Re the Honourable G D Kierath, Minister for Heritage - [2000] WASCA 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE THE HONOURABLE G D KIERATH, MINISTER FOR HERITAGE; EX PARTE CITY OF FREMANTLE [2000] WASCA 156

CORAM: PIDGEON J
WALLWORK J
WHEELER J

HEARD: 9, 30 MAY & 2 JUNE 2000

DELIVERED : 2 JUNE 2000

FILE NO/S: CIV 1339 of 2000

MATTER :An application for a Writ of Certiorari and a Writ of Mandamus against the Honourable G D Kierath Minister for Heritage

EX PARTE
CITY OF FREMANTLE
Applicant

Catchwords:

Administrative law - Judicial review on grounds of ultra vires or defective exercise of powers - Particular persons or tribunals - Minister for Heritage - Heritage Council

Prerogative writs - Mandamus and certiorari - Writs and orders

Statutes - Statutory construction - Extrinsic material - Ministerial discretion

Legislation:

Heritage of Western Australia Act 1990, s 23, s 47, s 49, s 50, s 52, s 53, s 54, s 75, s 78, s 79 Part 6, Part 8

Interpretation Act 1984, s 3(1)(b), s 19(2)(h), s 32(2), s 56

Result:

Application for writ of certiorari granted
Application for writ of mandamus refused

Representation:

Counsel:

Applicant:     Mr R L Le Miere QC & Mr A G Castledine
Minister For Heritage     :     Mr G T W Tannin & Ms R L Pearce
Fremantle Port Authority :     Mr G R Donaldson & Mr M G Pendlebury

Solicitors:

Applicant:     Minter Ellison
Minister For Heritage     :     State Crown Solicitor
Fremantle Port Authority :     Clayton Utz

Case(s) referred to in judgment(s):

Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24
R v Australian Broadcasting Tribunal (1979) 144 CLR 45
R v Schildcamp [1971] AC 1
The Ombudsman v Moroney [1983] 1 NSWLR 317
Tickner v Bropho (1993) 114 ALR 409

Case(s) also cited:

Gavranich v Shire of Wanneroo, unreported; SCt of WA (Miller J); Library No 980473; 25 August 1998
Minister of the Arts, Heritage and Environment v Peko-Wallsend (1985) 162 CLR 24
Padfield v Minister for Agriculture, Fisheries and Foods [1968] AC 997
Project Blue Sky v ABA (1988) 194 CLR 355
R v Secretary of State for Social Services; ex parte Association of Metropolitan Authorities [1986] 1 WLR 1
R v Secretary of State for the Home Department; ex parte Salem [1999] All ER 42
Re Smith; ex parte Rundle (1991) 5 WAR 295
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228
South Australia v O'Shea (1987) 163 CLR 378
Waters v Acting Administrator of the Northern Territory (1993) 46 FCR 462
Wrotham Park v Parkside Homes [1974] 1 WLR 798

PIDGEON J: The questions to be determined in this application have arisen by reason of a request made by the City of Fremantle to have the Co-operative Bulk Handling grain silos, being part of the grain terminal at North Quay Fremantle, placed on the Register of Heritage Places pursuant to the provisions of the Heritage of Western Australia Act 1990 (WA). The silos are the main constituents of the grain terminal which was opened on 14 September 1964. However, parts of the silos had been constructed during the war years and incorporated into the present facility. The facility has now become redundant by reason of a new and modern terminal having been built at Kwinana. The silos are on land owned by the Fremantle Port Authority who now wish to demolish them in order to make the land available for the storage of containers used in the operation of the container facility at North Quay.
In December 1998 the City of Fremantle requested the Heritage Council to place the silos upon the Register of Heritage Places. The procedure for entering a place on the Register is set out in (1) of s 47 of Act. The section reads:
"47. (1) Subject to this Part, where the Minister is of the opinion, having regard to any advice given by the Council in relation to that place and to any report of the Council as to submissions made to the Council under subsection (3) —
(a)that a place —
(i)is of cultural heritage significance; or
(ii)possesses special interest related to or associated with the cultural heritage,
and is of value for the present community and future generations; and
(b)that the protection afforded by this Act is appropriate notwithstanding that the place may be afforded protection by the operation of any other written law or law of the Commonwealth,
the Minister may direct the Council to enter that place in the Register, either as an interim registration or on a permanent basis, and effect shall be given to the direction in accordance with section 50 or 51 as may be specified."
The Minister is the Minister for Heritage and the term "Council" refers to the Heritage Council of Western Australia, a body established by s 5 of the Act.
The Heritage Council responded to the City's request on 31 May 1999 by tendering advice to the Minister that it recommended the grain silos be placed on the Register and attached to its letter to the Minister its reasons for reaching that view. The Heritage Council reached the view after obtaining submissions from persons whom it was required to consult pursuant to the provisions of subsection 3 of that section. These included the owner and occupier of the land, the Fremantle Port Authority, who objected to the placing of the silos on the Register.
The Minister, having received such a recommendation, was empowered by the section to make a decision whether or not to direct the Council to enter the silos on the Register. The Minister, prior to making his decision, sought advice from elsewhere. Among the persons consulted by the Minister was the Minister for Transport, who has a responsibility in administering the Fremantle Port. The Minister for Heritage received a number of letters from the Minister for Transport in which the Minister for Transport said, amongst other things, that to retain the silos would very much affect the future efficiency and capacity of the Port and would be contrary to the State planning strategy. The Minister for Transport also informed the Minister for Heritage that the silos were not unique and there were similar silos elsewhere in the State. The Minister for Heritage considered that this correspondence was confidential and was not prepared to make it available to the Heritage Council.
The Minister for Heritage, by letter dated 21 February 2000, wrote to the Heritage Council advising the Council that he was not satisfied that the place had cultural heritage significance to a degree which would warrant entry of it on the Register. Parts of this letter read: (AB 58)
"I accept that, as a grain storage facility, the silos have played a significant role in the growth of the wheat industry of the State and that, in addition, they represent the technical advances made in the construction of large concrete structures after the war. I am, nevertheless, aware that they are not unique and examples of such structures exist in other parts of the State.
I also accept that the silos are of some significance to Fremantle as a landmark structure and an unusual physical element of the city, and that they may be valued by those residents who once worked in them. I have noted the suggestion of the City of Fremantle that they be retained until a suitable future use can be identified. On the other hand, there seems to be concern about the physical condition of the buildings, and there is clearly some uncertainty about their future if they are not properly maintained.
However, much information has been placed before me about the importance of the land occupied by the silos to the future growth and development of the Port of Fremantle. Strong commitments have been made to the demolition of the Silos and the use of the site for the expansion of container handling facilities to provide for continued expansion in the container trade. I am consequently very conscious of the need to balance such considerations against those of heritage conservation.
I have concluded that in all the circumstances the CBH Silos should not be entered in the Register of Heritage Places. I am neither satisfied that the place has cultural heritage significance to a degree which would warrant entry or that, given the proposals for the use of the site of the silos, it would be appropriate to afford it the protection of the Act. I have decided, therefore, not to direct entry in this instance."
This is the decision the applicant is seeking to review. The order the applicant now seeks is that the decision of the Minister not to direct the Council to place the silos on the Register should be quashed, and that the Minister be required to submit the information he subsequently received from the Minister for Transport to the Heritage Council for its advice before he makes a decision whether or not to place the silos on the Register.
The grounds as contained in the Order Nisi are: (AB 7)
"(A)pursuant to section 47(1) of the Heritage of Western Australia Act, the Minister is required, prior to making any decision as to whether or not to direct the Heritage Council to enter a place on the Register, to have regard 'to any advice given by the Council in relation to that place and to any report of the Council as to submissions made to the Council under subsection (3)';
(B)the advice and report of the Council in relation to the Silos was forwarded to the Minister on or about 31 May 1999;
(C)on or about 16 December 1999, the Minister received and had regard to a letter from the Minister for Transport and enclosed draft summary of submissions relating to his decision as to whether or not to direct that the Silos be entered onto the Register; in addition, the Minister refused to allow the Heritage Council to consider that letter and summary of submissions, or advise the Minister in relation to them;
(D)it was not open to the Minister to have regard to submissions made outside the process stipulated under section 47(1) of the Act and, as a result, the Minister's decision is ultra vires, void and of no effect."
The last ground claims that it was not open to the Minister to seek advice from any outside source. It was argued on the basis that if the Minister did receive such advice, then he was required to submit it to the Heritage Council for its advice before he made his decision. There are no express words in the section, or in the Act, requiring the Minister to take such a course. Mr Le Miere QC on behalf of the applicant recognises this but submits that the purpose and policy of the Act requires the course outlined to be followed. He refers to the reasoning of the Full Court of the Federal Court of Australia in Tickner v Bropho (1993) 114 ALR 409 when the court was considering an Act containing similar provisions. The Act being considered by the Federal Court in that case was the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). Section 10 of that Act provides that where the Minister receives an application and he is satisfied on certain matters he "may" make a declaration if satisfied that the area is a significant Aboriginal area. Black CJ said that it was clear, having regard to the purposes of that Act, that although the Minister is not bound to accede to an application for a declaration, he cannot simply ignore such an application or fail to consider it at all. It would frustrate the whole object of the Act if the Minister were not under an obligation to give some consideration to an application that satisfies the requirements of the section. His Honour reached this view after examining the long title and the objects of the Act together with its other provisions. His Honour said that the question to be decided is to what extent the Minister must consider the application. The section his Honour was considering stated that where the Minister received the application and was satisfied that the area was a significant Aboriginal area and that it was under threat of injury or desecration and has received a report detailed in the section, and has considered such other matters as he thinks relevant, he may make the declaration. The section referred in detail as to what the report was to be. The Minister did not receive such a report and the Court considered he was under an obligation to obtain such a report before making his decision. The obligation was not spelt out by words in the section, but the Court considered that, having regard to the purposes of the Act, it was implicit that there was an obligation on the Minister to obtain the report mentioned in the section before making a decision. His Honour said that although it is clear that the Minister may refuse to make a declaration in the exercise of the discretion the Act confers upon him, and that the exercise of that discretion may well involve the consideration of competing interests, the proper exercise of the discretion required the Minister to consider the matters set out in the section. His Honour then considered the question whether there was the obligation to obtain the report. His Honour said that as he concluded that the Act required the Minister to consider whether an area the subject of a valid application, is a significant Aboriginal area, and whether it is under threat of injury or desecration, it must also be concluded that there is, in all such cases, an obligation to obtain the report.
In the present case the question whether the Minister for Heritage is bound to consider advice received from the Heritage Council does not arise as the Minister did give consideration to the advice he had received and made a decision on it. It is submitted, however, that if the Minister seeks other advice, then he is required to submit that advice to the Heritage Council before making a decision.
There is no express provision in the section requiring him to do this. The question is whether or not it is implicit by reason of the purpose and policy of the Act that the Minister is required to do this. In my view this Court must be hesitant in specifying procedures, not referred to in the Act, which a Minister is required to take before making a decision. The Court must not legislate or place into the Act requirements not referred to by Parliament. In Tickner v Bropho the Court did no more than say that the Minister was under an obligation to do certain things specified by the Act, such as to consider the application and, before making a decision, to obtain a report referred to in the Act
The claim in the grounds of the Application before this Court is that the Minister cannot consider matters or information not referred to in s 47. The submission, as I understand it, would then be that if the Minister did receive such information he should refer it back to the Heritage Council for further advice so that what is being acted upon is advice from the Heritage Council and nothing else. In my view the premiss that it was not open to the Minister to have regard to submissions made outside the process stipulated under s 47(1) of the Act is not a valid one. There is no such prohibition contained in the section. The fact that the Minister has a discretion would of itself indicate that it is open to him to obtain other appropriate information. The restriction imposed under s 47 is that the Minister is not empowered to make the decision until he receives advice to that effect from the Heritage Council. I would see this as an important provision to protect owners of the land. The entering of a place on the Register puts significant restrictions on the owner. For example, s 78 provides that if land is entered on the Register, all approvals for development and similar matters cannot be further proceeded with except in so far as the Heritage Council agrees.
Section 4(3) of the Act sets out the objects "with due regard to the rights of property ownership". The Act then provides that the decision is with the Minister and not the Heritage Council. The Minister cannot arbitrarily make the decision, but may only make it once he received the advice from the Heritage Council that the place is of cultural heritage significance. Having received that advice he still has a discretion, even if he is of the view that the place is of significant cultural heritage.
I do not consider it is open to say that the decision by the Minister whether or not to enter a place on the Register is a decision based exclusively on questions of cultural heritage and that economic decisions affecting the owner as to whether or not the place can be demolished is a decision to be made at a later stage under such sections as s 11. Once the Minister makes a decision under s 47 to enter a place on the Heritage Register, the owner's exclusive rights to the place is lost. The owner can no longer exclusively make decisions on economic grounds. The further decisions, as to development or alteration of the land, pass to the Heritage Council and to the Minister. Parliament has not stated that once significant cultural heritage has been established, then the place must be placed on the Register. The Parliament has done no more than say that this is a condition precedent to the Minister exercising a power, but there still is a discretion in the Minister. In the present case the place concerned is part of an important and busy port. In my view it was proper for the Minister to seek the views of the owner before making a decision which would deprive the owner of its exclusive rights to develop the place. The Heritage Council is required to obtain the views of the owner before it

tenders its advice to the Minister but the Heritage Council is making its decision on an evaluation of the cultural significance of the site. I see it as proper for the Minister to take into account the views of the owner as to the economic impact in respect of the final decision to enter the place on the Register, as such a decision would affect the value and operation of the land. In certain circumstances the decision to enter a place on the Register could well prevent an owner from carrying on his or her business

Section 47 cannot be read as depriving the Minister of the power to obtain the owner's view or confining the Minister in what he may consider before finally exercising his discretion. It is not a requirement written in by the Parliament. It would be going much further than the Federal Court went in Tickner v Bropho to say that there is such a requirement in the section when there are no words to that effect.
Application has been made to amend the order nisi by including a ground disallowed by Ipp J when granting the order. This ground claims that the Minister took into account economic considerations which are not relevant. Ipp J considered that this ground was not arguable and with respect I would agree with that view. What I have said to date would indicate my view that the ground must fail.
If one gives s 47 its ordinary meaning, the Minister is not being called upon to make a decision based on specified grounds of relevance. He is empowered but not obliged to give a direction if he is of a certain view. The ordinary meaning of the words do not lead to the restriction for which the applicant contends. The purpose and policy of the Act may be a reason for giving the words in the section another meaning, provided it is a meaning the words are capable of bearing. Whatever meaning the words are given they could not lead to the suggested restriction. It is not open for this Court to insert words into the section that are not there in order to reach another conclusion.
As I see it, the Minister has followed the section of the Act and while I would allow the amendment, I would discharge the order.
WALLWORK J: I agree with the reasons for judgment of Wheeler J.
I only wish to add that if the present situation with the silos is allowed to proceed, the detailed provisions of the Act which are designed to protect buildings of cultural significance will to a degree have been rendered ineffective.

WHEELER J:

The Application

This is an application for certiorari and mandamus in respect of a decision of the Minister for Heritage concerning certain silos presently standing in the Port of Fremantle. The silos are located within the district of the City of Fremantle. The Fremantle Port Authority, for which body the Minister for Transport is the responsible Minister, wishes to demolish those silos so as to make room for other Port operations. It is presently in the process of demolition.

Standing

It is convenient to note that the standing of the applicant is not challenged. It would clearly appear to have standing; the Heritage of Western Australia Act 1990, ("the Heritage Act") which lies at the heart of these applications, recognises a special interest of the relevant local authority in respect of heritage places within its area of responsibility at a number of points. Perhaps the best example of such a provision is found in s 23(4) with s 23(5) of the Heritage Act, which provide that where the Heritage Council (the body set up under the Heritage Act to which I will shortly refer) is considering giving advice to the Minister in relation to such a place, the local government of the relevant area may nominate a person to participate and to vote in meetings of the Council at which that advice is formulated.

The Factual Background

In this case, following a meeting on 9 April 1999, which was attended by the Mayor of the City of Fremantle and another person representing the interests of that area, the Heritage Council recommended on 31 May 1999 to the Minister for Heritage in the following terms:
"Please be advised that the Heritage Council resolved in its meeting held on 9 April 1999 to recommend that CBH Grain Silos at North Quay, Port of Fremantle, be entered in the Register of Heritage Places.
The Heritage Council based its assessment on research conducted by Council staff, and on other sources as cited in the References section of the draft Register Particulars for the place. A copy of that draft is attached, together with other relevant material in support of the recommendation.
In accordance with the Council's resolution, I recommend that you direct the Heritage Council to enter CBH Grain Silos in the Register on an interim basis. A draft letter of direction is attached for your use."
The Fremantle Port Authority had apparently at some earlier date made submissions to the Heritage Council directed both to the heritage significance, if any, of the silos and to the "compelling reasons" which it said existed requiring the demolition of the silos. For reasons which will later appear, those submissions directed to the reasons for demolition were irrelevant at this stage of the Council's deliberations. In December 1999, the Minister for Transport made submissions to the Minister for Heritage also directed to the heritage value of the silos and to what might broadly be described as economic reasons suggesting that it would be desirable to demolish them.
On 31 December 1999, the Heritage Council sought the agreement of the Minister for Heritage to the tabling of the representations made by the Minister for Transport at a meeting of the Heritage Council. The purpose of the tabling was not entirely clear from the relevant memorandum, but it would appear to have had some relationship to the potential provision of further advice in relation to the Council's recommendation that the silos be entered on the Register. It is not clear whether the letter was at that time in the possession of the Heritage Council, and it sought only formal permission to discuss it, or whether it was aware of the existence of the letter and sought disclosure of its contents.
In February 2000, the Minister replied to that memorandum, expressing the view that correspondence to him was confidential and that his "instructions" were that the Minister for Transport's letter "must not" be tabled at the Heritage Council meeting. If the letter was only in the possession of the Minister at that stage, it is my view, for reasons which will later emerge, that he was entitled to decline to provide it to the Heritage Council. If, however, it was already in the possession of the Heritage Council, then this direction appears to have been one which the Minister lacked authority to give, having regard to s 6(2) and s 6(3) of the Heritage of Western Australia Act. However, nothing turns on this instruction and it is not necessary to explore this matter further.
Finally, on 21 February 2000, the Minister for Heritage decided that the silos should not be entered in the Register of heritage places. He purported to make that decision "in terms of" s 47 of the Heritage of Western Australia Act. Rather than insert the whole text of that decision, all of which is relevant to the matters for decision, in the body of the judgment it is convenient to append the whole of the Minister's reasons as annexure A. On the same day, the Fremantle Port Authority entered into a contract with a demolition company for the complete demolition of the silos, tenders for the demolition having been called for at some earlier stage and having closed on 14 January that year.

The Grounds of the Motion and Amendment

The grounds contained in the order nisi granted by Ipp J on 30 March 2000 are as follows:
(A)pursuant to section 47(1) of the Heritage Western Australia Act, the Minister is required, prior to making any decision as to whether or not to direct the Heritage Council to enter a place on the Register, to have regard 'to any advice given by the Council in relation to that place and to any report of the Council as to submissions made to the Council under subsection (3);
(B)the advice and report of the Council in relation to the Silos was forwarded to the Minister on or about 31 May 1999;
(C)on or about 16 December 1999, the Minister received and had regard to a letter from the Minister for Transport and enclosed draft summary of submissions relating to his decision as to whether or not to direct that the Silos be entered onto the Register, in addition, the Minister refused to allow the Heritage Council to consider that letter and summary of submissions, or advise the Minister in relation to them;
(D)it was not open to the Minister to have regard to submissions made outside the process stipulated under section 47(1) of the Act and, as a result, the Minister's decision is ultra vires, void and of no effect."
Looking simply to those grounds, (D) is somewhat ambiguous in the expression "the process stipulated under section 47" and may be referring either to the advice of the Heritage Council or to permissible contents of relevant submissions or to the criteria for the formation of the Minister's opinion, or all three. Ground (C) likewise appears on its face to have a dual aspect, referring both to the Minister's having regard to the letter from the Minister for Transport (which, as I have noted, included what might be broadly described as economic considerations), while also appearing to complain of the refusal to allow the Heritage Council to consider those submissions. If one considered the grounds without their background, it is my view that they express, although clumsily, an assertion that the Minister was not permitted to have regard to criteria other than those set out in s 47 of the Heritage Act or submissions directed to such irrelevant criteria at this point in his decision making.
However, in draft grounds, which were before Ipp J on 30 March, there was to be found a ground which clearly asserted that economic considerations were irrelevant to this portion of the Minister's decision making process and to the decision which has to be made pursuant to s 47 of the Heritage Act. That ground, his Honour regarded as "unarguable". There is some lack of clarity in the transcript concerning his Honour's view of this ground, since his comment to the applicant's counsel as the applicant completed his submissions on the motion for the order nisi in respect of this ground was "I can see the argument". However, in brief reasons delivered by his Honour, he expressed the view that the ground asserting that economic considerations were irrelevant at the s 47 stage was not arguable for reasons which his Honour gave. Those reasons were essentially based upon the opinion that it would be "contrary to good Government and contrary to common-sense" if the Minister were not entitled to take economic considerations into account. I would respectfully agree with his Honour, if that observation is directed to the scheme of the Heritage Act as a whole, but for reasons which I will later explain, I do not think that the s 47 stage is a time at which those considerations arise.
The parties took the view initially when arguing upon the return of the order nisi, that the applicant was precluded from developing argument which was contrary to the view expressed by Ipp J. As the argument developed, the difficulty with this approach became plain. In particular, during the course of the submissions made on behalf of the Minister, the principal reason which was asserted for reaching the conclusion that the Minister was not bound to refer all submissions to be filtered through the Heritage Council, was that the discretion of the Minister was completely at large at the s 47 stage of decision making, and that the Minister could at that stage have regard to whatever criteria (and, therefore, whatever submissions) he saw fit. That was an argument which was contained in the written submissions made on behalf of the Minister, was developed in argument, and was the subject of some discussion between counsel and members of the court.
Prior to the submissions of counsel for the Fremantle Port Authority, the applicant orally sought leave to amend the grounds of the order nisi pursuant to O 56 r 6 of the Rules of the Supreme Court so as to incorporate the grounds contained in the original motion for the order nisi which dealt with the issue of what were relevant criteria under s 47.
Reflecting upon the matter after the court's decision had been reserved, members of the court concluded that all parties should be given the opportunity to address what had been ground (2) of the original motion which reads:
"2Further or in the alternative, the Minister took into account irrelevant considerations in that:
(a)in arriving at his decision, the Minister had regard to economic considerations such as the financial impact of preserving the Silos on the Fremantle Port Authority, and the fact that the Fremantle Port Authority had entered into contractual arrangements for the demolition of the Silos;
(b)such considerations are not relevant to the decision that must be made by the Minister under the terms of section 47 of the Act; accordingly, the Minister has had regard to irrelevant considerations in arriving at his decision which is consequently ultra vires, void and of no effect."
Accordingly, written submissions were invited and received, and an opportunity for brief further oral submissions was afforded the parties. The applicant provided the court with a motion for amendment of its grounds of application.
In my view, the interests of justice require that the amendment foreshadowed by the applicant should be permitted so as to raise what was its original ground (2). The allegedly unlimited nature of the Minister's discretion pursuant to s 47 was a central part of the Minister's submissions on the return of the order nisi, and it would be wrong to allow that issue to go by default because of what was, in my respectful view, a wrong approach taken by Ipp J at an earlier stage.

The Statutory Framework - General

Section 47 of the Heritage Act expressly states certain criteria relevant to the Minister's decision whether to direct entry in the Register. A question then arises as to whether those criteria are exhaustive, or merely inclusive: Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 (at 39-40 per Mason J). This is a question of statutory construction. Factors relevant to the exercise of a decision are to be found in the subject matter, scope and purpose of the relevant Act: R v Australian Broadcasting Tribunal (1979) 144 CLR 45 (at 49-50). It is therefore desirable to examine the Heritage Act as a whole, before turning to s 47.
Turning first to the more general portions of the statute, the long title of the Heritage Act is an Act to "provide for, and to encourage, the conservation of places which have significance to the cultural heritage in the State, to establish the Heritage Council of Western Australia, and for related purposes."
Section 4(3) provides that the Heritage Act binds the Crown and provides for the objects of the Heritage Act, which relevantly are:
"… with due regard to the rights of property ownership, …
(a)to identify, conserve and where appropriate enhance those places within Western Australia which are of significance to the cultural heritage."
Cultural heritage is not defined, although the expression "cultural heritage significance" means "the relative value which that place has in terms of its aesthetic, historic, scientific or social significance, for the present community and future generations." As the expression "due regard … property ownership" was stressed by the Minister, it is desirable to note that the word "due", meaning "rightful", "proper" and "sufficient" (Macquarie Dictionary) simply begs the question of what is "due regard" in a protective regime of this kind.
The Heritage Act sets up a Heritage Council. Its membership consists of a chairperson, a nominee of the National Trust of Australia, a person appointed to represent the interests of local government, a person appointed to represent the interests of owners (that is, broadly, proprietors of land) a person appointed to represent professional organisations having relevant professional skills, and four other persons having qualifications particularly relevant to, or expertise or experience or a practical interest in, matters within the functions of the Heritage Council, (in addition to, for some purposes, coopted members pursuant to s 23).
The functions of the Heritage Council are very broad ones. It may advise the Minister of its own motion or upon request as to matters relating to or associated with places that have or may have cultural heritage significance, advise the Minister in relation to the Register, negotiate in relation to heritage agreements, provide or facilitate provision of financial or technical assistance or other conservation incentives, arrange recording conservation and presentation of places of cultural heritage significance, cooperate with others, encourage public interest in heritage issues and so on. Its relationship with the Minister is dealt with principally under s 6, to which I have already adverted in passing. The provisions of that section include:
"(1)Responsibility for the administration of this Act is vested in the Minister, who shall be advised and assisted by the Council.
(2)The Minister may, in writing, give to the Council directions of a general character with respect to its functions and, subject to subsection (3), the Council shall give effect to any such direction.
(3)In relation to its function of giving advice and the evaluation of the cultural heritage significance of any place the Council is not required to give effect to a direction of the Minister."

The Register and Registration

The Register is one of the central concepts of the Heritage Act. It is the procedure for entry in the Register or, perhaps more accurately, the procedure for initiating a process which leads to entry in the Register, which is in issue in this case. Particularly relevant here is s 47, which must be read with s 49 and s 50, the latter sections significantly modifying the operation of the former. Before I turn to deal in detail with those sections, it seems to me that light will be shed upon the meaning of a number of ambiguous portions of them if consideration is first given to specific provisions which enable the Minister to direct that places not be entered in the Register or which allow for their removal from the Register, and to provisions dealing with the effect which being placed on the Register will have upon a property. In my view, those provisions reflect deliberate legislative choices between competing values, which are important to be borne in mind in the interpretation of s 47, s 49 and s 50.
It is important to remember, in relation to the brief sketch of certain provisions which follows, that interim registration may be achieved very easily. The publication of an advertisement pursuant to s 49(1) giving notice that it is proposed that a place be entered in the Register, or, where a place is vested in the Crown or a person on behalf of the Crown, publishing the content of advice given to the Minister pursuant to s 47(5), creates a requirement that the Heritage Council cause an entry relating to the place to be made as an interim registration (see s 50(1)(a)(b)). Interim registration is terminated only upon permanent registration, or following the procedures in s 52 and s 53 (s 50(3)), or in certain circumstances, by direction pursuant to s 50(2).
The thrust of the next few sections to which I turn is broadly that, having initiated the process whereby a place may be placed permanently on the Register, the Minister may pre-empt registration by directing that it should not be entered, or may direct its removal, but subject to certain constraints.
By section 52, where an advertisement has been published giving notice that it is proposed that a place be entered in the Register, pursuant to s 49, but the place has not been entered, the Minister may direct that the place or a portion of it shall not be entered permanently in the Register. Once he has done so, the Heritage Council is to give notice of that decision by way of public advertisement, to notify persons of their right to make submissions relating to that decision and, if a submission is made, the Heritage Council is to again advise the Minister, who may withdraw the notice that the place not be registered. If he does not withdraw the notice, the Heritage Council is to cause any existing entry to be removed (this being apparently a reference to an interim registration). However, where the place is vested in the Crown or a person on behalf of the Crown in right of the State, and the Minister is of the opinion that it should not be entered in the Register on a permanent basis, he is to cause that opinion to be tabled in both Houses of Parliament and the place is to remain on the Register unless both Houses of Parliament pass motions permitting its removal.
Section 53 appears to be designed to deal with the position where notice has been given pursuant to s 49 of a proposal that a place be permanently registered and a considerable period of time has elapsed without registration taking place. Where a period of 12 months has elapsed since the date of publication of such a notice, then, with certain exceptions, the Heritage Council is to give notice by way of advertisement that the proposed entry has not been, and will not, be made. However, where a place is vested in the Crown or a person on behalf of the Crown in right of the State, an interim registration continues to have effect until the Minister has given notice that it will be removed in not less than 12 months from the date of the notice and that period has expired. The effect of this provision appears to be that in the absence of a positive decision that the place not be registered pursuant to s 52, then upon publication of a notice pursuant to s 49 a place will be registered on an interim basis and, if a private place (ie not owned by or on behalf of the Crown) will so remain until a period of 12 months has elapsed or, if a Crown place, will remain registered on an interim basis for an effective period of not less than 2 years.

Section 54 deals with amendments to the Register and removal. With certain exceptions, an entry in the Register cannot be amended or removed unless the Heritage Council has by advertisement stated the reasons for the proposed amendment or removal and invited submissions, has considered those submissions and has advised the Minister as to the recommendation of the Heritage Council. Where the Minister is of the opinion, having regard to any advice given by the Heritage Council, that an entry should be removed, he may so direct. There is provision for the situation where the Heritage Council may fail to advise the Minister within nine months of the advertisement and the Minister may direct removal without advice or in certain circumstances the Minister may, if satisfied that no practical purpose would be served by publishing an advertisement, direct that advertisement be dispensed with (although even in that situation a notice for public information is to be published by the Heritage Council in the Gazette). However, if a place is vested in the Crown or a person on behalf of the Crown in right of the State, the Heritage Council is to publish by public advertisement any advice it gives to the Minister in relation to removal and the place is not to be removed from the Register until a resolution of both Houses of Parliament to that effect is passed.
To summarise, there are two different types of procedures prescribed in each case where the Minister wishes to direct that a place not be entered or that it be removed. Such a direction in relation to places vested in the Crown involves either significant delay, so that the place remains on the interim Register for a period of at least two years, or the resolution of both Houses of Parliament. So far as private places are concerned, there is either a shorter period (12 months) during which the place must remain on the interim Register before removal, or, there is procedure for advertising and advice followed by a ministerial decision. No criteria are set out in the Heritage Act in either case, and it appears that the ministerial discretion must be at large. Not only heritage significance but economic matters (as they affect either the community or private individuals), compassion, and so on may be relevant. My view of the matters to which the Minister may have regard flows, in part, from the lack of any specific criteria, from the nature of the decision makers (not only a Minister but in some cases the Houses of Parliament) and from the effect of a decision to register, to which I will shortly turn. However, the underlying premise of the sections to which I have referred appears to be that heritage issues are of such importance to the State that the Minister should be constrained in making any decision which could result in a loss of protection (by reason of non-registration or removal of registration) for such a place. The constraint, in relation to private property, takes the form of requirements for the opportunity for submissions and for advice.

Effect of Registration

Turning to the question of what effect registration has, it should first be noted that registration is not the only means by which places of heritage significance may be protected. Part 6 of the Heritage Act provides for orders which will prevent adverse effects upon any place of heritage significance, called broadly conservation orders. There are a variety of consultative mechanisms, notice and appeal procedures, prescribed depending upon the perceived urgency of the circumstances. A place need not be on the Register before being the subject of such an order. Part 8 provides for the acquisition of land (either by consent or compulsorily) in certain circumstances where that is necessary for heritage reasons, and, again, a place need not be on the Register in order to fall within its scope.
The immediate effect of registration is provided for by s 78. It brings to a halt all applications (eg for demolition or subdivision or the like) in respect of such a place and suspends all licenses of this type, unless in either case the Heritage Council authorises certain things to be done. If registration is permanent it revokes any existing applications, permission, and so on. Future applications will bring s 11 - discussed shortly - into play. Compensation for the effect of registration under s 78 is provided for by s 75. In broad terms, the compensation is compensation only for costs thrown away, so that expenditure incurred in the preparation of plans, or in respect of breach of a contract caused by discontinuing works, or matters of that kind, may be the subject of compensation, but loss of profit or potential profit is in general terms not recoverable. For example, pursuant to s 75(3)(e) no account is to be taken of any prospective use of the land for compensation purposes.
It appears from these sections that Parliament clearly recognised that there may be loss following on from either interim or permanent registration, and chose to limit the scope of compensation which might be recovered. It appears to be that some economic loss, or loss of certain opportunities, to individuals, was considered not to be sufficiently significant to allow it to stand in the way of the community interest in the preservation of heritage places by means of the Register.
Section 79 further provides penalties for damaging or despoiling a place on the Register, although the Heritage Council may authorise what would otherwise be a breach of that section. The Heritage Council may impose conditions on its authorisation and if the conditions are unacceptable (although, oddly, not where the Heritage Council refuses permission outright) the applicant may refer the matter to the Minister for determination.
To the extent that legislation related to planning, under which licences and so forth are obtained, is binding upon the Crown, the sections to which I have referred apply to both privately owned and Crown land. The longer term effect of registration is provided for in s 11, which will affect different types of landowners (purely private, Crown, or other statutory authorities) in different ways. That section relevantly reads:
"(1)A person who, as a Minister of the Crown, is responsible as the Minister under any written law -
(a)shall not, as such Minister, initiate or take any action under that law; and
(b)shall give all such directions and do all such things as, consistently with that written law, can be given or done under that law by the responsible Minister to ensure that any decision-making authority in respect of which that Minister has a responsibility does not take any action under that law,
which will, or will be likely to, adversely affect a registered place unless that Minister is satisfied that there is no feasible and prudent alternative to the taking of that action and that all measures which can reasonably be taken to minimize any adverse effect will be taken.
(2)…
(3)A decision-making authority shall not take any action that might (whether or not adversely) affect to a significant extent a registered place … (even though that action is not directly related to the place) unless -
(a)subsection (2) has been complied with by the authority;
(b)the authority has informed the Council of the proposed action and given the Council a reasonable opportunity to consider it and to advise both the Minister and that authority;
(c)that action is consistent with advice received from the Council, or there is no feasible and prudent alternative to the taking of that action; and
(d)the decision-making authority has used its best endeavours to ensure that all measures which can reasonably be taken by any person involved in the implementation of the proposal are taken so as to minimize any adverse effect.
(4)For the purposes of this section -
(a)the making of a decision or recommendation;
(b)the grant of an approval or permission, or the issue of a licence; or
(c)a refusal so to do,
constitutes the taking of action, and where the adoption of a recommendation would adversely affect a place the making of that recommendation shall be deemed to be action affecting the place adversely."
A decision-making authority is a public authority who makes, or is empowered to make a decision in respect of a proposal, and includes a Minister of the Crown. A proposal in turn is broadly defined as a "project, plan, programme, policy, operation, undertaking or development or change in land use, or any amendment of such a proposal" which affects a registered place. Any dispute as to relative rights and duties under the Heritage Act which may arise between Ministers is to be resolved by the Governor (s 12).
Working backwards, in a sense, through the Heritage of Western Australia Act, once a place is entered on the Register, either or an interim or permanent basis, the use of the land is not sterilised but, in broad terms, any action taken in respect of it must either be in accordance with the views of the Heritage Council, or there must be no "feasible and prudent" alternative and all reasonable measures must be taken to minimise any adverse effect. The "feasible and prudent" test is a stringent one, but would appear to encompass reference to economic considerations, such as the significance of what is proposed for the place to either the State as a whole, or the community, or a section of it, or an individual. There can be a direction that a place not be permanently registered or that it be removed from the Register, but there are inbuilt delays and requirements for advice in respect of private land and for Parliamentary approval in respect of Crown land. At this stage too, it appears that a broad range of considerations, in addition to consideration of heritage significance, may be taken into account in making a decision.

Section 47 and Section 49 - The Minister's Submissions

The submissions of the Minister in this case are to the effect that at a stage anterior to those which I have described, when the Minister is simply deciding whether or not to direct entry, ie, to begin the process which results in registration, the Minister has the widest possible discretion and may, having regard to, for example, the economic consequences of registration for the community or the owner of the property, decide to decline to commence the statutory procedures. Such a contention would appear to sit oddly with the high value which the legislation clearly places on heritage considerations (as indicated by the restrictions to which I have referred) and would, in my view, make nonsense of the careful provisions for delaying the effect of, for informing, and for supervising, ministerial directions to be found in s 52, s 53 and s 54. Against that background, I turn to s 47, s 49 and s 50. These sections run to several pages, and it appears to me to be convenient, rather than disrupting the body of the judgment, to append them as annexure B to these reasons.
It appears on the face of s 47, s 49 and s 50 that there are many ambiguities to be found within them, particularly when they are read together. Questions which arise include the following. Is there both a s 47(1) direction that a place be entered and a s 49(1) direction that a place be entered, or are the references to the same direction? What is the direction referred to in s 49(1)(a)? How does the Heritage Council obtain the submissions referred to in s 47(3) - is it from the advertising process referred to in s 49(1)(a) or elsewhere?

Section 47 and Section 49: Extrinsic Materials

A wholly coherent textual analysis is impossible. Having regard to the many ambiguities which appeared to me to be thrown up by that process, I turned to the relevant parliamentary proceedings. It appears that the background to the legislation is a lengthy one. There was a first Heritage Bill introduced in November 1976, and a number of variations upon it were either introduced or considered by various parties over a period of time. The Bill for this Act, in something close to its present form, was introduced in 1990. It was the subject of considerable controversy, and a number of amendments were moved during the passage of the Bill through each House of the Parliament, some of them being accepted. The Bill in a form close to that of the present Heritage Act was referred to the Standing Committee on Legislation, which reported in December 1990 (Paper No 845). Certain amendments were recommended by that Committee, including the references to the resolutions of the two Houses of Parliament, which I have earlier described. It is not surprising, having regard to its history, that some portions of the Bill do not always sit easily together.
From a consideration of the Second Reading speech and of the debates as a whole, it appears to me that a number of themes emerge. The Minister responsible for the legislation in each House emphasised the importance to the community as a whole of preservation of places of heritage. The principal concerns of those members opposed to the Bill, expressed in varying ways, was that the legislation proposed paid insufficient regard to the rights of property owners. The response to these concerns was three-fold. It was suggested by those responsible for the legislation that: places of heritage value belong to the community as a whole and restrictions on the rights of property owners were appropriate in that broader community interest; on occasion, registration of a place or other measures directed to its conservation may increase its value to the owner; and there were compensation provisions in the legislation, although it was acknowledged that there were losses or potential losses for which they might not compensate. (The details extend over many volumes throughout 1990, so I do not give those references here). The alterations recommended by the Standing Committee were directed largely to the composition of the Heritage Council (including provision for a representative of owners), to the compensation and review provisions, and to ensuring that Crown properties were subject to a stricter regime, including that of parliamentary approval.
In relation to the ability of any property owner to make representations or take steps directed to ensuring that his or her property was not registered, the Minister responsible for the passage of the Bill through the Legislative Assembly observed that it was at the s 49 (previously cl 45) stage - that is, after the s 47 ministerial direction and therefore once the property was, by virtue of s 49(1) and s 50(1) given interim registration - that everyone would be able to "have their say" (Hansard, Legislative Assembly page 4264 28/08/90).
It appears to have been accepted throughout the course of the debates that registration would be relatively easy to obtain under the proposed scheme and that its consequences would be significant. These debates confirm my view as to the legislative purposes which are to be discerned from the sections I have already described: which purposes are, to give very wide ranging protection to all places of heritage value, and to restrict to the degree necessary the rights of owners so as to protect those places. My view of those purposes affects the construction which I give to s 47, s 49 and s 50, where they are ambiguous. I now turn to what appear to me to be the significant features of s 47, s 49 and s 50.
The heading of s 47 is "Criteria for entry in the Register". The heading to a section of a statute does not form part of the statute (Interpretation Act, s 32(2)). In the absence of any statutory provision, there were divergent views expressed as to whether at common law a court may take account of a heading or marginal note for the purposes of interpreting a statute. A persuasive discussion of the issue leading to a conclusion that such matters will rarely be of significance but may nevertheless be referred to is to be found in TheOmbudsman v Moroney [1983] 1 NSWLR 317 (per Street CJ). A similar view was taken in R v Schildcamp [1971] AC 1. However, it is not necessary to explore this matter at length, since if a heading is not part of the written law, it may nevertheless be "extrinsic material" which may be taken account of pursuant to s 19(1) of the Interpretation Act.
In the case of this legislation, the heading in question is to be found in the report of the Standing Committee on Legislation presented in relation to the Bill, and therefore would appear to fall under the Interpretation Act, s 19(2)(h). In those circumstances, it appears to me that it is proper to refer to the heading so as to ascertain the "drift" or main idea of the section. It appears to me to be an indication, although a weak one, that the section is intended to set out exhaustively the relevant criteria for directing entry.

Section 47 and Section 49: Textual Analysis

The view suggested by the heading to s 47 is strengthened by a number of indications within the section. In particular, in advising the Minister as to the significance of a place, the Heritage Council is to consider submissions which may be made by specified persons "as to its relevance to the cultural heritage in the State" (subs (3)). It appears that the Heritage Council is not to consider submissions which relate to anything other than the cultural heritage of the place, and this despite the fact that the Heritage Council has as members not only a representative of owners, but also, for this purpose, a person nominated by the relevant local authority, so that its membership would encompass the experience necessary to consider matters such as the effect upon local economic circumstances, or upon the owner. Additionally, s 47(2) refers to the "intent that there should be compiled a comprehensive Register of the heritage" (emphasis added). The Register will not be comprehensive if the Minister can readily decline to cause a place to be registered for reasons which are unrelated to heritage significance.
A further, although again relatively weak, indication that only heritage matters are to be considered by the Minister pursuant to s 47, arises from a comparison of the apparent breadth of submissions which are invited pursuant to s 49(1)(a)(iii), in respect of which there is no express limitation as to the relevant subject matter of those submissions, with the narrow concluding words of s 47(3). So far as s 49 is concerned, there is a mechanism which is apparently designed to ensure that a wide variety of views and considerations are brought before the Minister, albeit filtered through the Heritage Council. It would be odd, if s 47 were intended to permit the Minister to have regard to a wide variety of considerations, that no mechanism has been prescribed in it which would allow such matters to be brought to his attention.
When one compares s 47 and s 49, it appears indeed to be likely that submissions pursuant to s 47 (as opposed to s 49) would come principally from those who were seeking to have a place incorporated in the Register; that is suggested both by the closing words of s 47(3) and by the nature of the bodies to make submissions identified by s 47(3)(a).
There is obviously no express exclusion in s 47 of any matters as matters the Minister may consider. However, the narrow scope of those matters to which he is required to have regard - that is, any advice given by the Heritage Council and any report of the Heritage Council as to submissions made to it - and the careful setting out of relevant "heritage" criteria only is to be contrasted with the language which is often, although not always, found in legislation where it is intended that the Minister have regard to a variety of considerations (eg s 18(3) Aboriginal Heritage Act 1972, which refers to the "general interest of the community").

The concluding words of s 47(1) provide that, the Minister having directed the Heritage Council to enter a place in the Register, "effect shall be given to the direction in accordance with s 50 or s 51 as may be specified". Notwithstanding the apparent meaning of these words, it cannot mean that once such a direction has been given, the Heritage Council either must or can register the place. It may do so on an interim basis if it has published the advice which it gave pursuant to s 47(5) in respect of a "Crown" place, or, if the Minister so directs and the place is one in respect of which a conservation order is made (s 50(1)(b) and s 50(1)(b)(c)). So far as permanent registration is concerned, it is to be noted that s 51 is expressed to be subject to the part of the statute in which it is found, which includes s 50 and s 49.
Section 50 appears to prescribe exhaustively the circumstances in which interim registration is permissible, and in no case does a direction by the Minister on its own appear to be sufficient to trigger registration. Section 49 expressly provides that a place shall not be entered in the Register under s 51 (ie, permanently) unless certain steps have been taken. Those steps are, broadly, of a consultative nature. Although they may well be, in the content of the consultation, very similar to those in which the Heritage Council may have engaged pursuant to s 47(3), they are by no means identical. The s 49 consultation is initiated by a general advertisement and by service of documents on an owner, and by seeking particular views from designated persons, while the process under s 47 appears to be initiated by those who wish to make submissions. The categories of those to whose views the attention of the Heritage Council is directed are different pursuant to s 47(3) and 49(1) and, as I have earlier pointed out, the submissions which may have been considered pursuant to s 47 are apparently more confined in their content than those invited under s 49.
It appears to follow from the consultative process prescribed by s 49, concluding with advice being given to the Minister on representations made, that the "direction" to enter a place referred by s 47 cannot be the same direction to which the concluding words of s 49(1) refer. Rather, what seems to be intended is that the Minister will give a "direction" pursuant to s 47, that there will then be advertising, consultation and advice and that the Minister will either then make a further direction pursuant to s 49(1) or, he may instead make a direction pursuant to s 52. It appears that, despite the impression conveyed by the words of s 47, the "direction" to enter a place pursuant to s 47 is in truth to be understood as a direction to do all that is necessary in order to enable registration, in due course, to take place.
Although it is not necessary finally to determine the matter, it appears that it may be that the direction given pursuant to s 47 is the "direction" referred to in s 49(1)(a). There is no express power given to the Minister to direct the Heritage Council to place public advertisements. The power to direct pursuant to s 6 would appear not to encompass a direction to advertise. All of the other directions in this Part appear to be related to either entry on the Register or non-entry, as the case may be. It may be that s 49(1)(a) carries with it an implied power to direct the Heritage Council to place advertisements, but it appears to me that a better view may be, if the s 47 direction is understood as I have suggested, that it is the direction to which s 49(1)(a) refers.
So far as the criteria to be applied by the Minister in arriving at a decision pursuant to s 49 are concerned, it is my view that he may have regard not only to heritage considerations but to all of the "political" matters to which I have earlier referred, including such matters as public sentiment, the effect on the State's economy or a portion of it, and the particular effects which such a decision may have upon individual land owners or occupiers or others. The absence of any express reference to any criteria in s 49, and the consequences of the decision to enter a place permanently on the Register, together with the identity of the decision-maker, in my view inevitably would point to that conclusion. The fact that a discretion of this kind arises at the s 49 stage is another consideration suggesting that no such discretion is to be exercised at an anterior stage. It would be odd, in a statutory scheme which provides for a direction to be given only following consultation and advice, if the entire process could be circumvented by the exercise of an identical discretion, at an immediately anterior stage, upon a consideration of what may be much more limited material.
In my view, all of the textual considerations within s 47 and s 49, to which I have referred, together with the scheme of the Heritage Act as a whole, point to the conclusion that it is intended that under s 47, the Minister is to have regard only to the matters expressly set out in s 47(1), as explained by s 47(2).
The point was made by counsel for the Minister that the identification of a Minister as a decision-making body may often be an indication that what might broadly be called "political" considerations are to be taken into account. It was, in effect, suggested that if only heritage significance were of relevance at the s 47 stage, the decision might as well be made by the Heritage Council as by the Minister. This may, in many circumstances, be a powerful argument. However, it is not invariably the case that a Minister is intended to have regard to broad political considerations in all aspects of decision-making.
In this case, s 47(2)(b) provides that in considering the significance which any place may have to the cultural heritage of the State, regard is to be had to, inter alia, whether the place is "held in high public esteem or sentiment". While matters of cultural heritage are no doubt the subject of a variety of different types of expertise, the concept of cultural heritage encompasses matters of community or social significance and community sentiment or values to which a Minister might be expected to be very much alive. It is my view, therefore, that the identification of the Minister as the decision-maker is not sufficient to offset the view as to his discretion, which I have reached based on the other considerations to which I have referred.
For the sake of completeness, I should mention that s 47(1)(b) also requires the Minister to be of the opinion that "the protection afforded by the Heritage Act is appropriate, notwithstanding that the place may be afforded protection by the operation of another law". It seems clear that this is not a general direction to the Minister to consider whether the protection afforded by the Heritage Act is "appropriate" having regard to any matters which he may consider relevant (including, for example, the use which might otherwise be made of the place). Rather, it is intended under this paragraph that if there should be another written law (eg the Aboriginal Heritage Act 1972 or the Environmental Protection Act 1986), which operates so as to protect a place, the Minister is to consider whether it is necessary to have the extra layer of protection which would be afforded by registration. A judgment of this kind involves a familiarity with the operation of a variety of protective legislative regimes, and may be another reason why the discretion is entrusted to the Minister.
One issue directly raised in these proceedings is whether, pursuant to s 47, the Minister may have regard to submissions or advice, other than advice given by the Heritage Council or submissions reported to him by the Heritage Council. It is my view that he may have regard to other advice and to submissions which have not been filtered through the Heritage Council pursuant to s 47. There are several reasons for this.
The expression "any advice" and "any report" suggests that there may be neither advice nor report. In cases of that kind, the section clearly contemplates that the Minister may nevertheless of his own motion make a direction. If the Minister may make a direction of his own motion, there seems to be no good reason why he should not do so as a result of concern raised with him by some other minister or member of the community. Further, the intent that there be a "comprehensive register" also suggests that the Minister may have regard to any suggestions, whatever their source, as to what should be included in the Register. The Heritage Council has a wide variety of functions, and it is possible that it may not be possessed of sufficient time or resources to bring to the attention of the Minister, all places which may require registration. However, as I explain in these reasons, whatever the source of submissions or suggestions to the Minister, when he comes to consider them under s 47, the only relevant questions for his determination will be whether he is of the opinion that the place satisfies the criteria set out in subs (1)(a) and subs (b). He therefore may not have regard to submissions, or portions of submissions, which deal with issues irrelevant to these criteria.
Turning to the question of whether the Minister may have regard pursuant to s 49 to submissions made directly to him and not filtered through the medium of the Heritage Council, it is my view that he may. Parliament obviously thought it appropriate that submissions should be filtered through the Heritage Council. That body has not only heritage expertise but also contains representatives of a variety of groups. It may be that in reporting upon submissions which are not directed to heritage issues, it is nevertheless able to make useful suggestions to the Minister. For example, where questions of economic hardship are raised, it may be that the Heritage Council will be able to suggest advantages which may flow from registration or other measures which may be taken which may offset such a disadvantage pursuant to the legislation, or it may be that it will be able to suggest that a portion only of the relevant place could be registered so as to avoid such adverse effects. However, having regard to the great variety of types of place which may be put forward for registration, and to the breadth of the considerations that may be relevant to decisions in respect of different places, there may be topics in respect of which no useful purpose could be achieved by having them referred to the Heritage Council. Further, having regard to the effect of registration in restricting the rights of the owner of a registered place, it appears to me unlikely that the legislature intended that the owner of that place should be unable to make representations directly to the Minister, either instead of or in addition to making submissions to the Heritage Council, so as to ensure that the Minister fully appreciated all of the relevant consequences which might flow to that owner.
The textual considerations to which I have already referred, together with the scheme of the Heritage Act, may have the further consequence that the word "may" in the concluding lines of s 47(1) do not give the Minister a discretion to decline to direct the Heritage Council to enter the place for registration notwithstanding that he has formed the opinions set out earlier in that section. Rather, he may have a duty to make a direction, with a discretion to direct either interim or permanent registration depending upon his view as to which course is appropriate and permitted by the Heritage Act in respect of the particular place. Section 56 of the Interpretation Act provides that the word "may" shall be interpreted to imply that a power conferred by the use of that word may be exercised or not, at discretion. However, that interpretation does not apply where the intent and object of the Act, or something in the subject or context of the Act, is inconsistent with such an interpretation (Interpretation Act, s 3(1)(b)). I would not make any finding upon this issue, however. The applicant conceded during the course of argument that the word "may" did import a discretion, the scope of which was uncertain. The question was therefore not properly ventilated before us. However, it may be relevant to the question of what relief should be granted.

Conclusions: The Minister's Decision Making Process

Analysing the Minister's decision of 21 February 2000, there is nothing of note in the first two paragraphs. However in the third paragraph, having specifically referred to s 47 of the Heritage Act and to the relevant opinions which he was required to form before directing entry, the Minister added, as a matter as to which he must form an opinion before directing entry, that "the protection afforded by the Act is appropriate." Standing alone, that statement is plainly erroneous. The reference appears to be a reference to s 47(1)(b) which is of relevance only where the place in question is also protected under some other legislation. Protection under other legislation does not appear from the papers before the court. In that respect, the Minister misdirected himself as to the matters which he had to consider.
The fourth paragraph clearly has regard to matters which are relevant to the heritage significance of the place, although it is to be noted that lack of uniqueness on its own cannot be a ground of excluding a place from the Register, (suggesting it may be relevant together with other grounds) s 47(2), concluding words. The first part of the fifth paragraph appears also to be relevant to heritage considerations, and the uncertainty about the physical condition and future of the buildings would appear to be potentially directed to the question of whether the place is "of value for … future generations".
However, the penultimate paragraph of the Minister's decision, and one which appears to have been critical, relates to the need for the land on which the silos are situated to be used for other purposes to provide for expansion in the container trade, and the Minister expressly refers to the need to "balance" such considerations against those of heritage conservation. In my view, these were economic and social matters which could well have been taken into account pursuant to s 49 or s 52 or, in due course, by the Minister for Transport or the Fremantle Port Authority in arriving at a decision pursuant to s 11, but they were not relevant at this stage of the Minister's consideration.
Finally, he expressed the view that "given the proposals for the use of the site of the silos" it would not be appropriate to afford them the protection of the Heritage Act. For the reasons I have already explained, this was a misdirection as to what the Heritage Act required.

Discretionary Considerations - Certiorari

It is convenient to mention certain obstacles raised by the Fremantle Port Authority to the grant of relief in this case, they being, the failure of the applicant to apply for an interlocutory injunction, and the alleged prejudice to the Fremantle Port Authority. So far as the failure to apply for an interlocutory injunction is concerned, I cannot see any basis in the Heritage Act for such an application. The silos are not at present the subject of any interim or permanent registration, and therefore the various constraints imposed particularly by s 78 and s 11 do not apply to them. Nor are they subject of any conservation orders. It was not suggested during the course of the argument how the applicant might have obtained interim relief, or what form that relief might have taken.
So far as the question of damage to the interests of the Fremantle Port Authority is concerned, there was in evidence a letter from the solicitors for the Fremantle Port Authority to the solicitors for the applicant. That letter asserts that the terms of the demolition contract do not appear to entitle the Fremantle Port Authority to suspend work, or order it to stop, or to lawfully terminate the contract. It asserts that the contract price is around $3M, and that "any delay" is likely to lead to a significant increase in the ultimate price of the demolition work which could easily run to $500,000. It is further asserted that depending upon the circumstances and the length of any delay, the losses of the Fremantle Port Authority could be as high as $1M. However, there is before us, no material on oath which would permit any examination of those bare assertions. The demolition contract is not in evidence. The way in which the costs arising from potential delay have been calculated is not before us, and nor is there any clue as to the make-up of the potential $1M loss which might be occasioned by delay if the demolition contract could lawfully be terminated or suspended. In those circumstances, although I am prepared to accept that the Fremantle Port Authority wishes to use the site for other purposes, would be able to let part of the site (presumably for profit) once it is cleared, and has a demolition contract in progress, quantification of any losses potentially arising is simply impossible on the materials before us.
Further, the grant of relief by way of certiorari will not itself prevent the demolition proceeding. The question of whether mandamus should issue is a much more difficult one, for reasons which I will shortly mention. Before I turn to those issues, I should note also the Fremantle Port Authority's submission that it would be futile to quash the Minister's decision in this case, since substantial demolition work will have been carried out by the 31 May.
However, there is before the court an affidavit of one, Agnieshka Kiera, who has post graduate qualifications concerned with the conservation of cultural heritage property. She deposes that, based upon the affidavits filed on behalf of the respondents and upon her external inspection of a portion of the silos, that the silos would be able to be restored from the state of demolition expected by 31 May 2000. Of course, the court's order would not in any event encompass an order for restoration, but the affidavit is in my view sufficient to suggest that the grant of relief in this case would not necessarily be futile. I would therefore grant an order for certiorari to quash the purported decision of the Honourable Minister for Heritage dated 21 February 2000.

Mandamus

So far as the question of mandamus was concerned, this was dealt with as a secondary issue during the course of the argument. It may be that the original narrow understanding of the grounds of the application meant that the parties did not fully appreciate what might be involved in an order for mandamus. What is sought by the applicant is a writ of mandamus commanding the Minister to make a decision pursuant to s 47(1) of the Heritage Act as to "whether or not to direct" the Heritage Council to enter the silos in the Register.
It is my view that there cannot be a general duty upon the Minister in respect of any building, to consider whether or not he should direct the Heritage Council to enter it in the Register. The applicant relied upon the reasoning of the Full Court of the Federal Court in the case of Tickner v Bropho(1993) 114 ALR 409, in which it was held that the Federal minister responsible for the Aboriginal and Torres Strait Islander Protection Act 1984 ("the ATSIP Act") was required, upon an application made in respect of an area, to obtain and consider a report as to that area. In my view, that decision is clearly distinguishable.
The Federal ATSIP Act was enacted in circumstances where most States and Territories already had in existence legislation for the protection of Aboriginal heritage. Section 7of the ATSIP Act makes it plain that it is not intended to cover the field of protection of Aboriginal and Torres Strait Islander heritage, while s 13 precludes the Minister from making a declaration unless he has consulted with the appropriate minister of the relevant State or Territory as to whether there is effective protection under the law of that State or Territory. Section 9 and s 10 of the ATSIP Act, which deal with declarations by the Minister, apply where an application is received by, or on behalf of, an Aboriginal or group of Aboriginals seeking the protection of an area.

It seems clear enough from the scheme of the ATSIP Act and the application procedure, that that Federal legislation was intended as something of a "backstop". That is, areas would generally be protected under the law of the majority of States and Territories, but there was provision for specific application in relation to particular areas to be made to the Minister. The Minister did not initiate the process. In that context, it might be expected that applications would be relatively few in number and, apparently because of that assumption, the procedure for reporting pursuant to s 10 appears to contemplate that reporters will be nominated on an ad hoc basis in relation to specific areas in respect of which an application is received.
By contrast, the Heritage Act sets up a body with the duty of, inter alia, bringing heritage places to the attention of the Minister. It aims for a "comprehensive" register of such places (s 47). Further, as I have explained, in my view, s 47 permits the Minister to direct of his own motion that places be entered in the Register. There are at any given time potentially thousands of places which could be the subject of an opinion formed by the Minister pursuant to s 47. It cannot be intended that he has a duty in relation to every place potentially of heritage significance to consider it with a view to its registration. That would make attention to his other ministerial duties impossible.
Having regard to the references in s 47 to advice received from the Heritage Council, it may be arguable that the intention of the Heritage Act is that the Minister shall consider such advice, if given, within a reasonable time, with a view to deciding whether he has formed the relevant opinion. There is, however, an important distinction to be borne in mind between an assumption made by the framers of legislation and an implication to be drawn from the legislation. It can certainly be said with confidence that the legislation was framed on the assumption that the Minister would act with reasonable diligence so as to consider the advice of the Heritage Council, once received by him, as soon as his other duties reasonably permitted. It does not necessarily follow that there is implied in s 47 a statutory duty to consider such advice in the manner that I have described.
Apparent obstacles to the implication of such a duty would include the substantial number of places which might be the subject of advice from an expert body such as the Heritage Council; it is unlikely but not unthinkable that, particularly in the early stages of the legislation, the Heritage Council would be in a position to advise the Minister in relation to dozens or perhaps hundreds of such places. Other obstacles would appear to be the somewhat indeterminate nature of the duty, and the inherent unlikelihood of the legislature intending that it would fall to the courts to determine whether the Minister was allocating reasonable priority to s 47 of the Heritage Act as compared with his various other ministerial duties in this and other portfolios.
It appears to me that, even if there were a duty of the type that I have described, (that is, to consider advice received from the Heritage Council within a reasonable time pursuant to s 47) there is no evidence in this case that, his previous decision having been quashed, the Minister would fail to do so. It is true that a considerable time elapsed between the initial receipt of advice from the Heritage Council in respect of the silos and the making of the Minister's decision with respect to them on 21 February. However, there was a quantity of material to be considered, and we have no way of knowing what the Minister's other duties during the period may have been. As the Minister now has before him the relevant advice from the Heritage Council, together with other submissions from the Minister for Transport, which touch on the heritage value (if any) of the silos, and has the benefit of these reasons. I do not think it should be assumed, in the absence of any evidence pointing to a contrary conclusion, that the Minister would fail to consider the question with reasonable promptness and in accordance with the Heritage Act.
It is to be noted that the applicant did not seek, in these proceedings, a writ of mandamus commanding the Minister to direct the Heritage Council to enter the silos in the Register on either an interim or permanent basis. If the tentative view I have expressed as to the use of the word "may" in s 47(1) is correct, then it may be that on a reading of certain passages in the Minister's decision of 21 February 2000, he has already expressed an opinion as to the heritage value of the silos of a kind which would require him to direct registration, although other interpretations are open. It is my view that it is inappropriate to explore that question in these proceedings, since relief of that kind is not sought and no argument was directed to us, in that context, as to the proper interpretation of the reasons for the Minister's decision. It is, however, a further reason why, in my view, the court should not issue a writ of mandamus at this stage directing the Minister "to consider whether or not" to do something which, on one view, he may already be under a duty to do.
For those reasons, I would grant certiorari to quash the decision of the Minister dated 21 February 2000, but would refuse to issue a writ of mandamus.

"Our Ref: 0305
DIRECTOR
HERITAGE COUNCIL OF WESTERN AUSTRALIA
REGISTER OF HERITAGE PLACES
CBH SILOS, NORTH QUAY, FREMANTLE
I refer to your letter of 31 May 1999 advising me of the resolution of your Council to recommend that I direct the entry of the CBH Grain Silos at North Quay, Fremantle in the Register of Heritage Places on an interim basis.
I have now considered the documentation prepared with respect to the place together with the submission from the owner of the place, the Fremantle Port Authority and the associated letter from Co-operative Bulk Handling Ltd. I appreciate that the City of Fremantle has made representations to your Council supporting entry, and you will also be aware that I have received information from my colleague the Minister for Transport in this regard.
I have noted your advice to me of 6 October 1999 that the silos are located on freehold land and not Crown Land as was indicated earlier, and I have accordingly examined the matter in terms of section 47 of the Heritage of Western Australia Act 1990. That section requires that before directing entry, I must form the opinion that the place is of cultural heritage significance or posses special interest associated with the cultural heritage and also that the protection afforded by the Act is appropriate.
I accept that, as a grain storage facility, the silos have played a significant role in the growth of the wheat industry of the State and that in addition, they represent the technical advances made in the construction of large concrete structures after the war. I am, nevertheless, aware that they are not unique and examples of such structures exist in other parts of the State.
I also accept that the silos are of some significance to Fremantle as a landmark structure and an unusual physical element of the city, and that they may be valued by those residents who once worked in them. I have noted the suggestion of the City of Fremantle that they be retained until a suitable future use can be identified. On the other hand, there seems to be concern about the physical condition of the buildings, and there is clearly some uncertainty about their future if they are not properly maintained.
However, much information has been placed before me about the importance of the land occupied by the silos to the future grown and development of the Port of Fremantle. Strong commitments have been made to the demolition of the Silos and the use of the site for the expansion of container handling facilities to provide for continued expansion in the container trade. I am consequently very conscious of the need to balance such considerations against those of heritage conservation.
I have concluded that in all the circumstances the CBH Silos should not be entered in the Register of Heritage Places. I am neither satisfied that the place has cultural heritage significance to a degree which would warrant entry or that, given the proposals for the use of the site of the silos, it would be appropriate to afford it the protection of the Act. I have decided, therefore, not to direct entry in this instance.
GRAHAM KIERATH MLA
MINISTER FOR HERITAGE"

"47.(1) Subject to this Part, where the Minister is of the opinion, having regard to any advice given by the Council in relation to that place and to any report of the Council as to submissions made to the Council under subsection (3)-
(a) that a place-
(i) is of cultural heritage significance; or
(ii)possesses special interest related to or associated with the cultural heritage,

and is of value for the present community and future generations; and
(b)that the protection afforded by this Act is appropriate notwithstanding that the place may be afforded protection by the operation of any other written law or law of the Commonwealth,

the Minister may direct the Council to enter that place in the Register, either as an interim registration or on a permanent basis, and effect shall be given to the direction in accordance with section 50 or 51 as may be specified.
(2)Without prejudice to the generality of subsection (1) and with the intent that there should be compiled a comprehensive register of the heritage rather than merely an index of examples, in considering the significance which any place may have to the cultural heritage of the State regard may be had to-
(a)any distinctive features or scarcity value, the character of the environs of the place, its landscape or townscape value and, in the case of a building, its beauty and proportions, the degree of unity of its materials, design and scale, and any contribution it makes to the significance of any area, precinct, group of buildings, or amenity of which it forms part, or to its setting or the setting of any other place or feature;
(b)any strong association which the place has with any historic personage or significant event or discovery or any development or cultural phase, or whether or not the place provides a notable example of a particular period or type important for general educational, architectural or archaeological reasons that distinguish it from other such examples, or has intrinsic merit and is commonly agreed to be-
(i)a work of art in itself that enriches the environment; or
(ii)held in high public esteem or sentiment; and

(c)in the case of places of particular scientific or other special interest, the extent to which the place has contributed, or may be likely to contribute, to knowledge or research,

but a place shall not be excluded from the Register on the ground only that like examples are already included.
(3)In advising the Minister as to the significance of any place the Council shall consider any submissions which may be made-
(a)as to such places generally, by the Australian Heritage Commission, the National Trust of Australia (W.A.) Inc., local municipal councils and community organizations concerned with the cultural heritage generally; and
(b) in relation to any particular place, by-
(i)the owner;
(ii)any occupier;
(iii)the council of the municipal district where the place is situate; and
(iv)any other person having a special knowledge of, or interest in, that particular place,

as to its relevance to the cultural heritage in the State.

(4)On a request being made by the Council to any public authority the recommendations of that authority in relation to the conservation or presentation of any place shall be made known by that authority to the Council.
(5)The Council shall publish by public advertisement any advice given by it to the Minister under this section or sections 49, 52 or 53 in relation to the entry in the Register of a place vested in the Crown, or in a person on behalf of the Crown, in right of the State.
49.(1) A place shall not be entered in the Register under section 51, except pursuant to an interim registration under section 50 or where subsection (2) applies, unless-
(a)the Council pursuant to a direction given by the Minister has, by public advertisement-
(i)given notice that it is proposed that the place be entered in the Register;
(ii)set out a sufficient description to identify the place;
(iii)invited persons generally to make submissions in relation to the proposed entry in the Register, specifying the manner in which and the address to which the submissions should be forwarded; and
(iv)specified the date, being not earlier than 6 weeks after the publication of the advertisement in the Gazette, by which the submissions are to be made,

and the date so specified has passed; and
(b)the Council has-
(i)considered any submissions forwarded pursuant to the advertisement referred to in paragraph (a);
(ii)sought from the municipal council for the district in which the place is situate and from the owner and any person who appears to the Council likely to be affected or interested, their representations on any aspect of those submissions or as to any other matter relevant to any proposal relating to that place on which the Council desires their view; and
(iii)considered and advised the Minister on those representations and submissions and as to the recommendation of the Council,

and the Minister has directed that the entry shall be made.

(2)Where the advice referred to in subsection (1)(b)(iii) is not received by the Minister within a period of 9 months following the date specified for the purposes of subsection (1)(a)(iv) in the advertisement published pursuant to that subsection the Minister may direct that the place be entered in the Register forthwith.
(3)Where a public advertisement pursuant to subsection (1) is made in relation to any place, the Council shall, as soon as is practicable thereafter, also cause to be served on the owner and, so far as is practicable, on each occupier of that place an explanatory memorandum informing that person of the particulars to be contained in the proposed entry in the Register, drawing attention to and containing a copy of the public advertisement and stating, so far as the Council can, the manner in which such an entry in the Register may affect that person.
(4)Where a proposed entry relates to a place that comprises land in the ownership of or occupied by a number of persons and it is not reasonably practicable for the Council to serve a separate explanatory memorandum on every such owner and occupier of land comprised within that place, in addition to complying so far as is practicable with the requirements of subsection (3) the Council shall cause a general explanatory memorandum to be served-
(a)by way of a notice contained in the advertisement referred to in subsection (1), ensuring that the advertisement-
(i)appears in a newspaper circulating particularly in that locality; or
(ii)is posted up for public information in a number of reasonably prominent locations on or near that land; and

(b)upon the council of the municipality in the district of which the land is situated, with such extra copies as that council may request.

50.(1) Where-
(a)an advertisement is published pursuant to section 49(1) in relation to a place;
(b)the Council publishes its advice pursuant to section 47(5); or
(c)the Minister directs the Council that it is necessary to provide immediate protection in respect of a place-
(i)that is not the subject of an advertisement published under section 49 (1); and
(ii)in respect of which a Conservation Order is made,

the Council shall forthwith cause an entry relating to the place to be made in the Register as an interim registration.

(2)Where an interim registration is made under subsection (1)(c) in relation to a place the Council shall forthwith take such steps in accordance with the procedures required by section 49 as may be necessary to determine whether or not that entry should remain in the Register on a permanent basis, save that-
(a)the date by which submissions are to be made by persons generally shall be specified in the public advertisement required by section 49 (1) as a date fixed having regard to the urgency required but not earlier than 14 days after publication of the advertisement in the Gazette; and
(b)the advice of the Council shall be furnished to the Minister within a further 14 days, or such other period as the Minister may allow, in default of which the Minister may direct that the entry in the Register shall be made forthwith,

and, unless the Minister directs that the interim registration should not be made permanent or section 52 otherwise applies, the procedures required by section 49 shall be implemented notwithstanding that any Conservation Order the making of which occasioned the interim registration ceases to apply in relation to that place, or a portion of that place.
(3)An entry in the Register under this section ceases to have effect-
(a)where an entry in relation to a place of the like description is made in the Register under section 51; or
(b)in accordance with section 52 or 53."