Parklands Darwin Pty Ltd v Minister for Infrastructure, Planning and Logistics
[2022] HCATrans 55
[2022] HCATrans 055
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D3 of 2021
B e t w e e n -
PARKLANDS DARWIN PTY LTD ACN 166 220 248
Applicant
and
MINISTER FOR INFRASTRUCTURE, PLANNING AND LOGISTICS
Respondent
Application for special leave to appeal
GAGELER J
GORDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA AND BY VIDEO CONNECTION
ON FRIDAY, 8 APRIL 2022, AT 10.36 AM
Copyright in the High Court of Australia
GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.
MR A.L. TOKLEY, QC appears with MR G.E.S. NG for the applicant.
(instructed by Finlaysons Lawyers)
MR N. CHRISTRUP, SC, Solicitor‑General for the Northern Territory, appears with MR L.S. PEATTIE for the respondent.
(instructed by the Solicitor for the Northern Territory)
GAGELER J: Mr Tokley.
MR TOKLEY: May it please the Court. In our submission, this matter is an appropriate vehicle for the grant of special leave to appeal as it raises a question of public importance and there are good reasons to doubt the correctness of the decision of the court below. The question of public importance that arises is as to the limits of the legislature’s ability to validate a ministerial decision when proceedings are pending to adjudicate on the correctness of that decision.
GAGELER J: Mr Tokley, that is a question that has been addressed many times, has it not?
MR TOKLEY: It has been addressed, your Honour, yes.
GAGELER J: Does not your argument come down to what you say is a problem with the drafting of this provision? It could have been done validly, you say that the words used are not sufficient to produce the result that can be achieved?
MR TOKLEY: Well, your Honour, our response does involve that aspect of it, but it goes further, in my respectful submission, and it raises this issue, which in my understanding has not been directly addressed by the Court. Whereas the Court has considered cases involving, for example, administrative Acts such as the Court did in the Nelungaloo Case, this is the first time where the Court has been asked to consider the validity of an administrative decision so that the question that it – more fundamentally, the question that arises is whether it is possible to say, as happens here, that there has been ministerial compliance with the statutory duties imposed upon the Minister, and that is what distinguishes this case from other cases that the Court has previously considered. That is the first point I would make in response to your Honour’s question.
The second point is that the particular context in which the question arises does highlight that part of the distinction which we say is important. That goes to the manner and outcome of the exercise of the court’s jurisdiction because, of course, courts adjudicate upon matters. It is the court that decides whether there has been compliance with statutory obligations.
The effect of the legislation here is that it requires the court to put to one side the existing rights of the parties. There is no alteration to those existing rights whatsoever in section 148A of the Planning Act. Instead, what it does is it says, despite any law to the contrary, the decision is valid. In other words, what might have been regarded as a past Act is, in effect, not a past Act. In other words, it is not the Humby‑type situation where one takes a past Act as a historical fact and attaches to that past Act certain consequences. What the legislation does here is it, in effect, removes the temporal aspect and says, the decision is valid.
GORDON J: Mr Tokley, can I ask a question about that? Why is that any different from the way in which Justice Dixon dealt with the provision in Nelungaloo, especially the passage at 579 where his Honour explains the way in which the retrospective validation is to be treated?
MR TOKLEY: Yes, your Honour. Your Honour, if I could invite your Honour to pick up the – I will certainly answer your Honour’s question, but if I could invite your Honour to go to Nelungaloo (1947) 75 CLR 495, which of course is in my learned friend’s authority, and the answer to the question involves the consideration of the reasons of his Honour Justice Dixon, as he then was, at 579. Your Honours will see that at about point five on that page, Justice Dixon begins by saying that:
I am inclined to think that, when the order was made, the form in which reg. 14 stood did not authorize so much of the order as purported to acquire future wheat.
He then went on to consider section 11 of the Wheat Stabilization Act, which provided that the order:
shall be deemed to be, and at all times to have and be deemed to have had, full force and effect -
and he then refers to the challenge to that order in the next sentence, and then he explains what he understands to be the question mark that is raised over it. But then it is important to have close regard to his reasoning, your Honour, in the next paragraph:
In my opinion that is an erroneous complexion to place upon the enactment. It is simply a retrospective validation of an administrative act and should be treated in the same way as if it said that the rights and duties of the growers . . . should be the same as they would be if the order was valid.
This is the important part, your Honour, from my point of view. He goes on to such:
If such an enactment is a law with respect to the subject of defence, I can see no objection to its validity –
What his Honour is saying there, in my respectful submission, is that it lay within the power of the Commonwealth Parliament to legislate so as to order for the acquisition of wheat. It was never going to be beyond the power of Commonwealth Parliament to do that – the defence power to do that – and the actual legislation itself was a deeming provision. It did not say that the order is valid and is to be taken to be valid. It said the order shall be deemed to be and, at all times, to have been fully authorised. So, there is a difference between the operation of a deeming provision and this section here. Importantly, the words:
It is simply a retrospective validation of an administrative act –
is really a conclusion that follows after his Honour has undertaken the analysis of the relevant legislation and it is not in itself a separate reason for why the order was valid.
GAGELER J: Mr Tokley, what does it mean to say that a decision is valid?
MR TOKLEY: Your Honour, that is a difficult question. It seems to me that the word “valid” is protean in its meaning. Can I digress for one second and come back and answer your Honour’s question more directly? Your Honour may recall that in the Humby decision – which is the one concerning actions by registrars to validate or invalidate marriages – his Honour Justice Stephen referred there to the fact that the law did not validate the decisions.
My understanding of it is that, in this context, validation is a label for the reasoning exercise that is undertaken by the court when it looks to see what are the obligations imposed upon a decision‑maker to determine whether an application that is before the decision‑maker complies with certain requirements. When the decision‑maker addresses each of those requirements, as they as statutorily required to do so, it can be said that there has been compliance and, in turn, that means that the decision is valid.
GAGELER J: Mr Tokley, why is it not much simpler than that? Why does it not just mean that the decision has the effect that the legislation – pursuant to which it was purported to be made – gives to a decision made pursuant to that legislation? Why is it not just the legislature saying that a past act has certain legislative effect?
MR TOKLEY: Your Honour, divorced from its context, one might be able to look at it in that way, but what is apparent, in my respectful submission, from your Honours’ recent decision in the Mineralogy matter is that one has regard not only to the words of the statute themselves in terms of the rights, duties, powers and privileges that are being considered, but also to the context in which those matters arise, and in particular the history of litigation between the parties in the lead‑up to consideration of the matter.
So, if one takes the words by themselves and out of context then one can certainly look at it that way, your Honour, but when one has regard to the legislation here in the context which is identified by the Full Court, or the court below at paragraph [8] of its reasons at application book 44 - may I just invite your Honours’ attention to that context, and in particular to that paragraph because your Honours will see on application book page 44 that immediately above paragraph [8] it refers to the decision - the decision of course, as your Honours know, identifies in subparagraph (1) the relevant decision of the Minister. It then says:
Despite any law to the contrary –
In other words, there had been no alteration to any of the previous rights, duties, powers or privileges of the parties:
the decision is valid, and is taken to have been valid on and from the date it was made.
Then paragraph [8] ‑ ‑ ‑
GAGELER J: Mr Tokley, that is really not a correct paraphrase of “despite any law to the contrary”, is it? Is it not saying, notwithstanding any law to the contrary, this is to be the effect?
MR TOKLEY: Your Honour, respectfully, no. I think that the words must be given the broadest meaning possible because when one has regard to the finding at paragraph [8], I think that the meaning is broader, respectfully, than what your Honour has said. Your Honours know that the finding below, the finding of the court below was that it was directed to one decision only, and its purpose, according to the court below, was to both validate the decision and to defeat the proceedings brought by the plaintiff in the Supreme Court.
Now, in my respectful submission, going back to an earlier question your Honour Justice Gageler asked me, this is the first time it has been said of a piece of legislation involving a ministerial decision that its purpose was to defeat the proceedings brought by the plaintiff in the Supreme Court, and that is supported by the second reading speech. So unlike Bachrach’s Case, this is not one where the plaintiff seeks to impute to the legislature some malevolent design. It is clearly stated in the second reading speech itself that its intention is to put an end to these proceedings.
Now those matters, in my respectful submission, all combine to make this case a suitable vehicle for the grant of special leave, to take it out of…..categories that have been previously addressed by this Court in relation to administrative Acts and to make it one that is suitable for a grant of special leave so that the arguments that I have addressed to your Honours in a nutshell can be further elaborated upon and developed before the Court in this matter.
GAGELER J: Thank you, Mr Tokley. Mr Christrup.
MR CHRISTRUP: Thank you, your Honours. The respondent opposes the grant of special leave. It does so on the grounds that the questions posed have insufficient prospects of success. The question postulates that the legislature can only validate invalid executive action by adopting one of two possible techniques.
The first one is by declaring the rights and obligations of the parties to be the same as if the decision were valid. The second technique suggested by the applicant is that the legislature can do so by retrospectively expanding the enabling provision such that it encompasses the impugned decision. Further, so the argument goes, if the validating provision does not fit into either of those two categories, then it is an impermissible direction to the court and contravenes the principle in Kable.
As I will explain, your Honours, the first question is sufficiently answered by past decisions of this Court. I propose to address the following matters in oral submissions. First, I will take your Honours to the statements of this Court which establish that an Act can validate executive action purportedly taken pursuant to a statute.
Secondly, I will address your Honours in relation to the fact that the section 148A of this, that is not before your Honours, is, in any event, within the technique that the applicant has identified of identifying or declaring the rights and obligations of the parties. Finally, I just wish to highlight - I will meet the point that there are aspects of the applicant’s submissions which misunderstand the relationship between Chapter III and how it operates in relation to Commonwealth legislative power and how it operates in respect of Kable.
Starting with the first point, your Honours, that cases establish that executive action taken under a statute can be validated, as long as that is all an Act goes to do, is to retrospectively validate an executive action, then Kable is not infringed, and I start by making the obvious point that there is no decision of this Court which discusses the principle in Kable, which hints, or indicates, that there are only those two categories which are identified by the applicant.
The second point, your Honours, is that there are statements of principle of the reasoning in this Court in Duncan v Independent Commission Against Corruption which are inconsistent with the rigid taxonomy identified by Parklands in this matter. We have set those passages out in our response, I do not propose to take your Honours to all of them, but the critical one, your Honours, is the one that appears in Duncan at paragraph 19, which adopts, with approval, the observation by his Honour Justice Dixon in Nelungaloo, and that is the passage that reads:
“there could be no objection to the validity of the statute, which was ‘simply a retrospective validation of an administrative act and should be treated in the same way as if it said that the rights and duties [of the parties to the litigation] should be the same as they would be, if the order was valid’”.
GAGELER J: Mr Christrup, is this case any different in principle from H A Bachrach Pty Ltd v Queensland?
MR CHRISTRUP: Not in principle. We accept that the way that the validating legislation, if I can use that term, was framed and operated, operates at different levels. In the case of Bachrach, the legislature passed a specific Act dealing with a particular parcel of land such as to permit the shopping centre development to go ahead, whereas section 148A that is before your Honours is about validating a particular decision made under a statute. So they are different in that respect, but in terms of the effect that it has on the institutional integrity of the Court, there is zero difference.
GAGELER J: Both pieces of legislation cut through and brought to an end litigation that was pending in the ‑ ‑ ‑
MR CHRISTRUP: That is absolutely so, your Honour, yes. The same can be said for Duncan. Duncan itself, of course, was a case where there were pending proceedings on foot.
GAGELER J: Thank you.
MR CHRISTRUP: The first point we make about the passage from Nelungaloo is that it recognises that a provision which does no more than validating an administrative Act does not infringe Kable. Secondly, there is no reference in that particular passage to any categories that must be satisfied as postulated by the applicant. For example, there is no reference to a requirement that it must expand the enabling provision in order for it to escape invalidity under Kable. Thirdly, the reference to “as if” in the passage makes it clear that the validating Act does not need to expressly say that the rights and duties of the parties are as they would be if the order was valid. In other words, the outcome ‑ ‑ ‑
GORDON J: Mr Christrup, can I just ask you about that? Mr Tokley relies, primarily, on paragraph [8] of the decision at application book 44 – and the two purposes there identified – including by reference to the second reading speech. Does that alter the position?
MR CHRISTRUP: Not at all. What matters is the legal effect and operation of section 148A. The subjective intentions of the legislature, as it has been observed by this Court in the past, are irrelevant for the purposes of this exercise. So, we say, section 148A squarely fits within the observation by paragraph 19 of the decision in Duncan.
The second point we wish to make, in this context, is that the cases upheld that it is important, in the context of Kable, to appreciate the nature of the decision which is being dealt with by the legislation. Here, it is a decision by the Minister under section 13 of the Planning Act (NT) to refuse Parklands application for its land to be rezoned.
As the plurality recognised in Bachrach, at paragraph 15, changes by the legislature to the rights, duties, powers and privileges created under what might be called town planning legislation previously enacted by the legislature is not something uniquely susceptible to judicial determination, unlike powers such as the determination of criminal guilt or determining a claim for breach of contract.
A decision whether to rezone a particular – a decision whether to rezone is a subject matter which can be dealt with by the executive arm should Parliament choose to do so. Section 148, for that reason, is squarely outside this sphere of power which can only be exercised exclusively by the judiciary.
The next point is that section 148A, in referring to validity, really is no different to other statutes which have been held not to infringe Kable by this Court. The first one is the validating provision in Australian Education Union v General Manager of Fair Work Australia and also in the more recent case of Mineralogy Pty Ltd v Western Australia.
The provision in AEU – that was section 26A of the Fair Work (Registered Organisations) Act (2009) – and it is set out in paragraph 2 of the decision in that case – in effect provided that if a registration of an association was invalid because its rules did not include a purging clause, then:
that registration is taken, for all purposes, to be valid and to have always been valid.
The plurality in Duncan v ICAC, at paragraph 25, observes there that there is no difference between section 26A in Australian Education Union and sections 34 and 35 in Duncan because – so it was said by the plurality:
both sets of provisions attach new legal consequences and a new legal status to things done which otherwise would not have such legal consequences or status.
Your Honours may recall that the mechanism, if I can use that term, or the technique used in Duncan in sections 34 and 35, was one of the methods identified by the applicant, namely expansion of the enabling provision such that the invalid administrative decision…..within the compass of the statute. But plainly, of course, section 26A in Australian Education Union did not use that technique. It adopted the form which is in no sense any different to the form that has been adopted in section 148A.
It follows, we say, from that observation of paragraph 25 in Duncan, that if section 26A had the character of attaching new legal consequences and a new legal status to things done, which otherwise would not have such consequence, then so does section 148A.
GORDON J: Do you rely further on the principle set out in Kuczborski which was addressed in Mineralogy about the fact of consequences?
MR CHRISTRUP: Yes, your Honour. We do not distance ourselves from that principle, no.
GAGELER J: Thank you, Mr Christrup.
MR CHRISTRUP: The other point I wished to make, your Honours, is in relation to the more recent decision in Mineralogy. The legislation there was also challenged on Kable grounds, albeit not in relation to validating executive action. We accept that. It was a statute which changed the party’s contractual rights, but the legislation or the four provisions under consideration in that case, being sections 9(1) and (2), and section 10(4) and (7), also used a shorthand method – if I can use that phrase – in relation to dealing with invalidity in that case, not so much validity. So, for example, section 9(1) provided that the Balmoral proposal had no contractual or other legal effect. Section 10(4) provided that a particular arbitration award is of no effect and section 10 ‑ ‑ ‑
GAGELER J: We do recall the detail.
MR CHRISTRUP: Thank you. Again, of course, the observations made by the Court on that occasion was also that those…..was observed to be that the substantive operation of those four provisions was…..further than to…..new legal consequences to past events and thereby to alter substantive legal rights. So, by the same token we say section 148A, the same conclusion follows.
This is not the first time either, your Honours, that legislation has been held to be valid even though it dealt with pending legislation. Bachrach itself, of course, was a such a case. There are observations in 16 and 18 of that decision concerning that, and also Duncan itself is such a case.
It is important to note that the applicants have not explained why, as a matter of principle, a law like section 148A impairs the institutional integrity of the court any more than the two proposed techniques that it advances. They all had the effect of changing the law which the court would otherwise have applied, and they changed the law in such a way as to determine the outcome of the proceeding. As we know, it is the court’s function to determine the rights and obligations of the parties.
An act within either of Parkland’s proposed techniques just as much tells the court what to do about rights and obligations as does section 148A. But the applicant wants to argue that saying that the decision is valid is a direction to the court, whereas a law which says the rights and obligations should be as if the action was valid is not, and that, your Honours, is clearly a matter of semantics. The real issue, as the plurality in Duncan said at paragraph 27, is whether the Act purports:
to give a direction to a court to treat as valid that which the legislature has left invalid.
Plainly, 148A contains no direction to the court, and the court will be required to apply that particular Act to the facts before it in the same way that it does in its ordinary processes, and it will be clear from the reasons of the Supreme Court as to why it decided the case in the manner that it did.
There is no impairment of the integrity…..from the perspective of the Kable principle.
The final point, your Honours, I wish to make, is that Nelungaloo itself, of course, was a case involving the validation of an executive decision. It was an order that had been made on the regulations, and that was validated, and it was held to be valid both in Nelungaloo itself and also, by extension, the observations in Duncan which approves it.
GAGELER J: Thank you, Mr Christrup.
MR CHRISTRUP: Thank you.
GAGELER J: Mr Tokley, do you have anything to say in reply?
MR TOKLEY: Yes, please, your Honour. Your Honours, the past decisions of this Court obviously help to establish approach and also, relevantly, help to establish the normative content of any principle that is to be applied, but the past decisions are not a safe guide to, by reference – sorry, by way of analogy, to determining whether, in this particular instance, there is an intrusion into judicial power by the legislation in question.
As your Honours have pointed out, in the most recent decision of the Court in Mineralogy, your Honours quoted favourably, or referred to with approval, the passage from Bachrach in which the Court said that one has to have regard to two things, that was the context, but also to the rights, duties, powers and privileges of the legislation in question. The legislation here is undoubtedly unique, it has not previously been considered in this form by this Court.
The context is somewhat unique, it is similar to Bachrach, as your Honour Justice Gageler pointed out, in the sense that the legislation puts an end to the proceedings, but here it does so directly because the one and only decision which is in question is itself referred to in the proceedings.
Now, as your Honour Justice Gageler knows, Bachrach was a law of general application which was binding upon all the parties, and even non‑parties to the proceedings. In that sense, it was not a targeted or specific law. But this case, in my respectful submission, presents a unique opportunity for the Court, and, since Kable, where, in Kable, as your Honours know, Gregory Wayne Kable was himself identified, this legislation identifies the very decision that is in question – defines the very decision that was in question in the proceedings below in circumstances where the jurisdiction of the Court had been regularly invoked by the
plaintiff so, although one can refer to past decisions, in my respectful submission, they do not and are not determinative of this particular case.
The purpose of referring to the second reading speech was by way of contrast to that which had occurred in Bachrach, where an attempt was made to divine, if I can put it that way, from the various legislative materials, parliamentary materials, what the purpose of the legislation was. But here, it is actually stated by the Parliament itself, so there is no question as to the motive or intention of the Parliament in enacting this legislation.
Finally, the notion that all it does is validate executive action and a bare validation does not infringe Kable is, with respect, conclusionary and does not subject the legislation – sorry, it does not follow until you examine and analyse the terms of the legislation before one can come to such a conclusion. In other words, to characterise this legislation, as the court below did, as a retrospective validation, simply adopted the conclusion that Justice Dixon, as he then was, spoke about.
But, as I endeavoured to demonstrate in answer to your Honour Justice Gordon’s question, that conclusion came as a result of his careful analysis of the deeming provision, and it was predicated upon the basis that there was, of course, power to do what had to be done, but here the very question is, does a Territory legislature have the power to enact this law, because it would otherwise, we say, intrude into the judicial process? May it please the Court, those are my submissions in reply.
GAGELER J: Yes, thank you. We will adjourn momentarily consider the course we will take.
AT 11.09 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.12 AM:
GAGELER J: We are not persuaded that there is reason to doubt the conclusion of the Full Court of the Supreme Court of the Northern Territory that section 148A of the Planning Act 1999 does not infringe the principle in Kable v Director of Public Prosecutions.
The application is refused, with costs.
The Court will now adjourn.
AT 11.12 AM THE MATTER WAS CONCLUDED
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