Parklands Darwin Pty Ltd v Minister for Infrastructure, Planning and Logistics

Case [2021] NTSCFC 4

CITATION:Parklands Darwin Pty Ltd v Minister for Infrastructure, Planning and Logistics [2021] NTSCFC 4

PARTIES:  PARKLANDS DARWIN PTY LTD

(ACN 166 220 248)

v

MINISTER FOR INFRASTRUCTURE, PLANNING AND LOGISTICS

TITLE OF COURT:  FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  ON REFERENCE from the Supreme Court exercising Territory jurisdiction

FILE NO:  2020-03216-SC

DELIVERED:  5 August 2021

HEARING DATE:  9 June 2021

JUDGMENT OF:  Grant CJ, Kelly J & Hiley AJ

CATCHWORDS:

CONSTITUTIONAL LAW – The Judiciary – Kable doctrine

Whether legislation purporting to validate a decision by the defendant to refuse a request by the plaintiff to amend the NT Planning Scheme directs the Supreme Court in the exercise of its jurisdiction in a manner prohibited by the principles identified in Kable – Legislation a retrospective validation of an administrative act which did no more than attribute legal validity to that past act – That the legislation was passed during the currency of pending litigation does not impair the Court’s institutional integrity – That the legislation was directed to a specific parcel of land the subject of pending proceedings does not constitute an impermissible interference with judicial power – Irrelevant that the motive or purpose of the defendant and the Legislative Assembly in enacting the statute was to circumvent the proceedings – Legislation not invalid on Kable grounds.

Planning Act 1999 (NT), s 148A

Attorney-General (NT) v Emmerson (2014) 253 CLR 393, Australian Building Construction Employees’ and Builders Labourers’ Federation v Commonwealth (1986) 161 CLR 88, Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117, Baker v The Queen (2004) 223 CLR 513, Building Construction Employees & Builders’ Labourers Federation (NSW) v Minister for Industrial Relations (1986) 7 NSWLR 372, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, Duncan v Independent Commission Against Corruption (2015) 256 CLR 83, Fardon v Attorney-General (Queensland) (2004) 223 CLR 575, Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547, International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, Kuczborski v Queensland (2014) 89 ALJR 59, Leeth v Commonwealth (1992) 174 CLR 455, Liyange v The Queen [1967] 1 AC 259, Nelungaloo Pty Ltd v The Commonwealth (1947) 75 CLR 495, Nicholas v The Queen (1998) 193 CLR 173, North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146, R v Humby; Ex parte Rooney (1973) 129 CLR 231, Re Macks; Ex parte Saint (2000) 204 CLR 158, South Australia v Totani (2010) 242 CLR 1, Thomas v Mowbray (2007) 233 CLR 307, Wainohu v New South Wales (2011)…

Continue reading Parklands Darwin Pty Ltd v Minister for Infrastructure, Plan...

Sign in free to access the full text

Details
AGLC
Parklands Darwin Pty Ltd v Minister for Infrastructure, Planning and Logistics [2021] NTSCFC 4
Case
[2021] NTSCFC 4
Decision Date

CaseChat Overview and Summary

The Full Court of the Supreme Court of the Northern Territory considered whether legislation purporting to validate a decision by the Minister for Infrastructure, Planning and Logistics to refuse a request to amend the NT Planning Scheme impermissibly directed the Court in its exercise of jurisdiction, contrary to the principles established in *Kable v Director of Public Prosecutions (NSW)*. The plaintiff, Parklands Darwin Pty Ltd, had commenced proceedings challenging the Minister's refusal to rezone its land for residential development, and subsequently, the *Planning Amendment Act 2021* (NT) was enacted, inserting s 148A which retrospectively validated the Minister's decision.

The central legal issue before the Court was whether s 148A of the *Planning Act 1999* (NT) was invalid on the grounds that it undermined the institutional integrity of the Northern Territory courts or otherwise infringed Chapter III of the Australian Constitution. The plaintiff argued that the legislation was specifically directed at its pending proceedings, effectively prejudging the outcome and constituting an impermissible intrusion into the judicial process. The Court was required to determine if this retrospective validation of an administrative act, enacted during the currency of litigation and targeting specific proceedings, offended the constitutional prohibition against legislative interference with judicial power.

The Court reasoned that while the legislation was clearly intended to validate the Minister's decision and defeat the plaintiff's proceedings, this did not render it invalid under the *Kable* doctrine. Drawing on High Court authority, particularly *Duncan v Independent Commission Against Corruption*, the Court held that legislation which retrospectively validates an administrative act, and "does no more than attribute the consequences of legal validity" to past acts, is not invalid on that basis alone. The Court found that the mere fact that the legislation was passed during pending litigation, or that it was directed to a specific parcel of land and the subject of those proceedings, did not impair the Court's institutional integrity. The Court concluded that the legislation did not conscript the court into implementing legislative or executive policy, nor did it require the court to depart from its historical methods and standards, and therefore did not infringe Chapter III of the Constitution.

Consequently, the Full Court determined that s 148A of the *Planning Act 1999* (NT) was not invalid on the grounds that it undermined or interfered with the institutional integrity of the courts of the Northern Territory or otherwise infringed Chapter III of the Constitution.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is a reference to the Full Court pursuant to s 21 of the Supreme Court Act 1979 (NT). The sole issue for determination is whether legislation purporting to validate a decision by the defendant to refuse a request by the plaintiff to amend the NT Planning Scheme directs the Supreme Court in the exercise of its jurisdiction in a manner prohibited by the principles identified in Kable v Director of Public Prosecutions (NSW) (“Kable”).[1]Background In 2014, the plaintiff purchased Lots 6907 and 6908 Town of Darwin (“the Land”). The Land was zoned as Community Purpose under the NT Planning Scheme. The purpose of that zone at the time of purchase was expressed to be to “[p]rovide for community services and facilities, whether publicly or privately owned or operated, including facilities for civic and government administration”. In December 2017, the plaintiff requested the defendant to amend the NT Planning Scheme to rezone the Land from Community Purpose to a Specific Use zone pursuant to s 13(1) of the Planning Act 1999 (NT) (“the Act”). A revised rezoning application was submitted on 11 August 2019. The intended effect of the request was to facilitate high and medium density residential development on the Land. After exhibiting the proposal and holding a public hearing, the defendant refused the request to rezone the land by letter to the plaintiff dated 27 July 2020. On 23 September 2020, the plaintiff commenced proceedings in the Supreme Court of the Northern Territory challenging the validity of the defendant’s decision. The Originating Motion sought an order in the nature of certiorari quashing the defendant’s decision on a number of grounds, including: (a)that the defendant failed to comply with the requirements of ss 13(4) and 29 of the Act to provide reasons for the refusal;[2](b)that the defendant took into account irrelevant considerations; and(c)that the defendant failed to take into account (or gave insufficient weight to) relevant matters, particularly the 2020 Traffic Impact Statement and the Darwin Inner Suburbs Area Plan. In order to succeed in the claim, the plaintiff was required to establish in accordance with administrative law principles that the defendant’s decision was invalid on one or more of the grounds specified in the Originating Motion. The commencement of the proceedings invoked the jurisdiction of the Supreme Court to determine that matter. On 16 February 2021, the executive government introduced the Planning Amendment Bill 2021 (NT) (“the Bill”) into the Legislative Assembly. The Bill received assent on 10 March 2021 and commenced on 11 March 2021. The Bill did the following three things.(a)It inserted s 13(7)into the Act, to provide A failure by the Minister to comply with subsection (4)(b) or (6) does not affect the validity of the Minister’s decision.(b)It inserted s 29(2) into the Act, to provide:A failure by the Minister to comply with subsection (1) does not affect the validity of the Minister’s decision.(c)It inserted s 148A into the Act, to provide:148A Validity of Decision(1)This section applies in relation to the Minister’s decision to refuse a request to amend the NT Planning Scheme to change the zones of Lots 6907 and 6908 Town of Darwin, notice of which decision is dated 27 July 2020.(2)Despite any law to the contrary, the decision is valid, and is taken to have been valid on and from the date it was made.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 16 February 2021, the executive government introduced the Planning Amendment Bill 2021 (NT) (“the Bill”) into the Legislative Assembly. The Bill received assent on 10 March 2021 and commenced on 11 March 2021. The Bill did the following three things.(a)It inserted s 13(7)into the Act, to provide A failure by the Minister to comply with subsection (4)(b) or (6) does not affect the validity of the Minister’s decision.(b)It inserted s 29(2) into the Act, to provide:A failure by the Minister to comply with subsection (1) does not affect the validity of the Minister’s decision.(c)It inserted s 148A into the Act, to provide:148A Validity of Decision(1)This section applies in relation to the Minister’s decision to refuse a request to amend the NT Planning Scheme to change the zones of Lots 6907 and 6908 Town of Darwin, notice of which decision is dated 27 July 2020.(2)Despite any law to the contrary, the decision is valid, and is taken to have been valid on and from the date it was made. It is clear from its terms that s 148A of the Planning Act is directed specifically to the defendant’s decision to refuse the request to amend the NT Planning Scheme in relation to Land. Not only is that the objective intention of the provision properly construed, it was also the subjective intention of the defendant, the executive government and the legislature both to validate the decision and to defeat the proceedings brought by the plaintiff in the Supreme Court. On the day the Bill was introduced into the Legislative Assembly, the defendant issued a media release which stated that a “key feature” of the Bill was:To put beyond doubt the validity of the decision by the Minister to refuse a request to rezone the land at 16 and 25 Blake Street, The Gardens (Lots 6907 and 6908, Town of Darwin) from community purposes to a special use zone that would have facilitated high and medium density residential development, which does not fit with the existing character of The Gardens. Similarly, in the Second Reading Speech made on that same day, the defendant stated:The bill includes a provision that puts beyond doubt the validity of the decision made by myself in regard to the land located at 16 and 25 Blake Street, The Gardens, Lots 6907 and 6908, Town of Darwin. This would, for all practical purposes, conclude the current Supreme Court proceedings. To achieve this, the bill inserts a new section at 148A. In conformance with that intention, by Notice of Defence dated 6 May 2021 the defendant pleaded that the refusal was valid and was taken to be valid by reason of s 148A of the Planning Act. By its Reply dated 20 May 2021, the plaintiff pleaded that the provision was invalid and was not a bar to the prosecution of the proceedings.[3] On 25 May 2021, the following question was referred for determination by the Full Court.Having regard to the Statement of Claim dated 31 March 2021, the Notice of Defence dated 6 May 2021, and the Reply dated 20 May 2021, is s 148A of the Planning Act 1999 (NT) invalid on the grounds that it:(a) undermines or interferes with the institutional integrity of the courts of the Northern Territory; or(b) otherwise infringes Chapter III of the Constitution? The operation of the Kable principle

Ratio Decidendi

Legal Principle Established

On 25 May 2021, the following question was referred for determination by the Full Court.Having regard to the Statement of Claim dated 31 March 2021, the Notice of Defence dated 6 May 2021, and the Reply dated 20 May 2021, is s 148A of the Planning Act 1999 (NT) invalid on the grounds that it:(a) undermines or interferes with the institutional integrity of the courts of the Northern Territory; or(b) otherwise infringes Chapter III of the Constitution? The operation of the Kable principle The decision in Kable, and subsequent authorities explaining and refining its principal rationale, establishes that a State legislature cannot confer upon a State court a function which substantially impairs, or which is incompatible with or repugnant to, the institutional integrity of the court and its role under Ch III of the Constitution as a repository of federal jurisdiction and as part of the integrated Australian court system.[4] Although the principle derives from the fact that the Constitution expressly contemplates the exercise of federal jurisdiction by State Supreme Courts, the Supreme Court of the Northern Territory exercises the judicial power of the Commonwealth as one of the “other courts [the Parliament] invests with federal jurisdiction” within s 71 of the Constitution[5], and hence the principle in Kable also has application to the Legislative Assembly of the Northern Territory[6]. In broad terms, a court's institutional integrity will be impaired in the relevant sense where:(a)the legislation directly conscripts or enlists the court in the implementation of the legislative or executive policies of the State or Territory concerned;[7] or(b)the legislation requires the court to depart to a significant degree from the methods and standards which have historically characterised the exercise of judicial power.[8] The gravamen of the plaintiff’s challenge is that s 148A of the Act is directed specifically to the proceedings it has brought for judicial review of the defendant’s decision, and thereby prejudges the subject matter of those proceedings and requires the Supreme Court to exercise its jurisdiction accordingly. The argument follows that on proper characterisation, the legislation amounts to a direction to the Court as to the outcome of the proceedings, and is thus an impermissible intrusion into the judicial process. The High Court has previously had occasion to consider the constitutional validity of validating legislation in the Kable context, most recently in Duncan v Independent Commission Against Corruption (“Duncan”)[9]. That matter involved a challenge to a provision of the Independent Commission against Corruption Act 1988 (NSW), which provided that anything done by the Commission before a specified date[10] that would have been validly done if “corrupt conduct” for the purposes of the Act had a particular operation, was taken to have been, and always to have been, validly done. In Duncan, the High Court observed that there can be no objection to the validity of a statute which is “simply a retrospective validation of an administrative act”.[11] Such a statute “does no more than attribute the consequences of legal validity” to past acts.[12] In addition, the mere fact that the statute in question was passed during the currency of pending litigation does not, of itself, render the legislative provision unconstitutional as an impairment of the Court’s institutional integrity. In support of that proposition, the plurality cited[13] what Mason J (as his Honour then was) had said in an earlier case concerning an asserted interference with the judicial process: Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action.[14]