textual examination of the legislation, is correct, the exhortation in s. 24A would be empty of any content where the place had been identified as included in the national estate not because it had any enduring aesthetic, historic, scientific or social significance, but only because it had some other special value.

More importantly, s. 23(2)(a)(vi)(B) implicitly obliges the AHC to supply to an enquirer, who has seen the Commission's published notice of its intention to enter a place in the Register, "a statement regarding the significance of the place as part of the national estate", i.e., with a statement of the AHC's opinion on that topic. That expression is not, I think, apt to describe an obligation on the Commission to state only why it has identified the place as part of the national estate: the Commission here is being put under a duty to explain why it is taking action to enter a particular place, which it must already have identified as part of the national estate, in the Register, i.e., to explain what are the features of that particular component of the national estate that single it out for that special attention.

When it makes this decision, I do not think that the AHC necessarily has to embark on a comparison of the place with any other places in the national estate, before entering it in the Register. There must be many places that are part of the national estate which are recognisably unique: for example, there are places, each of which has enduring historic significance, because a particular event occurred there. Examples that come to mind are: the site of the flag-raising by Captain Arthur Phillip on 26 January, 1788 and buildings such as the Melbourne Exhibition Building, where the first Commonwealth Parliament was convened. Few would, I think, dispute the importance of such places to the present and future Australian communities. It seems to me that there is nothing with which each example of this kind of place could meaningfully be compared to ascertain its significance, as part of the national estate. But if MIM's argument is correct, the AHC will fail in its duty under s. 24A unless it makes some sort of comparison of such a place with other places in the national estate. On the other hand, there may be a place which has scientific significance for the present and future Australian communities and so will, by definition, form part of the national estate. It may be only one example of many such places in Australia. But the existence of some or even all of these other places may be unknown to the AHC or even to any one at all: comparison may for that reason alone be, as a practical matter, quite impossible.

What the AHC has to do in a particular case to comply with s. 24A will depend upon the circumstances of the case: there is, in my opinion, no warrant for interpreting the section as obliging the Commission in every case to make a comparison of the place in question with some other place or places before it can comply with the duty to give upmost consideration to the significance as part of the national estate of the place. A comparative examination may, in a particular case, simply not be a sensible exercise. In another case, when, e.g., the place is intended to be entered in the Register for the very reason that it is a good example of one component of the national estate of which there are many known examples, it would be essential for the AHC to
compare that place with other similar places before it could perform its duty under s. 24A.

Of course, the AHC can only lawfully proceed to enter a place in the Register after it has given due consideration to any objections received.  Such objections can be made "on any ground"; they are not limited to objections denying that the place possesses qualities which in fact make it part of the national estate.  An objection to listing could thus be founded on a ground which would necessarily require the AHC to make a comparison between the place in question and other places, even if, but for the objection, the AHC would not have had to make any comparison.

MIM's objection to the Commission's notice of intention to enter the Sir Edward Pellew Group in the Register was not in evidence before me; nor was I directed to any evidence which would enable me to form a view on whether the characteristics of the Sir Edward Pellew Group, which had attracted the AHC's decision to enter it in the Register, were such as to require the AHC to compare the range of features possessed by that place which made it worthy, in the AHC's opinion, of entry in the Register, with the features of any other place in Australia that can be identified as forming part of the national estate, whether already entered in the Register or not. The few agreed facts referred to in Cooper J's order provide no assistance here. I am therefore unable to say whether the AHC is required by s. 24A to compare the Sir Edward Pellew Group with other parts of the national estate.

Section 24A requires the AHC, when dealing with an objection to its decision to enter a place in the Register, to "give upmost consideration to the significance, as part of the national estate, of the place". The phrase suggests that there will be other matters to take into account: cf. Lovell v Lovell (1950) 81 C.L.R. 513 at 521-522. But when it comes to perform the task imposed on it by s. 24A, the AHC will already have identified the place as part of the national estate and will also have formulated its reasons for thinking that the place should be selected for inclusion in the Register. The only impediment to the AHC's intention to enter the place in the Register will be constituted by the existence of any objections to entry provoked by the opportunity the AHC is required by s. 23(2) to give to the public to oppose that step. Section 23(2)(c) impliedly obliges the AHC to give "due consideration" to each objection. The only matters s. 24A therefore requires the AHC to consider before deciding whether to enter a place in the Register is the subject matter of the objections, if any, against the background of the charge in s. 24A to give upmost consideration to the place's significance as part of the national estate, something about which the AHC must have formed its opinion before it gave the public notice required by s. 23(2)(a).

Answer to question (d)

(i)There is insufficient evidence before me to enable me to answer question (d)(i).

(ii)The AHC is obliged by s. 24A to consider issues other than the significance of the Sir Edward Pellew Group as part of the national estate, viz., the issues raised by each of the objections lodged in response to the public notice of intention to list the Group in the Register given by the AHC.

QUESTION (e)

This question raises the familiar one whether a factual enquiry an administrative body must make before it can exercise a statutory power involves an enquiry into the existence of a jurisdictional fact.  If it does, the body's decision on that fact will not be conclusive.

While its counsel acknowledged that the wording of ss. 23 and 4 suggests that a jurisdictional fact is involved, counsel for the AHC submitted that the Act, properly construed, left it to the AHC to determine whether a place was part of the national estate and so eligible for entry in the Register under s. 23. This followed, it was said, because the criteria referred to in s. 4 as those which had to be satisfied before a place would be part of the national estate were not criteria involving the establishment of merely difficult to ascertain facts, but were criteria based on subjective opinions and that it was only if the AHC could be shown to have unreasonably determined that a place was part of the national estate, in the context of the entry procedure, in the sense in which unreasonableness is explained in Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 K.B. 223, that there could be any challenge to the AHC's decision that a place was part of the national estate made as a preliminary to implementing the listing procedure in s. 23 of the Act. The AHC also submitted that the objects, purposes and procedures provided for by the Act showed that the legislative intent is that it is the AHC, rather than the Court, which is to make the necessary judgments; reliance was also placed on the provisions in the Act that show that the AHC includes Commissioners with special skills and that it has access to relevant expertise. MIM disputed all these propositions.

Counsel for the AHC relied on two decisions on the Environment Protection (Impact of Proposals) Act 1974 (Cth) and the Administrative Procedures under that Act:  Australian Postal Corporation v Botany Municipal Council (1989) 69 L.G.R.A. 86, a decision of the Full Court of this Court, and Tasmanian Conservation Trust Inc. v Minister for Resources, a decision of Sackville J given on 10 January, 1995.  Counsel's submission was, in effect, that the legislative and administrative scheme there under consideration was not materially different from the scheme of the Australian Heritage Commission Act, insofar as that scheme provided for the identification of the national estate and for the entry of places in the national estate in the Register and I should apply these cases and answer the question in the way for which it contended.

The operation of the Administrative Procedures upon an activity depends on the activity being a "proposed action" as defined in para. 1.1 of the Procedures.  The Full Court appears in Australian Postal Corporation v Botany Municipal Council, supra, at 93 to have proceeded on the assumption that whether the intended activity was "a proposed action", i.e., a matter which would affect the environment to a significant extent, was not a jurisdictional fact, but rather that the authority of the Minister (or his agent) under para. 1.2.1 of the Administrative Procedures to designate a proponent was dependent only on him forming his own opinion that the activity amounted to a "proposed action".

In the Tasmanian Conservation Trust case, Sackville J had to decide whether this assumption was correct:  if it did involve a jurisdictional fact, the failure of the Minister to designate a proponent in relation to an application for a licence under the Export Control (Unprocessed Wood) Regulations to permit the export of woodchips to be obtained from the harvesting and processing of logs would provide a ground upon which the Trust could challenge the grant of the licence, if there was evidence to show that what the licence applicant proposed to do would affect the environment to a significant extent.  If a jurisdictional fact was not involved here, then the evidence available to the Minister when he made the decision in question relevant to whether the applicant's activities were likely to affect the environment to a significant extent could only be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth) if the Minister's decision was unreasonable in the Wednesbury sense.  His Honour preferred the latter construction of the Administrative Procedures, for the following reasons:

(1)the requirement that the proposed action affect the environment to a significant extent was not expressly specified in para. 1.2.1: it was only incorporated "somewhat indirectly" by the cross-reference to s. 5(1) the Environment Protection (Impact of Proposals) Act 1974 in the definition of "proposed action" in para. 1.1 of the Procedures.  As the Botany Municipal Council case at 93 shows, this process of incorporation is a more complicated exercise than the common one of reading, in place of the phrase in one instrument whose meaning is sought, an expression from another instrument that defines that meaning.

In contrast, the AHC can only enter a place in the Register after following the procedure in s. 23(2) which, in turn, it can initiate only if it is satisfied, among other things, that the place in question is part of the national estate. The criteria to be applied in determining whether a place is part of the national estate are expressly set out in s. 4. The structure of the Act here points I think to the latter matter being one on which the AHC's jurisdiction depended.

(2)His Honour observed that the decision to designate a proponent was required by para. 1.2.1 to be taken "as soon as possible after any initiative has been taken in relation to a proposed action".  This suggested that the Minister was not intended to undertake a comprehensive examination of the relevant facts before designating the proponent; moreover, the Administrative Procedures contemplated that once a proponent was designated, a procedure would then be followed that would identify whether a comprehensive examination was necessary to identify in turn precisely what impacts the proposed action would have on the environment and if a comprehensive examination
was necessary, detailed provision was made regulating how that was to be done.

The scheme of the Administrative Procedures under the Environmental Protection (Impact of Proposals) Act is quite different from that contained in Part IV of the Act. The scheme of the Environment Protection (Impact of Proposals) Act and the Administrative Procedures under that Act is clear:  it is the person who is the "action Minister", i.e., the Minister responsible for the proposed action (or his agent) who has sole responsibility for deciding whether the Administrative Procedures are to be invoked in relation to a particular activity - it is that Minister who has to designate a person or department as the proponent of the proposed action and it is by reference to that proponent, not the Minister, that the Administrative Procedures operate.  It is the proponent who then is obliged by para. 1.3 of the Administrative Procedures to do all the things necessary to ensure that those procedures are complied with in relation to the proposed action.  The proponent has to supply to the Minister for the Environment the information necessary to enable that Minister to decide whether an environmental impact statement is required in relation to the proposed action:  paras. 2.1 and 2.3.  In making this decision, the Minister must have regard to the matters in para. 3.1.2, which are all matters that focus attention on different ways in which the proposed action might affect the environment.  The proponent has to inform the Minister, after he has made a decision for or against an EIS, of any new information that suggests that the environmental aspects of the proposed action are likely to be materially different from those originally identified:  para. 3.2.2.  Although it is not expressly stated, the proponent has responsibility for ensuring that an EIS is prepared, if it is directed to be obtained.  The proponent must also make a draft of the EIS available for public comment (para. 6.3.1) and must consult widely in relation to it (para. 6.4).  The Minister can direct a public inquiry to be held at any time before the proposed action is completed into any environmental aspects of the action (para. 7.1).  If after the whole consultation process has been completed it is intended to proceed with the proposed action, the proponent must prepare a final EIS (para. 8.1).  The Minister must then, inter alia, recommend to the action Minister and other relevant Ministers what conditions the proposed action should be subjected to (para. 9.3.1) and each of those Ministers must give all such directions as he or she can give for ensuring that the final EIS and the Minister for the Environment's recommendations are taken into account by their Departments invoked with the proposed action (para. 9.5).  The Botany Bay Council case at 93 establishes that a "proposed action" within the Administrative Procedures is an activity of a kind referred to in any of (a) to (e) of s. 5(1) of that Act, but only if the particular activity affects the environment to a significant extent. Yet the whole object of the process that is set in train under the Administrative Procedures, by the action Minister realising that those for whom he has responsibility have in mind undertaking a "proposed action" and going on to designate a proponent, is to identify precisely whether the "proposed action" will affect the environment to a significant extent.  Given this, the conclusion is, I think, inescapable that the decision the action Minister has to make under para. 1.2.1 of the Administrative Procedures in determining whether a contemplated activity will significantly affect the environment is not a jurisdictional fact.

In contrast to this scheme, the initial decision the AHC must make before it can ultimately enter a place in the Register, viz., that the place is part of the national estate, which determination sets in train the public objection procedure, suggests that the AHC must, at the outset, form a considered conclusion on that particular question, in reaching which it can call on, if necessary, the technical assistance available to it pursuant to s. 46. This is quite different from the duty that falls on the action Minister under the Administrative Procedures to designate a person at the very outset of a process, that concludes with the Minister deciding what form of final action he should take under para. 9.3.1 in relation to the proposal, a decision he can make only if it is at that stage apparent that the invoking of the process was justified in the particular case.

(3)Finally, Sackville J at 44 relied on the following consideration:

"It seems to me that the jurisdictional fact approach would create some practical difficulties. If, for example, the Minister determines that a proposal does not affect the environment to a significant extent, but plainly overlooks relevant material, the determination (assuming it to be reviewable under the ADJR Act) could be successfully challenged only by adducing evidence objectively establishing that the proposal does have that effect. Such proceedings might be prolonged and complex and canvass in a judicial forum the very questions for which the Administrative Procedures specifically establish processes.  Equally, if the Minister decides that a proposal does affect the environment to a significant extent, the decision, even if based on a consideration of all appropriate material, could be challenged in the Court as factually incorrect.  Again, this would result in the Court considering at length many of the very issues that would be taken into account by the Minister for the Environment, in determining whether an EIS is required, and, if it is, in the preparation of the EIS itself.

This does not seem to me a particularly sensible result, nor one in keeping with the overall framework and specialised procedures created by the Administrative Procedures ..."

The whole purpose of the Administrative Procedures is to set up a process, initiated by the action Minister's decision to designate a proponent, which provides for what can be a highly complex evaluation of proposed action designed to ensure that the impact of the proposal on the environment, if implemented, will be properly identified and taken into account before the activity involved in the proposal is undertaken or receives any requisite Commonwealth approval.  The jurisdictional fact approach urged on Sackville J would have permitted duplication in proceedings in the Court of the same sort of often complex investigation which the Administrative Procedures set up a structure to implement.  There is nothing in the Australian Heritage Commission Act in any way comparable to this investigative and evaluative structure set up by the Administrative Procedures under the Environment Protection (Impact of Proposals) Act which must be gone through by the AHC before it can identify a place as part of the national estate, i.e., before it can make the necessary decision preliminary to commencing the statutory procedure under s. 23 that must then be gone through before the AHC can enter a place in the Register of the National Estate.

It is true that the criteria identified in s. 4 as those which must be satisfied before a place can be identified as forming part of the national estate involve the formation of a range of views on which opinions can reasonably differ, as well as the ascertaining of objective facts. But that does not mean that those criteria cannot involve jurisdictional facts. Two examples will suffice. In The State of Queensland v Wyvill (1989) 90 A.L.R. 611 at 620, Pincus J held that whether a particular deceased was an "aboriginal" was a fact upon which depended the jurisdiction of the Royal Commissioner to enquire into the death under Letters Patent authorising him to enquire into certain deaths of "Aboriginals" in custody. His Honour reached this conclusion, notwithstanding his comment at 618:

"It would seem, however, to be burdensome, both from the point of view of supervising courts and from that of the administrative body, to have the former undertake the task of repeatedly determining jurisdictional issues dependent on questions of fact in matters arising before the latter.  Particularly is that so where the jurisdiction is made to depend upon an expression which is inherently vague, like `Aboriginal'; it might be expected that, as to quite a number of potential subjects of examination by the respondent, there will be room for difference of opinion as to whether such subjects fall within or outside the true scope of the word `Aboriginal'."

There was no challenge to Pincus J's approach on appeal, although the Full Court took a different view of the critical facts:  see Attorney-General (Cth) v State of Queensland (1990) 94 A.L.R. 515 at 520-521 and 524. Difficulties in determining the limits of a particular industry did not prevent a provision limiting a tribunal's powers to the settlement of disputes affecting relations between employers and employees in the coal mining industry being construed, in a case in which no constitutional question arose, as involving a jurisdictional fact: see R v Hickman; Ex parte Fox and Clinton (1945) 70 C.L.R. 598 at 607 and 608.

Moreover, the criteria which govern whether a place forms part of the national estate are precisely identified and the task of determining whether they are satisfied in a particular case is no more difficult than that which courts undertake in many contexts when they have to decide whether or not to grant various forms of discretionary relief.

The constitution of the Commission is dealt with in Part III of the Act. The Commission consists of a Chairman and not fewer than four, nor more than six, other Commissioners (s. 12(1)). The Chairman and not fewer than one half of the other Commissioners must be persons other than full-time officers of the Australian Public Service or authorities of the Commonwealth (s. 12(3)). Not more than two Commissioners (called "representative Commissioners") can be from this Commonwealth public sector (s. 12(1A)). The Chairman and all Commissioners other than the representative Commissioners, must be persons having qualifications relevant to, or special experience or interest in, a field related to the functions of the Commission (s. 12(4)) and an effective decision can only be made by the AHC if it has the support of a majority of those Commissioners then present who are not representative Commissioners (s. 12(7)). But none of this is any guarantee that a particular decision will be made by Commissioners who possess personal expertise relevant to the evaluation of the matters the subject of a decision. Section 8 requires the Commission, in the performance of its functions in relation to any matter, to consult as appropriate with Departments and authorities of the Commonwealth and of the States, local government authorities and community and other organisations; s. 46 makes explicit what is probably implicit in s. 7 in any event, insofar as it empowers the Commission to engage persons having suitable qualifications and experience as consultants to assist it in performing its functions. Having regard to the constitution of the AHC, it must frequently happen that the Commission will be in no better position than a judge to make the decision whether a place satisfies these criteria and so should be regarded as part of the national estate: in many cases, the Commissioner will not have any special skills, but will have to evaluate a body of information, including technical reports and opinions prepared by consultants, in reaching that decision. Moreover, where a person has made written objection in accordance with s. 23(2) to the AHC's decision to enter a place in the Register, the Minister is empowered to "appoint a person or persons (other than a Commissioner or a person who has been connected with the proposal to enter the place in the Register) as assessor" in respect of that objection, to assist and advise the Commission in its consideration of the objection (s. 23B). The Minister can exercise this power to appoint assessors of his own motion, i.e., without any request from the Commission. That the Commission will be bound to have regard to unsolicited assistance and advice is inconsistent with the proposition that the Legislature has treated the AHC as a body intended to make decisions in reliance on its own expertise.

It is true that, if the AHC's power under s. 23 to enter a place in the Register is dependent upon the place in fact being part of the national estate and not merely on the Commission's opinion to that effect, practical difficulties may arise: a person with a sufficient interest could, in theory at least, be able to raise for the determination of the Court whether a place is part of the national estate in order to forestall the Commission's intention, revealed by its public notice, to enter the place in the Register; protracted and complex litigation could well result. But such difficulties should not be exaggerated. Even though it is clear that a particular body can only validly exercise a power if a jurisdictional fact exists, it should (unless prohibition or other process issues to prevent it doing so) determine for itself, albeit in a necessarily non-conclusive way, whether that fact exists and if so satisfied, proceed to carry out the functions it is charged with executing: see The Queen v The Judges of the Federal Court of Australia; Ex parte Western Australia National Football League (Incorporated) (1979) 143 C.L.R. 190 at 215-216 and 226. A mere objection to the AHC's jurisdiction to enter a place in the Register on the ground that the place is not part of the national estate cannot bring to a halt the carrying out by the AHC of its functions under s. 23. Moreover, while there is no presumption that a statute investing an administrative body with decisional powers should be interpreted as making its jurisdiction contingent upon its own opinion as to the existence of a particular fact rather than upon the actual existence of that fact (as there is in respect of inferior courts), even where an administrative body's power to act depends upon the existence of a jurisdictional fact, a court asked to issue prohibition to prevent the body proceeding on the ground that the jurisdictional fact does not exist:

"[o]bserves a rule of practice which justice requires ...  The essence of that rule, which justice requires the Court for itself, and merely as a matter of prudence, to take into account when weighing the circumstances of the case and before arriving at a final conclusion, is this:  It is clear and unquestionable that when, as was the case here, objection is taken before a Judge of limited jurisdiction, "the Judge must not immediately forbear to proceed, but must inquire into its truth or falsehood, and for the time decide it, and either proceed or not proceed with the principal subject matter according as he finds on that point; but this decision must be open to question," etc. (Bunbury v. Fuller).  But since the law requires him to decide, and afterwards to proceed if he should be of an affirmative opinion regarding his jurisdiction, it is not so absurd as to nullify all he does in obedience to his duty unless he makes a manifest error.  The duty on an arbitrator and on a Judge as to the existence of jurisdiction is precisely the same.  If he errs in law, that is manifest.  As to fact, a doubt as to error is resolved in favour of jurisdiction."

Per Isaacs J in Caledonian Collieries Limited v The Australian Coal and Shale Employees' Federation [No. 1] (1930) 42 C.L.R. 527 at 547-548, approved in R v Williams; Ex parte The Australian Building Construction Employees & Builders Labourers' Federation (1982) 153 C.L.R. 402 at 411. This rule of practice operates to make the necessarily non-conclusive determination of an administrative body on a jurisdictional fact immune from interference by the Court to something approaching the extent to which its decisions on fact within jurisdiction are immune from review unless they are "unreasonable" within the Wednesbury meaning of that term.

If a particular factual inquiry comprises substantially the whole of the issues which an administrative body has to determine to perform its function (as is the case under the Administrative Procedures under the Environment Protection (Impact of Proposals) Act), that is an indication that the relevant fact or facts to be found are not jurisdictional facts:  see R v Gray; Ex parte Marsh (1984) 157 C.L.R. 351 at 376 and 391-392. But the investigation the AHC must carry out under s. 24A before it can enter a place in the
Register involves, for the reasons given, the determination of issues more wide ranging than those involved in determining whether a place is part of the national estate, viz., the weight to be given to the various objections, and the significance the place has as part of the national estate and whether, notwithstanding the requirement of s. 24A to weigh that matter very heavily in making the decision on entry in the Register, that consideration should prevail over the issues raised by the objections. The Commission, when it makes a decision with respect to the entry of a place in the Register, has responsibility for forming what will often be a much more complex opinion than that which it has to form when it decides to identify a place as part of the national estate.

I do not think, in the face of all the other considerations, that the inconveniences that are capable of flowing from the construction of the Australian Heritage Commission Act contended for by MIM are sufficient to justify setting aside all the other considerations to which I have referred which strongly, in my view, point to the Act giving power to the AHC to enter a place in the Register only if, as a matter of objective fact, the place is part of the national estate.

Answer to question (e)

In view of the duty of the AHC to inquire into and reach a decision on whether a place is one which answers the description in s. 4 of the Act before the AHC can record that place in the Register, even though the AHC cannot conclude that issue by its decision, it is appropriate to answer this question in the following way:

That a place which the AHC intends to enter in the Register of the National Estate objectively answers the description in s. 4 of the Act is a fact upon which the jurisdiction of the AHC to make a decision to so enter the place depends.

QUESTION (f)

In the course of the hearing, the parties agreed that it was not possible to give anything other than a very limited answer to this question, originally raised by the AHC, since it will generally be necessary to have regard to the evidence before any decision can be made as to whether what is said to be a place is in truth a "place" within the meaning of that term for the purposes of the Act. Metes and bounds can serve an important purpose, in a particular case, of identifying an area that possesses the requisite characteristics for making it a place within the meaning of that term in the Act. However, a place cannot be created for the purposes of the Act by the arbitrary nomination of metes and bounds that mark out a portion of the surface of the earth. Before a locality will be a "place" within the Act it must possess either a characteristic or a group of characteristics that make it proper to describe the locality in question as "a site, area or region" or as "a building or other structure" or as "a group of buildings or other structures", within the ordinary usage of those terms, which is how I think they are used in the definition of "place" in s. 3(1): I therefore propose to answer question (f) in the manner suggested by counsel for MIM, to which counsel for the AHC raised what is really only a semantic quibble.

Answer to question (f)

An area of the surface of the earth identified by metes and bounds cannot, without more, be a place within the meaning of that term in the Act.

I certify that this and the preceding
35 pages are a true copy of the
reasons for judgment herein of the
Honourable Justice Drummond.

Associate:

Date:         1 March, 1995

Counsel for the applicant:           Mr. P.A. Keane Q.C.

Solicitors for the applicant:        Feez Ruthning

Counsel for the respondent:          Mr. B. Walker S.C. and

Mr. J.A. Logan

Solicitors for the respondent:       Australian Government

Solicitor

Date of Hearing:  10 February, 1995