Southon v Beaumont
[2008] NSWLEC 12
•18 January 2008
Reported Decision: (2008) 69 NSWLR 716
158 LGERA 232
Land and Environment Court
of New South Wales
CITATION: Southon v Beaumont [2008] NSWLEC 12 PARTIES: APPLICANT
RESPONDENT
Donald Esmond Southon
Scott BeaumontFILE NUMBER(S): 40921 of 2007 CORAM: Jagot J KEY ISSUES: Judicial Review :- validity of statutory notice - notice to attend to answer questions - jurisdictional fact - whether conditions to issue notice satisfied - whether notice valid on its face - whether conditions must be stated on face of notice - application dismissed LEGISLATION CITED: Australian Securities and Investments Commission Act 1989 (Cth)
Income Tax Assessment Act 1936 (Cth)
National Parks and Wildlife Act 1974
Protection of the Environment Operations Act 1997
Protection of the Environment Operations Amendment Act 2005
Workplace Relations Act 1996 (Cth)CASES CITED: Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581
Coco v The Queen (1993) 179 CLR 427
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited (1979) 143 CLR 499
General Benefits Pty Ltd v Australian Securities and Investment Commission (2001) 161 FLR 82
Laing v Carroll (2005) 146 FCR 511
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Regina v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Snow v Keating (1978) 19 ALR 373
Thorson v Pine (2004) 139 FCR 527
Timbarra Protection Coalition Inc v Ross Mining NL and Others (1999) 46 NSWLR 55
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707
Wouters and Ors v Deputy Commissioner of Taxation (1988) 20 FCR 342DATES OF HEARING: 21 November 2007
DATE OF JUDGMENT:
18 January 2008LEGAL REPRESENTATIVES: APPLICANT
Mr T G Howard
SOLICITORS
Stacks/Northern RiversRESPONDENT
Mr R Beech-Jones SC
SOLICITORS
Department of Environment & Climate Change
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
18 January 2008
40921 of 2007
DONALD ESMOND SOUTHON
ApplicantJUDGMENTSCOTT BEAUMONT
Respondent
Jagot J:
A. Introduction
1 This is an application to set aside a statutory notice served by the respondent on the applicant. The notice required the applicant to attend at a specified time and place to answer questions under s 203 of the Protection of the Environment Operations Act 1997 (the POEO Act). The applicant also sought a declaration to the effect that the notice may be lawfully complied with by the applicant providing written answers to the respondent’s written questions rather than attending at a specified time and place to answer questions.
2 The respondent is an authorised officer for certain purposes under Ch 7 of the POEO Act. Chapter 7 of the POEO Act regulates the investigative powers of authorised officers for the purposes of that Act. Under s 156B(1) of the National Parks and Wildlife Act 1974 (the NPW Act) an authorised officer may be appointed under Ch 7 of the POEO Act for the purposes of the national parks legislation (which is defined to include the NPW Act). Section 156B(2) provides that an authorised officer has and may exercise the functions under Ch 7 of the POEO Act (except for Pt 7.6) for the purposes of: - (i) determining whether there has been compliance with or a contravention of national parks legislation, (ii) obtaining information or records for purposes connected with the administration of national parks legislation, and (iii) generally for administering national parks legislation. Under s 156B(3) the provisions of Ch 7 of the POEO Act apply to and in respect of national parks legislation as if:
(a) references in those provisions to an authorised officer were references to authorised officers appointed as referred to in this section, and
(b) references in those provisions to “this Act” were references to an Act or regulation forming part of the national parks legislation, and
(c) references in those provisions to the EPA were references to the Director-General, and
(d) the Director-General were the appropriate regulatory authority for matters concerning national parks legislation.
3 On or about 2 August 2007 the respondent served on the applicant a notice under s 203(5) of the POEO Act in relation to the administration and enforcement of national parks legislation. The notice required the applicant to attend at a specified place and time to answer questions under s 203 of the POEO Act. The applicant claimed that the notice was invalid on the following grounds:
(2) The notice served by the respondent on the applicant did not assert the following limitations on power that were required by law to be asserted in the notice:(1) Attendance by the applicant at a place and time was not reasonably required to enable questions to be properly put and answered. To the contrary, such questions could be properly put and answered in writing. The applicant was willing to satisfy any lawful requirement to answer questions by written means.
(a) the respondent was an authorised officer for the purposes of s 156B of the NPW Act;
(c) the applicant’s attendance at the specified place and time to answer questions was reasonably required in order that the questions could be properly put and answered.(b) the respondent suspected on reasonable grounds that the applicant had knowledge of matters in respect of which information was reasonably required for the purposes of the NPW Act; and
4 To understand these claims it is necessary to review the statutory scheme of the POEO Act as applied by s 156B of the NPW Act in more detail.
B. Statutory schemes
5 Part 7.2 of the POEO Act concerns the appointment of authorised officers. Under s 156B(1) of the NPW Act an appointment as an authorised officer may be made for the purposes of national parks legislation under Ch 7 of the POEO Act (as applied by s 156B(3)).
6 Under s 188(4) of the POEO Act, and despite any other provisions of Ch 7, an authorised officer of a regulatory authority may exercise powers under Ch 7 (other than under Pt 7.6) for the purpose of determining whether a matter concerns the functions of the regulatory authority.
7 Section 189 of the POEO Act regulates certain identification obligations of authorised officers. It provides as follows:
(1) Every authorised officer or enforcement officer is to be provided with an identification card as an authorised officer or enforcement officer by the regulatory or other authority that appointed the officer.
(3) It is sufficient compliance with subsection (2) if an enforcement officer, acting in the capacity of an enforcement officer, who is also an authorised officer produces his or her identification card as an authorised officer.(2) In the course of exercising the functions of an authorised officer or enforcement officer under this Act, the officer must, if requested to do so by any person affected by the exercise of any such function, produce the officer’s identification card to the person.
8 Pt 7.3 of the POEO Act concerns powers to require production of information and records. Section 193 vests such powers in authorised officers. These powers are to be exercised by notice in writing. Under s 194 such a notice must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished.
9 Pt 7.4 of the POEO Act regulates powers to enter and search premises. These powers may be exercised without written notice. The powers extend to requiring an owner or occupier of premises to give an authorised officer reasonable assistance and facilities. A requirement to give assistance may only be exercised by notice in writing. The obligation extends to giving such reasonable assistance and facilities as are specified in the notice within a specified time and in a specified manner.
10 Pt 7.5 of the POEO Act concerns powers to ask questions and identify persons. The respondent relied on s 203(5) to issue the impugned notice. Section 203 is as follows:
(1) An authorised officer may require a person whom the authorised officer suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required for the purposes of this Act to answer questions in relation to those matters.
(2) The EPA or any other regulatory authority may, by notice in writing, require a corporation to nominate, in writing within the time specified in the notice, a director or officer of the corporation to be the corporation’s representative for the purpose of answering questions under this section.
(3) Answers given by a person nominated under subsection (2) bind the corporation.
(4) In the case of authorised officers appointed by the EPA, subsection (1) is not limited to matters in respect of which the EPA is the appropriate regulatory authority.
(6) The place and time at which a person may be required to attend under subsection (5) is to be:(5) An authorised officer may, by notice in writing, require a person to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.
(a) a place or time nominated by the person, or
(b) if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised officer that is reasonable in the circumstances.
11 Under s 203A an authorised officer may cause any questions and answers to questions given under Pt 7.5 to be recorded if the officer has informed the person who is to be questioned that the record is to be made.
12 Section 204 concerns the powers of an authorised officer to require a person whom the authorised officer suspects on reasonable grounds to have offended or to be offending against the POEO Act or the regulations to state his or her full name and residential address.
13 Sections 203(5) and (6), 203A and 204(2A) were inserted into the POEO Act by the Protection of the Environment Operations Amendment Act 2005.
14 Part 7.6 of the POEO Act is immaterial as it is excluded from the functions of an authorised officer under s 156B(2) of the NPW Act. It concerns vehicles, vessels and other articles.
15 Part 7.7 contains general provisions. Under s 211(1) a person who, without lawful excuse, neglects or fails to comply with a requirement made of the person under Ch 7 is guilty of an offence. Section 211(4) provides that a person who impersonates an authorised officer is guilty of an offence. Under s 212(1) a person is not guilty of an offence of failing to comply with a requirement under Ch 7 to furnish records or information or to answer a question unless the person was warned on that occasion that a failure to comply is an offence. Sections 212(2) and (3) concern the privilege against self incrimination and are as follows:
(3) However, any information furnished or answer given by a natural person in compliance with a requirement under this Chapter is not admissible in evidence against the person in criminal proceedings (except proceedings for an offence under this Chapter) if:(2) A person is not excused from a requirement under this Chapter to furnish records or information or to answer a question on the ground that the record, information or answer might incriminate the person or make the person liable to a penalty.
(a) the person objected at the time to doing so on the ground that it might incriminate the person, or
(b) the person was not warned on that occasion that the person may object to furnishing the information or giving the answer on the ground that it might incriminate the person.
16 Part 8A of the NPW Act contains offence provisions relating to threatened species, populations and ecological communities, and their habitats, and critical habitat.
17 The Department of Environment and Climate Change employs the respondent. Since February 2000 the respondent’s duties have involved the investigation of breaches of legislation administered by that Department, including the NPW Act. The respondent is an authorised officer under various Acts, including the NPW Act and Ch 7 of the POEO Act (for the purposes of that Act and as referred to in s 156B of the NPW Act). The respondent is an experienced investigator, having been a police officer for 12 years, during which he attained the rank of Detective Senior Constable. He holds a Bachelor of Policing – Investigations (Charles Sturt University, 1993) and completed the Detectives Education Program (NSW Police, 1994), Advanced Criminal Investigation (NSW Police, 1994), Investigators Course (NSW Police, 1993) and Homicide Investigators Course (1997).
18 On 26 July 2007 the respondent obtained information concerning the alleged clearing of habitat of certain threatened species and an endangered ecological community at Dulguigan in northern New South Wales. The alleged clearing concerned seven lots owned by different people including (with respect to one lot) the applicant. The seven lots adjoin or are located near each other. The respondent obtained an aerial photograph overlaid with cadastral information showing a cleared area and the location of the seven lots. The respondent formed the opinion that the clearing had occurred on or very near to the seven lots. Further, the lots overlooked the area of clearing. The respondent considered that he should interview each of the seven landowners with respect to a potential environmental offence. He telephoned some of the landowners, including the applicant. The respondent left a message asking that the applicant contact him. The respondent later became aware that the applicant had engaged solicitors.
19 On 2 August 2007 the respondent prepared notices under s 203(5) and (6) of the POEO Act. The respondent then served the notices on each of the seven landowners including the applicant (with a copy also being served on the applicant’s solicitor).
20 The notice to the applicant is as follows:
Nomination of place and time to attend and answer questions
Section 203(5) & (6) Protection of the Environment Operations Act
The Department of Environment and Climate Change (“DECC”) has responsibility for the administration and enforcement of National Parks legislation, including the Threatened Species Conservation Act 1995, National Parks and Wildlife Act 1974, and Native Vegetation Act 2005.Land at [seven lots are nominated] is alleged to have contained threatened species and their habitat (Grey-headed Flying Fox and Black Flying Fox, both listed as Vulnerable species), as well as an area of vegetation identified as comprising an Endangered Ecological Community (Swamp Sclerophyll Forest on Floodplain). It is apparent that vegetation has been cleared, felled and burned.
I require you to attend at a specified place and time to answer questions under s203 of the POEO Act. Section 203(6)(a) of the POEO Act provides that the specified place and time may be nominated by you and as such, I request that you provide to me, by no later than 5.00pm on Thursday 9 August 2007 , details in writing of the nominated place and time. The DECC would generally consider that the nomination of a time within 14 days of the date of this letter would be reasonable, however I will be available to conduct the interview from today’s date on a day suitable to all parties. If you are nominating a time later than 9 August 2007 you must provide information about the reason for nominating this later date so I can consider whether this is reasonable in the circumstances. If you nominate a place and time, I will write to confirm whether or not the proposed interview will proceed at the time you have nominated.
If you do not nominate a place and time within the required timeframe, I nominate, under s203(6)(b) of the POEO Act, the following place and time to attend:
If you have any questions concerning this letter, please contact me on #### ### ###.Department of Environment and Climate Change
Byron Area Offices
Tallow Beach Road
Byron Bay NSW
10am Thursday 16 August 2007
21 The applicant’s solicitor responded by letter dated 9 August 2007. The letter informed the respondent that the solicitor represented six of the landowners, including the applicant. The solicitor nominated a time and place for the interview of the recipients of the notice including the applicant (5 September 2007 at the solicitor’s offices). On 13 August 2007 the respondent contacted the solicitor’s office to request that the interviews be staggered as they could be lengthy. He later confirmed this request by email. The solicitor’s office responded to the effect that they would try to do so. The respondent and the solicitor later had a discussion about access to the land in the course of which the solicitor said she might not be representing all the landowners from then on due to a concern about a conflict of interest arising. Before this the respondent had spoken to a number of witnesses and was provided with information that he considered enabled him to make an informed decision about people required for interview.
22 The applicant’s position then altered. Through various letters between the applicant’s solicitor and a solicitor within the Department it became clear that the applicant’s solicitor considered the applicant could comply with the requirements of the notice by providing answers to questions in writing.
23 The respondent gave evidence during the hearing. The respondent believed the clearing involved a breach of s 118A of the NPW Act (which is in Pt 8A of that Act). He was aware of the elements of the offences created by that section. He had prepared topics for the interview that covered the matters he was interested in exploring in detail. He said that the course of an interview might change depending on the answers given to questions. The respondent considered it impossible to construct written questions that would ensure full and detailed answers by the applicant. He did not accept that the contingencies arising from answers could be covered in writing despite the potential to serve a further notice depending on the answer. He thought such a process had the potential to “go on and on” and was unlikely to provide the necessary details in the answers. He considered a face-to-face interview with a suspect was always appropriate.
24 The respondent was also concerned that there may be a risk of collusion given the location and extent of the clearing across a number of neighbouring properties. The respondent agreed that any concern about collusion was immaterial if the recipient of a notice fully complied with their legal obligations. He agreed that his experience of interviews with the police were voluntary with the interviewee’s right against self-incrimination preserved. However, interviews were common in his experience under environmental protection legislation.
Applicant’s submissions
25 The applicant submitted that requiring a person to attend at a specified place and time to answer questions involves an encroachment on the person’s liberty. A person must comply with such a requirement under pain of criminal sanction (s 211(1) of the POEO Act). Section 203(5) of the Act thus involves a form of arrest or detention as it restricts a person’s freedom of movement. The section also abrogates a person’s right to silence and, to a certain extent, right against self-incrimination (as s 212(5) of the POEO Act enables derivative information to be used). Hence, the applicant said that s 203(5) touches upon the class of rights secured under the International Covenant on Civil and Political Rights (article 9). Article 17 of the International Covenant on Civil and Political Rights also recognises a right against any arbitrary or unlawful interference with privacy. This extends to immunity from any unwanted intrusion by the State into a person’s affairs (article 16). The applicant submitted that s 203(5) thus also touches upon these rights to privacy.
26 The applicant stressed that the rights to silence, against self-incrimination, and to privacy are fundamental rights that protect citizens against excesses of power by the State (see, for example, the observations in Regina v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1 at 30 – 32). An intention to derogate from fundamental rights is not to be imputed to the legislature unless such an intention is manifest in language of irresistible clarity (for example, Coco v The Queen (1993) 179 CLR 427 at 436 – 438). This principle applies to all elements of the task of construction. Accordingly, if a provision is ambiguous then the construction that interferes least with fundamental rights and produces the lesser hardship is to be preferred (Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited (1979) 143 CLR 499 at 508 – 509 and Wouters and Ors v Deputy Commissioner of Taxation (1988) 20 FCR 342 at 349). Section 203 of the POEO Act is to be construed with these principles in mind.
27 With respect to the first ground of challenge, the applicant submitted that a face-to-face interview is a greater infringement of fundamental rights and causes citizens greater hardship than answering questions by communications in writing. A person can attend to written questions in the comfort of their own home and, in providing the answers, will not be subject to the intimidation of a face-to-face interview. Section 203(5), in terms, contemplates the availability of the power only “if attendance at that place is reasonably required in order that the questions can be properly put and answered”. This section was inserted into the scheme after ss 203(1) to (4). Accordingly, s 203(5) should be construed as permitting the exercise of the power only where the alternative of putting questions and providing answers by written communications has been properly excluded.
28 On the same basis, the applicant submitted that the statutory condition “if attendance at that place is reasonably required in order that the questions can be properly put and answered” should be construed as establishing a jurisdictional fact. The statutory language discloses the objective character of the condition (particularly, the references to “reasonably”, “required”, and “properly”). The statutory criterion is not qualified by reference to an opinion of an authorised officer (the applicant contrasted other provisions that turn on an authorised officer’s state of mind such as ss 196(1)(a), 198, 199(2), 203(1), and 204(1) and (2)). Hence, the applicant observed that the power to ask questions in s 203(1) is based on an authorised officer’s state of mind (s 203(1)) but the capacity to exercise the more draconian power of requiring such questions to be answered in a face-to-face interview is dependent on such an interview in fact being reasonably required in order that the questions can be properly put and answered. The applicant noted that there are no material indicators to the contrary. Determining whether attendance is reasonably required in order that questions can be properly put and answered does not involve a particularly complex factual assessment or unacceptable inconvenience (when regard is had to the limitation periods and the fundamental values at stake).
29 Accordingly, on the applicant’s case, the Court must determine for itself the existence (or not) of the relevant facts on the basis of the evidence before it (Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 and Timbarra Protection Coalition Inc v Ross Mining NL and Others (1999) 46 NSWLR 55). Thus, if the Court finds that questions can be properly put and answered in writing there can never be a reasonable requirement to attend at a specified place and time. The applicant described s 203(5) (added to the scheme at a later time) as a power of last resort. In this case, the jurisdictional pre-condition was not satisfied as the questions could be put and answered in writing.
30 If s 203(5) does not establish a jurisdictional fact then, nevertheless, the opinion formed by the respondent is amenable to judicial review (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130] to [148] and ReMinister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59). There was no proper basis for the respondent to be concerned about collusion (as the applicant said the respondent should have assumed that the applicant would comply with the law). The respondent’s concern about the need to improvise to ensure questions can be properly put and answered would mean that exercising the power under s 203(5) is always reasonable. The section does not contemplate that it will always be available (as the qualification “if attendance at that place is reasonably required in order that the questions can be properly put and answered” would then be meaningless).
31 With respect to the second ground of challenge, the applicant accepted (for the purpose of these proceedings) that the respondent was an authorised officer under s 156B of the NPW Act when he issued the statutory notice. Nevertheless, the applicant said that where a statute confers a coercive power exercisable by notice in writing the notice issued under that power must, in terms, conform to the statutory limitations to be valid (Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited at 525, 537, 542 and 547 and Snow v Keating (1978) 19 ALR 373 at 375). Moreover, such a notice must identify the source of the power invoked, and the demand made by the notice must be supported by that power (General Benefits Pty Ltd v Australian Securities and Investment Commission (2001) 161 FLR 82 at 88). The notice issued by the respondent failed to identify the three nominated statutory pre-conditions to the exercise of the power. Accordingly, the notice was invalid (see Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited, Snow v Keating, General Benefits, and Thorson v Pine (2004) 139 FCR 527).
Respondent’s submissions
32 The respondent submitted that the applicant’s first ground of challenge misconceived the operation of s 203 of the POEO Act. Section 203(1) contains the primary power. It enables an authorised officer to require a person to answer questions in the circumstances prescribed. Hence, the material encroachment on rights of concern to the applicant is effected by s 203(1). Section 203(1) does not require notice in writing. The section enables an authorised officer to require immediate answers to questions in the circumstances specified. Sections 203(5) and (6) provide a mechanism to relax the requirements of s 203(1). They allow an authorised officer, by notice in writing, to require a person (being a person within the scope of s 203(1)) to nominate a reasonable place and time to answer questions under s 203(1) if attendance at that place is reasonably required in order that the questions can be properly put and answered. The place and time nominated by the person can include their own home if they wish. The requirement is only that the nominated place and time be reasonable. The respondent said two things are apparent in this context. First, the applicant’s references to transcendent values and associated principles of construction are immaterial because s 203(1) is the principal power and does not require notice. Secondly, the distinction between oral and written communications underpinning the applicant’s first claim involves a dichotomy not supported by the statutory provisions. The respondent also did not accept that an interview was more oppressive than requiring written answers (particularly given the respondent’s concern about covering contingencies arising from answers).
33 Further, the fact that s 203(5) is a power dependent on s 203(1) being engaged speaks against the applicant’s submissions about jurisdictional fact. According to the respondent, the “relevant factual reference…necessarily arises in the course of the consideration by …[the] decision-maker of the exercise of such a power” and, in consequence, is “unlikely to be a jurisdictional fact” (Timbarra at [44]). The respondent submitted that there are other indicators contrary to the applicant’s submission. Express reference to a state of mind is not determinative (Timbarra at [39] – [41]). Further, comparing the inconvenience by reference to the dichotomy between written and oral communications applies a test not supported by the text of the legislation. Inconvenience is assessed by reference to the consequences of characterising a fact as jurisdictional or not. The respondent stressed that the authorised officer is obviously in the best position to determine whether the questions can be properly put and answered, and the Court would recoil from the suggestion that it should substitute its own opinion about the required course of an investigation for that of the authorised officer.
34 The respondent submitted that the applicable test on review is not whether the respondent excluded any possibility of putting the questions in writing. The question is whether it was open to the respondent to exercise the power in s 203(5) in the circumstances. The respondent relied on considerations of practicality and a risk of collusion. The first matter goes to the capacity for questions to be properly put and the second for those questions to be properly answered. As to the first matter, the respondent noted that any person who has attempted to draft interrogatories or obtain useful answers to them knows that the exercise of power under s 203(5) in this case was reasonable and correct. As to the second matter, the respondent’s consideration relied merely upon the risk of collusion. The facts of the case (given the clearing across a number of lots close together) raise this as an obvious risk. If s 203(5) contains a jurisdictional fact then the respondent submitted that on the facts the Court would reach the same conclusion as the respondent did.
35 The respondent said the applicant’s second ground of challenge would not be accepted. Section 203(5) refers to a notice in writing “to attend at a specified place and time to answer questions under this section”. The notice given by the respondent satisfies that requirement in terms (see the third paragraph). The section does not require the notice to identify the matters relied on by the applicant. The cases referred to by the applicant do not support the applicant’s bald proposition that a statutory notice must recite all pre-conditions to the exercise of power. The respondent characterised those cases as concerning the substance of the obligations imposed by a notice on a recipient. The respondent observed that one of the limitations relied on by the applicant (that the authorised officer suspects on reasonable grounds) is in s 203(1) not s 203(5). Section 203(1) does not require a notice in writing. According to the respondent, this distinguishes s 203 from all of the decisions relied on by the applicant. In any event, s 189 regulates the identification requirements for authorised officers (supported by s 211(4) making it an offence for any person to impersonate an authorised officer).
E. Discussion
General observations
36 The provisions of Ch 7 of the POEO Act (which include s 203) apply to and in respect of national parks legislation under s 156B(3) of the NPW Act. Because s 203 must be construed in the context of the POEO Act it is sufficient to refer to the provisions of that Act (albeit recognising that the section applies to the NPW Act).
37 Section 203(5) does not contain a freestanding power. The power in s 203(5) relates to “questions under this section”. The reference to “questions under this section” invokes s 203(1). Section 203(1) concerns information reasonably required for the purposes of the POEO Act (and, through s 156B(3)(b) of the NPW Act, for the purposes of the national parks legislation). Section 203 must be construed recognising its function within the scheme of the POEO Act (and, by extension, the national parks legislation) as a whole.
38 The purposes of the POEO Act are set out in s 3 of that Act. Chapter 3 of the POEO Act concerns environment protection licences. Licences may relate to scheduled development work, scheduled activities at premises and not related to premises, and non-scheduled activities for the purpose of regulating water pollution (s 43). The categories of activity for which a licence is required (see s 47, Sch 1 and the Dictionary to the POEO Act) involve the potential for environmental harm. Chapter 4 concerns environmental protection notices. The provisions of Ch 4 disclose that such notices may relate to environmental harm of differing degrees of seriousness and urgency (for example, the capacity to give clean-up notices in an emergency in s 91(2) and orally in s 93). Chapter 5 concerns offences. These offences are of different natures and attract different penalties. Chapter 6 provides for environmental audits, both mandatory and voluntary.
39 The purposes of the POEO Act thus relate to a wide range of matters of different character, seriousness, and urgency. For example, leaks, spills and escapes of substances may be gradual or may involve a single event. They may involve harm immediate or otherwise, or a risk of harm by accumulation over time. The harm or risk of harm may involve a limited and isolated aspect of the environment or be widespread. The harm may or may not be reparable, and may be low level or catastrophic. The powers of investigation in Ch 7 of the POEO Act must be construed in this context.
40 Section 203(1) contemplates that the person required is available to answer the authorised officer’s questions. It also contemplates that immediate answers might be required. The section does not contain any obligation of notice in advance. It does not defer the taking effect of the requirement for any period of time. Nor could the section logically do so when construed in context. For example, assume that a catastrophic event (such as a rail or road accident) causes an immediate threat of a substance leaking. The nature of the substance, its toxicity, the manner of storage, and the available protection devices could all be matters about which information is required for the purposes of the POEO Act. Information relating to those matters (for example, from the driver, the consignor or manufacturer) may be required immediately to prevent catastrophic harm. Section 203(1) enables an authorised officer to obtain that information from an available person of the relevant character (that is, a person reasonably suspected of containing the requisite knowledge) immediately, if need be. If the warning is given (which itself need not be in writing), a person who fails to comply without lawful excuse will have committed an offence. These obligations may arise without any written notice to the person at all.
41 Section 203(5) does not contain a power to question a person. It facilitates the process of questioning in accordance with s 203(1) by empowering an authorised officer to require a person’s attendance at a place and time for the purpose of answering the questions. The power is conditional (if attendance at that place is reasonably required in order for questions relating to the relevant matter to be properly put and answered) but the focus of the provision is clearly the attendance of the person at a place for questioning. Section 203(1) remains the source of the power to put the questions.
First ground
42 The applicant’s essential proposition is that if questions can be properly put and answered in writing then it necessarily follows that attendance at a place to allow the questions to be put and answered is not reasonably required. Leaving aside doubts about the logical force of this as a proposition on its own terms, the submission does not reflect the requirements of the legislation.
43 The principles of construction relied on by the applicant (for example, Coco v The Queen) require courts to give effect to clear statutory language. It is true that the requirement for a person to be at a specified place at a specified time is an infringement on a person’s freedom of movement (albeit to a small degree). To that extent I do not adopt the respondent’s description of s 203(5) as doing nothing more than tempering the obligations imposed by s 203(1). But the infringement on liberty (such as it is) is expressly authorised by s 203(5) and is subject to s 203(6) (which enables the person to nominate the time and place, provided the nomination is reasonable).
44 The distinction between written and oral communications relied on by the applicant is not found in s 203 (and is difficult to reconcile with s 203A). Contrary to the applicant’s submission the words “if attendance at that place is reasonably required in order that the questions can be properly put and answered” in s 203(5) do not introduce this distinction (or, at the least, do not introduce it as an essential objective pre-condition to the exercise of the statutory power). As noted, “the questions” are the questions under s 203(1). Section 203(5) asks whether attendance at the place is reasonably required in order that the questions can be properly put and answered. Attendance at a place might be reasonably required in order that the questions under s 203(1) can be properly put and answered for a multitude of reasons. Much may depend on the circumstances enlivening some purpose of the POEO Act (or, by extension, the NPW Act), the knowledge the person is reasonably suspected of having, the type and number of possible questions the authorised officer wishes to ask, and (perhaps) the location of both the person and the authorised officer. Further, a face-to-face interview is not the only method of oral communication. The telephone and various types of video-link are available. A letter is not the only form of written communication. There are facsimiles and emails. Nothing in s 203 requires every possible method for questions to be properly put and answered to be eliminated before the authorised officer may speak to a person face-to-face, whether immediately under s 203(1) or by notice in writing requiring their attendance at a place under s 203(5). The essential premise of the applicant’s first ground of challenge to the validity of the notice finds no support in the statutory scheme.
45 I also do not accept the applicant’s submission that the condition “if attendance at that place is reasonably required in order that the questions can be properly put and answered” creates a jurisdictional fact. In Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 Spigelman CJ at [30] to [63] identified a number of factors relevant to the question whether a factual reference should be construed as a jurisdictional fact or not. Two are of particular significance in this case, namely: (i) whether the factual matter is legally antecedent to the decision-making process, and (ii) the degree of inconvenience that would arise if the fact were found to be a jurisdictional fact.
46 As to the first factor, the power in s 203(5) pre-supposes that the authorised officer has formed the reasonable suspicion in accordance with s 203(1) and wishes the person to answer questions in relation to the relevant matters. An authorised officer is the only person who may form the reasonable suspicion about the person’s knowledge and require questions to be answered about the relevant matters. The questions under s 203(1) are in the control of the authorised officer alone. The factual condition in s 203(5) thus necessarily arises in the course of the decision-making process and is not legally antecedent to it. This is a very strong indicator against construing the factual reference in s 203(5) as a jurisdictional fact.
47 As to the second factor, the inconvenience of the Court determining the factual issue would be significant. Section 203 is an investigative power available for the purposes of the POEO Act (and national parks legislation). Those purposes include the investigation of a wide range of activities, including activities that may constitute offences. As noted, the reasonableness of a requirement for attendance under s 203(5) may relate to many factors including the number, length, complexity, and type of questions the authorised officer wishes to put. It is impractical and unworkable for the Court to attempt to anticipate the range of likely questions and influencing factors. The nature of the power as part of the investigative armoury of an authorised officer also supports the conclusion that the factual reference in s 203(5) does not involve a jurisdictional fact.
48 The applicant’s test for invalidity (namely, if all alternatives have not been excluded the requirement for attendance is necessarily not reasonable) is contrary to authority (for example, as summarised in Eshetu at [41] to [44] and [130] to [148]). The applicant did not establish that the respondent’s conclusion was not reasonably open in accordance with s 203(5). As discussed above, it was not necessary for the respondent to eliminate all methods of communication other than a face-to-face interview before requiring the applicant’s attendance. In any event, the respondent in fact considered that a face-to-face interview was the only method in this case to enable the questions to be properly put and answered given the likely number of contingencies the respondent anticipated would have to be addressed. Again, that conclusion was reasonably open to the respondent.
49 For these reasons, the applicant’s first ground of challenge to the validity of the notice fails.
Second ground
50 The applicant said three matters had to be asserted in the statutory notice for it to be valid ((i) the respondent was an authorised officer under s 156B of the NPW Act, (ii) the respondent suspected on reasonable grounds that the applicant had knowledge of matters in respect of which information was reasonably required for the purposes of the NPW Act, and (iii) the applicant’s attendance at a place and time to answer questions was reasonably required in order that the questions could be properly put and answered). In other words, according to the applicant each of the factual conditions for an exercise of power under ss 203(1) and (5) must be recited in the notice.
51 This second ground of challenge also confronts a number of difficulties.
(1) Sections 203(1) and (5) do not require the authorised officer to cite the matters relied on by the applicant when asking the questions or giving the notice for attendance.
(3) The decisions relied on by the applicant do not establish the proposition on which the second claim depends, and are distinguishable.(2) Other provisions of the POEO Act contain indications contrary to the applicant’s submissions.
52 Breach of a statutory requirement may result in invalidity of a notice (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91] – [93]). There is a difference between validity of a notice depending on satisfying the conditions limiting the exercise of power and recitation of the fact of satisfaction in the notice. Section 203 does not prescribe the form of a notice under s 203(5) but there must be some minimum content requirement. Otherwise a recipient could not understand the obligations imposed by the notice and would have no context for its receipt. The question is whether the matters identified by the applicant are part of the minimum content requirement of a notice under s 203(5) (recognising that the minimum content requirement for validity says nothing about the desirability of authorised officers, in dealing with people face-to-face or in written notices, giving as much information as reasonably possible so that the person may understand the officer’s status, their powers, the person’s obligations, and the reasons for the powers being exercised).
53 The indicators contrary to the applicant’s submissions include the following:
(1) Section 203(5) identifies the notice in writing as one that requires a person to attend at a specified place and time to answer questions under section 203. Section 203 is concerned with information reasonably required for the purposes of the POEO Act (and, by extension the NPW Act). The notice satisfies these requirements (see the heading, and the second and third paragraphs). The recipient of this notice would understand his or her obligations and that the context of the questions to be asked and answered concerned the alleged clearing of nominated land said to contain certain threatened and vulnerable species.
(3) A person is not guilty of an offence of failing to comply with a requirement under Ch 7 to answer questions unless warned on that occasion that failure to comply is an offence (s 212(1)).(2) The circumstances in which authorised officers must identify themselves as such in the course of exercising functions under the POEO Act (and, by extension, the NPW Act) are expressly prescribed as being on request (s 189(2)). Impersonating an authorised officer is an offence (s 211(4)).
54 Snow v Keating and Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited concerned s 264 of the Income Tax Assessment Act 1936 (Cth). Unlike s 203 of the POEO Act the power of examination could only be exercised by notice in writing.
55 In Snow v Keating Burt CJ held that a notice requiring a person to give evidence without identifying the subject-matter about which the evidence is concerned was not a notice within the meaning of s 264(1)(b). The equivalent under s 203 of the POEO Act would be a notice that omitted any reference to attendance being required to answer questions under that section.
56 Consistent with the respondent’s submission, Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited is not authority for the applicant’s propositions. Again, notices under s 264(1)(b) (requiring the production of documents) were in issue. At 525 Gibbs ACJ said that a notice requiring one person to produce documents of another person must show that the documents relate to the income or assessment of a particular person, who must be identified. As Gibbs ACJ noted, this conclusion was similar to that reached by Burt CJ, and was based on the same process of reasoning. Mason J’s reasons (at 536 – 538) also disclose his focus on the substantive limitation on the Commissioner’s power to require production of documents and the importance of the Commissioner’s power to require a person to produce the documents of another. The consequence was that a notice had to confine the documents to be produced to the authorised class thereby drawing the limitation on power to the recipient’s attention. Again, the relevant analogy to a notice under s 203(5) of the POEO Act would be a notice failing to identify that a person’s attendance was required to answer questions under s 203.
57 General Benefits concerned the Australian Securities and Investments Commission Act 1989 (Cth). The Commission had power, by notice in writing, to require the production of specified books relating to nominated matters. Doyle CJ (at [35]) proceeded on the basis that a notice had to “identify the source of the power invoked, and (as is obvious), on the basis that the demand made by the notice must be supported by the power invoked”. He described this as consistent with what Gibbs ACJ said in Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited. At [46] Doyle CJ observed that Gibbs ACJ had upheld the validity of notices that “simply called for the production of documents which answered the relevant description” but did not require the notices to “provide facts or make assertions concerning” that description. This led to the conclusion (at [48]) that it was sufficient for a notice to identify “the documents called for by reference to the characteristic that the section requires they have” but the notice need not “show how that characteristic is established in any particular case”. These conclusions also depend on the substance of the requirements imposed by a notice.
58 Thorson v Pine dealt with the Workplace Relations Act 1996 (Cth). Section 86(1) prescribes that an inspector’s powers may be exercised for certain purposes relating to awards and certified agreements. Under s 86(1A)(c) an inspector, by notice, may require a person to produce a document relevant to the purpose set out in s 86(1). The notice in question referred to s 86 and identified the documents to be produced but nothing more. Marshall J held that as the power was referable to a purpose the notice had to demonstrate, on its face, a purpose referred to in s 86(1). The notice referred to s 86 but disclosed no purpose within that section and hence gave the recipient “no point of reference by which to judge whether the notice validly requires the specified documents to be produced” (at [36]) (reflecting the reasoning in Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581 at 584). There are important points of distinction from the present case. First, the power to question is exercisable without a notice under s 203(1) of the POEO Act. Secondly, s 203(5) is a power to require attendance at a specified place and time to answer questions under s 203(1). Thirdly, failure to comply with a requirement to answer questions is not an offence without a warning on “that” occasion. Finally, the notice in this case clearly discloses its “point of reference” in the first and second paragraphs (the administration and enforcement of national parks legislation having regard to clearing, felling and burning of vegetation on nominated land alleged to contain nominated threatened species and their habitat).
59 Laing v Carroll (2005) 146 FCR 511 considered Thorson v Pine in the context of another section of the Workplace Relations Act. Section 83BH(4) authorises an officer to enter premises and interview persons and require production of documents while in the premises. Failing compliance by a person an officer may, by written notice, require the person to produce the documents within a specified period. Kenny J observed that Thorson v Pine was distinguishable because s 83BH did not require any notice (at [85]). Lander J made similar observations at [181] – [186]. Both stressed that the obligations of an officer are those specified in the empowering statute.
60 The decisions relied on by the applicant are not authority for the proposition that a statutory notice must assert each and every condition on the exercise of power to be valid. Rather, the decisions disclose the importance of: (i) the conditions on the exercise of a power to issue a coercive notice in fact being satisfied, (ii) the notice sufficiently disclosing the “point of reference” for the exercise of the power, and (iii) close attention to the statutory provisions relevant to the particular case.
61 I am satisfied that there is an important difference between powers exercisable other than by written notice (such as s 203(1)) and powers exercisable by notice only (such as s 203(5)). In this case, the notice is for the purpose of attendance at a place and time to answer questions authorised by s 203(1). Section 203(1) does not require an authorised officer to declare to a person their status as such (and s 189(2) indicates to the contrary) or their reasonable suspicion about the person’s state of knowledge before asking questions. Section 212(1) does, however, require a person to be warned on “that occasion” that failure to answer is an offence before any offence may be committed. In this statutory scheme there is no basis to conclude that a notice under s 203(5) must assert the matters referred to by the applicant. To be a notice within the meaning of s 203(5) the notice must sufficiently disclose the source of power being exercised and the “point of reference” for its exercise (and, obviously, specify the time and place for attendance if the recipient does not do so in accordance with s 203(6)). The notice in this case satisfies these requirements.
62 Accordingly, the applicant also has not established its second ground of challenge to the validity of the notice.
Additional declaration
63 The applicant sought a declaration to the effect that the applicant may lawfully comply with the requirement in s 203 of the POEO Act by providing written answers to the respondent’s written questions. Neither party addressed this alternative declaration in terms. It assumes the validity of the notice (which required attendance at a place and time) but then seeks to avoid the very obligation (to attend) the notice imposes. Accordingly, such a declaration cannot be made.
F. Conclusion and orders
64 The applicant has not established either ground of challenge to the validity of the notice. It was open to the respondent to exercise the power under s 203(5) of the POEO Act in the circumstances of the case. The notice is not invalid merely because it does not assert the matters identified by the applicant. My orders are as follows:
(1) The application is dismissed.
(2) The exhibits are returned.
(3) The applicant is ordered to pay the respondent’s costs as agreed or assessed.
(4) If the applicant files a notice of motion within 21 days seeking to be heard in relation to costs, then order (3) is set aside and the motion is to be listed for hearing.
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