National Trust of Australia (ACT) v ACT Heritage Council (Administrative Review)

[2015] ACAT 52

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

NATIONAL TRUST OF AUSTRALIA (ACT) v ACT HERITAGE COUNCIL (Administrative Review) [2015] ACAT 52

AT 20 of 2015

Catchwords:             ADMINISTRATIVE REVIEW – jurisdiction – ACT Heritage Register – error in calculation of public consultation period by Heritage Council in invitation to make comments – reliance upon date provided by Heritage Council – interest person – literal interpretation of statute – whether statute clear and unambiguous – whether the statutory provisions themselves and the real world context should be taken into consideration when determining time limits – text based approach to interpreting legislation – whether there is ambiguity or a question of construction in interpreting the Heritage Act 2004

Legislation cited:      Heritage Act 2004 ss 36, 37, 38, 40, 112, 114
Human Rights Act 2004 ss 6, 21
Legislation Act 2001 ss 139,151
Planning and Development Act 2007

Cases cited:Austral Monsoon Industries Pty Limited v Pittwater Council [2009] 75 NSWLR 169

Bermingham v Corrective Services Commission of New South   Wales [1988] 15 NSWLR 292
  Cooper Brookes (Wollongong) Pty Ltd v Federal   Commissioner of Taxation (1981) 147 CLR 297
  DJ v RHS (2004) 182 FLR 76
  David Grant and Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
  R v Byerley (2010) 107 SASR 517
  Re J & E Holdings Pty Ltd [1995] 36 NSWLR 541 at 551
  Rudolphy v Lightfoot (1999) 197 CLR 500
  Thomson v ACT Planning and Land Authority [2009] ACAT 38
  Wentworth Securities Ltd v Jones [1980] AC 74
  Whitby v Garlett (2000) 98 FCR 585

List of
Texts/Papers cited:    D Pearce and R Geddes, Statutory Interpretation in Australia,   10th ed 2014

Tribunal:                  Professor P. Spender – Presidential Member

Date of Orders:  22 May 2015

Date of Reasons for Decision:       10 August 2015

ACT CIVIL & ADMINISTRATIVE TRIBUNAL           AT 15/20

BETWEEN:

NATIONAL TRUST OF AUSTRALIA (ACT)

Applicant

AND:

ACT HERITAGE COUNCIL

Respondent

TRIBUNAL:            Professor P. Spender – Presidential Member

DATE:  22 May 2015

ORDER

1. Upon the tribunal finding that it lacks jurisdiction to decide the application for review, the application is dismissed.

   ………………………………..

   Professor P. Spender

   Presidential Member

REASONS FOR DECISION

1. The reasons below explain why the Tribunal has dismissed the application for review. The Tribunal has concluded that it lacks jurisdiction because the applicant has not satisfied the statutory requirements to bring proceedings before the tribunal to challenge the respondent’s registration of only part of the Northbourne Housing Precinct (the Precinct) on the ACT Heritage Register (the Heritage Register). The tribunal lacks jurisdiction because the applicant made a comment upon the provisional registration of the Precinct two days outside the public consultation period that is set by section 37 of the Heritage Act 2004 (the Heritage Act). This late lodgement was caused by a misstatement made by the ACT Heritage Council in its invitation to comment upon the provisional registration. Nevertheless, the statutory requirements are clear under the Heritage Act and the effect of the late lodgement is to bar the applicant from bringing proceedings in the tribunal.

2. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the current member.

3. For ease of reference, the respondent in the main proceedings and the applicant in the application for interim orders, the ACT Heritage Council, shall be referred to as the ‘respondent’ or the Council.  The applicant is the National Trust of Australia (ACT) which shall be referred to as ‘the applicant’ throughout these reasons.

4. The relevant republication of the Heritage Act that applies to these proceedings is Republication 17.

Background to the Proceedings

1. This decision concerns an application for review that was filed by the applicant on 6 March 2015. The application sought review of the decision by the Council to register part of the Precinct. The decision to register only part of the Precinct was made by the Council at a meeting on 12 February 2015. The decision of the Council was made under section 40 of the Heritage Act – being a decision about the registration of a place on the Heritage Register. In the decision of 12 February 2015, the respondent registered only part of the Precinct on the register, even though the provisional registration decision made on 18 September 2014 had included the entire precinct.

2. By correspondence dated 20 March 2015, the tribunal raised a question about the standing of the applicant to bring the application for review.  A directions hearing was held on 27 March 2015.  The matter was stood over for a further directions hearing on 8 April 2015 where the respondent indicated that it was challenging the applicant’s standing to bring the proceedings and orders were made for the filing and service of submissions by the parties regarding the applicant’s standing.  The application for interim orders was made by the respondent on 17 April 2015.  An interlocutory hearing about the issue of standing was held on 22 May 2015.

3. An ex tempore decision was handed down in this matter on 22 May 2015 and these reasons record that decision.

Background to the Application

1. As stated previously, a decision about provisional registration was made by the respondent on 18 September 2014 and notified on 22 September 2014. To emphasise the point, the provisional registration was for the whole of the Precinct. Pursuant to its obligations under section 37 of the Heritage Act, the Council invited the public to make comments about the provisional registration. However, the Council’s obligation under section 37 is to invite the public to make ‘comments about the registration of the place to the Council within 4 weeks’. Although the Council invited the comment in its documents sent out to the public, including the applicant, it misstated the public consultation period as ending on 22 October 2014. In fact, because the provisional registration was notified on 22 September 2014 the four-week consultation period only ran until Monday 20 October 2014. The applicant made a comment that was received by the Council on Wednesday 22 October 2014.

2. Although the communication between the parties was sparse, consisting of a letter from the Council to the President of the applicant dated 22 September 2015 and the letter of Mr Martin of the applicant to the Council dated 21 October 2014 but received by the Council on 22 October 2014, the Tribunal finds that the applicant relied, at least to some extent, upon the information provided by the Council in determining the relevant period within which a comment should be made. 

3. The Council made it clear in the hearing that the misstatement was an error and that they regretted that the mistake had occurred (or words to that effect) and that they would wish this matter to proceed if it was lawful to do so.  They clearly and openly expressed their concern that this situation had arisen and said they would prefer to not be taking this position.

4. The Council explained that two errors had arisen that, in combination, resulted in the misstatement of the public consultation period in the notices to the public.

5. First, the Council had given instructions via government services to Parliamentary Counsel that the instrument made under section 34 of the Heritage Act should be notified on the final day required for notification under that provision, which was 23 September 2014. In fact, it was notified on 22 September 2014. This meant that the running of the period, from the Council’s viewpoint, commenced one day early.

6. Second, there was a miscalculation of the relevant period by one day that arose in the administration of the Council.

7. These two errors resulted in the notice overstating the public consultation period by two days.

8. Although the applicant’s late lodgement was precipitated by the misstatement of the Council, the running of the relevant period under section 37 of the Heritage Act meant that the applicant had not made a comment within the public consultation period stipulated by section 37. This had the consequence that the applicant was not an ‘interested person’ under section 112 of the Heritage Act and therefore did not have standing to apply to ACAT for review of the decision to register only part of the Precinct made by the respondent on 12 February 2015. This was the proposition put by the respondent in its application for interim orders dated 17 April 2015.

The respondent’s arguments

1. The respondent relied entirely upon the statutory provisions, and urged the Tribunal to adopt a literal interpretation of sections 34, 37, 112, and 114 of the Heritage Act which would have the effect of barring the applicant from bringing proceedings. Simply put, the respondent said that applicant’s standing depended upon it making a comment within the public consultation period which ran for four weeks from the date of the notification of the provisional registration. This was based on the clear language of section 37 which states that comments must be made ‘within 4 weeks after the day the notice is notified (the public consultation period)’.

2. The respondent commented in its written submissions that the period ran from the date of notification i.e. 22 September to 20 October and the period ‘is what it is’.[1]

   [1] Para [6] Respondent’s submissions dated 15 May 2015

3. The respondent’s oral submissions expanded this point by Counsel’s argument that the legislative intention is clear and unambiguous and relied upon several cases which recognise the importance of clear expressions of legislative intent with respect to time stipulations and the correlative importance of not stretching the wording of a statutory provision to achieve a contrary result.  This was emphasised by the late Connolly J in DJ v RHS where his Honour said ‘the intention of the legislature could hardly be clearer’.[2]

   [2] DJ v RHS (2004) 182 FLR 76 at 81

4. The respondent argued that Connolly J’s comments remind us of the need to consider section 139 of the Legislation Act 2001 (Legislation Act) which requires the Tribunal to prefer an interpretation that best achieves the purpose of the Act.  The respondent also relied upon Whitby v Gartlett[3] where French J (as he then was) quoted the High Court in Rulophy v Lightfoot where the plurality stated that the purpose of the relevant time limit was to ‘produce criteria that are objective and certain’.[4]  The respondent also relied upon Grant v Westpac[5] where Gummow J stated that the requirement as to time in that case was an essential condition to the definition of a new right and correspondingly framed the jurisdiction of the court.[6]  His Honour further stated, relying upon Sheller JA’s judgment in Re J & E Holdings Pty Ltd[7] that unless the court has power to extend time within which the relevant application could be made the plaintiff has no right to make it.[8]

The applicant’s arguments

[3] (2000) 98 FCR 585 at 591-592

[4] (1999) 197 CLR 500 at 508

[5] (1995) 184 CLR 265

[6] (1995) 184 CLR 265 at 277

[7] (1995) 36 NSWLR 541 at 551

[8] (1995) 184 CLR 265 at 279

1. The applicant invited the Tribunal to give effect to the legislative intention of the Heritage Act by considering its purpose. The applicant argued that the purpose must be gleaned by considering both the statutory provisions themselves and the real-world contexts within which the Act operates. The applicant referred to the joint judgment of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation[9] where their Honours noted the importance of departing from the literal interpretation of statutes in various contexts.  Certainly one of those contexts is where the operation of the statute is absurd, extraordinary, capricious, irrational or obscure but a departure from the literal interpretation is not confined to these situations. 

   In particular, it extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intention as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.[10]

   [9] (1981) 147 CLR 297

   [10] (1981) 147 CLR 297 at 321

2. The applicant discussed the factors to be taken into account when interpreting section 37 of the Heritage Act and in particular noted that section 37 invites people to make comments within a prescribed period as well as tasking the Council with the job of inviting people to make comments. The applicant argued that the legislature intended that the Council should not be a mere functionary but rather a responsible agency that is obliged to deal with the public in a way that meets the objectives of both certainty and simplicity. The only way that this could be done is to do what the Council did in this case i.e. to set a period and to invite public comment within that period. Although the period was slightly longer than the four-week period stipulated by the literal words of the statute, the actions are nevertheless permissible because otherwise there is a risk of invalidity flowing from an erroneous statement of the period in the notice and an invalidity of the notice might ‘bring down the house of cards’. The applicant noted that there are three agencies involved in notifying the public consultation period for heritage registrations and the legislature would not wish to risk the validity of the process by requiring literal adherence to the four week period.

3. As a consequence, the applicant invited the Tribunal to read words into the statute, relying upon the judgment of McHugh J in Bermingham v Corrective Services Commission of New South Wales[11] who paraphrased the remarks of Lord Diplock in Wentworth Securities Ltd v Jones[12] as follows:

   First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.[13]

   [11] (1988) 15 NSWLR 292

   [12] [1980] AC 74 at 105-106

   [13] (1988) 15 NSWLR 292 at 302, cited by D Pearce and R Geddes, Statutory Interpretation in Australia, 10th edn 2014 p 70

4. The applicant invited the Tribunal to read the following words into section 37 of the Heritage Act to ascertain the public consultation period:

   by a date which is 4 weeks after the date on which the Council expects the notice will be notified.

5. The applicant argued that section 37 is a command to the Council to invite public comment and to state the relevant period for public consultation. The legislature would expect the Council to do the necessary calculations to ascertain the appropriate date and state the relevant date in the notice, which the Council has done in the present case. The applicant contended that the legislature intended as a matter of common sense that the Council would ascertain the appropriate date and include that date in the notice so the language of section 37 is capable of being seen as a shorthand way of expressing a prediction that is to be made by the Council about the requisite period.

6. The applicant further argued that a literal interpretation requires a person who may want to make a comment to go through an onerous process of determining the relevant date. This onerous process involves six separate steps requiring the potential commentator to, inter alia, find the legislation register, locate the relevant notifiable instrument and then to calculate, with the assistance of section 151 of the Legislation Act, the due date for comment.[14]  The applicant emphasised that it is incredible to think that the Legislative Assembly would place all these obstacles in the way of a member of the public who wishes to a comment in a public consultation process.

   [14] Applicant’s submissions dated 7 May 2015 at [6]

7. The applicant recognised that by asking the Tribunal to read words into section 37 it is necessary to adopt a text-based approach to the interpretive exercise. Therefore the applicant relied upon the judgment of Spigelman CJ in Austral Monsoon Industries Pty Ltd v Pittwater Council[15] where his Honour read the word ‘so’ into a transitional provision of Environmental Planning and Assessment Regulation 2000 (NSW)[16] and the remarks of Justice Kourakis in R v Byerley[17] where his Honour read text into a provision of the Criminal Law Consolidation Act 1935 (SA) but ensured that the words so read into the section ‘operate ... consistently with [the] manifest purpose of the section and are implied by the text, context and purpose of the provision.’[18]

   [15] (2009) 75 NSWLR 169

   [16] (2009) 75 NSWLR 169 at 181

   [17] (2010) 107 SASR 517

   [18] (2010) 107 SASR 517 at 535

8. The applicant contended that the context of the four-week stipulation in section 37 is an instruction from the legislature to agencies that is capable of being understood as the legislature allowing the agency to work out the relevant period of time that will become the consultation period for the Act. In this respect the applicant argued that the provision was ‘aspirational rather than dictatorial’.

Reply

1. In reply, the respondent argued that the applicant seeks a material substitution of words to cause a different period to apply under section 37 and this is not permitted because the existing words are unambiguous and they enable precise calculation of the public consultation period to be made. Further, the respondent argued that nothing in section 37 conveys an intention on the part of the legislature that the Council would calculate the public consultation period as commencing from when the Council ‘expected’ or ‘predicted’ that the notice would be notified. The respondent submitted that, to the contrary, the legislature’s intention is best understood from the words used in section 37 which state that the period commences from when the notice is notified. Furthermore, the respondent argued that the proposed interpretation would cause the commencement of the public consultation period to depend on the subjective and uncertain circumstances of the Council’s ‘expectation’ about when a notice would be notified, so as to convert an unambiguous period into an ambiguous one. It contended that would be difficult to ascertain the Council’s expectation without knowing what is in the collective mind of the Council.

2. The respondent submitted that the cases relied upon by the applicant such as Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation[19] and Austral Monsoon Industries Pty Ltd v Pittwater Council[20] should be distinguished because there are no ambiguities in the legislative provisions in the present case and therefore no legitimate question of construction that needs to be resolved.

Consideration

[19] (1981) 147 CLR 297

[20] (2009) 75 NSWLR 169

1. With some reluctance, the Tribunal accepts most of the submissions made by the respondent, with the exception of its reliance upon GrantvWestpac.[21]  Grant v Westpac involved a statutory demand under the Corporations Act 2001 and is an example of a time stipulation that applies under insolvency statutes.  Strict adherence to the letter of such provisions is generally required.  Because the present case concerns a heritage issue and not insolvency, the Tribunal considers that Grant v Westpac is of limited assistance.

   [21] (1995) 184 CLR 265

2. The Tribunal concludes that the words ‘within 4 weeks after the day the notice is notified’ in section 37 of the Heritage Act are clear. There is no ambiguity or question of construction that needs to be resolved in this case. The Tribunal considers that the legislative intention is observed by the literal interpretation. A contextual reading of the provision also supports this interpretation. For example, section 34 of the Heritage Act provides a flexible ‘best endeavours’ test which is in close proximity to section 37. This leads the Tribunal to conclude that the legislative intention was to provide a clear and readily ascertainable period which constitutes the public consultation period under section 37. The Tribunal recognises the applicant’s arguments that the ascertainment of the period is complex and requires several onerous steps but the period is nevertheless readily calculable, therefore the Tribunal should resist the temptation that was referred to by Connolly J in DJ v RHS to read words into a provision that is clear on its face.[22]  Therefore, in the Tribunal’s view Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation[23], Austral Monsoon Industries Pty Ltd v Pittwater Council[24] and R v Byerley[25] are distinguishable.

   [22] DJ v RHS (2004) 182 FLR 76 at 81

   [23] (1981) 147 CLR 297

   [24] (2009) 75 NSWLR 169

   [25] (2010) 107 SASR 517

1. The relevant provisions do not confer discretion upon either the Council to extend the public consultation period, or the Tribunal ‘standing in the shoes’ of the Council on a merits review application.  The Minister has discretion to extend the period of provisional registration,[26] but this does not assist the applicant in bringing the application for review to the tribunal.  

   [26] Section 36 Heritage Act 2004

2. The Tribunal concludes that the applicant has failed to comment within the requisite period and is therefore not an interested person and therefore the tribunal lacks jurisdiction. As a creature of statute, the tribunal’s jurisdiction is defined by the relevant statutory provisions and the Heritage Act provides a very clear framework within which the tribunal’s powers may be exercised. The Tribunal notes the applicant’s arguments that the provisions are aspirational rather than dictatorial but the Heritage Act, together with the Planning and Development Act 2007, is characterised by strict timeframes, particularly timeframes involving reviewable decisions. 

3. The Tribunal has concluded that it lacks jurisdiction to hear the application because the applicant does not satisfy the requirement of ‘interested person’ under the relevant republication of the Heritage Act – Republication 17. The applicant must establish that it is an ‘interested person’ in order to apply for review to the tribunal under section by 114 of the Heritage Act. Section 112 of the same Act requires that an interested person for a decision under section 40 is ‘anyone who made comments to the Council about the decision before the end of the public consultation period for the decision’.

4. It is a concern that the applicant has been barred from pursuing an application in ACAT because it relied upon an error made by the respondent about the public consultation period. On one argument, the error made by the respondent is a substantial error which may result in the consultation period itself being invalid. This argument is based on a proposition that the notice under section 34 (being a notice of decision about provisional registration) did not include ‘an invitation to make comments about the registration of the place to the Council within 4 weeks’ (as required by section 37) because the period stipulated was too long. This not only barred the applicant from bringing proceedings in the tribunal, it may have flow on effects to the registration of the Precinct on the Heritage Register itself, which is predicated upon a valid consultation period under section 37 and a report to the Minister under section 38 of the Heritage Act.

5. Although a finding of invalidity (which the Tribunal expressly declines to do on this occasion) may provide some solace to the applicant, it will not assist it to bring proceedings in the tribunal because a finding of invalidity would result in there being no reviewable decision to found the tribunal’s jurisdiction.

6. Furthermore, if the applicant had been a natural person, it may have been able to argue a right to fair hearing under section 21 of the Human Rights Act 2004 (Human Rights Act) because there is clearly been a failure in the composite process which might trigger a different interpretation of the tribunal’s jurisdiction.[27]  However, the issue was considered in the tribunal’s prior decision in Law Society of the ACT & Treasury Directorate and NRMA Insurance[28] and it is clear that, as stated explicitly in section 6 of the Human Rights Act, ‘[o]nly individuals have human rights’. The word ‘individual’ is defined in the Legislation Act Dictionary as meaning a ‘natural person’. The applicant in this case is a company limited by guarantee and is therefore not a ‘natural person’, therefore cannot rely upon the right provided by section 21 of the Human Rights Act.

Conclusion

[27] Thomson v ACT Planning and Land Authority [2009] ACAT 38

[28] [2013] ACAT 36

1. The applicant may consider other remedies that might be available in other fora, but the Tribunal concludes that it lacks jurisdiction for this application and therefore the application is dismissed.

   ………………………………..

   Professor P. Spender

   Presidential Member

   HEARING DETAILS

FILE NUMBER:	AT 15/20
PARTIES, APPLICANT:	NATIONAL TRUST OF AUSTRALIA (ACT)
PARTIES, RESPONDENT:	HERITAGE COUNCIL
COUNSEL APPEARING, APPLICANT	Mr Arthur
COUNSEL APPEARING, RESPONDENT	Mr McCarthy
SOLICITORS FOR APPLICANT
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Professor P. Spender – Presidential Member
DATES OF HEARING:	22 May 2015