Pfeiler v Native Vegetation Council - [2012] SASC 105

Supreme Court of South Australia
(Land and Valuation Division: Civil)
PFEILER & ANOR v NATIVE VEGETATION COUNCIL
[2012] SASC 105
Judgment of The Honourable Justice Kourakis (ex tempore)
31 May 2012
ENVIRONMENT AND PLANNING - TREES AND VEGETATION - NATIVE VEGETATION
INTERPRETATION - GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS - GENERAL MATTERS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - OBLIGATORY AND DISCRETIONARY PROVISIONS - GENERAL PRINCIPLES
Proceedings brought in the Environment Resource and Development Court for civil enforcement orders of a remedial nature pursuant to Division 2 of the Native Vegetation Act 1991 - proceedings brought by Native Vegetation Council after conviction of the appellant on two counts of unlawfully clearing native vegetation contrary to s 26(1) of the Native Vegetation Act 1991 - proceedings brought within the period of six years with the consent of the Minister in accordance with s 33(1) of the Native Vegetation Act 1991 - but after the prescibed period of twenty-one days prescribed by s 26(2a) of the Native Vegetation Act 1991 - decision of the Judge in the Environment Resource and Development Court that the proceedings were validly brought - appeal against the preliminary decision of the Judge - whether s 33 of the the Native Vegetation Act 1991 is confined to proceedings brought solely under Division 2 of Part 5 of the Native Vegetation Act 1991- whether s 33 should be construed subject to s 26(2a) of the Native Vegetation Act 1991 with respect to the time for commencing proceedings upon conviction - whether the jurisdiction of the Environment Resource and Development Court was properly invoked by the power purportedly exercised by the Native Vegetative Council to initiate Division 2 proceedings.
Held - appeal dismissed - proceedings were properly commenced pursuant to Division 2 Part 5 of the Native Vegetation Act 1991 - the jurisdiction of the Environment Court was properly enlivened - s 26(2a) of the Native Vegetation Act 1991 should not be construed as detracting from the conferral of power to bring proceedings in accordance with Division 2.
Native Vegetation Act 1991 (SA) s 7, s 14, s 26, s26(1), s 26(2a), s 26(3), s 31B(2)(c), s 33(1), s 35, referred to.
Project Blue Sky & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120, considered.

PFEILER & ANOR v NATIVE VEGETATION COUNCIL
[2012] SASC 105

KOURAKIS J (ex-tempore): On 1 July 2010 the respondents (Pfeiler) were convicted of two counts of unlawfully clearing native vegetation contrary to s 26(1) of the Native Vegetation Act 1991 (the Act). The unlawful clearance occurred between 26 February 2005 and 4 July 2008.
In February 2011 the Native Vegetation Council (the Council) commenced proceedings in the Environment Resource and Development Court (the Environment Court) for civil enforcement orders of a remedial nature pursuant to Division 2 of the Act. The Council is established by s 7 of the Act and is charged with a variety of functions under s 14 of the Act. The proceedings were brought after the expiry of the four year limitation period in s 33(1) of the Act. However, pursuant to the same section, on 24 February 2011 the Minister authorised the Council to bring civil enforcement proceedings at any time up to and including 25 February 2011 (that is within six years of the earliest possible date of the clearance of which Pfeiler was convicted).
A different time limitation for bringing civil enforcement proceedings after a conviction appears in s 26 of the Act, which relevantly provides:
(2a)   If a court convicts a person –
(a)     of an offence against subsection (1); or
(b)of an offence against subsection (2) where the effect of the contravention of or failure to comply with the conditions that constitutes the offence is that native vegetation has been cleared without the consent of the Council,
the Council must, within the prescribed period, initiate civil proceedings under Division 2 in order to require the offender to make good the breach of this Act unless such proceedings have already commenced, or an order has already been made, under that Division in relation to the matter, or the conviction is overturned on appeal.
(3)     In this section –
…
the prescribed period, in relation to the initiation of civil proceedings against an offender, means –
(a)21 days after the time within which the offender may appeal against the relevant conviction; or
(b)     if an appeal is commenced – 21 days after –
(i)    the appeal is dismissed, struck out or withdrawn; or
(ii)     any questions raised by the appeal have been finally determined.
In the Environment Court, Pfeiler contended that the proceedings were invalid because they were not commenced within the prescribed period of 21 days after conviction in accordance with s 26(2a) of the Act. The parties formulated the following preliminary question for determination by the Environment Court:
The preliminary question for the court is whether the respondent’s contention that the proceedings are invalid (because they were not commenced within the prescribed period as detailed in s 26(a) and (3)) is correct?
The Environment Court answered the question ‘No’. Pfeiler has appealed against that determination. For the reasons which follow the appeal should be dismissed.
Pfeiler submits that s 33 of the Act is confined to proceedings brought solely under Division 2 of Part 5 of the Act and not to proceedings brought, following conviction, pursuant to s 26(2a) of the Act. In the alternative Pfeiler submits that s 33 should be construed subject to s 26(2a) of the Act with respect to the time for commencing proceedings upon conviction.
Pfeiler relies on the following passage from the decision of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky & Ors v Australian Broadcasting Authority:[1]
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent”.
[1] (1998) 194 CLR 355 at [91]
Pfeiler argues that were the Council able to bring civil enforcement proceedings against a person who had been convicted of an offence against s 26(1) of the Act in relation to the clearance, of which he or she was convicted, outside of the period prescribed by s 26(2a) of the Act, then the words ‘within the prescribed period’ and the definition of ‘the prescribed period’ in s 26(3) would be superfluous.
I find it convenient, as did the judge of the Environment Court, to set out the written outline of the Council in the Court below, but with some omissions:
...
2.The Applicant agrees with the Respondents that the word “must” first requires the Council to bring proceedings under Division 2 and, secondly, requires it do so within the period specified in section 26(3).
3.The disagreement between the Applicant and the Respondent centres upon the consequences in law of failing to observe the second requirement. The Applicant contends that the Act did not intend to invalidate proceedings brought outside the prescribed period (but otherwise within section 33).
...
6.This contention [that non compliance necessarily means invalidity] was explicitly rejected by the High Court in the leading case of Project Blue Sky Inc. v. Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 @ [91]:-
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect.”
7.Whether an act done in breach of a condition regulating its exercise is invalid depends, according to the Court in Project Blue Sky, upon “whether there can be discerned a legislative purpose” to invalidate any act that fails to comply with the condition. That purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. The scope and object of the whole statute is considered in determining purpose.
Project Blue Sky @ [91] and [93]
8.The critical point is that where the result is invalidity, this must have been Parliament’s intention. Whether this is Parliament’s intention is gathered from a consideration of the Act as a whole. The intention is not derived, or presumed, merely from the use of the single word “must”.
…
10.The critical contextual consideration is that the Act is at its heart concerned with conservation, protection and enhancement of native vegetation:
See section 6
Consistently with this object, Parliament’s evident concern in s 26(2a) was to ensure that after a conviction restoration of the environment must occur. The Native Vegetation Council must- not may- bring civil enforcement proceedings and the Court must, subject to limited exceptions, make an order for restoration:
See s 31B(1) and (2)
These considerations point against the requirement to bring proceedings within the prescribed period having been intended to lead to invalidity if the prescribed period is not observed.
11.Section 26(2a) is not drafted as a prohibition against the bringing of Court proceedings once the prescribed period has elapsed. Rather, the language is in the form of an injunction to the Council that it must bring proceedings after a conviction is obtained “in order to require the offender to make good the breach of the Act”. It is odd to suppose that Parliament intended the Council to be obliged to bring proceedings, but that as soon as the relatively short prescribed period had elapsed, it should be prohibited from bringing proceedings.
12.Section 26(2a) is drafted to favour the public interest in the restoration of the environment against the offender’s interests, not as a provision to protect the offender after his or her conviction.
13.In this connection, the relatively short timeframe is relevant. It can be as short as 42 days from conviction (21 days for an appeal plus the 21 days set out in s 26(2a)). Moreover, there is no opportunity for an extension of time to be granted. It is odd to suppose that Parliament intended to disarm the Council from any power to bring proceedings even when it is one day late and no matter what the reason for the delay.
14.On the other hand, it is clear that if there is no conviction (for example, in the case of an acquittal) the only time limit for civil proceedings can be that set out in section 33.
15.On the Respondents’ argument those convicted of an offence were intended to enjoy a greater immunity from civil enforcement proceedings than others in terms of applicable time limits. There is no indication that that was Parliament’s intention and to suppose it was is counter-intuitive given the objects of the Act.
16.Furthermore, section 26(2a), if read as prohibiting proceedings after the expiry of the prescribed period, inevitably creates a conflict with section 33. Section 33, appearing in Division 2, specifically provides that proceedings under Division 2 “may” be brought “at any time within four years after the date of the contravention” or within six years (with the Minister’s authorisation).
17.Section 26(2a) specifically requires the Council to bring proceedings “under Division 2”. It therefore picks up the procedural aspects attending civil enforcement proceedings prescribed by that Division. The permissive nature of section 33 is inevitably contradicted by the Respondents’ interpretation of s 26(2a).
18. In Project Blue Sky the Court noted @ [70]:
“A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.”
19.In this case, the “apparent conflict” arising from the language used in sections 33 and section 26(2a) is best “alleviated” by reading section 33 as “the leading provision” imposing enforceable time limits and section 26(2a) as a subordinate provision requiring action by the Council but not imposing a time limit which leads to invalidity if it is not observed.
20.That this must be so is illustrated in the following example. If a conviction is obtained seven years after offending, the Applicant submits that there is no legal power to institute civil enforcement proceedings at that stage (if they have not already been instituted). Section 33 only allows a maximum of four years (or six years with Ministerial authorisation). It does not matter that section 26(2a) requires the Council to bring civil enforcement proceedings under Division 2 within the prescribed period: there is simply no power to do so in the example given. Section 26(2a) cannot have been intended to extend the time limit in section 33.
21.Once it is clear that section 33 imposes an enforceable time limit in all circumstances, there is no reason to read s 26(2a) as contradicting any aspect of the permissive aspect of s 33.
The contentions of the Council should, by and large, be accepted. I would, however, make the following qualifications.
I accept that a substantial purpose of s 26(2a) of the Act is to remove the Council’s discretion not to bring civil enforcement proceedings pursuant to Division 2 of Part 4 of the Act (Division 2). But for the special jurisdiction of the Environment Court the legislature might have adopted the statutory device of empowering the convicting court to make such orders. The primary purpose of s 26(2a) of the Act appears to be to ensure that the power to make ancillary remedial orders is promptly enlivened in the Environment Court in the public interest. The purpose is not to protect the defendant.
There will always, or almost always, be a proper case to bring enforcement proceedings after a conviction. Even where substantial remedial work has been undertaken an order such as that required to be made by s 31B(2)(c) will still be necessary. There is therefore no absurdity in a construction of s 26(2a) which removes the discretion of the Council not to bring enforcement proceeding. Even if one could contemplate some rare circumstances in which no purpose would be served by bringing proceedings, pursuant to Division 2 that would not demonstrate that the removal of the discretion was absurd in the relevant sense.
I acknowledge that the foregoing is a more satisfactory explanation of the use of the word ‘must’ than it is of the 21 day period stipulated for bringing the enforcement proceedings. The same purpose might usefully have been achieved by adopting a form of obligation similar to that imposed by s 14 of the Act which requires the Council to ‘expeditiously’ investigate alleged contraventions of the Act which come to its attention.
I also acknowledge that it would be difficult to deny s 26(2a) of the Act, any effect as a right in bar for a convicted person if that construction did not confer any other legally enforceable right or duty. It is difficult to envisage the circumstances in which a person, perhaps the Minister or some other interested person, might bring proceedings for a declaration, or mandatory injunction, for non-compliance by the Council of its public duty but nonetheless theoretically at least some such circumstances could arise. For that reason the obligation in s 26(2a) of the Act, even that part of the obligation which prescribes the period of 21 days after finalisation of the criminal proceedings, has some work to do.
The first of the qualifications to which I earlier referred is that, I am not completely convinced that in a case in which a conviction is recorded after the expiration of the six year limitation fixed by s 33(1) of the Act proceedings could not be brought within the 21 day period allowed by s 26(2a) of the Act. I observe that s 33(1) of the Act does not, on its face, exclusively regulate the time in which enforcement proceedings may be brought; it provides only that proceedings ‘may be brought’ within four, or with approval, six years of the contravention. Unlawful clearing of vegetation is difficult to detect. For that reason s 35 of the Act provides the same, relatively long, time period for commencing a prosecution for an offence as is provided for commencing civil enforcement proceedings pursuant to Division 2.
On enacting s 26(2a) of the Act, Parliament may have had in mind a conviction which, because of delays in prosecuting the offence, is recorded only after the expiration of six years. I am inclined to the view that Parliament intended to allow a further limited time in which to bring civil enforcement proceedings beyond the period allowed for by s 33(1) of the Act. The purpose for so providing would be to avoid the unnecessary expense of bringing Division 2 proceedings before the six year limitation period had elapsed without knowing whether the prosecution would be successful. The purpose to which I have just referred is more obviously the purpose of a Bill currently before Parliament to amend s 26 and s 33 of the Act. The Bill cannot, of course, assist in the construction of the sections as they now stand. I mention it only because it assists in understanding the context in which the present sections must be construed.
Be that as it may even if s 26(2a) of the Act were to be so construed there would be no reason to read down s 33(1) of the Act by reference to s 26(2a) with respect to proceedings which otherwise fell within the time allowed by s 33 of the Act. The consequence would therefore be the same for these proceedings; they were properly commenced and the jurisdiction of the Environment Court was properly enlivened.
The second qualification I make relates to the Council’s reliance on Project Blue Sky. The principles enunciated in Project Blue Sky apply primarily to the construction of legislation which prescribes conditions for the making of an administrative act or decision which then operates as a factum on which statutory rights, powers or obligations are founded. In particular the Project Blue Sky principles concern the legal effect of noncompliance by administrative decision makers with statutory procedural requirements which prescribe the way in which their power should be exercised after they have properly embarked on an exercise of their jurisdiction.

The question here is a little different, it is whether the jurisdiction of the Environment Court was properly invoked by the power purportedly exercised by the Council to initiate Division 2 proceedings. The relevant principles, albeit analogous, are those discussed in Woolworths Ltd v Pallas Newco Pty Ltd,[2] Timbarra Protection Coalition Inc v Ross Mining NL,[3] Corporation of the City of Enfield v Development Assessment Commission,[4] Gedeon v Commissioner of New South Wales Crime Commission.[5]
[2] (2004) 61 NSWLR 707 at [30]-[45], [60].
[3] (1999) 46 NSWLR 55 at [63]-[65].
[4] (2000) 199 CLR 135.
[5] (2008) 236 CLR 120 at [46]-[47].
For substantially the same reasons as those advanced by the Council in the context of the Project Blue Sky principles, s 26(2a) of the Act should not be construed as detracting from the conferral of power to bring proceedings, and the jurisdiction to determine them, in accordance with Division 2 of the Act. In addition, it is significant that s 26(2a) of the Act is not expressed in the form of a prohibition against bringing proceedings pursuant to Division 2 after the expiry of the prescribed period after finalisation of the prosecution.
I dismiss the appeal.